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Child Pornography Sentences in Federal Court, a Massachusetts Criminal Lawyer Give His Perspective

Any Criminal Lawyer in Massachusetts will tell you that you don’t want your case to be prosecuted in the Federal Court. There is a litany of reasons why. Federal prosecutors have a limited ability to negotiate pleas. They have numerous channels they must go through to get approval to “amicably” resolve cases. In some cases they need authority from Washington, D.C. The laws in many state are often more pro-defendant in state courts than they are in the federal courts. In Massachusetts for example Article 14 of the Massachusetts Declaration of Rights provides greater protections than its counterpart, the Fourth Amendment to the United States Constitution. Article 12 is viewed more favorably by the defense than the Fifth Amendment. More time is permitted in state court for trial preparation than in federal court. And, for the most part, sentencing schemes in the federal court system are much more rigid and severe than in state courts. Judges in federal courts lack the discretion vested in state court judges to impose sentences that they deem fair and the result is often a huge sentence drastically disproportionate to the crime charged. Here is a look at that sentiment in the context of a Federal Child Pornography Distribution Case.

Lets assume that the client, John Doe is caught in Possession of Child Pornography using peer to peer file sharing. Lets further assume that John has no criminal record. John will be charged with Distribution of Child Pornography. In federal court that charge carries a minimum mandatory five-year sentence. Now in Massachusetts the same crime carries a ten-year minimum mandatory sentence but the prosecutors have discretion to reduce that to a possession charge, which they often do. I have never seen a district attorney ask for the ten-year sentence for a first time offender with no criminal record. Rarely will state prosecutors even ask for a five-year sentence on the possession whereas the federal prosecutors will not go below the five-year minimum mandatory. So, difference number one is the ability to negotiate a better result for your client and to get below the dreaded minimum mandatory required by federal law. Difference number two involves the federal sentencing guidelines. Still using John Doe and these facts as our example, lets look at factors that will likely result in John getting much more than five years if prosecuted in federal court. John’s base offense level is a 22. Assuming a criminal history category I he is looking at a guideline range of 41-51 months. But this is just the beginning. If the minor(s) in the images are under the age of twelve or prepubescent than two levels are added giving a guideline range of 51-63 months. If a computer was used to view the material then add two more levels making the sentence 63-78 months. If there were at least ten images add another two levels making the sentence 78-97 months. This is just the beginning. If sadistic conduct is involved, add four more levels. If there are six hundred or more images add another three levels to these calculations. Keep in mind, most of these images are accessed in large volumes. Six hundred plus images is more the norm than the exception. So now what are we up to? A level 35 which requires a sentence of 168-210 months, or fourteen years to seventeen and one half years. So while John Doe actually may not actually get the 168-210 month sentence you can be sure that the prosecutor will be pushing a sentence much greater than that which a state district attorney would be looking for. This is why it is critical that when hiring a lawyer you make sure that your lawyer has experience in the system where the case is being prosecuted. There are things that can be done to convince judges to impose a just sentence.


Attorney Stephen Neyman has been defending Sex Crimes in Massachusetts for over twenty-five years. We have successfully defended Child Pornography cases in state and federal court. If you are charged with a crime call us at 617-263-6800 or send us an email.