Do not let the State double count
The State may try to argue that there are numerous aggravating factors even if the defendant has no criminal record. They may point to the number of files, the descriptions of the files and the ages of the children in the files. In support of their argument, they may cite to U.S. v. Ferber, 458 U.S. 747, 758 (1982) for the proposition that children are re-victimized throughout the extended time that the defendant viewed and possessed the child pornography. They may also argue that there is a significant physical and emotional harm caused to children by child pornography. In support, they may cite to U.S. v. Williams, 128 S.Ct. 1830, 1844 (2008) (explaining that child pornography constitutes a permanent record of the children’s degradation) as well as State v. A.B., 328 N.J. Super. 96, 99 (Law Div. 2000).
Of course, this is all double counting. To counter this, defense attorneys should argue that an element of the offense may not be cited as an aggravating factor to increase punishment. State v. Yarbough, 100 N.J. 627, 633 (1985). Clearly, the legislature had all of the above issues in mind and if it wanted to set specific prison terms, it would have. It didn’t so therefore, the State cannot double count them now. However, defense attorneys should be prepared to make a very strong argument when faced with a very serious child pornography collector as the State may have good arguments to overcome the issue of double counting.