“It isn’t fair when someone who looks at pictures (child porn) gets more prison time than a child rapist, and I have seen it happen,” said Thomas Eoannoou, a Buffalo, N.Y. attorney who has handled many such cases.
In Western New York, men prosecuted on federal charges of possessing Internet child porn almost always gets at least two years of prison time. Some have received sentences of 10 years or more, according to the Adult Freedom Foundation monitor.
Meanwhile, men prosecuted on state charges in upper New York, usually get a year or less in prison, sometimes no jail time, the Buffalo News reported.
Two New York state teachers were arrested in Internet child pornography during the same week in June 2004. In Niagara Falls, Christian M. Butler was accused of downloading child porn on a school computer, placing his hands under a student’s dress and making inappropriate comments to another female student.
In the town of Tonawanda, New York, Jeffrey Hart was accused of using his home computer to download and transmit child porn. He was not accused of any misconduct at the school or improper contact with students.
Butler was sentenced to six months in jail. Hart got nearly five years. The difference is that Butler was prosecuted in state court and Hart faced hard justice in federal courts.
Prosecutors acknowledge the differences. Such disparity occurs often all over the United States. Child porn offenders who are convicted on federal charges face tough sentencing guidelines and, often, mandatory prison terms.
Those prosecuted on state charges – for the same crimes – usually get off much more easily.
“There is a disparity there, and I can see how many people would be upset,” said Niagara County District Attorney Matthew J. Murphy III.
“I think the problem needs to be addressed, not by decreasing the federal penalties, but by increasing the state penalties."
Erie County District Attorney Frank J. Clark disagrees.
Last month, Clark’s office decided to pursue state charges against Joseph Ciminelle, 50, a Buffalo, New York public school teacher accused of possessing Internet child porn.
“I’m not going to weigh in with my opinion on federal penalties," said Clark, “but in my opinion, the penalties decreed by our state legislators for theses crime are sufficient.”
Assistant U.S. Attorney Paul J. Campana, who supervised federal child porn prosecutions in upper New York state, also acknowledged the disparity.
This issue is likely to receive more attention over the next few years, because many law enforcement officials see Internet child porn as one of the nation’s fastest-growing crime problems.
Although federal sentencing guidelines are now advisory, most judges follow the guidelines, which can prescribe very tough sentences in child porn images, depending on the number of child porn images a person is caught with, his previous criminal record and other factors.
State judges have no such guidelines to dictate tough sentences.
That is why Shelby Robertson, 56, of Niagara Falls, N.Y., got off with only four months of weekends in jail. He was arrested in 2003 on charges of possessing Internet child porn, showing it to an 8-year-old girl and having contact with her.
Last year, a prominent New York state politician was charged with promoting sexual performances by a child and possessing computer images of those performances.
Baldwin was prosecuted on state charges. He got no jail time and was put on probation for 10 years.
Buffalo attorney Nora Dillon feels all such cases should be prosecuted federally, to ensure that everyone is judged under the same system.
“The federal guidelines on this crime are crazy. I’ve had clients who were out away for 10 years for looking at pictures,” said one attorney.
None of this sits well with “Bud” Hart, whose son is in federal prison for 57 months for possessing and trading child porn images. For Hart, it’s difficult to understand why some of those convicted get much lighter sentences in state courts.
