Child Porn Sentencing At Issue

The Wall Street Journal today reports on a developing issue in sentencing law: are child porn consumers being sentenced disproportionately high?

Justice Department data, referred to somewhat inaptly by the Journal, lumps viewers of child porn with those who distribute it. In the group of those convicted of possessing, receiving or distributing child porn, the average sentence now is 80 months in prison. In 1997, the average sentence was about 25 months.

The rise in sentences has been matched by a huge increase in the number of child porn and other child-exploitation cases. Internet crime itself has vastly grown as the Internet has become more ubiquitous worldwide, and so has awareness of the crimes being committed. Child porn itself has only been a crime since 1990.

Some see an unfair disparity in the U.S. Sentencing Guidelines recommended sentences for those who view child porn and online predators who seek to engage in sex with children encountered in chat rooms. Of course, these are commonly the same people. But those who have not engaged in predatory behavior routinely receive enhanced sentences because of the sheer quantity of child porn materials they possess — it is commonplace for defendants to have huge collections of images and videos depicting sex acts being performed on children.

Sharing and receiving child porn is easier to catch, of course, than predatory behavior. Predators are typically caught after they try to go after a victim who turns out to have been an undercover agent. Not every chat room has an undercover, and not every predator picks out the undercover in the room. Subpoenas and data analysis, however, can lead to web sites and fserve locations where vast collections of child porn are stored and distributed. Monitoring the traffic of those sites can provide the IP addresses of those who downloaded or uploaded files. That leads to search warrants on homes, offices and computers, turning up the usually sizeable collections ultimately charged.

Not all images are going to be slam-dunk child porn. The prosecution must prove that an image really is pornographic, that it is a real photo or video and not simply PhotoShopped, and that it really depicts a child as opposed to someone who merely looks young. So prosecutors tend to bring cases against offenders with large quantities of photos, to make it easier to cull out a number of clear examples of child porn. Those with fewer photos, who thus don’t merit a sentence enhancement, are less likely to be charged in the first place, as prosecutors focus their resources on the strongest cases.

So it is unclear that there is an unfair disparity in sentencing. Mere possession may only have a base sentence of 5 years, as opposed to 10 years for the predator. But those most likely to be caught, and those most likely to be prosecuted, are the ones who are beyond the pale and for whom the Guidelines require enhanced sentences.

Readers are invited to comment.