Debate rages over severity of child-porn sentences
Doubts are growing within the judiciary about the reasonableness of the sentencing guidelines, as demonstrated by the extent to which judges are refusing to follow them
By David Crary
NEW YORK — Their crimes are so loathsome that some hardened courtroom veterans recoil at viewing the evidence. Yet child-pornography offenders are now the focus of an intense debate within the legal community as to whether the federal sentences they face have become, in many cases, too severe.
By the end of this year, after a review dating to 2009, the U.S. Sentencing Commission plans to release a report that's likely to propose changes to the sentencing guidelines that it oversees. It's a daunting task, given the polarized viewpoints that the commission is weighing.
The issue "is highly charged, both emotionally and politically," said one of the six commissioners, U.S. District Judge Beryl Howell.
On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.
On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency. At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."
"They need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice," the victim said. "I don't believe that short periods of imprisonment will accomplish these things."
Once completed, the Sentencing Commission report will be submitted to Congress, which could shelve it or incorporate its recommendations into new legislation.
Already, the commission has conveyed some concerns. In a 2010 report on mandatory minimum sentences, the commission said the penalties for certain child pornography offenses "may be excessively severe and as a result are being applied inconsistently."
However, similar misgivings voiced by the commission in previous years failed to deter Congress from repeatedly ratcheting up the penalties _ including legislation in 2003 that more than doubled average sentences for child pornography crimes.
Many of the offenses carry a mandatory minimum sentence of five years in prison, and the guidelines call for additional penalties — known as enhancements — based on a range of factors, such as the age of the children depicted in the imagery and whether a computer was used in the crime. As of last year, the median sentence was seven years.
In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.
"The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."
Hoffa doubts Congress will be eager to ease the guidelines.
"If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career," she said in a telephone interview. "It's a political radioactive hot potato."
As a backdrop to the sentencing debate, Internet-based child pornography has proliferated, and the crime is an increasingly high priority for federal law enforcement agents.
According to the Justice Department, federal prosecutors obtained at least 2,713 indictments for sexual exploitation of minors in 2011, up from 1,901 in 2006. This month, the FBI announced that the latest addition to its "Ten Most Wanted Fugitives" is a former elementary school teacher, Eric Justin Toth, who is accused of possessing and producing child pornography.
In testimony to the Sentencing Commission in February, three Justice Department experts said the sentencing guidelines for child pornography should be revised _ not with the overall aim of making them more lenient, but rather to help the courts do a better job of differentiating among offenders and determining appropriate punishment.
"The guideline has not kept pace with technological advancements in both computer media and Internet and software technologies," the DOJ experts said.
As opposed to focusing on the quantity of images collected by an offender, the experts said revised guidelines could take into account the length of time the offender has been involved with child porn, the degree of sophistication of measures taken to avoid detection, and the extent to which the offender communicates as part of a network.
One such network, called Dreamboard, was unraveled by investigators last year. In all, 72 people were charged with participating in an international, members-only Internet club created to trade tens of thousands of images and videos of sexually abused children.
There's one point of agreement in the sentencing debate: All parties agree that penalties should remain severe — or be toughened — for those who produce and promote child pornography.
A key point of contention, by contrast, is the degree to which offenders charged with receipt and possession of child porn pose a risk of physically abusing children themselves, as opposed to looking at images of abuse.
New York-based federal defender Deirdre von Dornum told the Sentencing Commission there's insufficient evidence to prove a strong correlation. Child pornography offenders have a lower recidivism rate than child molesters, she said, and many could be safely monitored via supervised probation.
"Many of these individuals have stable employment, family support, and no prior contact with the criminal justice system," she said. "Punitive terms of imprisonment do nothing but weaken or destroy pro-social influences in their lives."
The Justice Department experts were more skeptical, citing research suggesting that a substantial percentage of child-pornography offenders are pedophiles who either have sexually abused a child or might try to do so.
Von Dornum challenged the premise that tough sentencing would dry up the market for child porn.
"Because child pornography is free, widely available and easy to produce, it is not subject to the normal laws of supply and demand," she said, noting that many countries do not even have laws against it.
She also said the sentencing guidelines contribute to unjust disparities, depending on whether a prosecutor charged a defendant with receipt of child pornography, as well as possession. Under the guidelines, receipt carries a five-year mandatory minimum sentence, but possession has no mandatory minimum.
According to von Dornum, the average sentence for a federal child pornography offense in 2010 was higher than for all other offenses except murder and kidnapping. Indeed, the average was about six months higher than for sexual abuse offenders.
"Yet there is significant political pressure to do nothing but continue to increase penalties for these offenders, the `modern-day untouchables,'" she testified. She urged the commission "to take the difficult step of rising above the politics and fear" and revise the sentencing framework.
Another witness at the February hearing — testifying on behalf of her fellow federal judges in the Judicial Conference of the United States — was Casey Rodgers, chief judge of the Northern District of Florida.
Rodgers stressed that child pornography entails "unspeakable acts by the offenders and unimaginable harm to the child victims."
Nonetheless, she said doubts are growing within the judiciary about the reasonableness of the sentencing guidelines, as demonstrated by the extent to which judges are refusing to follow them and issuing lower sentences.
Rodgers urged the commission to propose repealing the mandatory minimum sentence for receipt of child porn. And she said the guidelines should be revised to help judges better identify which offenders are at greatest risk of committing future sexual abuse of children.
"Lengthy terms of incarceration alone will not adequately address the harms of these offenders," she testified. "Greater reliance on the use of supervised release should be considered."
Troy Stabenow, an assistant federal public defender in Missouri, said the judges' resistance to the sentencing guidelines was "pretty courageous,"
"They're doing it knowing they're likely be lambasted in the media," he said. "They wouldn't be doing it unless they really believe a lot of typical offenders they see are not the menace that people assume they are."
In Congress, some Republicans have voiced dismay at the judges' stance, as evidenced by a recent letter to the Sentencing Commission from Rep. Jim Sensenbrenner, R-Wis., chairman of the House Subcommittee on Crime.
"I am concerned that the federal judiciary is failing to consider the severity of child pornography and its victims," he wrote. "This departure rate is disturbing and threatens the most vulnerable among us, our children."
Among Democrats in Congress, there are numerous critics of mandatory minimum sentences _ for example, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. But members of Leahy's staff doubt there will be any groundswell of support in Congress for easing child-pornography sentences.
One of the few recent rollbacks of sentencing laws came in 2010 when Congress reduced the difference between sentences for crimes committed by crack cocaine and powder cocaine users.
The disparity had been assailed by civil-rights advocates as a form of racial discrimination because most people convicted of crack crimes were black.
There's no equivalent advocacy campaign on behalf of child porn offenders, about 90 percent of whom are white.
"You don't have any built-in sympathy," said Jelani Jefferson Exum, a professor at the University of Toledo College of Law. "Who's going to stand up and say, `I'm fighting for child porn possessors.'"
Susan Howley, public policy director for the National Center for Victims of Crime, has been urging those involved in the debate to keep the victims in mind. She says they face higher risk of developing mental health disorders, sexual dysfunction and substance abuse problems.
"While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available," Howley told the public hearing in February. "Through sentencing we express to society, and to the individual victims and family members harmed, that we recognize the seriousness of this offense."
Copyright 2012 Associated Press
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