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Analysis: What goes into sentencing child porn crimes?

Andrea Fisher
anfisher@greatfallstribune.com

James Michael Daniels was recently sentenced to 20 years of probation for possessing child pornography after pleading guilty to two of the 32 counts he faced after his arrest in Great Falls last spring.

Daniels, 32, had no adult criminal record.

Man gets probation for child porn

According to testimony given at the sentencing hearing, investigators combed through around 1,800 downloaded images and videos discovered as the result of an investigation conducted by the local Internet Crimes Against Children task force. Within those files, 39 of the children matched victims identified by the FBI. Charging documents say the files included depictions of children as young as 2 engaged in sexual activity with adults.

The thought turns the stomach.

In early 2015, Robert Allen Smith was sentenced to 6.5 years in federal prison, where parole is not offered, after a similar ICAC investigation led to the discovery of more than 4,000 images and videos, according to federal court records. Smith also will be supervised for eight years after his release.

Smith pleaded guilty to one count of possession of child pornography in federal court, where the mandatory minimum for possession of child pornography is five years in prison and the maximum penalty is 30 years.

Under Montana law, sexual abuse of children, the law that encompasses possession of child pornography, carries no mandatory minimum and a maximum penalty of 10 years in prison. With parole, that term could be as short as 2.5 years.

Why is there such a difference between the federal and state sentences?

In the case of Robert James Dion, there was no such sentencing disparity. He received a 10-year prison term with five of those years suspended in October by presiding District Judge Greg Pinski.

Dion, 22, pleaded guilty to one count of sexual abuse of children through a plea agreement with the state. Dion, who also had no felony criminal record, was arrested on a $50,000 warrant after another similar ICAC investigation stemming from a tip from the National Center for Missing and Exploited Children about an image of an underage female “in distress with her genitals exposed” that led to him.

“The non-binding plea agreement for ten years probation fails to comply with Montana’s sentencing policy and fails to appreciate the seriousness of the Defendant’s crime,” Pinski wrote in his order.

The judge cited a U.S. Sentencing Commission study regarding federal child pornography cases, explaining the average sentence for possession without production was 63 months (or five years, three months) in a federal detention facility where parole is not offered, followed by supervised release. Pinski wrote in his order that he used this information in determining a fair sentence based on the nature of the crime.

“There are some who believe the possession of child pornography is a victimless crime,” he wrote. “That is a false belief to the point of absurdity.”

Great Falls man pleads guilty to child porn possession

In the Daniels case, presiding District Judge Dirk Sandefur indicated in his sentencing order that the state did not present any evidence to support an assertion that incarceration was necessary to protect a victim or the public from potential harm posed by the defendant.

“Beyond cursory assertion of the obvious that possession of child pornography is sexually deviant, the State presented no evidence indicating this Defendant in particular, or possessors of child pornography in general, pose any risk of actual physical victimization by the Defendant of children or others in this community,” Sandefur wrote in the order.

He went on to say, “the State presented no evidence indicating that any of the children depicted in the subject child pornography were victimized in the State of Montana.”

In a follow-up interview, Sandefur reiterated his position, previously provided on the court record, of the troubling nature of these cases.

“Child pornography cases are very serious cases because they involve deviant sexual interest in children, and children are victimized in the production of the pornography. It’s not a victimless crime.”

The United States Sentencing Commission pointed out that the victimization of the children present in pornographic material continues after the initial abuse takes place to produce it. The USSC included the following in its 2012 report to Congress about child pornography, the same report Pinski referenced in his sentencing order in the Dion case.

“The ongoing nature of child pornography offenses causes a significant and separate harm to the victims depicted in the images,” the report says. “Some of these victims live their lives wondering who has seen images of their sexual abuse and suffer by knowing that their images are being used for sexual gratification and potentially to lure new victims into sexual abuse.”

Victim statistics from the National Center for Missing and Exploited Children are included in the report, including that 24 percent of identified victims were pubescent, 76 percent were prepubescent and 10 percent of the prepubescent identified victims were infants or toddlers.

The report also indicates that newer Internet-based technologies such as peer-to-peer (P2P) file-sharing practices allow consumers to amass large collections of child pornography, including images of very young children.

The report includes a recommendation to Congress that a revised sentencing policy that examines “the full range of an offender’s collecting behavior, the degree of his involvement in a child pornography community, and any history of sexually dangerous behavior — would better promote proportionate sentences and reflect the statutory purposes of sentencing.”

“The difficulty with these cases is determining an appropriate sentence based upon the totality of facts and circumstances in each case, even though the charged crime is the same,” Sandefur said.

However, judges may have different decisions regarding appropriate sentences based on their own interpretation of the law and sentencing policy.

For example, Pinski’s writing in his sentencing order shows he takes a tough stance on child pornography from a prevention standpoint.

“By slapping child pornography offenders on the wrist, our legal system impedes legitimate law enforcement efforts to cut off the demand and thereby affect the supply of child pornography,” he wrote.

Sandefur’s sentencing order clearly outlines his position, expressed in court statements and writing, that the state is required to show him why a defendant is dangerous and should be incarcerated. In the Daniels case, the state made no sentencing recommendation in the plea agreement, leaving the decision to the court.

Pinski’s order in the Dion case included an explanation of why he deviated from the state’s probation-only sentencing recommendation.

While the USSC report mentions sentencing disparities in child porn possession cases at the federal level, and the notion that penalties in possession cases may have grown too harsh, it should be noted that Smith was sentenced on the lower end of the five- to 30-year sentencing spectrum with a 6.5-year prison term.

This disparity in sentencing between two defendants for what amounts to the same crime got the Tribune to thinking, “What does the public think?”

Send your thoughts to Andrea Fisher at anfisher@greatfallstribune.com, through Facebook.com/gftrib_andrea or on Twitter to @gftrib_andrea.

Child porn case raises eyebrows