Editorial: Mandatory Minimums And Child Pornography

The Connecticut Law Tribune

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There are frequent discussions about the efficacy of mandatory minimum sentences for particular crimes in our penal code. In this editorial, we take particular issue with the formulation of these sentences in child pornography cases that charge only a possessory offense.

The structure of Connecticut's possession of child pornography statutes are as follows:

1) Conviction for possession of 50 or more visual depictions of child pornography is a class B felony in which the defendant faces up to 20 years imprisonment with a five-year mandatory minimum sentence to serve.

2) Conviction for possession of 20 or more but less than 50 visual depictions is a class C felony in which the defendant faces up to 10 years imprisonment with a two-year mandatory minimum sentence to serve.

3) Conviction for possession of less than 20 visual depictions constitutes a class C felony in which the defendant faces five years imprisonment with a mandatory minimum sentence of one year to serve.

There is not a single offense reflecting a possession charge that carries a fully suspended sentence. There is not a single offense for possession of child pornography in which the mandatory minimum has a mitigation component whereby a sentencing judge could determine that the defendant does not warrant a sentence of imprisonment based upon mitigating factors. There is not a single possession charge categorized as a misdemeanor.

This state of affairs is unacceptable for a variety of reasons. Not all individuals need to be incarcerated for these types of offenses. We are not referring to production or distribution type charges; only possessory offenses. Some defendants have no prior criminal record history. Some defendants have psychiatric illnesses that may explain such behavior. Most defendants have never had any previous sexual assault allegations or convictions, nor any indication in their entire social history of attempting to sexually abuse anyone, let alone a child.

In fact, the research and studies to date do not support a correlation between the possession of child pornography and the likelihood that such person would commit acts of sexual abuse of a child.

When all parties agree that the imposition of the mandatory minimum would cause a grave injustice in these kinds of cases to a certain defendant, the failure to have any statutory mechanism to impose a suspended sentence results in charge bargaining in an effort to change the offense enabling the defendant to avoid imprisonment. This, of course, results in a conviction that does not reflect the nature of the offense committed.

Most of the time this does not occur and a defendant is incarcerated pursuant to the mandatory minimum sentence when it is obviously unnecessary. This results in over-utilization of scarce prison beds at great financial cost and for no readily observable purpose. Imposing this kind of a sentence necessarily causes loss of employment and other collateral consequences unrelated to criminal justice policy and the imposition of punishment.

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