Recent Posts in child pornography Category
| September 16, 2011 |
| How bad are federal sentencing guidelines in child pornography cases? |
| Posted By Shawn Cline |
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This is kind of a loaded question, and the answer is "terrible". I'll explain why, but the take away from this posting is that if you are facing federal child pornography charges, your long-term liberty is at considerable risk.
Let's start by understanding sentencing guidelines. Felony sentencing in Virginia, and Class A misdemeanor and all felony sentencing in the federal courts, are handled through what are called "sentencing guidelines". Prior to 1995 in Virginia and prior to 1984 in the federal system, judges were bound only by statutory maximums and minimums in determining sentences. Since few charges carry mandatory minimums, judges had tremendous discretion in determining sentences. Judges could consider the nature of the offense and the offender's characteristics in deciding a sentence that suited the particular crime. This degree of judicial autonomy was a time honored part of our jurisprudence, dating back to the Magna Carta in England. This system wasn't perfect, and certainly some judges would treat the same offense differently then others, but it was generally accepted as the best option available.
This all changed with the implementation of federal sentencing guidelines in the Sentencing Reform Act of 1984. This act created the U.S. Sentencing Commission and mandated federal guidelines which would take into consideration aggravating and mitigating factors about the offense and the offender, and thereby produce a sentence range. Initially, these guidelines were mandatory, in other words, the judge could not divert upward or downward from the guidelines. However, the Supreme Court held in 2005 in
United States v. Booker that the guidelines were only discretionary, and that while they might provide guidance to the sentencing judge, he was able to depart from them in appropriate cases.
Today virtually ever state has some form of sentencing guidelines, and Virginia is no exception.
The basic premise is to create a more fair criminal justice system by fostering consistency and predictability in sentencing. However, in practical terms, sentencing in federal child pornography possession charges has become consistently outrageous and predictably draconian. I have handled child pornography cases in Virginia and federal courts, and have seen federal guidelines for the same child pornography possession offense calculated at as much as ten times the recommended state guidelines. I have also handled child pornography cases in military courts, where there are no sentencing guidelines at all. Interestingly enough, it has been my experience that military courts typically adjudge the most lenient sentences in these cases, perhaps because the court can consider all the aggravating and mitigating factors without being hamstrung by sentencing guidelines.
There is no question though that federal child pornography possession guidelines are the most severe.
Here's why: Federal sentencing guidelines were designed to be promulgated by the U.S. Sentencing Commission based upon data collected from previous sentences. In other words, the sentencing guidelines did not come directly from Congress, but rather from the Sentencing Commission which was chartered by Congress to produce carefully considered guidelines. However, largely as a result of political pressure, Congress has on numerous occasions directly amended the sentencing guidelines for possession of child pornography to make them considerably worse; all without considering input from the Sentencing Commission. Interestingly, possession of child pornography is the only offense for which Congress has directly amended the guidelines. All other guidelines have been promulgated by the Sentencing Commission, and not directly from Congress.
Predictably, Congress has taken the politically expedient route of making the guidelines for possession of child pornography unbelievably severe. So severe in fact, that in many cases the sentencing guidelines for simple possession of child pornography in the federal system are more severe than the guidelines for having actually engaged in the sexual abuse depicted in the pornography! This result defies belief, but it is a product of Congressional meddling in this complex field, as well as the morbid popularity of shows like "To Catch a Predator".
Here's what Congress has done: It has more than doubled the base offense level for possession of child pornography from 10 in 1991 to 22 in 2011. On top of that, they have added a 2 point increase for use of a computer (virtually all child pornography exchange today occurs online, so this almost always applies). They have added a 5 point increase for distributing images with the "expectation of something of value" (receiving an image from someone else on a peer to peer network qualifies for this increase, so this increase almost always applies). There is a 4 level increase for images depicting bondage or violence, and another 5 level increase for possession of more than 600 images. Because this material is now distributed primarily online, an individual can assemble a collection of more than 600 images in a matter of minutes, and almost invariably this collection will include images depicting bondage or violence, regardless of whether the individual is seeking this type of material. Further, the individual may not have ever viewed or even have been aware of the content of these images, he will still be accountable for these increases in offense level.
The result of this Congressional meddling is that most federal possession of child pornography cases will produce guidelines at or near the statutory maximum of 20 years.
Meanwhile, state guidelines remain considerably more reasonable, although much of that will depend upon how the prosecutor decides to charge the case. This is because each image can constitute a separate charge, so the prosecutor can decide how many charges he wishes to bring based upon the volume of the collection.
If you or someone you love is facing a possession of child pornography charge, contact us right away. Time is of the essence in developing a defense in these types of cases. We handle both state and federal child pornography cases, and are ready to defend you! |
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| September 14, 2011 |
| What is the Virginia Sex Offender Registry? |
| Posted By Shawn Cline |
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One of the most enduring effects of a conviction for a sex crime in Virginia, and really throughout the entire country, is the sex offender registration that follows. Virginia, like most states, maintains an online database of individuals who have been convicted of certain sexual offenses. The registry includes the individual's home and work addresses, their picture, as well as the convictions that triggered registration. Citizens can search this registry with ease, using zip codes as a search term. The registry is maintained by the Virginia State Police, and according to the website, its purpose is to "make information more easily available and accessible, not to warn citizens about any specific individual." That is all well and good, but the practical effect is that individuals on the registry who my have little to no likelihood to reoffend are forced to endure a lifetime of ridicule and harassment. And you can't avoid this scorn simply by leaving the state, as each state requires registration regardless of where the conviction occurred.
Certain offenses trigger registration, and registration is typically a lifetime requirement. However, depending upon the nature of the offense, an individual may petition the Circuit Court for removal from the registry after either 15 or 25 years.
Sex offender registries in Virginia and throughout the country are political gold for politicians. Any measure that seeks to make life more difficult for people convicted of these sorts of offenses is sure to receive widespread approval from voters. What these people fail to understand is that the risk of reoffending in most cases is quite low. Meanwhile, individuals on these registries find it impossible to secure employment and maintain any degree of normalcy.
If you or someone you love is facing a sex charge, you must contact an experienced criminal defense attorney. We handle every type of sex crime, from possession of child pornography to the most serious crimes involving physical contact with minors.
Please call, we are here to help. |
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| June 20, 2011 |
| What are the possible penalties for child pornography charges? |
| Posted By Shawn Cline |
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Possession and distribution of child pornography are some of the most common felony charges that I deal with. Almost without exception, the individual was caught as part of a "catch a predator" type of sting, conducted by either federal or state law enforcement. Depending on the facts of the case, there is much that can be done to defend cases like these, particularly where the individual has not made a confession to law enforcement. When these stings are conducted, the law enforcement officers cannot see the subject of the sting, after all, the police are sitting on a computer somewhere far away from the subject of their investigation. Police rely on subpoenas for information such as the IP address of the subject computer, as well as the name of the host internet provider to attempt to identify who was using the computer when the alleged conduct took place.
These cases are extremely complex, and you must hire an attorney who understands computer forensics. Many very good lawyers are ill-suited to handle a child pornography case, simply because they do not understand the principles behind peer-to-peer networks, which are the primary means of transfer and receipt of child pornography in the internet age. But one thing is not complicated: the potential punishments for child pornography offenses. They are extremely harsh, across the board. Let's take a look.
It may seem patently unfair, but there is a tremendous difference between how child pornography charges are punished in the state versus federal systems. In Virginia, possession of child pornography under 18.2-374.1:1 is a Class 6 Felony, punishable by up to 5 years in the penitentiary. That sounds bad, and it is, but it's even worse when you consider that the Commonwealth's attorney can allege every image as a separate charge! It doesn't take long before the charges add up to a considerable amount of prison time. That being said, it is typical in Virginia to have an actual sentence significantly lower than the maximum punishment, with some portion of the total sentence suspended based upon compliance with judicial orders following release from prison.
As bad as that is, the federal system is far worse. There are several federal statues involving child pornography, but the most common is 18 U.S.C. 2252. This statute carries a possible 20 year sentence for a single count. The difference between the state and federal system is that a single federal count may actually result in a sentence approaching the maximum penalty! The reason for this is that the federal system's sentencing guidelines are typically much more severe than the state system. It is not unusual for an individual's sentencing guidelines in the federal system to come in at three or four times what they would be for the exact same child pornography offense in the state system. I get a lot of questions from clients in both systems wondering why the penalty ranges are so vastly different. I don't have a good answer for this, and frankly it is patently unfair that one defendant gets a sentence drastically longer than the other, simply by having the misfortune of being prosecuted in federal versus state court.
That being said, there are tactical decisions to be made when facing trial in the state court, simply based on the possibility that the feds may take interest in an ongoing state case, and simply take the matter over. This happens quite often, believe it or not, and when it does things have quickly gone from bad to way worse.
The bottom line is that possession and distribution of child pornography are some of the most serious charges you can face in Virginia. You must have an attorney who can handle these charges in both state and federal court, and has done so before. Computer forensics is a complicated field, and most attorneys don't know a thing about peer-to peer networks and the means by which these images are distributed today. Call an attorney who does, and who is ready to fight for you! |
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| April 29, 2011 |
| Is it better to be prosecuted in a military court or a civilian court? |
| Posted By Shawn Cline |
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I get this question fairly regularly, for a couple of reasons. First, because I practice exclusively criminal defense in southeastern Virginia, a large percentage of my clients are military. Second, not many attorneys around here practice in civilian courts as well as military courts, so few attorneys know the differences between the various systems. But the short answer to this question is: "it depends". Clients hate this answer because it sounds like the lawyer is being evasive, but the reality is that it truly does depend, and here is why:
First and foremost, there are certain offenses that are a big deal in the military, but might result in misdemeanor charges and minor penalties in state court. A good example is possession of a controlled substance. In civilian court, these charges often result in placement in the first offender program (if the defendant is eligible), which really is just probation, some classes, and a six month license suspension. On the other hand, in military court possession of controlled substances can easily result in many months in the brig, depending upon the circumstances. That is not to say that jail time is not possible in the civilian side, because it most certainly is, but simply that jail time is a virtual certainty in military court if you are convicted of this offense.
Similarly, if you don't come to work as a civilian, you might get fired. But if you continually don't come to work in the military, you will likely face court-martial, and potentially a long term in the brig. Same goes for disrespecting your boss. This is bad for your career as a civilian, but it can be bad for your freedom in the military. So in this way, there are some offenses that are better heard in civilian court than court martial.
On the other hand, there are other offenses that are much better in the military system. A good example is possession of child pornography. The problem with this offense in the federal and state systems (particularly federal) is that the sentencing guidelines are brutal. They are also somewhat arbitrary. Some prosecutors will charge every image as a separate offense, some will just charge a few and let others slide to keep the sentence reasonable. But the military system has no sentencing guidelines. All the military system has are maximum penalties for each offense. Without sentencing guidelines, an effective defense attorney can get outstanding sentences in military court on child pornography cases; often times just a fraction of what would be imposed in the state or federal system.
There are differences in procedure as well. In military cases, the prosecutor must turn over virtually all the evidence in the case, and must do so early in the process. Civilian discovery (particularly in state court) is far more limited. For this reason, it is much more difficult to anticipate what the prosecutor will do in civilian court.
There are countless other differences, far more than I can explain in this posting. But what should matter to you is that your lawyer understands these differences.
If you are facing criminal charges, and you are in the military, you owe it to yourself to contact an attorney who knows both the civilian and military systems inside and out... and I can tell you that there are few of us around who do. Do your homework, and make sure that you are dealing with a lawyer who can fight for you wherever your charges ultimately end up. Contact us, we are here to help! |
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| April 15, 2011 |
| Child Pornography "To Catch a Predator" Stings |
| Posted By Shawn Cline |
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There was a time when possession and distribution of child pornography was rarely prosecuted because child pornography was part of a secretive sub-culture that dealt in the mailing of actual images of child pornography, often produced in Eastern Europe, to consumers willing to pay top dollar in the United States and elsewhere. There was also a time when people bought CD's at the mall. But the internet changed all that. Suddenly what you used to have to pay good money for became easily accessible and free via the world wide web. As a consequence of technology, many people who would never have had access to child pornography before the advent of the internet found themselves easily accessing it through their home computer.
But if you are doing this, you are going to get caught. Here's how:
Most internet exchange of child pornography occurs through what are called "peer to peer" networks. Peer to peer originated with the now defunct "Napster" network, and has developed through the years to Limewire, Kazaa, Gnutella, and countless others. These networks involve the sharing of digital media (songs, movies, etc.) through the internet. Membership in a peer to peer network requires a user to create what is called a "shared file" on their computer. A shared file is where the peer to peer user makes available some of their own computer files so that other users on the network can download the files to their own computer through the network. In exchange for making your files available for download, you can download a proportional amount of files from other users on the same network. This seems like a harmless arrangement, but there are serious problems with it in terms of your expectation of privacy.
Think of it like this: if you are smoking marijuana in your front yard and a police officer walks by and sees what you are doing, he can arrest you. You have no expectation of privacy in your front yard, so the officer can take action for what he sees you doing in such an open manner. However, if you smoke marijuana in your basement and the officer walks by, he (a) won't know what you are doing, and (b) even if he does, he still needs a warrant to mess with you. That is because you DO have an expectation of privacy in your basement.
Let's return to the peer to peer situation. If you are at home on your computer looking at files on your internal media, like the hard drive, you have an expectation of privacy. Law enforcement can't look into your hard drive without a warrant. But if you place files into the shared drive, then everyone who can download them (i.e. anyone on the peer to peer network), can see them! So you have no expectation of privacy.
Here's where it gets interesting. Every image on the internet (yes, every image), has a unique "hash value". That picture you just posted on facebook? It has a unique hash value. Well, so does every picture of child porn on the internet. You can rename images all day long, but the hash value NEVER CHANGES. The police aren't stupid. They know the hash values of hundreds, if not thousands of known images of child pornography. All they do is run massive searches for hash values of known images of child pornography through the shared files of peer to peer networks looking for matches. When they find matches, they identify the IP address (unique to the computer) of the user, and get a warrant. Then they come to your house, seize all electronic media, and arrest you.
So you see, it is exceedingly easy to get caught if you are looking at child pornography. It is a virtual certainty. But if it has happened to you, or someone you love, contact us immediately! The stakes are high, and you must hire an attorney who understands this complex area of criminal defense, and is ready to fight for you! |
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