Federal Law – Five Year Mandatory Prison For Possession And Trading Child Pornography – Not Including Penalty Enhancements Which Can Drive Sentencing Terms To Life In Prison – State Laws Differ Widely
Under 2017 Federal Mandatory Sentencing Guidelines, possession and trading child pornography with others carries a mandatory minimum prison sentence of five years. Penalty enhancements, including the nature and number of photos or videos, can bring the mandatory sentence beyond 50 years in federal prison. Individual State laws differ substantially and are much lower than federal penalties.
Unfortunately, child pornography has become a multi-billion dollar criminal syndicate and is one of the fastest growing crimes in the nation. Child pornography is some of the most severe penalties for crimes.
Federal And State Prosecution
Being prosecuted on child pornography charges first by the state and then by the federal government has been held to not violate the rule against double jeopardy – better defined as being charged and convicted for the same crime or set of crimes more then once, even if the first trial resulted in a complete acquittal of the charges.
Possession of child pornography is a growing national and local problem. People convicted of child pornography often come from a wide spectrum of economic, social, and educational backgrounds.
Child pornography can be legally defined as the intentional exploitation or sexual abuse perpetrated against a child under the age of 18. The crime of child pornography depicts the sexual abuse of a child through any medium – especially the Internet.
There are many different ways a person can be charged with violating child pornography laws. It includes possession of child pornography for personal use, distribution, or sale of the material. It can also include criminal allegations relative to conspiracy and racketeering depending on the factual allegations being made by the prosecution.
Child Pornography Sentencing Guidelines
Sample Federal Guidelines For Possession And Trading In Child Pornography:
§2G2.2. Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor
(a) Base Offense Level:
(1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b), § 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7).
(2) 22, otherwise.
(b) Specific Offense Characteristics
(1) If (A) subsection (a)(2) applies; (B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.
(2) If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels.
(3) (Apply the greatest) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5levels.
(B) Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels.
(E) Distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in subdivisions (A) through (E), increase by 2 levels.
(4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.
(5) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.
(6) If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.
(7) If the offense involved—
(A) at least 10 images, but fewer than 150, increase by 2 levels;
(B) at least 150 images, but fewer than 300, increase by 3 levels;
(C) at least 300 images, but fewer than 600, increase by 4 levels; and
(D) 600 or more images, increase by 5 levels.
(c) Cross Reference
(1) If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, apply §2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), if the resulting offense level is greater than that determined above.