Child porn: State goes easy on child porn offenders
Date: October 19, 2005Source: buffalonews.com
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Two local teachers were arrested on Internet child pornography charges during the same week in June 2004.
In Niagara Falls, Christian M. Butler was accused of downloading child porn on a school computer, placing his hands under a student's dress and making inappropriate comments to another female student.
In the Town of Tonawanda, Jeffrey Hart was accused of using his home computer to download and transmit child porn. He was not accused of any misconduct at the school or improper contact with students.
Butler was sentenced to six months in jail.
Hart got nearly five years.
The difference is that Butler was prosecuted in state court, and Hart faced the hard justice of the federal courts.
Such disparity occurs often all over the United States. Child porn offenders who are convicted on federal charges face tough sentencing guidelines and, often, mandatory prison terms.
Those prosecuted on state charges - for the same crimes - usually get off much more easily.
"It isn't fair when someone who looks at pictures gets more prison time than a child rapist, and I've seen it happen," said Thomas J. Eoannou, a Buffalo attorney who has handled many such cases.
"It's not fair"
In Western New York, men prosecuted on federal charges of possessing Internet child porn almost always get at least two years of prison time. Some have received sentences of 10 years or more, according to an analysis by The Buffalo News.
Men prosecuted on state charges in the region usually get a year or less in prison, sometimes no prison time. And like Butler, some of the state cases also involve molestation or other improper contact with children.
"It's not fair," said Hart's father, Hugh "Bud" Hart. "There's no justification for child pornography, and people should be punished. But there should be some fairness in the sentences."
Prosecutors acknowledge the differences.
"There is a disparity there, and I can see how some people would be upset," said Niagara County District Attorney Matthew J. Murphy III, whose office pursued a state case - rather than seeking a federal prosecution - against Butler.
"I think the problem needs to be addressed, not by decreasing the federal penalties, but by increasing the state penalties," he said.
Erie County District Attorney Frank J. Clark disagrees.
Last month, Clark's office decided to pursue state charges against Joseph Ciminelli, 50, a Buffalo public school teacher accused of possessing Internet child porn.
"I'm not going to weigh in with my opinion on federal penalties," Clark said, "but in my opinion, the penalties decreed by our state legislators for these crimes are sufficient."
Assistant U.S. Attorney Paul J. Campana, who supervises federal child porn prosecutions in the region, also acknowledged the disparity. Campana offered no opinion on the matter, saying the punishments are determined by judges, Congress and state legislators, not by his office.
The issue is likely to receive more attention over the next few years, because many law enforcement officials see Internet child porn as one of the nation's fastest-growing crime problems.
"We have about six agents working full time on Internet child porn crimes," said Paul M. Moskal, spokesman for the Buffalo FBI office. "At the rate this crime is increasing, we could have every agent in the Buffalo division [about 120 total] working on child porn, and every one of them would be busy."
In recent years, Congress has enacted tougher federal punishments for those who produce, transmit or possess child porn computer images.
A person convicted in federal court of receiving or distributing child porn now faces a mandatory prison term of at least five years in prison. Someone with a prior record of sex offenses against children would face a mandatory 15-year term.
A person convicted in state court of a similar offense - promoting a sexual performance by a child - faces a maximum prison term of seven years. There is no minimum prison term for the offense.
Guidelines advisory
Although federal sentencing guidelines are now advisory, most judges follow the guidelines, which can prescribe very tough sentences in child porn cases, depending on the number of child porn images a person is caught with, his previous record and other factors. State judges have no such guidelines to dictate tough sentences.
That's why Shelby Robertson, 56, of Niagara Falls, got off with only four months of weekends in jail. He was arrested in 2003 on charges of possessing Internet child porn, showing it to an 8-year-old girl and having sexual contact with her.
Federal agents, state troopers and investigators for the state attorney general's office are constantly monitoring the Internet in search of child porn violators.
How do prosecutors decide which cases will be handled in the tougher federal courts and which will be handled in state courts?
Do an offender's political ties ever influence such decisions?
Local prosecutors insist that political ties never play a role.
Several said they ask federal agencies to take the most-serious cases - those involving the largest numbers of child porn images or those with offenders who produced and transmitted their own child porn images.
"We talk with the feds all the time about what to do with these cases," said Joseph V. Cardone, the district attorney of Orleans County. "If you have somebody who really needs to get slapped hard, we turn the cases over the feds. At times, the feds step aside. Every case is different, in terms of conduct and culpability."
But defense attorneys complain that, in many cases, state charges have been used against molesters and others who have engaged in much more serious conduct than those prosecuted on the tougher federal counts.
"The federal guidelines on this crime are crazy. There's no justification for child pornography, but I've had clients who were put away for 10 years for looking at pictures," said Eoannou, the Buffalo defense attorney.
According to federal records, 18 child porn cases were prosecuted federally in fiscal year 2004 within the 17 counties that make up the U.S. Justice Department's Western District of New York.
Baldwin's case
For calendar year 2004, state records show that 48 cases were prosecuted on state charges within the same 17 counties. Erie County had the most state cases in the region, 10, according to state records.
Last year, a prominent Allegany County politician, former Wellsville Supervisor Michael T. Baldwin, was charged with promoting sexual performances by a child and possessing computer images of those performances.
Baldwin, also a former Wellsville police dispatcher, was prosecuted on state charges. He got no jail time and was put on probation for 10 years.
Allegany County District Attorney Terrence M. Parker said Baldwin's political ties had no bearing on the decision to go with state charges.
"Federal charges were considered. The U.S. attorney said it didn't qualify as a federal case, because there were a small number of images and no history of him trading images," Parker said. "We insisted on a felony plea because of his status as a public official, and I received some criticism for that."
Parker said he understands why a federal defendant, serving a long prison term for similar conduct, would be upset by such a scenario.
Buffalo attorney Nora Dillon feels all such cases should be prosecuted federally, to ensure that everyone is judged under the same system.
None of this sits well with "Bud" Hart, whose son is in federal prison for 57 months for possessing and trading child porn images. For Hart, it's difficult to understand why some of those convicted get much lighter sentences in the state courts.
"I think the people they catch looking at this stuff, for a first offense, should receive some jail time, but it should be concurrent with counseling," said Hart, a nurse anesthetist now living in Marquette, Mich.
"What is our government doing to track down the people who produce this material? That's where the emphasis should be."
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