Computer Crimes Child Pornography Sentencing Guidelines

Demystify the guidelines;

Quick example; Here is how the federal system started punishing for the number of images somebody has. This is representative Sensin Burner, Head of the House, Judicial Committee. He had somebody working for him. Alright now this person working for him had a pipelined introduced into any legislation he wanted. And Representative Sensin Burner is not a fan of judges and he is not a fan of the Defense Bar. But Jay Apperson did not go to him. He went to Representative Tom Feeny to propose that senate child pornography sentences should be jacked up. This is Tom Feeny. This is the picture he used to have on his own website as a Congressman.

Alright, now this is a cheerleader from the University of Central Florida. Why do I put this on the screen? Because at the time Jay Apperson went to Tom Feeny and said lets jack up child pornography and computer crimes sentences. The sum total of the representatives’ entire legislative history in congress was that he has introduced a measure to recognize the cheerleaders of the University of Central Florida alright. Now God bless the University of Central Florida cheerleaders but I don’t think that’s a good indicator that the Representative was looking at this issue very deeply and he wants and he wasn’t. He later admitted, “no I’m not on the judicial committee, I don’t know anything about this”.

This guy Apperson showed up and said – like literally wrote something on a napkin and said, “would you introduce this tomorrow as an addendum to the Amber alert bill” and so I did. That’s how we get higher sentences. Alright. That is the congressional findings that are driving sentences in the federal system and in the State system. Alright! And so we want to attack those sorts of things. You don’t have to do this. Here is what you do. You go to ft.org I have got 2 articles on this and a bunch of samp — different types of sample sentencing memos. You cut and you paste. Alright, that’s it. That’s all you need to do.

Alright, so the judges, after I wrote this article in 2008, it circulated really fast and they started discussing it. And it made its way. It peculated up into case opinions in every circuit. Alright! And by the time they did a study on it a year later, it was with crack cocaine, which is now been legislatively changed. The number one issue where the judges said these sentences are just crazy. Alright, so now we are getting away from the judge happened to feel like he is a loner or being able to say judge thousands of other judges have this concern. Alright! So are we getting there. Are we getting any change? Well in the federal system we went from way low percentage now upto 58% of sentences below the guidelines. Now it’s even higher than that. They are saying it is 78.8% of the 2,000 plus cases that the sentencing commission examined last year. In some way, either they are plead bargaining or the judge fixing it. We’re below the recommended punishment range. Because the judges figured out this is nuts. Now, that’s not because judges are crazy whacko liberals who want to send everybody home with a pat on the back. They are varying less than 5% of the time on drug possession cases. Alright! So, we still have some judges out there who are going to say that’s great, the outlines just don’t make sense but he’s still a perv and pervs are going to prison in my court. So what do we do for those judges?

Okay! Alright. And now this is what the prosecutors do. They come in and are like no. I’m not saying he was going to molest somebody tonight. But did you look at the pictures. Okay. Let’s talk. I mean, I can’t say for certain he was going to take the next step. But Judge. Alright, so how do we fight that? Well the big tool in the prosecutors tool belt is this stupid thing called the Butner Redux study. Alright. They went in and got some offenders in federal prison on child pornography offenses and according to the study author, they started off with 54 inmates who reported 53 physical contacts. And by the end of the study, they had 131 inmates who had reported 1477 contact offenses involving children. Implication, if you catch somebody for child porn, it’s really AL Capone. Get him for what you can get him for and punish him for what you really know what they did. Now, here is the problem. If I want to get published in the Springer Journal of Family Violence, all I got to do is pay them $3k, $5k if I want, $4500 if I want color tables. Okay!

There was no pure review of any kind. And I have talked to people who went to this study. Now, they had $13k inmates who could have qualified at the time in the federal system. Ahmm and they chose these 131 and how did they do it. Well let’s pretend, for those of you who are experienced with the department of corrections or the bureau of prisons or something, this is a big pretend. Let’s pretend the wardens used common sense. Okay. Now are they going to send the worst offenders who are there for life? No. Are they going to send their child pornography defendants who are run of the mill?

No. You’re going to send the guy who has all sets of red flags but you can’t quite find a way to keep him in prison. Those people go off to Butler, North Carolina and they get together in it, “oh its reunion”. I’m here for child pornography, you’re here for child… so comfortable. I’m welcome here I’m not an alien to everyone here around me anymore. And then they have little meetings. And in order to stay in the program, you had to give fresh disclosures each week. But they were none binding. You didn’t have to give any factual detail. And it couldn’t be used against you. So let me.. I have a choice — okay. I can disclose something new this week or not — I can say, “well I haven’t done anything else” and you will send me back to terror hold Indiana where the guards will let everybody know that I flunked out of the sex offender treatment program. Alright! I’m Sorry. There was another one that happened a long time ago…I don’t want to talk about it because I have my cookie now. Okay like. That’s the level of science here.

Alright and so they came out with this study and they circulated it to judges all over the country, and we only found out about it because some Judge told the defender but they sent it to all the judges privately. And then they weren’t introducing it into cases they didn’t need to, the judge already has this background knowledge about how sex offenders are! Alright! So you want to figure out what your judge knows. Alright! But the United States sentencing commission and a bunch of experts have come back and said this is all hokey. Well sentencing commission hasn’t completely said it’s hokey, they’ve said, certain experts say this is hokey. Now here’s why you care about the federal system for those of you who aren’t in it.

The sentencing commission just came out with a… I think it’s a 390 pages plus appendixes report on child pornography offenses. Because I wrote my article in 2008, a bunch of judges wrote repenions. The sentencing commission had to respond. The variance rate spiked and all of a sudden they were looking bad. And they were trying to defend their funding because the sentencing commission is under scrutiny. So they come out with this massive report saying, “Hey congress, please let us change the guidelines”. Here’s where we are with the science and what they’re doing is a grand study of like 2,500 child pornography cases, and then they’re going to give all the statistics of what they think it shows to congress. Congress will make factual findings on that and that will lock you in regardless of whether you’re in a federal case. So, what are they saying? Well they are saying social science research has not established that viewing child pornography causes offender — offenders to progress to other sex offending. Now I’ll tell you something here, this is very much a double edge sword. Study after study has actually shown that when pornography is available, people commit fewer assaults.

Sex assaults, rapes everything else. This is totally countered to what people expected. As different Countries came online with pornography, Denmark, Holland, The United States, they expected the amount of rapes to rise and it went down okay! Now the reason that’s a double edged sword is because that means that the prosecutor could say, “Well you could take away his child porn, he’ll go to the real thing”. Right? So I’m just telling you, be careful with the studies but you need to be aware of them. There is at least good studies that say, it doesn’t cause you to move on to these other actions. What else? Recidivism. Everybody just knows these guys just can’t be cured. Right? Now I’ll be honest. I’m happily married. My wife is beautiful woman. But, if suddenly if all you nut jobs came back and changed the rules of the United States and made it punishable by a term in prison for me to be attracted to my wife, I’d say whatever you wanted me to say. Dogs? oh yeah habba habba. I mean like oh. Whatever I got to say to not got to prison right? It’s not going to change my underlying attraction to my wife.

But, if I knew I could go to prison for 20 years for touching my wife, I might be very careful about having any physical contact with my wife as much as I love her and I’m attracted to her. The same thing is true with these offenders with their findings actually child pornography offenders, tend to be remarkably compliant on supervision. Very few problems. Very low recidivism right of any kind. Let alone of sexual offenses and even when it is a sex offender recidivism a lot of times it’s just looking at more pictures. By the way I want to go back to that Butner study for second. Remember how I told you it was all these contact offenses. If a guy looked at a picture of child pornography and masturbated, that was a contact offense because he was having physical contact with himself sexually, in regards to the idea of being with a child. Alright? So we got to be very careful about definitions in these cases.

Alright. Here’s some other great findings for us. Peer. Who knows what peer to peer networks are? Alright? This is how everybody gets child pornography these days. Hey you go online and you download a song. You go online to download a movie. If you don’t, your kids do. Alright? Or their kids do. And it’s free and the descriptions are only accurate about half the time. And what a lot of people do they is they just grab 50 files and hit download and whichever one downloads first, that’s the one they masturbate to! Okay! And the others are there in their files, they haven’t even opened them. And when you sit down with your friends and examine and you’ll see that’s frequently true. They haven’t even looked at some of the files that they are downloading or they have downloaded. Here’s the thing! As they are downloading a file, the default setting now on all the file sharing software that is commonly used, is to seed or re-distribute those little packets they’ve got. So they’ve got only 3% of this file they of 5 year old that daddy, downloaded that they think is named you know XXX hardcore porn but somebody else is already downloading for or getting from them that little 3%. So, not only they are a possessor and a receiver, they’re also a distributor alright. And what’s really perverse is that if I type something on the air.

Let’s say I wanted to look at child pornography and I type on the internet, does anybody know where to get child pornography? And I get some. The government can charge me with possession up to 10 years, they can charge me with receipt 5 to 20, they can charge me with distribution 5 to 20 but has a higher punishment advised or they can charge me with posting and advertisement soliciting child pornography 15 to 30. Okay. That’s a lot of strength and power in the prosecutor’s hands. But the sentencing commission says, “no no this is actually normal now. Not unusual behavior”. And if you check out the second article I put out last year, I’ll give you all sorts of statistics and science or what they say.. actually you know what?, ”we fully expect now everybody’s going to have a picture of somebody under 12 and a picture with bondage and a picture with all these other things that are supposed to prove that they are the worst of the worst”. As the Judge observed in the Grober case in New Jersey, it’s a peculiar way to me that in over a 100 child pornography cases the FBI describes every single offender as the worst I have ever seen. Alright, and I worked with Ken Lanning who is a profiler for the FBI.

He’s retired he is now on private practice and will gladly charge you $30k to come work on your case. Okay. Now what Ken Lanning says, — Who here has heard like this problem gets worse every year? The images are younger and more violent than ever. Who has heard this? Okay! He heard that for the first time in 1974. I saw images of infants in the 1990s. Let me assure you, it’s not getting any more violent or young than a 3yr old being raped to death. So that’s a lie. And the sentencing commission can help you debunk that. So what’s the real science? This is the hostel and saws example they go through and they say look. Generally, what generally the client your getting is the low hanging fruit. Easy to discover on the — literally the detective gets on and goes, child pornography or twink or little Lolita or something like that and sees the people sharing those files, looks at one, yep that’s child porn. Looks at their I.P address, goes and gets his subpoena and next afternoon they go to the guys house and he confesses. That’s how tough these crimes are.

And it gets some nice bucks from Washington to feed and fund their local police departments. Alright! But this real science is saying hey these guys are not the problem, lots of people look without acting. Alright! and there is all sorts of studies on how all this works. The bottom line is, if you get one of these cases, look into it. Alright.

And now we want to provide them, the judge the principle. We say, judge, the guidelines are crazy, the science we can’t hide all these congressional findings is totally bogus, use the computer example, about only criminals being on the internet secret technology. Even judges are in on the internet okay? And these common assumptions are not backed by science – science says the opposite. So what sentence should you give my client?

This is this is what it’s your job to show the judge.. It’s like this this little tiny sliver of their life doesn’t prove what they’re like. Case in point, another case I had last — 3 years ago now. I’m told I’m on a child pornography. I’m told on a Friday afternoon at 4 o’clock. We’ve just chosen a couple of pictures — sample pictures to show the judge on Monday at 8:00AM. Surprise – surprise!, I can tell by looking at the desk, by just looking at the mega data, the disk had been burned 2 years earlier and they just chosen the night before to tell me. Oh why? I told my computer examiner – first thing Monday morning – go to the lab because you know they don’t give you a copy of this stuff – go to the lab – look at these pictures – in particular look at picture #6. This is bogus. There’s something about this that rubs me wrong. So, we get in there and their person takes then says like, “here are sample representative photos, and they show the 5 first ones”. I mean because what am I going to do – stand up and say, but judge, look at these 2000 others – they are not nearly as bad right – I mean – like, I’m not going to do that. The judge will shoot me if I did.

And then the prosecutor says, “is there anything unusual about this final picture?” Yes!. The final picture is not.. is not child pornography. It’s a cute little girl 4 to 5 years old in her panties. Right? With a big smile on her face. And the prosecutor says “what’s special about this”? *sighs* it’s his daughter. Implication — Next step, Right? So my investigator came in – it’s just like my cousin Vinny. He comes into the court room, I give him the like – save me! – he gives me the nod. I put him up on the stand I said, “is there anything unusual about picture #6 to you?” He goes like sure is. He says “this is one of a collection of 50 pictures that was taken on that daughter’s first day as she prepared to go to kindergarten for the first time. And those pictures were taken 3 weeks after our client was arrested and put in jail by the government. And they were taken by the mom and they are part of a whole collection of photographing and documenting that first day at school. Alright! They were getting sneaky on us. Alright?

So, how are we going to set our starting point? We’ll set our starting point by talking about what our client really did. Not what we’re scared what he would do? Like what and in what other system do we do this. We do it with child pornography.. alright! I know nobody here has smoked a joint, but, probably one or two have a friend who has smoked a joint in their lives. And if you could go back and collect the evidence of every joint that friend has smoked since 1972, it would make them look like a pretty substantial marijuana distributor. The same this is true here.

Alright? So let’s…let’s get a good comparison. Now I’m a parent of 4 little girls — I’m going to give you 2 defendants. Defendant #1 sits in his basement, sweaty and feisty and drinking his mountain dew and watching his porn 6 hours a day and he looks at pictures of little girls. Does he concern me? Well yeah—ofcourse—I’m a parent of 4 little girls – he concerns me. The other guy gets in a car in New York to come meet a girl in San Antonio, who he’s persuaded that they ought to have a relationship with. Now they are different physical ages but look, in his defense, they are the same soul age.

Okay! Alright! So he’s coming down here to meet up with her for sex and he has – you know like – some flowers and a box of condoms and he gets the texts and he goes hmm hmm what am I doing with the flowers? Wrong demography! He throws them out of the window and gets a happy meal from McDonalds – and he goes on to meet the girl, and they catch him in the driveway, dateline style. Who’s a bigger worry to me? The guy who looked at the pictures or the guy who’s going to actually molest my kid? Alright! Well the molester. So let’s look at his sentence of the molesters going to get 10 years then my clients got to get a lot less than that or if the prosecutor’s whole general deterrence theory is going to be believed, then what will the message of general deterrence be would be don’t look at pictures, go molest. Right? Because that gets you less time. Alright! So let’s do that comparison. What next? let’s put them on the spectrum. Let’s talk about our guys. Most systems treat one picture of bondage to the same way as 50 thousand pictures of bondage. Let’s look at context okay. You client had a 1,000 pictures of child pornography but he had 473k pictures of voluptuous brunettes between the ages of 20 and 50 alright? Is this guy much of a worry? Probably not — Let’s talk about the download spectrum. Everybody talks about the market for child pornography. Alright! you’re going to love this! Can anybody throw out a number?.. how much money you think is made worldwide in the child pornography market each year?

It might be as much as 20 billion. Alright? This is what the department of justice is saying for years. Where did they get that figure? Nobody knows. Apparently they said, well maybe as much as 10% of the population looks at this stuff and they were each willing to pay $19.95 a month. It would add up this way. Here’s what I know. The worldwide market for child pornography is valued higher than Hollywood’s profit per year internationally for all the movies, DVDs and blue rays they sell and show in theatres. I’m guessing Hollywood’s more profitable, alright. So it’s all hokey. And the other thing is the market idea fails anyway. I went to George Town. I was an idiot. I overpaid for my education. Okay? and I had to take 8 semesters of economics. And we talked about supply and demand and everything. One of the things is, as a supplier, I don’t fulfill your demand unless I know of your demand.

So, if I sneak in the library in the middle of the night because I’m – I live in Jefferson City Missouri, a small town. And I sneak in the library because the windows open and I crawl and I pull up a Steven King book off the shelf and I’m like it —wooh this is kind of scary – this is kind of scary – and then I get to the end and I’m like – an alien spider? That’s lame. And I put it back on the bookshelf and leave. Have I done anything to influence Steven King to make more books? No. He hasn’t gotten royalties. He hasn’t gotten profit. He hasn’t gotten the little egotistical buzz of having me being a fan of his – of his material. The library doesn’t know to get any more books. As far as they know. Nobody reads that book, okay! It’s the same thing is true on peer to peer networks. Generally, if somebody takes something of a peer to peer network, nobody else will know it was taken. Right? It doesn’t require any production to reproduce it. So it does nothing to impact the world market for child pornography. So defuse that argument. And then we discuss personal variances. I have a sample sentencing memo for every single one of these scenarios.

Somebody who is old–somebody who is young, somebody who is sophisticated somebody who is not sophisticated. Somebody who is going to get his ass whooped in prison. Somebody who is going to get raped in prison, somebody who was victimized, as a child, all of those things come to me – I have a sample memo for you. Alright – and then you get an evaluation for your client. Almost all of these guys are going to come back as very low level danger to re-offend. Alright? You get an evaluation. If you don’t like it, you don’t give it to the court. Okay? I’ve had that happen but generally it’s very helpful. And you watch out for their evaluations. I had a guy come in and my evaluator said, “Hey this guys of low risk to offend”. The Government evaluator sent me a report and here is almost forbade him how it read. I get to the first 11 pages. It’s all fine and dandy, just like my guys report. Final paragraph, “I find, that there is a not insignificant risk that on this individual is released from prison, he will immediately kidnap a child, molest them and for fear of discovery murder the child and commit suicide”. Wooaah! where the hell did that come from? And the expert wouldn’t talk to me. So, I put him up on the stand and I said “did you ever see the movie jaws” and he said well sure I did. I said, I got to be honest, I’m from Iowa originally. We don’t have any sharks in Iowa. But when I go swimming in the pool in the wii — If they turn the pool lights off, I get [inaudible] I saw jaws when I was a kid you know. And I watched it again as a teenager and again as an adult. I just have visions of this mouth grab you know – the tug under.

Now – is that logical? No. But we all talk to our children about being scared of sharks or lightening. How many of us tell our kids every night, be careful as you go put on your clothes. 2,000 people a year die from tripping and falling as they go to put on their clothes. Well none of us do that. Even though the only one person world wide a year is killed with sharks, we value them differently because we value them emotionally. Do you agree with that and the doctor said, “sure”. I said, “so, give me statistical probability on this guy:”. He goes, “wohh I can’t”. Here is the thing. One out of 10 or 20 offenders might do what I said in this evaluation and for that family it would be the ultimate tragedy. So let’s say, not insignificant risk that this guy might be one and that one in 20 thousand. And the judge just snorted. Now the judge has perspective to go — this is nuts – alright so you always watch out for that stuff. And you get your expert to look at all these different risk factors and everything.

The literature is great. I can feed it all to you. All you have to – I’m an office of one. So all you have to do is contact me – I will feed you the information if you can’t find it on our website. Alright, and finally, you can tell the judge. Judge – in 5 minutes you don’t have to guess whether this guy’s dangerous – you don’t and you shouldn’t. Here’s the deal. In our systems now when these guys get out – do you think it’s the last time they will look into their lives. No. they have civil commitment hearings now, they have lifetime supervision – they have all sorts of unbelievable conditions and supervision – they can yank them back to prison. So the judge – you don’t have to do this to the people who will have to watch them for the next 20 years will be deciding they need more attention. And guess what – if they do, they’re likely to come back to you to authorize it. Alright? now this –this is Jefferson City, Missoura.

That’s where the official schools are. That’s where every place that hires teenagers. Yes. So my clients, with a conviction can live in the Missoura River. And that’s where they can go if they can get a condition that they can’t go where children frequent. That’s where they can go. Alright? So just because you’re fixated on the prison sentence, don’t forget to litigate the conditions. Make a record about everything, I had a judge who said. We got into a fine discussion and he goes, “well your client has looked at child pornography two times in libraries”. So he will not be allowed into libraries. And I said – oh judge – prison libraries? Oh God dammit Steveno – you know what I mean. Church libraries judge? You’re going to deny him Jesus Christ his Savior? Oh my God! God dammit Steveno! He throws a pen at me. He goes – no libraries – appeal it. He goes – he is not going to be allowed to have any erotic material.

And I said – what if a scented candle reminds him of his first sexual experience? Oh God!! I said – “look judge, I’m happily married but I’m also a soldier. You sent me to Afghanistan for 6 months and JC Penny’s lingerie section starts to become erotic material okay”. Like even time magazines little ad about going to the Bahamas and there’s a beautiful woman sitting on the beach, becomes erotic material. Oh God dammit Steveno, appeal me. So we did and we won. You litigate this stuff. And you argue over stuff the judge wants to do. The judge is going to want to say, ”well, we’re going to give him polygraph testing on his sexual offender counseling”. You say, “ok judge we have no objection to that if you put a condition in there that nothing he says during the polygraph testing can be used against him”. Well why would I do that? Because here is why, Otherwise I’m going to tell all 100 of my clients – say a little as possible – stand on your 5th amendment rights – hide – disobey whenever you can – don’t respond to this. And you’re going to have no clue this guy’s dangerous, that guy’s dangerous but that guy’s not dangerous and she’s not dangerous whatever.

Alright? Or – you can tell them to be honest and they will give better quality counseling and it will be tailored to their needs – and for that 1 or 2 people in a 100 who we really have to worry about—okay! you can’t use what you said against them and you will have a clear idea of who they are and you’re going to turn to your supervision staff and say that, “dude, you follow him around everywhere he goes. Okay?” And the judge is, in my experience, when you explain it to him that way – they’re like – that makes a lot of sense. And so they’ll go along with it. So you litigate the heck out of the stuff as well. Alright.. other talking points. This applies more to some other offences that you talk about plead bargaining disparities, different statements, public statements – like the attorney general has said – it makes no sense to you as a number or images enhancement to figure out whether a guy is bad or not.

In my experience, the people who have a very few images are the really sophisticated people who knew how to clear their data cache each day. The people who have a gob of stuff, are the people who have been doing it for a day. I know we’re a little bit over – I’ll be done with in another 2 minutes. Uhm one of the first things I did when I was a supervising prosecutor of 8 people in Germany, when I put them on the first child pornography case for the first time, is, I would sit them down with a laptop and I’d say, “surf porn. Legal porn. But surf porn for an hour. Surf. Go away. Look whatever you want to look at it – if its guys holding tires with a little –you know – smudge or some oil on their cheek – if it’s a woman laying on the beach you know, tugging at her bikini – whatever – just go look. Keep it legal but have fun”. Alright. And they would go look. I’d say delete everything. Alright, how much do you have on your computer? Errmm I don’t know – I have looked at a 100 pictures or so. And we’d run a forensic analysis to their computer and inevitably would have something like 37k images on their computer. Because they would go to those thumbnail gallery sites which has 500 thumbnails and you click on a thumbnail and it opens up 50 more and go nah that’s not what I want. X out of it. That’s not what I want!

Francisco Hernandez

Author Francisco Hernandez

More posts by Francisco Hernandez