By Zachary Margulis-Ohnuma
The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex offense cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:
The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their child pornography attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.
The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:
As the chart shows, ten years ago average sentences were just a bit below the Guidelines. But the Guidelines sentences kept increasing even as the actual sentences stayed the same at around 100 months, or nearly three years below the Guidelines. Of course, these numbers are national averages and typical child pornography sentences vary widely by court and individual judge.
Some of the Sentencing Commission’s other conclusions are no surprise. Most child porn offenders are U.S. citizens, white, male, and in their late 30s or older with no prior convictions. More than 97 percent of people accused of child pornography offenses end up pleading guilty. People convicted of mandatory minimum offenses almost never got out from under the minimum sentence by providing “substantial assistance” to the government. The relief rate in 2016 for child porn offenses was only 2.3 percent, as compared to 38.7 percent for federal defendants overall. In other words, it was nearly impossible to benefit from cooperating in child pornography cases.
One last interesting graphic. This one shows the number of child pornography cases by judicial district. While denser districts tend to have more cases, there are a few rural standouts like Minnesota and Western Missouri. Do places like that really have more people downloading child pornography than, say, the Southern District of New York, with its vastly larger population? Almost certainly not. Child pornography is common on the internet and accessible anywhere: the differences between the districts are explained by enforcement priorities. Law enforcement in New York, by and large, is plenty busy with other kinds of cases. So the map title is misleading. The chart does not show the distribution of child pornography offenders; it shows the distribution of child pornography prosecutions.