“Mandatory” minimum sentences for possession of child pornography, and why they don’t apply

December 30th, 2015 by Benjamin Van Severen

Mandatory minimum sentences for child porn convictions:

On December 14, 2015 a client of Van Severen Law Office was sentenced for possession of child pornography in the Fond du Lac County Circuit Court. Although charged with possession of ten images, our criminal defense attorney was able to negotiate for seven of the counts to be dismissed. Three charges remained, but the State of Wisconsin requested that the judge sentence the defendant to a total length of six years in prison, broken down into three years initial confinement followed by three years extended supervision. Each charge carried a maximum possible penalty of 25 years prison, meaning the client faced the possibility of going to prison for 75 years.

The prosecutor indicated at sentencing that she was requesting the “mandatory minimum” sentence for possession of child pornography. The government read the law as requiring that the defendant must serve a term of prison include three years initial confinement.

We argued that a mandatory minimum sentence didn’t apply. He broke down the law, word for word, showing that it didn’t actually require three years prison. We requested the defendant receive a much lighter prison sentence of one year in custody. The court sentenced the defendant to one year in custody, which was our recommendation.

What’s the law say?

Section 939.617(1) of the Wisconsin Statutes indicates that if a person is convicted of a violation of 948.12 (possession of child pornography) the court “shall impose a bifurcated sentence” subject to two exceptions. The statute goes on to indicate that the term of confinement in prison portion of the bifurcated sentence must be 3 years.

Wis. Stat. 939.617(2) discusses exceptions, and they’re where the confusion starts. That statute reads “If the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record, the court may impose a sentence that is less than the sentence required under sub. (1) or may place the person on probation under any of the following circumstances:

(a) If the person is convicted of a violation of s. 948.05, the person is no more than 48 months older than the child who is the victim of the violation.

(b) If the person is convicted of a violation of s. 948.12, the person is no more than 48 months older than the child who engaged in the sexually explicit conduct.

Importantly, and not a topic we’re discussing in this blog post, 939.617(3) makes it clear, in very certain terms, that the mandatory minimum does not apply to defendants under the age of 18 when the violation occurred. The second exception provided by Wis. Stat. 939.617(1) applies the “under age of 18” rule.

So where’s the confusion?

The dispute surrounds the word “or.” “The court may impose a sentence that is less than the sentence required … or may place the person on probation …” confuses certain courts because it seems to suggest that a person can only be placed on probation if the defendant was less than 4 years older than the victim at the time of the offense.

A literal reading of the child porn statute says that the judge may impose any sentence if he finds the public won’t be harmed, the community’s best interests are served, and the judge states his reasons on the record. This doesn’t have anything to do with the age of the victim, the age of the defendant, or probation, but it allows a very lenient sentence without much of a showing from the defendant. The victim/defendant age requirement is a more stringent requirement than simply giving some reasons in court.

How did this happen?

Prior to April 2012, the law prohibiting possession of child pornography required that individuals convicted of the offense spend three years in prison, but allowed for probation “if the court finds that the best interests of the community will be served and the public will not be harmed and the court places its reasons on the record.” Legislators believed that defendants weren’t being punished appropriately and wanted to ensure that more convicted individuals be sent to prison, not simply allowed out on probation, so they attempted to strengthen the punishments. Had legislators used the word “and” rather than “or,” certainly the law would be clear. But they didn’t.

I face child pornography charges. Should I hire a lawyer?

Absolutely. Although we believe the law is clear as written, plenty others disagree. Hiring a criminal lawyer not familiar with what the child pornography statute actually says could result in that attorney not asking that you be sentenced to less than 3 years. And since prosecutors certainly aren’t going to ask for less than three years, who’s going to argue your case? Is the judge going to read between the lines to determine what the statute actually says?

We’ve made the argument before and we’ve won. If you’re serious about your possession of child pornography case, contact criminal defense attorney Benjamin Van Severen. There’s a prison sentence hanging above your head. Do you really want to risk your liberty by hiring an attorney unfamiliar with the issues?

Subsequent to this blog post, the Wisconsin Court of Appeals clarified this child pornography sentencing issue. The mandatory minimum term of initial confinement of 3 years applies to all child pornography cases. Two exceptions apply, but those only apply when the defendant is less than 48 months older than the victim.