Sex crimes involving children – both “active” crimes like pedophilia and “passive” ones like viewing lewd pictures of children – are among the most reviled and stigmatized in the criminal justice system. They are also among the most severely punished; federal sentencing guidelines and enhancements often result in a defendant convicted of a run-of-the-mill child pornography charge spending far more time in prison than someone who had committed murder or actually sexually abused a child.

The disparity in sentencing relative to the severity of the crime involved has sparked some defense attorneys, judges around the country, and the United States Sentencing Commission (an agency of the United States Department of Justice) to publicly call for sentencing reform or widespread deviation from federal sentencing guideline recommendations for child pornography cases. Most commonly mentioned in arguments to change the sentencing provisions is Federal Sentencing Guideline § 2G2.2, which allows for the lion’s share of enhancements for child sex offenses.

Why Should Child Pornography Laws Be Reformed?

At several points over the years, the sentencing for child pornography charges have been raised, most recently by the Prosecutorial Remedies and Tools Against Exploitation of Children Today (PROTECT) Act of 2003. That law gave prosecutors more leeway when seeking enhanced punishments and judges more opportunities for upward deviations from the minimum federal sentencing guidelines for crimes involving the sexual exploitation of children.

That law provided for enhancements to be issued to using a computer or other technology to view, possess or exchange images of children nude or involved in lewd acts as well as for being caught with more than 600 images of material classified as child pornography.

The problem with both of those areas of punishment enhancement is that nearly all child pornography cases prosecuted in this digital age involve the transmission or receipt of images via email, website sharing, or portable media storage devices, thus guaranteeing that almost every offender will qualify for a sentence range at or above the statutory maximum. Having every defendant face the maximum statutory penalty flies in the face of the purpose of having enhancements; enhancements are designed to punish the most egregious of offenders, not simply guarantee that every single possession offense results in the defendant facing more severe consequences than the average murderer, rapist or bank robber.

How Should the Federal Child Pornography Law Be Modified?

Needless to say, criminal defense attorneys are rightfully upset about the fact that enhancements fly in the face of the spirit of the sentencing guidelines for child pornography possession charges. The use of a computer can add two levels of enhancement to a criminal conviction for a child pornography-related charge; even for a first-time offender, this can result in a sentencing recommendation that far exceeds the statutory maximum.

Advocates for change argue that the law as it stands now is archaic at best, unconstitutional at worst since it can easily lead to disparate punishments for otherwise equal levels of culpability. The current enhancement structure could also result in a far lesser punishment for someone who actually creates the improper material instead of one who merely receives it. The law assigns an enhancement based solely on the number of illicit images possessed – if a defendant is alleged to have possessed 600 or more pieces of child pornography, he or she is subject to a five-level increase.

An article written by Marcia Shein for the National Association of Criminal Defense Lawyers’ “The Champion” illustrates the point that 600 images may sound like a huge number, but in reality, that number could be found in a single email with eight video clips since the 2004 PROTECT Act determined that one pornographic video is equal to a minimum of 75 separate images.

The Future of Federal Sentencing Guidelines

It is likely that trends will dictate changes to the child pornography statutes, and particularly to the federal sentence structure that governs them, but change will likely be slow. Regardless of the punishment involved, child pornography or exploitation charges come not only with legal ramifications but also with a possible battle in the court of public opinion.

Oftentimes people accused of these crimes are both tried and convicted in the media before they step foot in the courtroom, possibly tainting any jury pool long before a trial. For that and many other reasons, anyone facing child sex-related charges must fight aggressively; a skilled criminal defense attorney can be a huge advantage for both the legal and public battles a defendant will endure.