Possession of Child Pornography Study – Proposed Methodology –

1. VIRGINIA CRIMINAL SENTENCING COMMISSION Possession of Child Pornography Study– Proposed Methodology – April 14, 2014

2. Background

3. Modifications to the Sentencing Guidelines The Commission closely monitors the sentencing guidelines system and, each year, deliberates upon possible modifications to enhance the usefulness of the guidelines as a tool for judges in making their sentencing decisions. Under § 17.1-806 of the Code of Virginia, any modifications adopted by the Commission must be presented in its annual report, due to the General Assembly each December 1. Unless otherwise provided by law, the changes recommended by the Commission become effective on the following July 1.

4. Modifications to the Sentencing Guidelines Proposals reflect the best fit for the historical data. Proposals are designed to maximize compliance and balance mitigation and aggravation rates, to the extent possible. Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added.

5. Compliance with Existing Sentencing Guidelines forChild Pornography OffensesFY2009 – FY2013 Sentencing Commission’s 2013 Annual Report Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1) Number of Cases = 57 Number of Cases = 362

6. Sentencing Commission’s 2013 Annual Report • Recommendation 2: Modify the sentencing guidelines for child pornography (§§ 18.2-374.1 and 18.2-374.1:1) to bring the guidelines more in sync with sentencing practices for these offenses. • Increased recommendations for production and reproduction/ transmission in certain cases. • Decreased recommendations for possession.

7. Actual versus Recommended Prison Incarceration Rates forPossession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) Sentencing Commission’s 2013 Annual Report Current guidelines could be more closely aligned to the actual prison incarceration rate

8. Sentencing Commission’s 2013 Annual Report 6 5

9. Actual versus Recommended Prison Sentences Possession of Child Pornography Offenses (§ 18.2-374.1:1)FY2009 – FY20131 count Sentencing Commission’s 2013 Annual Report For cases scored on Section C, the proposed guidelines better reflect actual sentencing practices

10. Sentencing Commission’s 2013 Annual Report 2 counts ……………………………..... 216 …... 108 …….54 Fewer points for possession offenses 48 24 12 76 38 19

11. 2014 General Assembly Action

12. House Bill 504 and Senate Bill 433 2014General Assembly SUMMARY AS PASSED: Delay proposed modifications to the discretionary sentencing guidelines; possession of child pornography. Provides that proposed modifications to the discretionary sentencing guidelines for possession of child pornography adopted by the Virginia Criminal Sentencing Commission shall not become effective until July 1, 2016. The Commission will review these guidelines and complete its review by December 1, 2015. Any proposed modification in the Commission's 2015 Annual Report shall supersede the current proposed modifications.  

13. United States Sentencing Commission Study of Child Pornography Offenses

14. United States Sentencing Commission Child Pornography Study • The US Sentencing Commission conducted a multi-year study focusing on sentencing in federal child pornography cases. • The study included several thousand non-production child pornography cases sentenced between FY1992 through September of 2012. Source: United States Sentencing Commission (December 2012). Report to the Congress: Federal Child Pornography Offenses. Available at: http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/Full_Report_to_Congress.pdf 14

15. United States Sentencing Commission Child Pornography Study • The US Sentencing Commission sought to examine child pornography offenses due to: • Increasing number of cases sentenced under the federal child pornography guidelines, • Rising departure rates (62.8% mitigation rate in FY2011), • Recent changes in computer and Internet technologies used by non-production child pornography offenders, • Social science research regarding child pornography offenders’ behavior and the efficacy of psycho-sexual treatment, and • Federal criminal justice stakeholders’ concerns that the federal sentencing guidelines for these offenses were outmoded. 15

16. United States Sentencing Commission Study Findings • According to the National Juvenile Online Victimization Survey, approximately half of child pornography offenders in the US possess images depicting the sexual abuse of a child under six years old. • Approximately one-fourth of offenders possess images depicting the sexual abuse of a child two years old or younger. • Federal offenders typically maintain collections of still and video images numbering in the hundreds or thousands. • Such images often depict prepubescent children engaging in graphic sexual acts with adults. 16

17. United States Sentencing Commission Study Findings • More than half (56.1%) of federal offenders whose primary offense was possession of child pornography had actually engaged in distribution conduct. • In the federal system, distribution or receipt of child pornography carries at least a 5-year mandatory minimum term. • Approximately one-third of federal offenders had engaged in some type of “criminal sexually dangerous behavior” prior to prosecution for their non-production offenses, including: • Contact Sex Offenses • Non-Contact Sex Offenses • Non-Production Child Pornography Offenses 17

18. United States Sentencing Commission Study Findings • According to the US Sentencing Commission, the current federal guidelines produce overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and there is widespread inconsistent application. 18

19. United States Sentencing Commission Recommendations to Congress • The US Sentencing Commission recommended to Congress that three categories of offender behavior be incorporated into the imposition of sentences for non-production child pornography: • The content of an offender’s child pornography collection and the nature of an offender’s collecting behavior. • The degree of an offender’s involvement with other offenders; in particular, in an online “community” devoted to child pornography. • Whether an offender has a history of engaging in sexually abusive, exploitative, or predatory conduct in addition to his child pornography offense. 19

20. Proposed Methodology 2014 Study

21. Identification of Offenders for the 2014 Study Staff will examine offenders sentenced for possession of child pornography during FY2009-FY2013. Most of these offenders were included in the 2013 analysis, but some additional guidelines forms have been received since that time. Sentencing Events with Possession of Child Pornography as the Most Serious Offense FY2009 – FY2013

22. Most Frequently Cited Mitigation Reasons Possession of Child Pornography as the Most Serious Offense FY2009 – FY2013 Mitigation (n=111) Plea agreement 17 (15.3%*) Cooperated with authorities 13 (11.7%*) Prior record 13 (11.7%*) Judicial discretion 12 (10.8%*) Mitigating facts of the case 8 (7.2%*) Offender issues 6 (5.4%*) * of mitigation cases

23. Supplemental Data Collection Offender / Subject Characteristics Age of youngest subject portrayed Gender of subject(s) Number of subjects Subject’s relationship with offender Drug/alcohol use (subject and/or offender) during production of image? Employment provides (or offender has) access to minors? Use of material to “groom” minors? Offender Psychosexual Assessment? Offender a Registered Sex Offender (at Time of Offense)?

24. Supplemental Data Collection Content / Collecting Behavior Number of still images and videos Types of sexual conduct depicted Defendant produced child pornography Defendant distributed/retransmitted child pornography How was child pornography obtained? How was child pornography initially discovered? Participation in pornography “community” Dates of initial and most recent involvement (download dates) Security measures taken to avoid detection

25. Supplemental Data Collection Other Offender / Case Characteristics Offender criminal history details Plea and/or sentencing agreement accepted by the court Images introduced into evidence

28. Supplemental Data Collection Police reports Court records Pre-Sentence/Post-Sentence Investigation (PSI) Reports Commonwealth’s Attorneys’ files Victim Impact Statements Data Sources 26

29. Sentencing Events with Possession of Child Pornography as the Most Serious Offense by Jurisdiction FY2009 – FY2013 Total Cases = 293 27