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

On December 14, 2015 a client of Meyer Van Severen, S.C. was sentenced for possession of child pornography in the Fond du Lac County Circuit Court.  Although charged with possession of ten images, Attorney Meyer 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 law, as read by the government, required that our client be sentenced to a term of prison including three years initial confinement.

Attorney Meyer 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.  Meyer requested the defendant receive a much lighter prison sentence of one year in custody.  The defendant was eventually sentenced to the one year in custody, exactly at Meyer argued for.


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.

The exceptions are discussed in Wis. Stat. 939.617(2), 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.  This “under age of 18” rule is the second exception mentioned in Wis. Stat. 939.617(1).


 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’ve been charged with possession of child pornography.  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 Attorneys Matthew R. Meyer and 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?
This blog post only discusses the law as it is currently understood and may become outdated as appellate courts address this issue.