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.