Harsh Sentences for Child Pornography
Child pornography convictions range from state court misdemeanors to federal court five-year mandatory minimums for first time offenders or fifteen-year mandatory minimums for defendants with a prior. Otherwise innocent people, who simply download child pornography on to their computer from the Internet, are getting more time in federal court than people committing the pornographic acts would receive in state court. The final outcome of any particular case involving child pornography frequently depends upon the defense attorney’s knowledge and skill in both federal and state court.
California Penal Code Section 311 prohibits possession and distribution of child pornography and also sexual exploitation of children. Convictions for these offenses can “wobble” down to misdemeanors or result in up to six years in state prison even for first time offenders. Even misdemeanor convictions can result in mandatory sex offender registration.
Federal prosecutions for child pornography tend to bring even harsher sentences. Simple possession can result in up to ten years in federal prison for a first offense or up to twenty years with a prior conviction for a wide range of crimes. That’s just for possessing an image of a person under age 18 found to be pornographic, a simple photograph for example.
Most cases involve computers, and most images were downloaded from the Internet. In federal court, downloading an image is called “receipt” and is punished just like “distribution” under 18 U.S.C. § 2252A(a)(2) or 18 U.S.C. § 2252(a)(2). Even first time federal offenders are subject to a five-year mandatory minimum sentences in federal prison for just downloading or distributing child pornography. With a prior, downloading “receipt” or distribution of child pornography carries a fifteen year mandatory minimum federal prison sentence up to forty years. Simple “sexting” can result in convictions for these offenses.
Once charged in federal court, detention is presumed, and if you are released pretrial, you must submit to electronic monitoring. 18 U.S.C. § 3142(c)(1)(B).
In either state or federal court your attorney should get disclosure of results and reports of computer forensic testing including reports of software program used by law enforcement. Your attorney should also learn about any surveillance of your computer over the internet. Every image has a hash mark, and law enforcement uses programs that grab known images out of cyberspace and trace them back to sending and receiving computers. After that, law enforcement is watching what you are watching in real time, sometimes.
Even sentencing law software developers, like this blog’s author, hire computer experts to forensically examine hard drives looking for defenses regarding:
Adult pornography
File sharing
Viruses, trojans and malware
Downloader identity
File storage location: accessible or unallocated
Timing of access, transmittal and import
Storage
A little mischief can result in a lot of trouble when it comes to pornography. Make sure you get an attorney who zealously defends you and your liberty.