Few would disagree that possession of child pornography is deviant behavior, and that it is appropriately classified as criminal conduct. However, how it is treated thereafter is of concern. The vast treatment of this offense in the state and federal courts requires some discussion, but it can hardly be explained in any rational way.In state court, a first time offender who is charged with possession of child pornography, but no other deviant conduct, might be fortunate enough to receive pre-trial intervention, and thereby escape a non-expungeable criminal conviction. It may also be possible to avoid the harsh implications of Megan’s Law notification requirements.However, in the federal courts the states are much higher. In fact, much too high. The federal courts generally treat possession of child pornography on a computer, and these days that is virtually how the all child pornography is possessed, as a combination possession and distribution charge. This is because the pornography is obtained in chat rooms, much like the old napster concept, where everything contained in any participant’s computer is open-source and available to anyone else in the chat room or web-site. This the charges are ratcheted up, and become a distribution offense with much more serious implications. Then, when the defendant seeks to plead to the offense, the federal prosecutors offer a “mere possession” offense, drop the distribution charge, and the defendant is subject to 10 years in prison, no possibility of expungement and registration required under Megan’s Law.
While respecting the duality of the separate state and federal criminal justice system, no variation of such magnitude in punishment for the exact same criminal conduct ought to be acceptable.
While some federal court, especially in New Jersey and in the Third Circuit Court of Appeals and attempting to reign in the draconian punishment for simple possession of child pornography, even these courts often sentence defendants to prison terms of between three and five years.