CHILD PORN: EXAMPLE OF FEDERAL VS STATE SENTENCING

The federal criminal system is generally more punitive than State court. This case is a good example: The feds charged this defendant for producing and possessing several pornographic images of children, and the state simultaneously charged the defendant with the sexual assault of one of the children depicted in the pornographic images. The facts of these cases showed that the defendant, who babysat the child, raped the boy over a period of four years beginning when the boy was an infant. The defendant photographed and videotaped the sexual assaults.

Contrast in the Sentences: For the arguably more egregious conduct-rape of a child-the state court imposed 30 years and stayed all but one year because the defendant was amenable to outpatient treatment, forthcoming during the proceeding, and remorseful. Additionally, the defendant pleaded guilty rather than force the child victim to testify at a trial, avoiding additional trauma to the child victim. That means that under the State court sentence the defendant will serve only one year in jail, provided he complies with the terms of probation.

In contrast, the federal court imposed a 39 year sentence for possessing and producing the child porn. The judge remarked at sentencing that she believed that the defendant was a danger to children, that the lengthy sentence reflected the severity of the crime, and that the sentence was the only way to protect the public. The federal sentence was in-step with the federal sentencing guidelines, which recommend a presumptive 40-year sentence. So there you have it. Thirty-nine years for possessing and producing child porn in federal court, and one year for rape in state court.

Some may argue that possessing and producing child pornography is not as severe as raping a child, so they will question why the state court sentence for rape was one year, while the federal sentence for child porn production and possession was 39 years. This is especially interesting since the state court found that the defendant was amenable to receiving treatment, which is why the state court judge hung 29 years over the defendant's head on probation (to give him a chance to succeed in treatment). Had he failed to comply with treatment and supervision, he would have gone back to prison under the state sentence for up to 29 years. The federal sentence essentially made the state court sentence moot, because the defendant is now going to prison for at least 33 years of the 39-year sentence.

While federal sentencing guidelines are inherently stricter than Minnesota sentencing guidelines, you can decrease the chances for disparate results like these by hiring an experienced criminal defense attorney who practices extensively both in the federal and state criminal courts. Sometimes we are able to avoid results like this by negotiating early or opening a dialog with the feds to get an idea of whether anything can be done to avoid an indictment and steer clear of the harsh federal sentencing guidelines.