MITIGATION IN CHILD

PORNOGRAPHY CASES

FOONGY LEE, SENTENCING MITIGATION

SPECIALIST
MARY VERAL, MSW
OFFICE OF THE FEDERAL PUBLIC DEFENDER
PRESENTED: AUGUST 23, 2015
NOFSW ANNUAL CONFERENCE
WASHINGTON, D.C.
Mitigation in CP Cases
 The Denver Post 11/29/2009

 Federal judges argue for reduced

sentences for child-porn convicts
• BY FELISA CARDONA
THE DENVER POST

 Judges, for the most part, have based their argument

on a belief that some of the defendants who view
child pornography have never molested a child or
posed a risk to the community and may be better
served by treatment rather than
prison.: 11/29/2009
 “Debate rages over severity of child-porn
sentences” USA Today 4/29/2012
 On one side of the debate, many federal judges and
public defenders say repeated moves by Congress to
toughen the penalties over the past 25 years have
badly skewed the guidelines, to the point where
offenders who possess and distribute child
pornography can go to prison for longer than those
who actually rape or sexually abuse a child.
 USA Today article continued

 In a 2010 survey of federal judges by the Sentencing

Commission, about 70% said the proposed ranges of
sentences for possession and receipt of child
pornography were too high. Demonstrating their
displeasure, federal judges issued child porn
sentences below the guidelines 45% of the time in
2010, more than double the rate for all other crimes.
 New York Times, May 21, 2010

 There is little public sympathy for collectors of child

pornography. Yet across the country, an increasing
number of federal judges have come to their defense,
criticizing changes to sentencing laws that have
effectively quadrupled their average prison term over
the last decade.
 Survey of Federal Judges

 According to a survey conducted by the U.S.

Sentencing Commission, federal judges believe that
many child pornography sentences are too long. 71
percent of respondents believed that the mandatory
minimum for receipt of child pornography was too
high. The same holds true for guideline sentences,
with 70 percent of the judges surveyed responding
that the guideline ranges for possession were too
high.
 (2011 Survey by U.S. Sentencing Commission)
 WHY?

 Why are the sentences becoming harsher when the

Federal Courts think they are too high?
Congress
Congress
The Courthouse from the Simpsons
The Court of Public Opinion
 Mandatory Minimums in CP Cases

 CHARGE No prior/ With a prior

 Possession 0 10
 Receipt 5 15
 Distribution 5 15
 Production 15 25
 Advertising 15 25
 Mitigation is Increasingly Difficult

• More Mandatory Minimums

• Clients have more priors
• Judges have heard many of the
arguments
• Definition of distribution has
changed with bad caselaw
Mitigation Work
Mitigation Work
 Mitigation Work

 Need time to build trust with client and

family/support system

 Affect the charging situation with a social history

work up pre-indictment

 Affect the PSI report with a social history and

letters of support

 Records
Record Collection
Records Take Time
 Record Collection – Good Habits

 Get a variety of releases signed right away (even at

the first client meeting)
 Collect Leads
 Think story ideas
 Be guided by curiosity, tenacity, and planning
 CP Social History Themes

 Circumstances of offense conduct (collecting child

pornography)
 History of childhood abuse
(sexual/physical/emotional/neglect)?
 Inappropriate exposure to sex and pornography at
an early age
 Problems with developing sexuality
 Mental illness (depression, anxiety/hoarding)
 Drug addiction (specifically: was the client
collecting because of drug use?)
 Don’t Forget the Positives!!

 Youth
 Old age
 Remorseful, undergoing treatment
 History in a 12 step program
 Significant work history
 Family support
 Limited risk of reoffending
 History as a parent
 Collateral consequences
Working with Experts
 Working with Experts

 Mental Health
 Questions to think about asking your expert:
 Are you seeking a diagnosis?
 Are you seeking a justification/rationalization for why
your client collected CP?
 Possibly substance abuse, hoarding problems

 Recidivism Issues
 Computer Forensics
 Analysis of the contents of the hard drive(s)

 In-house or retained expert

Working with the Client and the Family
 Working with the Client and the Family

 Suspending judgment and focusing on your client

as a whole person
 Helping the client to see the children in the videos
as victims- and helping with the client letter.
 Gathering letters of support from friends and
family
 It is important that they know the conviction
 Filling the court room for the sentencing hearing
 Preparing the client for prison
 Designation and/or supervision/registry
 Know Your Audience

 Is your social history/mitigation going to the AUSA

or the Judge?
 Research the Judge
 Courtlink search for your judge

 Note the differences between CP and touching

offenses
 Review transcripts from other sentencing
hearings
Presentation Ideas
 Presentation Ideas

Remember: Think about your audience.

Examples:
 Social History
 Sentencing Videos (SHOULD WE SHOW ONE??)
 Memos of Interviews
 Pictures
 Help with Letters of Support
 Resources

 Families Against Mandatory Minimums

http://famm.org/wp-content/uploads/2013/09/FS-
Intro-to-Child-Porn-8.22.13-fixed.pdf
 Federal Defender Offices
https://moe.fd.org//Dev_Mitigation.php
 The National Alliance of Sentencing Advocates &
Mitigation Specialists (NASAMS)