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.
Defense attorneys representing a client convicted of a child pornography charge must be prepared for the State to file a hard hitting brief with the Court absent a solid plea offer making same pointless. In this brief, the State will ask for the maximum penalties. The attorney should anticipate this and ask the Court for a briefing schedule. This will prevent the State from filing their brief at the last minute giving you no time to respond. Since most judges make up their mind about sentencing before the sentencing date, you will want to have all of your argument in well ahead of time.
The State will make a number of arguments, most of which will be double counting. For more on that issue, please see the post on double counting.
The State may also cite to the Federal Sentencing Guidelines and argue that if this was a Federal case, the defendant would receive a prison term within a range of a certain amount of months. Specifically, the State may argue that the defendant would have received an increase of 10 levels due to various factors including: possessing material involving a prepubescent minor, an increase for possessing material portraying sadistic or masochistic conduct, use of a computer as part of the offense and for having over ten images of child pornography. This has to be one of the worst arguments I have ever seen a prosecutor make and I am not aware of any case that would ever permit this. Don’t get bogged down with this argument if you are unfamiliar with Federal sentencing. Just argue that this is nonsense and swat it away like the garbage it is.
Finally, the State may argue that State v. Rosenberg, 207 N.J. Super 350, 358 (Law Div. 1985) suggests that white collar criminals should be subject to a period of incarceration because that is the only way that the sentence will have some sting and hurt. The first way to respond to this of course is to distinguish the case as Rosenberg did not involve a child pornography charge. Secondly, its been over 25 years and it is just a law division case. Surely, if the Appellate Division or Supreme Court wanted to adopt such a holding, it would and it hasn’t. Thus, its not binding and I think the entire case is taken out of context. White collar crime or not, each sentence must be based upon the aggravating and mitigating factors found by the sentencing court. The legislature could have imposed mandatory prison time for possession of child pornography and it hasn’t. It could have included a specific parole disqualifier for distribution of child pornography and it hasn’t done so either. Thus, the State can’t create one for them.