Light Terms for Child Porn Blasted

Walnut Creek - San Francisco Child Pornography Defense Lawyer

Advisory guidelines spark changes.

Amanda Bronstad/Staff reporter
January 9, 2007

Los Angeles-Prosecutors in several states are criticizing judges for issuing lenient sentences in child pornography cases at a time when legislators are seeking to raise penalties.

The change in sentencing follows two recent U.S. Supreme Court rulings that found mandatory sentencing guidelines to be unconstitutional. The rulings made the Federal Sentencing Guidelines advisory, rather than mandatory.

In an unusual attack against the judiciary, the U.S. attorney for New Jersey, Christopher Christie, recently criticized federal judges for imposing sentences of probation to three years in child pornography cases.

"Our judiciary needs to understand: These are not victimless crimes, these are not just poor, disturbed people," he said during an October 2006 news conference about a nationwide pornography sweep. "If anybody sat and looked at these images, they would never, ever let anyone who's involved in looking at these images or creating these images off easily."

U.S. Attorney General Alberto Gonzales has made similar arguments about the images in pleading to state legislators to change their child pornography laws from misdemeanors to felonies. Kentucky and Colorado did so last year.

Drew Oosterbaan, chief of the child exploitation and obscenity section of the U.S. Department of Justice, agreed that judges in federal child pornography possession cases, in general, are imposing sentences below the Federal Sentencing Guidelines.

"This is a crime not well understood by judges, and it's difficult for prosecutors to make a case for it," he said. "If you don't have evidence that the individual is producing child pornography, or distributing it, you have him collecting images."

He said possessing child pornography warrants stiff sentences because it creates a demand that leads to more egregious cases of abuse.

Among the solutions, he said, is to impose a mandatory minimum sentence for possession of child pornography, find more victims to provide written statements during sentencing and educate judges to the severity of the images in question. Even now, it's hard to get judges to look at the pornography, he said.

Some states are moving toward tougher child pornography penalties.

In California, a ballot initiative passed by voters in November 2006 and a bill that became law in September stopped short of labeling possession of child pornography a straight felony by calling it a "wobbler," which allows prosecutors to charge either a felony or misdemeanor.

In April, Kentucky passed a law that moves possession of child pornography from a misdemeanor crime to a felony. Colorado passed a similar law in June.

'The lightest felony'

Four states-Iowa, Maine, North Dakota and Oregon-still consider possession of child pornography a misdemeanor, said Grier Weeks, executive director of the National Association to Protect Children, who testified before a congressional committee last year in calling for stricter laws.

Other state legislators have considered possession of child pornography "the lightest felony there is-the equivalent of cockfighting or illegal beach bingo," Weeks said.

Summer Stephan, chief of the sex crimes and stalking division of the San Diego County District Attorney's Office, said child pornography cases were difficult to prosecute under California's previous law, which classified possession of child pornography as a misdemeanor.

Under that law, those convicted of possessing child pornography usually spent about three months in jail, she said.

"The problem with that is, most of the time when you catch people with child pornography you catch them personally in possession of child pornography," she said. "To prove they're also distributing it is a hard burden."

Further, she said, "we know from study after study that child pornography is a big gateway to people, actual pedophiles, acting out their pedophilia."

Defense attorneys and public defenders say that lighter sentences are reasonable, especially given that many cases involve first-time offenders with professional jobs who have never been accused of harming a child.

Seth Chazin, a defense attorney at the Law Offices of Seth P. Chazin in Albany, Calif., said he recently had a client facing possession charges who claimed he did not know he had child pornography on his computer. The case was recently dismissed.

"It's not worthy of incarcerating people for years at a time by the simple possession of this material, which some would argue is a First Amendment issue," he said. "A lot of these people are people with no prior record, they're 40, 50 or 60 years old, usually men, totally law-abiding people. The question is: Is it appropriate to put somebody in prison for two to three years at a time on their first offense?"

Another 'Booker' effect

Some judges are asking the same question. But federal prosecutors said a significant number of judges are issuing sentences below the guidelines since the Supreme Court issued its rulings in U.S. v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004).

Michael Drewniak, a spokesman for the U.S. Attorney's Office for the District of New Jersey, confirmed Christie's recent remarks critical of the judiciary but declined to comment further.

One defense lawyer, Robert DeGroot of the Law Offices of Robert DeGroot in Newark, N.J., acknowledged that most judges have consistently issued sentences below the Federal Sentencing Guidelines. But those sentences are more reasonable, he said.

"Judges don't want to follow the guidelines," he said. "If someone is an occasional viewer, and they're viewing something that's passed on and many times viewed before, judges look at it and say, 'We're really putting the scarlet letter on this person,' " especially since most defendants have mental health problems or personality disorders.

He said defense attorneys in other districts have received similarly reduced sentences for their clients, particularly those in urban areas.

Many prosecutors said the more lenient sentences are especially prevalent in cases involving possession of child pornography, one of the most common charges brought in child-exploitation cases. Other charges include receipt and distribution of child pornography, which involve the downloading and e-mailing of images to others.

Jennifer Corbet, assistant U.S. attorney and coordinator of the Crimes Against Children program for the Central District of California, said the biggest challenge in child pornography cases is obtaining sentences at or above the government's recommendation.

She said that by the time sentencing comes around, the case focuses on the defendant and his childhood, his depression or other mitigating factors.

"That's part of the problem," she said of prosecuting child pornography crimes. "They've been voiceless victims."

She said one recent idea has been to encourage victims to provide a written statement that could be used during sentencing.

Mitigating factors

Jonathan Mastrangelo, who joined as counsel to the Washington office of White & Case in February 2006 after several years as a prosecutor at the U.S. attorney's office in Maryland, said defendants in child pornography cases have more mitigating factors than other criminals, such as drug dealers, because they often have professional careers, a stable family and no prior criminal record.

Most cases during his tenure ended with sentences of 30 months to three years, the lowest end of the sentencing guidelines for possession of child pornography, he said.

"The prosecutors are stuck arguing the distribution of this material creates the environment which leads people to take the next step," he said. "That's a much harder argument to make; much less compelling."

Last year, Gonzales expressed concern about the perception that cases involving child pornography, including possession of it, are part of a "victimless crime," according to prepared remarks published on the attorney general's Web site.

But Jennifer Brown, a federal public defender in New York, said the sentences the Federal Sentencing Guidelines recommend are "incredibly high" for people who simply possess child pornography but "have no prior conduct, and don't act in a way to produce the materials."

Victor Bakke, a defense lawyer at the Law Offices of Paul Cunney in Honolulu, said one of his clients is on supervised release after receiving an 18-month sentence a few days after the Supreme Court's Booker ruling. The sentence was a 40% reduction from the Federal Sentencing Guidelines, he said, because the judge was swayed by his client's efforts to seek rehabilitation and counseling in the year prior to his sentencing.

"If you have a good client, a sympathetic client, the guidelines are great because the judges can depart lower than they could" before the Booker decision, he said.

In April 2006, the 7th U.S. Circuit Court of Appeals affirmed an 87-month sentence on a man who pleaded guilty to distributing child pornography. The Federal Sentencing Guidelines recommendation for such a crime was 108 to 135 months.

In its ruling, the 7th Circuit noted the district court's finding that the "defendant is not and does not have the appearance of a dirty old man who hangs out at playgrounds, preying on small children." U.S. v. Baker, 445 F.3d 987 (7th Cir. 2006).

Karl Bryning, the assistant federal public defender in the case, said the judge "gave a sentence that was lower than the advisory range because of the mitigation in the case," primarily the testimony of a pastor at his client's church who argued he would not be a danger to the community.

In recent years, Congress has passed stricter laws that require mandatory minimum sentences on more types of child exploitation crimes. The most recent is the Adam Walsh Child Protection and Safety Act of 2006, which was signed into law in July. Among other things, the act raises the mandatory minimum sentence for enticing children to engage in sexual activities.

But possession of child pornography still has no mandatory minimum sentence in federal law.

Contact Seth Chazin if you have questions related to possession of child pornography.Offices located in San Francisco, Berkeley and Walnut Creek, California.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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