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December 2009

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This article is in the news archives --- for current news go to the Third Branch News.


Sentencing Commission Focuses on Punishment for Child Pornography

The U.S. Sentencing Commission recently issued a comprehensive report, “The History of Child Pornography Guidelines,” as a first step in its review of the punishment prescribed for the sexual exploitation of children.

According to the 54-page report, the Commission is conducting “a review of child pornography offenses, and possible promulgation of guideline amendments and/or a report to Congress as a result of such review.” The report also stated that the Commission expects to review how often federal judges depart from the sentencing guidelines for such crimes, compile information on repeat child pornography offenses, and recommend to Congress any statutory changes that may be appropriate.

The Commission has established its review as a “policy priority for the guideline amendment cycle ending May 1, 2010.”

“Congress has demonstrated its continued interest in deterring and punishing child pornography offenses, prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines,” the report said.

It added: “Sentencing courts have also expressed comment on the perceived severity of the child pornography guidelines through increased below-guidelines variance and downward departure rates.”

Child pornography has been a federal crime since Congress enacted the Protection of Children Against Sexual Exploitation Act of 1977. Sentencing guidelines for child pornography convictions have existed since 1987, and have undergone substantial amendments nine times since then.

Most recently, a sentencing guideline revision took effect November 1, 2009, to address a 2008 “morphed image” child pornography law, which makes it a crime to produce or distribute child pornography that is “an adapted or modified depiction of an identifiable minor.” These adapted images morph a non-sexual image of an identifiable child with sexually explicit images. The law carries a maximum penalty of 15 years in prison.

Child pornography is defined in federal law as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”

The legal definition of such offenses also covers situations where “such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”

The Commission’s report is posted on its website, at www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf.