Can I Get Probation in a Federal Child Pornography Case?

Yes, it is possible to receive a probation sentence in a federal child pornography case. Probated sentences, however, are rare and have become less common over the past couple of decades. In 2024, our law firm was one of the few that was able to obtain a probation sentence in a federal child pornography case. You can read about it here.

Obtaining a probated sentence often requires multiple positive sentencing factors such as no criminal history, low risk of re-offending, certain mental health issues which contributed to the offense conduct, and conduct that is less severe when compared to other child pornography cases. In addition, some judges and some federal districts are more likely to give probated sentences than others.

It is important to understand that there are generally three types of child pornography cases (also referred to as sexual exploitation of children cases) in federal court:

• Simple possession;
• Receipt or distribution; and,
• Production or attempted production

Only possession cases have no mandatory minimum sentence, with a sentencing range of 0 to 20 years. Receipt and distribution cases, on the other hand, carry a sentencing range of 5 to 20 years in prison, meaning that the judge must sentence someone convicted of receiving or distributing child pornography to at least 60 months in prison. Production cases are far more serious and require a prison sentence of at least 15 years.

It is also important to understand that some federal appellate courts have all but prohibited judges from giving probation sentences, even in simple possession cases. The Eleventh Circuit, which covers Georgia, Florida, and Alabama, overturned a probation sentence for a first-time offender, finding that no jail time was an unreasonable sentence due to the seriousness of the offense. Because of appellate cases like this one, many trial court judges have been hesitant to hand out probation sentences. Indeed, in 2022, 98.7% of all defendants sentenced for a child pornography offense received a prison sentence.

Judges, however, also understand that many defendants in child pornography cases should receive sentences below what the Federal Sentencing Guidelines recommend. For each case in federal court, the Federal Sentencing Guidelines recommend a sentence between a certain range in months. In child pornography cases, the average sentence for individuals convicted of simple possession was 62 months while the Guidelines called for significantly more time.

Obtaining the lowest sentence possible in child pornography cases requires an experienced criminal defense lawyer to put forth a combination of factors that judges consider when imposing a sentence. Positive factors include:

• No criminal history.
• Low risk of re-offending. Prior to sentencing, the defendant should undergo a psychosexual evaluation from a clinical psychologist to show that the defendant will follow and treatment plans and not re-offend.
• Mental health issues. There are certain mental health diagnoses that may contribute to someone seeking out and viewing child pornography. One of these is autism, and an autism diagnosis can be instrumental in mitigating culpability and establishing a treatment plan.
• Conduct that is less severe than in other cases.

With regard to establishing less severe conduct, judges compare sentences handed down in other cases along with the specific facts in those cases. Judges often look at the duration of the conduct (i.e., how long someone sought out child pornography), the extent of the conduct, how many images or videos were found, whether the person was part of an online group, and whether the person ever attempted to contact a minor. By putting these factors in the best light possible, a good criminal defense lawyer can help his client obtain the lowest sentence possible.

If you or someone you know is facing child pornography charges, give our experienced federal criminal defense lawyers a call or send us an email below. The initial consultation is always free of charge.