NOTE: This page features additional content to explain the impact of passage of the First Step Act (P.L. 115- 391) on December 21, 2018. Since this Act was signed into law, the federal criminal justice system experienced numerous changes, including measures aimed at reducing repeat offenses and rewarding good behavior.

Federal child pornography charges are very serious and can result in a substantial sentence. In fact, it often carries much more time in prison than the state counterpart. For example, in state court, possession of child pornography is a Class 2 felony, which a sentence of three to seven years in prison. But first offenders without aggravating factors often receive probation instead.

Federal defendants are usually not as lucky. Between 1987 and 2009, the United States Sentencing Guidelines were revised nine times, resulting in longer sentences each time. From 2008 to 2013, federal judges across the country sentenced 113 defendants convicted of production of child pornography offenses to imprisonment of 720 months (60 years) or more. Of those defendants, at least 69 of them were sentenced to 1200 months (100 years) or more.

Not only has the average sentence gone up, but so have the number of prosecutions. This should not be surprising given how technology has made it easier to download or disseminate child pornography.

18 USC 2256(8): What is Federal Child Pornography?

Pursuant to 18 U.S.C. §2256(8), child pornography is defined by federal statute as any visual depiction – including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means – that features sexually explicit conduct and:

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer- generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

It is vital to note that the federal definition of a minor means anyone under the age of 18. The age of majority under federal law can conflict with some state laws, where the age of majority is 17 years old instead.

Child Pornography Statutes & Penalties

There are three primary statutes that deal with sexually explicit depictions of children:

18 U.S.C. §2252 – Child pornography;
18 U.S.C. §2252A – Sexual exploitation of minors; and
18 U.S.C. §1466A – Obscene visual representations of the sexual abuse of children.

The following chart that summarizes the mandatory minimums and statutory maximums of the above-mentioned statutes.

Federal Child Pornography Sentencing Guidelines

Every federal offense has a sentencing guideline that determines an advisory range of punishment that the judge can consider. In the case of child pornography or sexual exploitation, 2G2.2 of the United States Sentencing Guidelines applies. Despite the range being advisory and not mandatory, the court is still bound by the mandatory sentences provided in the table above.

As the table provides, even the smallest base level offense of simple possession puts a defendant in a position of facing 27-33 months in federal prison. But the guidelines also call for applicable enhancements and downward departures. For example, the base level offense can increase based on the number of images, nature of the images, use of a computer, and many other factors.

Hypothetical Situation
A defendant was indicted on possession of child pornography charges. This person had 200 images of child pornography in their possession, which they downloaded using their home computer. The images depicted toddlers as well as young children under the age of 12 years old.

Applicable Guidelines
Based on the hypothetical situation described above, the following guidelines would apply:

• Base level offense of Possession of Child Pornography – 18 points §2G2.2(a)(1);
• Material of age under 12 years old – 2-point enhancement §2G2.2(b)(2);
• Materials involving exploitation of toddler – 4-point enhancement §2G2.2(4);
• Offense involved the use of a computer – 2-point enhancement §2G2.2(5); and
• At least 150 images but fewer than 300 – 3-point enhancement §2G2.2(7)(B).

The point total of the hypothetical would be 29, bringing the defendants sentencing guideline range to 87-108 months. This is a stark difference from the 27-33 months associated with the base level offense.

The above-mentioned hypothetical does not take into account the downward departures or the 3553 factors that can impact a defendant’s sentence. It merely gives the reader an idea of how lengthy the prison terms can be for a federal child pornography case, even starting with a simple possession case without a criminal background.

Anytime an individual is under investigation for or charged with such an offense, they must seek able counsel immediately. Anyone found guilty of this offense will have a permanent felony conviction and sex offender registration. It can also affect employment and housing opportunities as well as have immigration consequences.

Furthermore, individuals convicted of child pornography are ineligible various aspects of the First Step Act. Child pornography is a disqualifying offense that prevents an inmate from earning good behavior credits toward early release.