Families of SOs Community Group
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Hello,
My 20-year-old son was arrested about a week ago on charges of child pornography, both viewing and distributing (through a sharing file). It is very serious as they say he already has five counts and is expected to have more charges, He is currently in prison. His father (we're not together) and I decided not to bail him out because we are afraid that he will harm himself (he has been severely depressed for a long time) or run. Also we believe that time served in the small prison he is in will be better than the conditions at the state prison.
My heart is broken for my son. He has had a very difficult life but others stand in judgement of him. He is adopted and has suffered two additional abandonments (one when I was hospitalized for 3 months with severe depression) and finally, the effects of a terrible divorce following a 20-year marriage.
In addition, at about age 14, he began telling us that he was molested by an older boy when he was 7. More details have come out in the last year but it is hard to know if his mind is remembering things correctly. At 12, he began self-medicating with drugs and alcohol and was a full-fledged addict by about 14. He spent time in substance abuse programs, halfway houses and overdosed four times. Finally, at 19, his father brought him home to live with his grandmother. He did well there, remaining clean for 18 months, going to AA, etc. But he did not have a job and was extremely isolated at home with his grandmother. We now know that he sometime during that period at his grandmother's, he began viewing child pornography.
I know that my son committed a crime and must pay the consequences. However, it is hard for me to believe that the molestation, his mood disorder, his addiction (I think he just traded one addiction for another) and the isolation he experienced did not contribute in a major way to his foray into the world of child pornography..
All of the above either contribute to, or are a result of mental illness. Yet, I do not believe for a moment, that any of it will be taken into account. I do not believe he will receive the help he needs and that they will see to it that he get his medication.. I fear this his life is over at 20. I fear for his life when he gets out of prison. whether his sentence is long or short. However, I am trying to be hopeful for him, because if I don't have hope, how can he?
However, the truth is that I am so distraught that I don't know what to do with the pain that I am feeling, as the mother of a 20-year-old child whose life may never be the same, and for my son who is feeling my pain times many times over.....
I do have a wonderful therapist and she will not stand in judgement. But she has not walked in my shoes or yours.
I sent my son a letter with this saying: "At any given moment you have the power to say: This is not how the story is going to end" (author unknown). Perhaps this will help some of you.
.
Please, if you have words to help me deal with my grief, words of wisdom or just plain advice, I welcome it.
J
My 20-year-old son was arrested about a week ago on charges of child pornography, both viewing and distributing (through a sharing file). It is very serious as they say he already has five counts and is expected to have more charges, He is currently in prison. His father (we're not together) and I decided not to bail him out because we are afraid that he will harm himself (he has been severely depressed for a long time) or run. Also we believe that time served in the small prison he is in will be better than the conditions at the state prison.
My heart is broken for my son. He has had a very difficult life but others stand in judgement of him. He is adopted and has suffered two additional abandonments (one when I was hospitalized for 3 months with severe depression) and finally, the effects of a terrible divorce following a 20-year marriage.
In addition, at about age 14, he began telling us that he was molested by an older boy when he was 7. More details have come out in the last year but it is hard to know if his mind is remembering things correctly. At 12, he began self-medicating with drugs and alcohol and was a full-fledged addict by about 14. He spent time in substance abuse programs, halfway houses and overdosed four times. Finally, at 19, his father brought him home to live with his grandmother. He did well there, remaining clean for 18 months, going to AA, etc. But he did not have a job and was extremely isolated at home with his grandmother. We now know that he sometime during that period at his grandmother's, he began viewing child pornography.
I know that my son committed a crime and must pay the consequences. However, it is hard for me to believe that the molestation, his mood disorder, his addiction (I think he just traded one addiction for another) and the isolation he experienced did not contribute in a major way to his foray into the world of child pornography..
All of the above either contribute to, or are a result of mental illness. Yet, I do not believe for a moment, that any of it will be taken into account. I do not believe he will receive the help he needs and that they will see to it that he get his medication.. I fear this his life is over at 20. I fear for his life when he gets out of prison. whether his sentence is long or short. However, I am trying to be hopeful for him, because if I don't have hope, how can he?
However, the truth is that I am so distraught that I don't know what to do with the pain that I am feeling, as the mother of a 20-year-old child whose life may never be the same, and for my son who is feeling my pain times many times over.....
I do have a wonderful therapist and she will not stand in judgement. But she has not walked in my shoes or yours.
I sent my son a letter with this saying: "At any given moment you have the power to say: This is not how the story is going to end" (author unknown). Perhaps this will help some of you.
.
Please, if you have words to help me deal with my grief, words of wisdom or just plain advice, I welcome it.
J
1. Federal charges are generally more serious than state charges, as they often trigger quite stiff mandatory minimum penalties. A mandatory minimum means that the judge cannot sentence a defendant to less than that amount. Above that minimum, the judge has discretion, but not below it. Most states lack mandatory minimums, though some have them, indeed even harsher than the federal system (Arizona is a notable example).
2. One can be charged by both state and federal authorities. Technically, both the state and federal governments are considered separate "sovereigns." That is why both can tax you. Thus, they can also both prosecute you, even for the same conduct. This is typically not done, though it is becoming more frequent where one sovereign is unhappy with the sentence that another has given.
3. Almost any lawyer will, as a reflex, tell you to hire a private attorney. Should you? It depends. The conventional wisdom is that public defenders are the "bottom of the barrel" and, even if good, too overworked to focus on your case. That may be true in many state prosecutions (though there are exceptions). However, at the federal level, there are some very skilled public defenders. For example, in New York City, the federal public defenders have credentials and experience that rival that of the most skilled prosecutor. In Florida, there are also some good federal public defenders. However, that of course does not mean that they are not overworked.
If you can afford to, my general advice would be to hire a private attorney. What to look for? The typical federal CP case does not present extraordinarily difficult legal or technical issues. Typically, the question is not guilt or innocence, but negotiating to a plea one can live with, and trying to reduce the sentence as much as possible. In such cases, you may not need the world's expert in computer crime. Instead, you need someone with (a) a working knowledge of CP sentencing, (2) skill in negotiating, and (3) who commands the respect of prosecutors and judges. Let me clarify. These are typically cases that do not go to trial. Instead, most defendants plead guilty. Thus, the lawyer’s job is twofold. First, she must get the lowest possible charge (preferably one that does not carry a mandatory minimum). That requires negotiating with the prosecution, and it is important that the lawyer know the law but, just as important that the lawyer be someone that the prosecutors respect and are willing to seriously negotiate with. Second, she must convince the judge to exercise his sentencing discretion to mete out a sentence that is as low as possible. This too requires knowledge of the law, and a thorough understanding of how to present a mitigation case (such as psychological evidence, letters, etc.) but it also helps a bit if the lawyer is someone that the judge respects.
If you cannot afford a private attorney—and you should only be paying big bucks for one that has the qualities I mentioned—don’t fret. Lawyers are not miracle workers. At the end of the day, a lot depends on the prosecutor assigned to the case and the judge. A very conservative, tough-on-crime judge is unlikely to be swayed by even the best advocate. Similarly, a very sympathetic judge may give a low sentence regardless of the attorney’s skill.
4. You asked about a “downward departure.” In the federal system, the outer boundaries of a criminal sentence are fixed by statute—laws that Congress passes. So, for instance, distribution of CP carries a statutorily-prescribed sentence of at least 5, and no more than 20, years. That means the judge if the defendant pleads guilty to or is convicted of CP distribution, the judge must give a sentence of at least 5 years, and can give one up to, but not exceeding, 20 years. That leaves, however, a 15-year window, which is a lot of discretion. To give judges some guidance, a governmental body called the U.S. Sentencing Commission devised a very lengthy and complex set of what are called “guidelines.” The Guidelines are supposed to take into account the specific characteristics of the offense and the offender, and yield a range within that statutory framework that helps the judge. Judges are not bound by the guidelines—they are merely advisory—but must take them into account. Sometimes, when people refer to a “variance” or a “departure,” they mean a situation in which the judge rejects the Guidelines recommendation and sentences a defendant to either a higher or lower sentence. In CP cases, competent attorneys typically argue that the Guidelines are far too harsh, and recommend sentences almost always near the statutory maximum, rather than the statutory minimum.
Hope some of this is helpful.
Adam
Thank you both for all of the valuable information. I have learned so much in the last two days. Here is another question: if the FBI is involved, does that always mean that one will be charged at the federal level?
J
Thank you both for all of the valuable information. I have learned so much in the last two days. Here is another question: if the FBI is involved, does that always mean that one will be charged at the federal level?
J
J
And thank FaithFlower for the welcome!
we have to keep in mind that this is not a secure page, heads up! -for those of you that are new- there are better places to discuss this on a strategic level....message me if you are interested.
.
In the federal system, the judge cannot go lower than the statutory minimum. In a distribution/receipt case, that is 5 years. However, since the statutory range is 5-20 years, the judge has considerable discretion within that range. When one speaks of a judge "going lower" in the federal system, it means that if the Guidelines suggest a sentence of, say, 10 years, but the minimum is 5 years, the judge goes lower than 10. Best outcome, at sentencing, is that the judge gives the statutory minimum. Remember, those Guidelines are an advisory system meant to help judges decide on what sentence, within the statutory range, to give.
For everyone,
I agree that one needs to be careful about disclosing information here, as this is a public forum. Never give identifying information, and be careful with any details. Always check with your lawyer. Much of the information you communicate with your lawyer, or your lawyer communicates to you, may be privileged and confidential, and you want to make sure you keep it that way. For example, when discussing a friend of mine, I might say that "he is being charged with CP possession, and they claim he used a file-sharing site," rather than saying "my friend told me he was looking at CP."
Adam
Thanks so much for your input. It is nice to have a knowledgeable person on board here. And yes, we all understand that whatever you say SHOULD not be considered legal advice....Here is my question to you:
Do you know much about the process of how the sentencing commission assigns levels or degrees to a person who has plead guilty to this crime? In my son's case (defended by a fairly good PD--this happened in Augusta,GA), he appeared before the judge to agree to a plea deal...then months later appeared before the judge for sentencing. In the interim, supposedly my son's background, his military record, friends, co-workers, family, ect were supposed to be contacted to get a gauge of his mental,emotional well-being, his financial situation, ect..all of theses "things" to help determine, along with his crime and the details, in order to come up with some kind of number, that determines his "level".At first , it was said that his number was going to be something like 22 or 23..Then, at the sentencing hearing, the Fed Prosecutor but yet ANOTHER FBI computer forensic person on the stand, and had him testify to some kind of mystical computer experiment to determine IF my son ever transmitted any of the 6 cp short videos he had on his computer to others. Prior to this, and during the entering of a plea, the Prosecution had another FBI "expert" on the stand, and after having in their posession the computer for 7 months, could NOT find any evidence of any transmitted files. However, when time came to sentence him, here whole story changed, and it convinced the judge enough to add an additional charge of transmitting...thus adding to his "level" from 23 to something like 30 ( which , I guess is a high level), and thus adding an additional 5yrs to his sentence. We, as parents, were devastated!! Thinking he might receive 5-7yrs, and then hearing 180months, we nearly collapsed right there. It is so hard to hear when you are in that situation, when the court clerk announces " The UNITED STATES vs. your son", you actually feel like the WHOLE USA is against you. I know this is not true, but it sure feels that way. Anyway, sorry for the whole discourse here, but was wondering if you know the process in determine those so called "levels". Thanks in advance!
Sincerely Jim from Jacksonville
I'm so sorry for what you've endured. 180 months, while sadly not uncommon in these cases, is unconscionable.
The Guidelines can be quite complicated. Typically, during the time between plea and sentencing, a Probation Officer is supposed to conduct an investigation into the offense and the offender, which should involve looking into family, work, military history, the crime itself, etc. The Probation Officer produces what is called a PSR, or Pre-Sentencing Report, which details this and is transmitted to the defense, prosecution, and judge. This is the document that contains the Guidelines calculation. At that point, both the prosecution and the defense have an opportunity to object, i.e., to argue that the Guidelines calculation is incorrect and should either be higher or lower.
I don't know at what point in this process the prosecutor sought to challenge the Guidelines calculation with the "new" forensic information. However, typically the prosecution must do so in a manner that gives advance notice to the defense and the ability for the defense to examine the claims and rebut them. Unfortunately, I am not aware of any legal doctrine that required the prosecutor to get it right the first time. From what I understand, so long as the sentence has yet to be announced, the prosecutor can continue to "discover" new evidence. This is so, bizarrely enough, even if they have not actually charged a defendant with the new information they have. Since the Guidelines are advisory, and not mandatory, they can actually take account of what are called "uncharged" offenses.
It may be that there was little your defense attorney could do if the forensic evidence, however inexcusably late, was hard to rebut. However, if you think there me be an issue here, I would definitely recommend that you raise it with your attorney and/or appellate counsel.
Incidentally, for those looking to understand the nature and evolution of the federal sentencing guidelines for CP, I highly recommend that you read "Deconstructing the Myth of a Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines," by Troy Stabenow, a current federal public defender and former military prosecutor.
Adam