I am about to go to federal court this afternoon here in Atlanta for a criminal case involving sex over the internet (sometimes referred to by the over-encompassing term “child pornography”). Some lawyers shy away from these cases. I do not. These cases are often disturbing and emotionally draining, but I always welcome the opportunity to help a person and his family through one of these exceedingly difficult matters. However, over the years I’ve discovered a number of “secrets” in this type of federal criminal case.
One secret is that a vast number of people who commit sex crimes over the internet lead basically “normal” lives. Many of my clients are happily married men with grown children. Their families all report that the client was an exemplary father, never did anything remotely improper with the kids, their friends or with their spouse. But, these men all seem to have some sort of mid-life crisis where their existence goes off the rails.
A second “secret” in these troubling cases is that many of my clients seems almost compelled to commit their crimes. We’ve all seen the news stories about the guy who comes to a sting operation and says to the undercover camera, “I sure hope you aren’t a cop.” The clients often recognize in advance that they are engaging in illegal conduct, that they likely will get caught, yet they still keep going toward the “bait.” It is almost as if they are living a double life, with the “normal” rational part of their brain telling them that this is a crime and they could get caught, but the other part is driven forward to engage in the illegal conduct by some very deep part of their consciousness. After they are arrested, many clients have commented that it seems as if it was another person doing the crime.
Here’s one more little-known aspect of these cases in federal court. Judges think that the suggested sentences are far too long. Regular readers of this blog know about the federal Sentencing Guidelines, and how a Judge must first consider these rules and then decide if some factors from Title 18 U.S.C. section 3553(a) authorize a sentence that is either above or below the suggested Guideline range. Many Judges have engaged in downward departures and variances in similar cases because the Guidelines seem to pile factor upon factor and yield inequitable results. For example, a 2010 survey by the United States Sentencing Commission revealed that 70% of district judges believe that the child pornography Guideline range for possession was too high, 69% believed the range was too high for receipt, and 30% believe it was too high for distribution.United States Sentencing Commission, Results of Survey of United States District Judges January 2010 through March 2010 (June 2010), available at http://www.ussc.gov/Research/Research_Projects/Surveys/20100608_ Judge_Survey.pdf. The Commission’s yearly statistical analyses also shows that many judges are concerned with how the Guidelines operate in such cases. In 2017, a mere 29% of child pornography offenses resulted in sentences within the range suggested by the Guidelines. Only 2.4% of such cases yielded upward departures or variances, and the remaining two-thirds of all such cases resulted in sentences below the range suggested by the Guidelines.
This afternoon’s federal criminal case in Atlanta will be another difficult matter. While these are troublesome cases for everyone involved, I always try and remember that my client is a person with failings like anyone else, and that I need to show the Judge how my client’s frailties led to this horrific situation.