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Understanding federal sentencing for possessing child pornography

In 2012, the federal government released its Child Pornography Report, which analyzed those who had been sentenced following a conviction on nonproduction child pornography charges. The report focused only on those convicted of possessing, receiving and/or distributing child pornography, with a follow-up report analyzing sentencing guidelines for those responsible for actually producing the material. 

Report’s findings 

The 2012 report examined sentencing guidelines along with disparities in sentencing of convicted offenders. After the passing of the PROTECT Act of 2003, many nonproduction offenders experienced the same sentencing that was intended to apply to only the most serious of offenses. The 2012 report also discovered that there were marked differences and little consistency in the charging practices and subsequent conviction and sentencing of various child pornography-related offenses. 

As such, the Commission responsible for the report recommended that sentencing guidelines for nonproduction offenders should be revised to consider the following when imposing a sentence on those convicted: 

  • Content of the child pornography and the offenders collecting behavior 
  • The degree of involvement the offender had with other offenders, particularly online 
  • The offender’s involvement in sexually exploitative or abusive conduct toward children 

The Commission suggested Congress pass legislation to give the Commission the authority to amend the guidelines to more adequately address and account for the recommendations. So far, Congress has not acted on the recommendations. As such, those convicted of non-production child pornography offenses face the same potential sentencing as those who actually product the material. This, of course, has far-reaching effects for those convicted. 

Another report released in June 2021 examines the statistics of child pornography-related offenses through the 2019 fiscal year. Of the more than 70,000 federal offenders sentenced in 2019, 1,340 of those were nonproduction child pornography offenders. The report goes on to state that those who commit more serious offenses are sentenced in a manner more consistent with the applicable guidelines, and it gives more recommendations for sentencing guidelines for nonproduction offenders based on a number of factors. However, until Congress implements the recommendations to its child pornography sentencing guidelines, those charged and convicted of nonproduction-related charges may face hard sentencing. As such, an accused individual will want to work with a criminal defense attorney who has extensive experience in handling child pornography cases.  

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