1. April 14, 2014 Possession of Child Pornography Study – Proposed Methodology – VIRGINIA CRIMINAL SENTENCING COMMISSION

2. Background

3. The Commission closely monitors the sentencing guidelines system and, each year, deliberates upon possible modifications to enhance the usefulness of the guidelines as a tool for judges in making their sentencing decisions. Under § 17.1-806 of the Code of Virginia, any modifications adopted by the Commission must be presented in its annual report, due to the General Assembly each December 1. Unless otherwise provided by law, the changes recommended by the Commission become effective on the following July 1. Modifications to the Sentencing Guidelines 3

4. Proposals reflect the best fit for the historical data. Proposals are designed to maximize compliance and balance mitigation and aggravation rates, to the extent possible. Current guidelines worksheets serve as the base for scoring historical cases, but the points assigned to those factors may be adjusted and new factors may be added. Modifications to the Sentencing Guidelines 4

5. Compliance with Existing Sentencing Guidelines for Child Pornography Offenses FY2009 – FY2013 Number of Cases = 57 Number of Cases = 362 Production (§ 18.2-374.1) Possession/Reproduction (§ 18.2-374.1:1) Sentencing Commission’s 2013 Annual Report

6. Recommendation 2: Modify the sentencing guidelines for child pornography (§§ 18.2-374.1 and 18.2-374.1:1) to bring the guidelines more in sync with sentencing practices for these offenses. − Increased recommendations for production and reproduction/ transmission in certain cases. − Decreased recommendations for possession. 6 Sentencing Commission’s 2013 Annual Report

7. Possession/Reproduction Offenses Actual Practice Recommended under Current Sentencing Guidelines Probation or Incarceration Up to 6 Months 33.4%30.9% Incarceration More than 6 months (Range includes prison) 66.6%69.1% Current guidelines could be more closely aligned to the actual prison incarceration rate Actual versus Recommended Prison Incarceration Rates for Possession/Reproduction of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 (Preliminary) 7 Sentencing Commission’s 2013 Annual Report

8. 6 5 8

9. Actual versus Recommended Prison Sentences Possession of Child Pornography Offenses (§ 18.2-374.1:1) FY2009 – FY2013 1 count Actual Practice Recommended under Existing Sentencing Guidelines Mean Sentence 2.3 years3.2 years Median Sentence 1.7 years2.5 years Recommended under Proposed Sentencing Guidelines 2.3 years 1.9 years For cases scored on Section C, the proposed guidelines better reflect actual sentencing practices 9 Sentencing Commission’s 2013 Annual Report

10. 48 24 12 76 38 19 2 counts ……………………………..... 216 …... 108 ……. 54 Fewer points for possession offenses Sentencing Commission’s 2013 Annual Report

11. 2014 General Assembly Action

12. House Bill 504 and Senate Bill 433 2014 General Assembly 12 SUMMARY AS PASSED: Delay proposed modifications to the discretionary sentencing guidelines; possession of child pornography. Provides that proposed modifications to the discretionary sentencing guidelines for possession of child pornography adopted by the Virginia Criminal Sentencing Commission shall not become effective until July 1, 2016. The Commission will review these guidelines and complete its review by December 1, 2015. Any proposed modification in the Commission's 2015 Annual Report shall supersede the current proposed modifications.

13. United States Sentencing Commission Study of Child Pornography Offenses

14. 14 The US Sentencing Commission conducted a multi- year study focusing on sentencing in federal child pornography cases. − The study included several thousand non-production child pornography cases sentenced between FY1992 through September of 2012. Source: United States Sentencing Commission (December 2012). Report to the Congress: Federal Child Pornography Offenses. Available at: http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Sex_ Offense_Topics/201212_Federal_Child_Pornography_Offenses/Full_Report_to_Congress.pdf United States Sentencing Commission Child Pornography Study 14

15. 15 The US Sentencing Commission sought to examine child pornography offenses due to: − Increasing number of cases sentenced under the federal child pornography guidelines, − Rising departure rates (62.8% mitigation rate in FY2011), − Recent changes in computer and Internet technologies used by non-production child pornography offenders, − Social science research regarding child pornography offenders’ behavior and the efficacy of psycho-sexual treatment, and − Federal criminal justice stakeholders’ concerns that the federal sentencing guidelines for these offenses were outmoded. 15 United States Sentencing Commission Child Pornography Study

16. 16 According to the National Juvenile Online Victimization Survey, approximately half of child pornography offenders in the US possess images depicting the sexual abuse of a child under six years old. − Approximately one-fourth of offenders possess images depicting the sexual abuse of a child two years old or younger. Federal offenders typically maintain collections of still and video images numbering in the hundreds or thousands. − Such images often depict prepubescent children engaging in graphic sexual acts with adults. United States Sentencing Commission Study Findings 16

17. 17 More than half (56.1%) of federal offenders whose primary offense was possession of child pornography had actually engaged in distribution conduct. − In the federal system, distribution or receipt of child pornography carries at least a 5-year mandatory minimum term. Approximately one-third of federal offenders had engaged in some type of “criminal sexually dangerous behavior” prior to prosecution for their non-production offenses, including: − Contact Sex Offenses − Non-Contact Sex Offenses − Non-Production Child Pornography Offenses United States Sentencing Commission Study Findings 17

18. 18 According to the US Sentencing Commission, the current federal guidelines produce overly severe sentencing ranges for some offenders, unduly lenient ranges for other offenders, and there is widespread inconsistent application. United States Sentencing Commission Study Findings 18

19. 19 The US Sentencing Commission recommended to Congress that three categories of offender behavior be incorporated into the imposition of sentences for non-production child pornography: The content of an offender’s child pornography collection and the nature of an offender’s collecting behavior. The degree of an offender’s involvement with other offenders; in particular, in an online “community” devoted to child pornography. Whether an offender has a history of engaging in sexually abusive, exploitative, or predatory conduct in addition to his child pornography offense. United States Sentencing Commission Recommendations to Congress 19

20. Proposed Methodology 2014 Study

21. Staff will examine offenders sentenced for possession of child pornography during FY2009-FY2013. Most of these offenders were included in the 2013 analysis, but some additional guidelines forms have been received since that time. Sentencing Events with Possession of Child Pornography as the Most Serious Offense FY2009 – FY2013 Identification of Offenders for the 2014 Study 21

22. Mitigation (n=111) Plea agreement 17 (15.3%*) Cooperated with authorities 13 (11.7%*) Prior record 13 (11.7%*) Judicial discretion 12 (10.8%*) Mitigating facts of the case 8 (7.2%*) Offender issues 6 (5.4%*) * of mitigation cases Most Frequently Cited Mitigation Reasons Possession of Child Pornography as the Most Serious Offense FY2009 – FY2013 22

23. Age of youngest subject portrayed Gender of subject(s) Number of subjects Subject’s relationship with offender Drug/alcohol use (subject and/or offender) during production of image? Employment provides (or offender has) access to minors? Use of material to “groom” minors? Offender Psychosexual Assessment? Offender a Registered Sex Offender (at Time of Offense)? Offender / Subject Characteristics Supplemental Data Collection 23

24. Number of still images and videos Types of sexual conduct depicted Defendant produced child pornography Defendant distributed/retransmitted child pornography How was child pornography obtained? How was child pornography initially discovered? Participation in pornography “community” Dates of initial and most recent involvement (download dates) Security measures taken to avoid detection Content / Collecting Behavior Supplemental Data Collection 24

25. Offender criminal history details Plea and/or sentencing agreement accepted by the court Images introduced into evidence Other Offender / Case Characteristics Supplemental Data Collection 25

28. Police reports Court records Pre-Sentence/Post-Sentence Investigation (PSI) Reports Commonwealth’s Attorneys’ files Victim Impact Statements Data Sources Supplemental Data Collection 26

29. Cases Accomack1 Albemarle10 Alleghany2 Amherst1 Arlington5 Augusta1 Bedford8 Bland1 Buchanan2 Buckingham1 Campbell1 Carroll4 Chesterfield16 Fairfax County47 Fauquier6 Fluvanna1 Frederick4 Gloucester1 Goochland1 Grayson1 Greene1 Hanover3 Henrico8 James City1 Loudoun3 Louisa4 Lunenburg2 Cases Alexandria2 Buena Vista1 Charlottesville3 Chesapeake1 Colonial Heights3 Fredericksburg4 Hampton1 Hopewell1 Lynchburg6 Martinsville1 Newport News2 Norfolk8 Portsmouth1 Radford6 Richmond City3 Roanoke City6 Salem3 Staunton4 Suffolk1 Virginia Beach8 Waynesboro1 Williamsburg2 Winchester3 Cases Middlesex1 Montgomery7 Nelson1 New Kent1 Northampton1 Northumberland1 Pittsylvania2 Powhatan1 Prince George2 Prince William14 Pulaski3 Richmond County 1 Roanoke County3 Rockbridge2 Rockingham3 Russell6 Scott2 Smyth4 Spotsylvania7 Stafford3 Tazewell3 Warren3 Washington2 Wise5 Wythe3 York5 Sentencing Events with Possession of Child Pornography as the Most Serious Offense by Jurisdiction FY 2009 – FY 2013 Total Cases = 293 27