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Prosecutors should consider non-prison resolutions in child pornography cases

The Lansing State Journal reported on March 21, 2013 that a 41-year old Lansing man, who had previously pled guilty to two counts of Possession of Child Pornography and two counts of Using a Computer to Commit a Crime, had been sentenced to 6 months in the county jail, with 5 years of probation. The issues in such cases are typically twofold. First, is the alleged offender responsible for searching out, downloading, and possessing child pornography? Second, what should be the appropriate punishment for the alleged offender?

The first question is more easily answered than the second. Most often, people charged with possession of child pornography have vast collections of child pornography on their computers and are proven to have downloaded child pornographic images from many known sites containing those images. Forensic computer examiners, both from a state police standpoint and those hired privately, are typically able to confirm that one or more computers, thumb drives, separate hard drives, etc., possessed by the alleged offender, were utilized by the alleged offender to download and store child pornography.

The second question is more difficult to address. Most persons, who are understandably disgusted by the notion of child pornography and its creation, will assume automatically that those who purposefully seek out, download and possess child pornography are predatory pedophiles who should be locked away. From that perspective, many persons in law enforcement and certainly numerous prosecutors believe that those perpetrators should be placed in prison to protect future victims from molestation by pedophiles. In truth, however, the vast majority of research in the United States has resulted in findings that there is no significant correlation between possession of child pornography and the offender actually pursuing children in a predatory way, or having any actual interest in committing sexual acts with a "real" child. Although persons who collect child pornography probably share many common pathologies, many of them are socially inept and have no ability to actually engage with people for purposes of sexual gratification or otherwise. Often, these offenders can be treated individually, and/or in a group milieu, for issues related to sexual addiction. They generally do not pose a direct threat toward children. Many prosecuting entities recognize that such offenders pose no real risk to other persons and should not be in prison, but instead, they should be placed in a county jail for a brief period for impact purposes, but more importantly, be given an opportunity for rehabilitation through a lengthy term of probation, which will also serve to supervise their access to computers while they are potentially benefitting from therapy.

Charging decisions by prosecutors will usually determine whether or not an offender will go to prison or remain in the community. In some cases, judges have no choice but to place these offenders in prison. This is largely driven by the number of felony charges a prosecutor brings forth. Felony sentencing in Michigan is dictated by the Michigan Sentencing Guidelines. The guidelines, enacted by the Legislature, set up a framework for judges to utilize in sentencing particular offenders and give judges some discretion in setting the minimum term of imprisonment for persons charged with felony offenses. That discretion is limited to a range set forth on a particular grid. A minimum sentence must fall within this grid, except in certain extraordinary circumstances. Since most child pornography offenders may have hundreds or more images on their computers, they theoretically could be charged with hundreds of counts or charges of possessing child pornography, possibly distribution of child pornography, and hundreds of charges of using a computer to commit a crime, another available offense. Decisions regarding the number of and gravity of each count are left to the prosecutor. Depending on an individual's prior record, the number and nature of charges will often result in a high guideline score and could tie a judge's hands and virtually mandate that the judge sentence such an offender to a prison term, even if the particular defendant is not truly a threat to children. This is a wasteful utilization of government monies and will add unnecessarily to Michigan's burgeoning prison population. Prosecutors, correctly using their discretion in these types of cases, should consider the likelihood (and this may vary on a case by case basis) of whether a particular offender is likely to seek out and molest children. If not, despite the ability to file numerous charges against a particular offender, the prosecutor may elect to limit the charges so that the sentencing judge has at least the option of not sentencing such an offender to a prison term.

Defense counsel in these cases should seek the assistance of experienced forensic psychologists, particularly those who have a great deal of experience with sex offenders, in general, and with persons who collect child pornography, and familiarity and expertise relative to the numerous pathologies that might generate these behaviors. Defense counsel should also seek appropriate therapists to provide intervention services for the offender, including education and a proactive cognitive behavioral plan, so as to assure no future misbehaviors with computers. Since most of these offenders have sexual addiction issues, counsel should also become familiar with the availability of Sexaholics Anonymous and/or Sexual Addicts Anonymous meetings in their jurisdictions. All of these interventions should be initiated during the investigation phase (counsel is often contacted after computers are removed from a particular offender's home), while waiting for the completion of a forensic examination, which may take weeks or months. Effective utilization of this time and all time leading up to sentencing, with a proactive diagnostic and rehabilitative approach, can lead to productive dialogue with the prosecutor, and offers criminals defendant the best opportunity to avoid a prison term.

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