How far should the government go to catch law breakers? Its always surprising to Clearwater criminal defense attorneys that the government would ever deem it necessary to violate the very criminal laws it seeks to enforce. Yet law enforcement officers seem as incapable of not violating laws as do the criminals they seek.
|FBI: Most Wanted?
Recent press reports note that the FBI has begun using tactics often employed in drug cases to find those who seek to possess child pornography. After gaining control of a bulletin board that distributed child pornography the FBI continued to run the the webpage for two weeks.
During that two week period the FBI effectively delivered thousands of child pornography images later using the information gained from the deliveries to obtain search warrants from federal judges.
Since those who participated in the ongoing activities of the bulletin board likely did so of their own accord it’s unlikely that the FBI could successfully be accused in Federal criminal court in the Middle District of Florida in Tampa of setting these people up or entrapping them.
For an entrapment defense to be successful it’s necessary for the Defense to establish that the unlawful act would not have been something the Defendant would have done but for Government inducement. Even with Government inducement an entrapment defense fails if there’s a finding of a predisposition to commit the crime. Was the Defendant a wary innocent or an unwary criminal readily using the opportunity to commit the crime?
The Florida sentencing guidelines as well as the Federal sentencing guidelines prescribe harsh punishment for sex offenders in possession of child pornography despite there being no actual victim contact often resulting in more significant sentences than for those who have actually molested children. Clearly the harshest punishments should be aimed at those who harm children the most. Yet Judges often do not have sufficient discretion to give fair sentences in child pornography cases.
Further, the Government has begun pursuing child pornography cases even where there is no proof of outlawed images on a computer arguing to Federal Judges that the mere hash value Tag is sufficient as an indicator of a violation of the law.
Federal criminal defense lawyers agree that protecting children is a laudable goal for the FBI, but being a party to the distribution of child pornography only tarnishes the respect for the FBI and respect for the law.
Clearwater Criminal Defense Attorneys often find that Child Pornography cases are among the most difficult cases to successfully defend. If outlawed pictures are found on a Defendant’s computer the Government’s burden of proof is very low. By the very nature of these cases no victim contact need be proven and the amount of prison time established by the Federal Sentencing Guidelines is often greater than it would be for actual child molestation. In fact the Government need not establish that the Defendant actually looked at any picture as mere possession of the image on the computer hard drive is sufficient for a conviction.
|Van Gogh, Schoolboy, 1888
Yet even when the Federal Government can’t find any outlawed pictures on a computer that hasn’t stopped them from pursuing criminal cases.
Barclay Johnson, defense attorney in the District of Vermont sent me a new Motion to Suppress in Child Porn prosecutions based on challenging the software used by the Federal Government to snare users of peer-to-peer networks using outlawed images. Here’s an excerpt from his email concerning the Motion to Suppress based on problems with the search warrant:
Government agents used to use an enhanced version of a peer-to-peer program to conduct key-word searches in an effort to find suspect outlawed child pornography files. Using the peer-to-peer program the Government would download files directly from the Defendant’s computer/IP address. However, recently the Federal Government began using a new software program to match secured hash algorithm values of files on the network with hash values of known child pornography in the Government’s database.
What concerns a Clearwater Criminal Lawyer is the due process violations for Defendants when Government Agents are no longer actually downloading the files from a Defendant’s computer, but relying only on the match between the hash values to establish probable cause. Yet many Government Agents may be misleading Judges into signing incomplete Search Warrants when the Agents’ sworn affidavits fail to accurately depict the fact that they are merely matching hash values rather than having any direct knowledge that there is likely to be outlawed pictures on suspects’ computers.
A new report from Sexual Abuse A Journal of Research and Treatment examines the rates of recidivism for sex offenders over a thirty year period for sexual offenses where there was actual contact as well as for sexual offenses in which the Defendant was convicted of a sex offense in which there was no contact with a victim, such as child pornography, voyeurism or exhibitionism. At least one Clearwater Criminal Defense Lawyer believes the destructive nature of the harsh punishments imposed in Florida criminal courts for non-contact sex offender cases is often too severe especially when compared to cases with minimal punishment where there is actual contact. The findings and conclusions of the study support lower sentences for non-contact offenders and for those offenders who are over the age of 45.
The study notes that the following: Risk for contact sexual offending was related to antisocial behavior and sexual deviance as indicated by having unrelated victims. Noncontact sexual offending was related to sexual deviance in the absence of antisocial behavior … we found evidence that noncontact sexual offending does not lead to contact sexual offense. Only 4% of noncontact offenders in this sample were found to go on to commit a contact sexual reoffense during the follow-up period.
It is quite likely that those showing none of the indications of sexual deviance or antisocial behavior are in need of fewer treatment and supervisory services than those with indications of sexual deviance and/or antisocial behavior. Furthermore, our data indicate that life-time probation and registration requirements are unlikely to improve community safety. We found that after the age of 45, the risk for sexual reoffending drops precipitously. In addition, our data indicate that after 20 years in the community offense free, the risk of reoffending is extremely low.
|William Hogarth, Self Portrait, 1757
|Clearly, even a Tampa Criminal Defense Lawyer understands that a Defendant who had actual physical contact with a victim should be punished harshly, but for someone who had no physical contact with a victim shouldn’t there be less prison, less supervision and less over all punishment? Yet in Federal court in the Middle District of Florida in Tampa it’s not unusual for Defendants to serve significant jail sentences for crimes involving no contact with a victim. Is it reasonable that punishment for possession of child pornography could ever be greater than punishment for actually molesting a child? In one reason case of child pornography the Defendant received 17 years for possession of child pornography and the FBI and Federal Prosecutors in the Middle District of Florida, which encompasses Orlando as well as Tampa Bay and Pinellas, Florida, were proud enough of the sentence to put it on their web page.
Soon the Federal Guideline Commission will be tackling the problem of fair sentencing as it relates to sex crimes and the hope is that this new report on non-contact sexual offenses will sway the Commission to bring the guidelines to a reasonable level while also giving Federal District Judges much more discretion to go under the guidelines for non-contact sexual offenses.