http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Testimony_15_PAG.pdf

Practitioners Advisory Group
A Standing Advisory Group of the United States Sentencing Commission
February 13, 2012
Honorable Patti B. Saris, Chair
United States Sentencing Commission
One Columbus Circle, N.E.
Suite 2-500, South Lobby
Washington, D.C. 20002
RE: Comments Related to February 15, 2012 Hearing on Federal
Child Pornography Offenses

Dear Judge Saris:
On behalf of the Practitioners Advisory Group (PAG), we submit the
following input relevant to the Commission's upcoming hearing on sentencing for
federal child pornography offenses. As explained below, these crimes evoke strong
emotions – and understandably so. We at the PAG offer our perspective on how
these crimes should be punished – a perspective informed by in-depth familiarity
with the facts and circumstances of those prosecuted for such offenses, viewed in
the context of sentencing for the entirety of federal crimes. We look forward to
working with the Commission on this and other topics in the coming months.
A. Child Pornography Offenders Differ in Their Levels of Culpability
One of the fundamental problems with the child pornography guideline is
that it does not distinguish offenders with differing levels of culpability. In fact, it
does the opposite. Because many of its specific offense characteristics apply to
virtually every offender, guideline recommendations often approach or exceed the
statutory maximum for all offenders – regardless of real differences in criminal
history and offense conduct.
Based on the application rates for §2G2.2's specific offense characteristics, it
is fair to assume that in 2010, the mine-run child pornography offender used a
computer (96.2%), possessed images of prepubescent minors or minors under the
age of twelve (95.6%) and images of violence (73.6%), and possessed 600 images or
more (66.9%).1 These enhancements alone combine to raise the base offense level by

13 levels to a minimum offense level of 31 for first offenders with no aggravating
factors that would set them apart from the average offender. For this reason, a
greater percentage of child pornography offenses are sentenced below the
recommended guideline range than any other offense type.2
Prosecutors and judges are not taking these actions because they feel that
child pornography is a non-serious offense. It is because, even after a full
appreciation of the harms caused by the crime, they cannot rely on the guidelines
recommendation to give even a rough approximation of a sentence that serves the
purposes of sentencing.
In our experience, most child pornography offenders are first offenders with
no prior contacts with the criminal justice system and nothing in their background
to suggest that they are a danger to children or anyone else.3 Forensic review of
their computers often shows that whatever child pornography they possessed made
up a small part of a much larger collection of adult pornography, suggesting that
these offenders are more generally interested in pornography itself and not
children.4 The images are typically received through online searches or as part of
peer-to-peer Internet networks, and often consist of the same images being recycled,
2010 at 36-37 ("2010 Guidelines' Use").
2 In 2011, prosecutors recommended a below-guideline sentence in 17.7% of child
pornography cases. See USSC, Preliminary Quarterly Data Report, 4th Quarter
Release through Oct. 31, 2011 at Table 5. Although this percentage is less
than the percentage of government-recommended below-guideline sentences
across all offense types, 83% of the prosecutor-driven below-guideline
recommendations in the child pornography context were for reasons other than
substantial assistance, compared to only 16.7% for all offense types. See id. at
Tables 1 & 5. Another 47.9% of child pornography cases received belowguideline
sentences from the courts, for a total below-guideline percentage of
65.5%, almost 50% higher than the below-guideline rate for all offense types.
Id.

belying the notion that the exchange of child pornography necessarily and
automatically encourages further production for financial gain.5
On rare occasion, we do see offenders who have actively participated in the
creation of child pornography for financial gain. Similarly, there are, on occasion,
offenders guilty of child pornography offenses whose offense conduct includes
attempts to induce minors to engage in sex acts. But the current guideline's
enhancements – particularly the enhancements for use of a computer, and the
number and nature of images – do not meaningfully distinguish between these
offenders and run-of-the-mill offenders who, while clearly guilty of possessing or
receiving child pornography, lack any truly aggravating characteristics.6
B. The Child Pornography Guideline Enhancements Should Better
Distinguish Offenders On The Basis Of Relative Culpability
It is the PAG's position that the guidelines should be modified to distinguish
between an offender who possesses, views, or receives child pornography, on the one
hand, and an offender who produces child pornography or attempts to arrange a
meeting with a child, on the other. The vast majority of child pornography
offenders do not abuse children. A soon-to-be-published study followed 72
individuals who received outpatient sex offender treatment after being charged with
or convicted of a child pornography offense; after four years, none of the individuals
had been arrested for a contact offense.7 Another study followed 231 child

pornography offenders for six years; only 2 of those people (0.8%) committed a
contact offense.8
The enhancements that relate to the images possessed – both the nature or
type of images and their volume – punish typical offenders as though they
committed aggravated child pornography offenses, when in fact their offenses
reflect no truly aggravating conduct. In 2010, two-thirds of child pornography
offenders had their sentences raised by five offense levels for number of images
alone.9 Given the online climate of file sharing programs such as Gigatribe,
offenders often receive far more images than they requested or intended to receive.10
Other programs such as peer-to-peer networks offer unlimited access to another
user's files. Many offenders end up with large amounts of material that they never
actually view and did not want. Forensic review of our clients' computers
frequently shows child pornography files that were never opened, or that were
opened, quickly reviewed and deleted. The guidelines' focus on number of images
thus mistakes quantity for culpability and fails to recognize real differences in the
viewing habits and intent of individual defendants.
Similarly, the enhancements for images of prepubescent minors and for
violence do not correlate in practice to offenders with higher culpability or whose
offenses involved greater harm. Three out of four child pornography offenders
received an enhancement for violent images and virtually all (95.6%) received an
enhancement for images of a prepubescent child.11 There may be some instances
where the quantity of images of violence or prepubescent children, when combined
with the searching, viewing and storing habits of the defendant, suggest a true
fixation and thus properly serve to aggravate the crime, but the current guideline
wholly fails to draw these types of distinctions.

The distribution enhancements likewise treat offenders with clear differences
in culpability as though they are the same. "Because of the nature of peer-to-peer
file sharing programs, a simple possessory crime evolves into a distribution offense
as soon as someone accesses a shared file."12 Many peer-to-peer network users do
not fully understand how they work, and thus higher culpability cannot be assumed
merely from participation in them.13 The distribution enhancements should be
reserved for the truly culpable distributors – those who make large amounts of child
pornography available to others for financial gain and those who distribute newlyproduced
images.
C. The Commission Should Address Aggravating Factors Directly
We urge the Commission to avoid the temptation to continue to tinker with
indirect ways to enhance sentences under the child pornography guidelines in order
to capture more culpable or harmful offenders. Punishing offenders for the types of
technology they use or the company they keep would merely repeat the mistakes of
the past because although such conduct might suggest higher culpability, then
again it might not. There are some truly aggravating facts in some child
pornography cases, for example, producing child pornography, making money from
the sale of child pornography, and using child pornography in order to help
facilitate a contact sex offense on a minor. The Commission should focus on
enhancing sentences for these offenders directly, and not cast about for other facts
that might or might not apply to these people and that will not distinguish them
from other offenders.
With respect to past conduct, Chapter Four already enhances sentences for
prior offenders; there is no data-driven or purpose-driven reason to double-count
that one fact in this context by adding a criminal history enhancement to Chapter
Two. Moreover, it would likely not have a meaningful impact on sentences, because
most child pornography offenders are first offenders with no prior contact with the
criminal justice system.
Enhancing sentences for past conduct that did not rise to the level of a
criminal conviction, or enhancing sentences for possible future conduct, is
anathema to our system of justice, and for good reason. Sentencing rules based on
speculation about what the person may have done in the past or may do in the

future are inherently and fundamentally flawed.14 And speculation is truly the
word for it; despite widespread fear that child pornography offenders are also
contact offenders, the available data do not and, to our knowledge, never have
supported that fear.15 Moreover, wading into this area would be treacherous for the
Commission, which lacks the tools for predicting, at the wholesale level, individuals
who will commit a future sex crime and individuals who will not.
D. Sentences for Child Pornography Offenses Should Be Driven by the
Purposes of Sentencing and Empirical Data
Sentences for child pornography offenses should be driven by the same
considerations that drive all federal sentences, that is, how to achieve just
punishment, adequate deterrence, public protection, and rehabilitation in the most
effective manner.
There is no reason to preclude child pornography offenders from receiving
probation and other forms of non-prison punishment. As a group, they have very
low recidivism rates. They also suffer far harsher collateral consequences than
other offenders, including shame and humiliation arising from the nature of the
crime, the stigma of being a registered sex offender, and work and residency
restrictions that are so severe and pervasive that our clients sometimes cannot
reside with their own families. For child pornography offenders in need of sex
offender treatment, probation or community confinement may be a sentence that
will better protect the public because, in our experience, sex offender treatment in
the Bureau of Prisons is so inadequate as to render it non-existent.16 There is no
empirical support for categorically precluding that option for these low-risk
offenders.

Whether on probation or supervised release, when child pornography
offenders are in the community, they are closely monitored and their freedom is
greatly restricted. The U.S. Probation Office utilizes myriad tools to control the
conduct of this class of offenders, including random searches of their residences,
vehicles, computers and phone records; bans on the possession of any form of
sexually explicit material; bans on loitering in places children frequent, including
parks, zoos, and public swimming areas; bans on speaking to persons under the age
of 18; electronic monitoring and surveillance of both the offender and his or her
computers, personal data assistants, electronic games, and phones; sex offender
registration requirements; residency, employment and Internet restrictions; and the
requirement to participate in sex offender treatment. These tools are most effective
when tailored to fit the individual. The best role for the Commission in this area is
to alert judges to their availability; judges can then determine which tool or
combination of tools would best serve the purposes of sentencing in each individual
case.
The harms of producing and circulating child pornography are real. In our
experience, however, different types of child pornography and different types of
victim experiences undermine the effectiveness of a generalized approach.
Typically, we see the harms associated with circulating child pornography
appropriately recognized and reflected through prosecution and conviction, through
post-Booker sentencing decisions, and through ongoing monitoring and restrictions.
We also believe that it is appropriate for the law to recognize the greater harm
associated with the actual production of child pornography, and with being the first
to distribute newly-produced child pornography.
In assessing the appropriate types of punishment for child pornography
offenses, it is critically important for the Commission to recognize that these
offenders are not necessarily or even likely pedophiles. Many of our child
pornography clients are driven more by curiosity and a fixation on pornography
than by a sexual interest in children, and few are classified by psychiatric
evaluators as true pedophiles.17 Moreover, the available data are clear that even

pedophiles (whether child pornography offenders or not) can be effectively treated
so as to reduce the likelihood that they will commit a contact sex offense against
children or a child pornography offense.18
The role of sentencing in the context of child pornography offenses should be
the same as in all other offenses: to ensure as much as possible that each offender is
justly punished and adequately deterred, that the public is protected, and that the
offender is rehabilitated. Unlike many offenses, child pornography does not appear
to be driven by a commercial market in the sense that the product is created
because people will later buy it. To the contrary, the United Nations Office on
Drugs and Crime found that "in most cases, the images are generated as a result of
the abuse, rather than the abuse being perpetrated for the purpose of selling
images."19 This fact is reflected by our experiences; the majority of our cases deal
with people who received images by way of sharing or trading, not through
purchases. Thus, it does not appear that viewing, possessing or receiving child
pornography encourages its production or otherwise fuels a "market."
For those tempted to view, possess or receive child pornography, the
certainty of prosecution and conviction is likely a far more effective deterrent than
the length of the custodial portion of the sentence. For our clients, the sentences
they face – though shockingly long – typically pale in comparison to the collateral
consequences of their convictions, particularly the public and private shame they
experience, the destruction of their families, and the ongoing registration and
residency requirements. Simply put, the ripple effects of a child pornography
conviction are farther reaching and longer-lasting than any sentences they carry.
E. Conclusion
We in the PAG and in the defense bar more generally are members of
communities across the nation. We are parents, aunts, uncles, brothers and sisters,
and we were once children. We share the outrage and horror that any child might
be subjected to the torture of sexual abuse, and wish just as fervently to ensure that
all children are protected from that risk. But we also recognize the need for our

criminal justice system to be rational, effective and fair. The current sentencing
regime for child pornography offenses fails this test. We commend the Commission
for its willingness to investigate ways to reform sentences in this area to better
reflect true culpability and achieve justice, and are grateful for the opportunity to
assist its work in this area.
Sincerely,
David Debold, Chair Eric A. Tirschwell, Vice Chair
Gibson, Dunn & Crutcher LLP Kramer Levin Naftalis & Frankel LLP
1050 Connecticut Ave, N.W. 1177 Avenue of the Americas
Washington, DC 20036 New York, NY 10036
(202) 955-8551 telephone (212) 715-8404 telephone
(202) 530-9682 facsimile (212) 715-8394 facsimile
ddebold@gibsondunn.com etirschwell@kramerlevin.com
cc: Hon. William B. Carr, Jr., Vice Chair
Hon. Ketanji Brown Jackson, Vice Chair
Hon. Ricardo H. Hinojosa
Hon. Beryl A. Howell
Hon. Dabney Friedrich
Commissioner Isaac Fulwood, Jr.
Commissioner Jonathan J. Wroblewski
Judith Sheon, Chief of Staff



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