Society looks down on child sex crimes, so federal prosecutors leverage that attitude to their advantage. Federal law is not only unjustly harsh, but it’s open to broad interpretation so prosecutors can hand down tough sentences look good to the public for doing their jobs, and hopefully climb the ladder to the next position.
Simply viewing child pornography can get you a 5-20 year federal prison sentence. But, if you have one of many various prior convictions (such as ones for child porn distribution or possession, or any other sex crime conviction), they can enhance that sentence to 15-40 years.
So, get convicted on two separate occasions for possessing 10-20 child porn images, and you can spend half your life in prison.
Families Against Mandatory Minimum sentences reports child porn sentences have increased 500% over the last 15 years. Believe it or not, while viewing child porn carries a minimum sentence of 5 years, possessing it has no minimum at all.
We’re not saying that if you’re guilty of a child porn crime you shouldn’t be punished. But on the other hand, fair is fair, right? You should get a fair punishment for your actions. This country was originally founded due in part to the British crown’s absolute power to do practically whatever they wanted to other people, even if they weren’t necessarily guilty of a crime.
Take a look at a few realistic scenarios to see how this law causes outrageous and unfair punishments:
- A high-school boy over 18 sexting images of his under-18 girlfriend qualifies as child porn production and distribution (5 years minimum)
- A 20-year-old man makes a home video of consensual sex with his 17-year-old girlfriend, stores it on his computer with her knowledge, but doesn’t share it. He’s guilty of child porn production (5 years minimum).
- One violation can be charged under several different statutes. For example, you can be convicted with receipt and transport of the same child porn image.
In 2010, federal prosecution for child porn doubled in Texas and the entire nation. And in 2010, the Federal Government prosecuted more people for child porn possession than bank fraud.
Where Most Child Porn Crimes Happen
Of course, most child porn crime happens on the internet. Specifically, they happen using one of the many free file-sharing programs available.
Another user has a shared folder. They place child porn images in that folder. You download those images. That’s one way you get in trouble. Or, federal authorities sign up as users and try to find shared child porn folders other users have made available.
Since the Federal Government’s so overzealous for prosecuting child porn crimes, and since the laws are open to application, they try to get you for as much as they can (“overcharging”).
There are questions about the application of the “transport” aspect of child porn sentencing. Courts have found conflicting legal outcomes in regard to child porn transportation.
In United States v. Husmann (2014), the defendant had federal agents find two file sharing programs, a child porn video, and child porn images. The still images found were in “shared” folders for the respective file-sharing programs.
Initially, Husmann was convicted of three counts of child porn distribution and one count of possession of child porn. However, the distribution charges got overturned because, while the images could have been distributed from their shared folders, no evidence was found that anyone actually downloaded the images.
However, federal courts found the exact opposite in United States v. Budziak in 2012.
Federal agents recovered 52 child porn images traced back to the defendant’s IP address. They got a search warrant for his computer, which was confiscated during the search. The search revealed multiple child porn images and videos in a shared folder.
The defendant received a conviction on one count of child porn possession and two counts of child porn distribution.
The defendant appealed the distribution charges on the grounds that the government showed no affirmative action in the transfer of child porn. In other words, simply passively possessing child porn wasn’t enough to qualify for child porn distribution charges.
However, the 9th Circuit upheld the distribution conviction. This was based on the fact that:
- Agents got images off the defendant’s computer two separate times
- Multiple child porn images existed in his shared folder
- Evidence showed the defendant knew the file sharing program allowed others to access his child porn images (usually the clinching fact in situations like these)
Possible Sentences This Could Result In
The Federal Government’s goal is to put you in prison as long as possible. That makes judges, prosecutors, and agents look good to the public. So, they’re going to find every way they can to lengthen your sentence.
In the case of transporting and possessing the same image, or images, you can get 10 years in prison. That maximum climbs up to 20 years if the images include a child under 12.
On top of that, if you’ve been previously convicted in any state in the United States of:
- Aggravated sexual assault
- Sexual abuse
- Abusive sexual conduct
…And if any of those crimes involved a minor, you can get a maximum of 20 years for the very same crime.
This also applies if you’ve been previously convicted of the production, possession, receipt, mailing, sale or distribution of child porn. And, your sentence actually increases. You will get at least 10 years in prison, but no more than 20.
It’s Why an Attorney Experienced in Possession and Distribution of Child Porn Images Makes Sense
The fed wants to get you on every technicality possible, and they will. But if you have a criminal defense attorney experienced in defending these types of charges on your side, you give yourself the best chance possible of avoiding or eliminating an unfairly long prison sentence.