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Judges Seek Flexibility in Child Porn Cases

People convicted of possessing child pornography are getting support from an unexpected source: federal judges.

In hearings across the country, defense attorneys and federal judges are asking the U.S. Sentencing Commission to allow judges greater flexibility to give lighter sentences for possession of child pornography when no other crime is involved.

District Judge Jay Zainey of New Orleans, who testified last month, says he is not defending people who possess "filth" but that the prison terms established by the commission are sometimes too harsh.

He cites the hypothetical example of a frail 80-year-old widower who views child pornography on his home computer and is not a risk to act against children. That man could face a minimum of five years in prison.

"That could be a life sentence," Zainey says. "You must have tough penalties for child pornography - it's a horrible offense and you have to have stiff penalties - but you should be able to look at each case individually."

For most federal crimes, the commission sets - and Congress approves - a range of suggested prison terms.

Some major crimes require a mandatory minimum sentence, but most convicts are sentenced under a range of suggested prison terms called sentencing guidelines. For someone who possesses child pornography, a sentence can be harsher depending on whether the defendant used a computer and whether a large number of images were involved.

Judges can order higher or lower prison terms, but if they do so drastically or often, they run the risk of a sentence being overturned on appeal.

The commission has made possession of child pornography one of 11 sentencing areas to study. It plans to vote in April on possible changes.

Ernie Allen, president of the National Center for Missing&Exploited Children, says judges already give sentences that are lighter than the guidelines. He says they sometimes minimize the crimes by not examining the pornography involved and are too often swayed by defendants who appear before them and do not match society's stereotypes of people who look at child porn.

"Doctors, lawyers, business executives, schoolteachers, police officers - they come out of mainstream America," Allen says. "So in a lot of situations, judges look at them and say, 'They're not dangerous,' or they minimize it and say, 'This is just kiddie porn.' "

U.S. District Judge William Sessions, chairman of the commission and chief judge of the district of Vermont, says judges have been nearly unanimous that the guidelines and the mandatory minimums restrict their ability to sentence convicts based on the specifics of each case and defendant. He says police and prosecutors want to maintain them intact to serve as deterrents to crime, and to use possible sentence reductions as incentives to win defendants' cooperation in investigations.

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