By the Numbers: Federal Child Pornography Convictions Across the U.S.

Tracking the numbers of federal child pornography convictions across the country isn`t easy. Federal prosecutors are given broad discretion in what charges to bring (or not bring), and what charges to drop in order to induce a guilty plea. They also control, to an extent, the final sentence by the type of charges they file.

Below are the raw data from the U.S. Sentencing Commission`s (USSC) 2021 Report, Federal Sentencing of Child Pornography Non-Production Offenses (that is, offenders who didn`t take the pictures but only distributed, received, or possessed them). The data highlights the trends and disparities in federal non-production child pornography convictions across the states.

Where Were the Most Federal Non-Production Child Pornography Convictions?

Top 5 states with the most federal child pornography convictions:
Texas (116)
Florida (96)
Missouri (85)
New York (82)
California (71)

Top 5 federal circuits with the most federal child pornography convictions:
Ninth Circuit (221)
Eighth Circuit (188)
Fourth & Fifth Circuits (147 each)
Sixth Circuit (111)

The states and territories within each federal circuit are:

First: Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island Second: Connecticut, New York, Vermont
Third: Delaware, New Jersey, Pennsylvania, U.S. Virgin Islands Fourth: Maryland, North Carolina, South Carolina, Virginia, West Virginia Fifth: Louisiana, Mississippi, Texas
Sixth: Kentucky, Michigan, Ohio, Tennessee
Seventh: Illinois, Indiana, Wisconsin
Eighth: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
Ninth: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, N. Mariana Islands, Oregon, Washington Tenth: Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming Eleventh: Alabama, Florida, Georgia
D.C. Circuit: Washington, DC

Top 5 federal districts with the most federal child pornography convictions:
Eastern Dist. of Virginia
Middle Dist. of Florida
Western Dist. of Missouri
Southern Dist. of Florida
Eastern Dist. of Missouri

Where Were the Least Federal Non-Production Child Pornography Convictions?

Top 5 states with the least federal child pornography convictions:
Hawaii (1)
New Hampshire (2)
Delaware (4)
Vermont & North Dakota (5 each)
Connecticut & Alaska (6 each)

Top 5 federal circuits with the least federal child pornography convictions:
D.C. Circuit (7)
First Circuit (42)
Third Circuit (74)
Seventh & Tenth Circuits (85 each)
Second Circuit (93)

Most Common Federal Non-Production Child Pornography Convictions by Offense Type

Top 3 non-production child pornography offenses:

Distribution (625)
Possession (569)
Receipt (146)

Federal circuit with the most non-production child pornography distribution convictions:
Ninth Circuit (106)

Federal circuit with the most non-production child pornography possession convictions:
Ninth Circuit (106)

Federal circuit with the most non-production child pornography receipt convictions:
Eighth Circuit (28)

Repeat Offenders

Top 5 states with the most repeat offender sustaining a federal non-production child pornography conviction:
Missouri (16)
Minnesota (11)
Illinois & California (9 each)
Indiana, Michigan, & Ohio (6 each)
Texas & Utah (5 each)

Note: These are offenders who had any kind of prior sex offense in a state, federal, or foreign court, no matter how long ago it was.

Federal circuit with the most repeat offenders in non-production child pornography cases:
Eighth Circuit (15 out of 63 repeat offenders nationwide)

Federal district with the most repeat offenders in non-production child pornography cases:
Dist. of Minnesota (9)

Federal circuit with the most repeat offenders in possession-only child pornography cases:
Eighth Circuit (22)

First-Time Offenders

Overall, there were 1146 first-time offenders for federal non-production child pornography convictions (out of 1,340 convictions).

Top 5 states with first-time offenders in federal non-production child pornography convictions:
Texas (111)
Florida (90)
Missouri (69)
New York (66)
California (61)

Federal circuit with the most first-time offenders for distribution of child pornography convictions (the harshest offense):
Ninth Circuit (88)

Much more can be found in the USSC`s June 2021 report, found here.

 

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USSC Report Highlights Problems with Sentencing in Child Porn Cases

If Congress wants to complain that federal judges are “too lenient” on child pornography offenders, it may want to take a look at a recent report by the U.S. Sentencing Commission (USSC) for some answers.

The Report, titled Federal Sentencing of Child Pornography Non-Production Offenses, was released in June 2021 and is nearly identical to the USSC`s 2012 report on sentencing in child pornography cases, continuing to criticize the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), enacted by Congress in 2003 to curb sex offenses by imposing long prison sentences.

The PROTECT Act, the Report re-emphasized, was the first and only time that Congress directly amended the U.S. Sentencing Guidelines (USSG), over the USSC`s objections, adding numerous enhancements to increase the recommended sentencing range for child pornography offenses. The law also directed the USSC not to undo any of the changes Congress made to the child pornography guidelines.

The Report analyzed child pornography data for non-production offenses and addressed the following areas.

The Typical Child Pornography Offender

The typical federal child pornography offender, the Report says, is a 41 year-old college-educated white male who`s never been in trouble. More specifically, over 80% of offenders were white, compared to just 19% of offenders in other federal crimes. And over half were college-educated, compared to only 20% for other federal offenses.

Comparing Child Pornography Offenses

The Report focused on three separate non-production child pornography offenses — Possession, distribution, and receipt — and the guideline that`s used to craft a recommended sentencing range for each, USSG sec 2G2.2. The Report noted that possession and receipt are “materially identical,” but the base offense level for receipt is four levels higher than possession (18 versus 22). All three offenses are subject to the same enhancements, which often ratchets up the sentence for even first-time offenders.

The big difference in this Report, compared to the 2012 Report, is that distribution cases have far exceeded possession cases. The Report says this is because of a change in charging practices by the government, pushing for higher sentences, since distribution and receipt charges carry a mandatory minimum five-year sentence but possession does not. This gives federal judges less discretion in sentencing child pornography offenders. This charging practice changed in 2011, with receipt and distribution charges exceeding possession charges year after year.

Enhancements for Child Pornography Sentencing

The enhancements for federal child pornography sentencing was the area of focus in the USSC`s Report. The most common enhancements applying to all cases for the three offenses were:

Victim age less than 12: 96%
Sadistic or masochistic content: 78 to 90%
Use of a computer: 96%
More than 600 images: 87 to 97%

These enhancements, the Report says, increased the recommended sentencing range to well above the base offense level for the offense in nearly all of the cases. The Report cites improvements in technology that have largely been the driver of these enhancements and Congress` failure to take this into consideration. For example, the average number of images involved in a typical possession case was 2,350 in 2019, thanks to increased and affordable computer storage devices, meaning almost every case received the maximum enhancement for possessing more than 600 images.

Child Pornography Sentencing Trends

Child pornography sentencing trends in the federal courts have steadily pulled away from the child pornography sentencing guideline, USSC sec 2G2.2, with judges routinely handing out lower sentences than what the Guidelines recommend.

Non-production child pornography cases had the lowest rate of “within-Guidelines” sentences, year after year, the Report said. Only 39.6% of the time judges imposed a within-Guidelines sentence in a child pornography case. The rest of the time offenders were handed sentences well below the recommended range under USSG sec 2G2.2. This was due to two factors: Judges disregarding USSG sec 2G2.2`s recommended sentencing range, and the government asking for a lower sentence. Sometimes it was both.

The minimum recommended sentence under the USSG for non-production offenses has risen from 98 months in 2005 to 136 months in 2019. However, the actual average sentence imposed by judges has remained about the same: 91 months in 2005 and 103 months in 2019.

The Huge Disparity in Child Pornography Sentencing

The problem with the huge disparity in federal child pornography sentencing was summed up best in the Report:

As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.

The report cited the disparities by offense type, each offense using the same guideline calculation with a widely different sentence imposed:

Possession: Probation to 228 months
Receipt: 37 months to 180 months
Distribution: One month to 240 months

Recidivism of Child Pornography Offenders

 

Despite the popular belief that child pornography offenders almost always commit another sex offense, the Report shows this is not true. Of the 1,340 child pornography offenders sentenced under USSG sec 2G2.2, 14.5% were repeat offenders, having had at least one prior qualifying sex offense to enhance their sentence. However, the USSC found that child pornography offenders were arrested for a new sex offense 4.3% of the time, and a non-sexual offense 16% of the time.

 

IN CONCLUSION, the Report unsurprisingly found that USSG sec 2G2.2 “fails to distinguish adequately between more and less severe offenders,” and that the enhancements for child pornography offenses have become “so ubiquitous that they now apply in the vast majority of cases.” Wrapping up the Report, the USSC repeated what it said in its 2012 Report: USSC sec 2G2.2 “no longer effectively differentiates among offenders in terms of either the seriousness of the offense or culpability of the offender.”

Long Child Pornography Sentences Just Don’t Work

Did you know that long prison sentences don’t really deter crime? Researchers found that threatening people with long prison sentences does very little to deter them from committing a crime. And a National Institute of Justice report found this to be true. “Research shows that the chance of being caught is vastly more effective than even draconian punishment,” the report says, citing numerous studies that have found the same. See nij.ojp.gov

What Works to Prevent Child Pornography Crimes?

So what does work to prevent child pornography crimes? As those researchers said, an increased risk of being caught has a big effect on someone’s decision not to commit a crime. Fear of getting caught works, but fear of going to prison doesn’t. Yet, lawmakers keep increasing prison sentences for certain crimes, saying that’s what’s needed to stop people from breaking the law. Did they not get the memo that it doesn’t work? It’s insanity.

Look at child pornography sentences. By far, child pornography is the most common federal sex offense. With the expansion of internet access, child pornography offenses have continued to track upward, blowing past all other sex offenses. So, what did Congress do in response? It jacked up the sentences for child pornography offenses, in most cases doubling them, and then mandated that judges impose those ineffective sentences. Instead of some reasonable time in prison plus some treatment, now child pornography offenders are given decades in prison, even for first-time offenses. As federal judge Jack Weinstein noted, federal child pornography offenders often receive sentences higher than what murderers get. See NYTimes.com: Defiantly, Jack Weinstein Rules in Child Pornography Case (Jan. 14, 2011)

Have these longer sentences stopped or even reduced child pornography offenses? Not at all. It wasn’t even a bump in the road. Let’s look at the numbers. According to the National Center for Missing and Exploited Children, in 1998 they received 3,000 reports of child pornography activity by internet service providers (ISPs) on their systems. In 2014, that number shot up to 1 million. By 2018, the number of cybertips received by NCMEC exploded to 18.4 million, involving over 45 million images and videos. In 2020, 21.7 million cybertips were received, involving more than 65 million images and videos of child pornography. (Note: ISPs are required by law to report any child pornography activity they find on their systems to the NCMEC. 18 U.S.C. § 2258A.)

Treatment for Child Pornography Offenders Works

With the federal prisons already overwhelmed with the tens of thousands of prisoners serving long sentences for child pornography, where would the feds put all those millions of supposed child pornography offenders? That’s if they could bust them all (which they can’t). They couldn’t even handle locking up 1% of them with the resources they currently have. No, it’s not good that so many people are dabbling in child pornography. So maybe taking a look at why they’re messing with this stuff would be a better idea.

Forgive me for comparing drugs and child pornography, because so many people have done so, but it seems like we’re on the same destructive path as the failed “war on drugs.” That’s when lawmakers kept bumping up prison sentences for drug crimes in an attempt to stop drug offenses, and the federal prison population exploded with people serving long sentences. Did this reduce drug crimes? Not at all. They actually keep going up, just like the child pornography crimes noted above.

Finally, the attitude shifted from “lock ’em up and throw away the key” to “let’s get them some treatment.” It only took about 30 years to figure out that long sentences didn’t work to deter drug crimes. Child pornography offenses, on the other hand, are more difficult. No politician wants to be seen as “soft” on sex crimes. That is, no politician has the guts to say that being “tough” (i.e., imposing long sentences) on sex crimes isn’t working.

The Feds Allow Child Pornography Crimes to Keep Going to Net Longer Sentences

The point of criminal laws is to deter crime. So why do the feds allow child pornography offenses to continue to thrive online without taking steps to shut it down when they find it? Remember the “Playpen” child pornography disaster a few years ago? That’s where the FBI took over a major child pornography server and left it running while hundreds of thousands of users downloaded and uploaded child pornography to it. More specifically, over 215,000 users accessed child pornography on the Playpen website after the FBI took over the site at the end of 2014 into 2015. They arrested 956 people but only obtained convictions in a handful of those cases. That’s it.

It’s clear the FBI cannot handle the masses of people dealing in child pornography on just that one website, and there are countless websites out there like the Playpen website.

What’s currently being done just isn’t working. That’s obvious. Sure, increasing the chance of getting caught would deter some child pornography offenders. But that’s only if they knew they were being watched. Unfortunately, the FBI and other federal agencies operate in stealth mode so they can catch as many child pornography offenders as possible. They’ll let people upload and download child pornography for months, never saying a word until they’ve got enough to hit them with so many charges that it all but ensures a guilty plea and lengthy prison sentence.

But isn’t this supposed to be about preventing child pornography offenses? The FBI has instead turned busting child pornography offenders into a game: How long can we let this go on until there’s enough charges to really slam this guy? Never mind that the victims’ images are being spread across the internet by the minute.

Let People Know They’re Being Watched

Long child pornography sentences don’t work to prevent these crimes. That much is clear. What works is increasing the odds of getting caught. So what would that look like? When the FBI took over the Playpen website, it infected these hundreds of thousands of users with malware which reported the user’s information back to the FBI. In short, it secretly infected people’s computers with a virus. Again, this was the stealth mode in which the FBI operates.

But what if the FBI simply gave notice that it was watching everyone who accessed Playpen’s website? Since most child pornography offenders talk to each other (that’s how sources of material are made known), word of the FBI busting one of the biggest child porn rings would have spread like wildfire. Oddly, that would have been very effective, according to the experts who have researched this stuff. But the FBI did the opposite. It’s hard to take the government seriously when it says it wants to stop child pornography when it does the exact opposite of what experts say would work in this effort. That’s insanity.

What Can Child Pornography Defendants Do to Get a Fair Sentence?

If you were to argue to a judge that long child pornography sentences don’t work, you’ll get nowhere. They’ve heard it before. While deterrence is one factor, and judges point to long sentences as a deterrence to others, it’s just one factor under 18 U.S.C. § 3553(a) that a judge must consider at sentencing. Another factor is the need for rehabilitation. Studies consistently show that sex offender treatment greatly reduces the chance of reoffending. Defendants should obtain an evaluation by a recognized sex-offender psychologist to show the court that there’s already minimal risk of re-offense, even before treatment. Couple that with the reports showing treatment reduces that risk even more, and you’ve got a good start at convincing the judge that a long sentence is not needed in your case.

Why Child Pornography Sentences are Harsh

Sentences for child pornography offenses in the federal courts have skyrocketed over the last decade. While child pornography offenses are not “victimless” crimes, the punishment hardly fits the crime anymore. Even the U.S. Sentencing Commission (USSC) says the sentences are too much! Yet, judges keep sentencing child pornography defendants to decades in prison, even in non-production and non-contact offenses.

WHY ARE THE FEDERAL COURTS SO HARSH WITH CHILD PORN SENTENCING?

The problem starts with Congress. They’re the ones who make the laws that prosecutors enforce, and that federal judges must follow, when it comes to child pornography sentencing. One of the harshest child pornography laws enacted by Congress was the PROTECT Act, which mandated stricter punishments for child pornography offenses. Enacted on April 30, 2003, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act sharply increased the statutory penalties for child pornography offenses. It was also the first and only time that Congress directly changed the U.S. Sentencing Guidelines (USSG), and it was despite the USSC’s forceful argument that no evidence showed these changes were needed. In response to the USSC’s criticism, Congress also enacted a provision that forbids the USSC from undoing any of the changes Congress made to the child pornography guidelines.

When all of the enhancements that Congress added to the child pornography guidelines under USSG 2G.2.2 are added up, the sentencing range for nearly all non-production child pornography cases is always near — or even over — the statutory maximum for the offense. And because judges typically impose a sentence within the guidelines to avoid reversal if the government appeals, the decades-long sentences for first-time offenders are usually upheld. In my book, “Worse Than a Murderer: Doing Time as a Sex Offender,” I provide a full explanation of the problems the PROTECT Act has caused with the child pornography guidelines, and the changing attitudes of judges toward the senseless changes made by Congress.

BUT THEY WERE ONLY PICTURES!

Arguing that the child pornography images and videos found on your computer were “only pictures” won’t work. It might even make things worse. Prosecutors and victim advocacy groups have been pushing to change the term “child pornography” to “child sexual abuse material.” They say the pictures are really evidence of a crime — the sexual abuse of a minor — and not merely harmless pictures. Judges have also reasoned that if the demand for child pornography went away then the child pornography producers would stop. Those are some strong arguments.

Instead, a better way to argue for a lesser sentence in a child pornography case is to convince the court that the harsh punishment isn’t necessary. This is called “mitigation” and involves several methods, some better than others, and each case is unique. The first thing you and your lawyer should do is hire an expert to review the evidence. Sometimes child pornography isn’t child porn at all. The government might lump together many pictures without analyzing all of them, usually just based on the file names. File sharing program users may have named the pictures after a popular child pornography series, such as the “Vicky” series, in order to get people to download them. But the pictures may not have anything to do with the Vicky child pornography series at all. And a nude child doesn’t automatically mean “child pornography.” A defense expert will help sort this out.

Another method of mitigating your sentencing exposure if by getting a psychological evaluation and doing some pre-trial sex offender counseling. A sex offender treatment specialist may find that you are a low risk for recidivism (i.e., at risk of committing another sex offense), and a shorter sentence coupled with treatment would be a better option for you. Judges make decisions based on evidence, and a psychological evaluation is strong evidence that could sway the judge’s opinion. In “Worse Than a Murderer: Doing Time as a Sex Offender,” I go into detail on how these psychological evaluations work and what to expect.

I’M NOT A MONSTER!

No, you’re not a monster. Child pornography offenders are usually respectable citizens and rarely fit the mold of the stereotypical “creepy” guy in the white van by the school. Those convicted of child pornography crimes include firemen, lawyers, doctors, pastors, and even the cops who are tasked with preventing such crimes. But if you listen to the prosecutor in your case, you’re the worst dirt bag in the world and you deserve to be locked up forever. Remember, the prosecutor’s job is to make you look like a monster, because it’s easier to severely punish someone we see as less than human and unlike us.

This is where all those people who still think you’re a good guy need to step up and write letters to the judge, asking for mercy on you. These “good-guy” letters can shift the judge’s opinion of you. All the judge has to go by without hearing from people on your side is the presentence report (PSI), which outlines all your bad acts and tells the judge why you need a long prison sentence. These supporters also need to show up in court whenever you have a hearing to show that you have lots of support, despite your offense. The judge will even let some of them speak at the sentencing hearing. But not everyone gets to speak. A supportive employer will carry more weight than your own mother. Think about that.

YOU GET TO SPEAK IN COURT

Before the court imposes a sentence on you in a child pornography case, you get to say something to try and convince the judge to go easy. This is called “allocution” and it’s your “right to be heard.” The point of allocution is to take responsibility for your offense and to show remorse. It’s a difficult thing to do, even for experienced public speakers. You must work closely with your lawyer on allocution, if you choose to speak (you don’t have to). Make it count, because you don’t get a do-over. I provide some examples of allocution techniques that have worked, and some that have backfired, in my book Insider’s Guide: Doing Time as a Sex Offender.

 

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