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CO: State Supreme Court bars multiple convictions based on quantity of pornographic images

[coloradopolitics.com –  12/14/20]

The Colorado Supreme Court has clarified that no matter how many pornographic images an individual possesses, sexual exploitation of a child merits a single charge, which prosecutors had derogatorily deemed a “volume discount on child pornography.”

Following the decision, multiple state legislators agreed that the guidelines for prosecuting the crime should spark a conversation given the court’s interpretation.

“What does justice look like for child pornography, be it one image or 10 images or 1,000 images?” asked Sen. Rhonda Fields, D-Aurora. “All I have to say is it all has the same damage.”

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Go Colorado!

If the Prosecutors had it their way, every offense committed could be broken down into multiple “mini “ offenses.
Say you went out and broke 40 windows. They could then say the limit was 5 windows. So they could charge you with 8 different crimes, which could land you in Prison for years, all for breaking windows?
What the court said is already in place in Santa Clara county ( I don’t know about other counties) any amount of obscene material retrieved at one time is counted as one offense. The amount retrieved is what determines how severe the offense is, as well as the eventual sentence handed down.

Doesn’t matter if it’s one count or 5 counts. It’s ONE and DONE once charged, tried and convicted + registry = living death.

True in the registry is a harsh sentence. But this takes years off peoples sentences. Heck if it was me, than I’d lose a whole year and I’d be happy. I got a friend who got 10 years behind bars for this.. something like 20 counts. If it had gone down to one, he would’ve gotten probably a year of probation. This is actually one of the few big wins! Yes it’s a bad offense, but it’s a non contact offense. People need treatment for the addiction, not punishment for the symptoms. I remember a day in college when about ten of my classmates where watching gore videos and taking pleasure laughing and making fun of people and children dying.. on campus… they never got morally scathed.. never got into any trouble.. a week later I got charged.. they judged me so hard and treated me like crap after it.. all I could think of was them celebrating the death of children in those gore videos the previous week.. and they don’t get a a Scarlett letter.. cp charges need punishment.. but right now they are too harsh.. non contact offenses should not give you more of a punishment than a contact offense.. for the record I’m anti registry..it does suck..

Have 2 convictions 1 arrest.Ny

I think you mean you have a conviction on 2 counts? Two convictions means you were convicted two separate times. Like, the Three Strikes law requires 3 convictions.

Oh yeah, and my lawyer told me it will be rolled into 1 conviction if I accepted the plead deal. Surprise surprise. What did I know? That’s what I paid him for. Good thing it was only $25k

The USSC addressed this issue a long time ago. Multiplicity (multiple counts of the same offense based on the same transaction) is unconstitutional. While counts can be charged and prosecuted individually, they must merge into ONE conviction if the evidence shows they are all a part of the same transaction. For example, if someone steals $10,000, the DA can (and usually will) charge and prosecute 10 charges of $1000 each. But if convicted of all counts, they all merge into one – one conviction, one sentence.

DAs just want to add as many charges as they can to fluff their resumes and pad their conviction statistics – it’s no more complicated than that.

Dustin, it is somewhat more complicated. The feds have two statutes, i.e. 18 USC 2252 and 2252A, that address child porn. Oddly, the courts have determined that the term “1 or more” limits possession to a single “unit of prosecution.” Whereas using the word “any” allows for multiple units of prosecution. So the number of counts available depends upon which statute is charged.

“…knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter…” (18 USC 2252(4)(B)).
“…knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material…” (18 USC 2252A(5)(A) and (B)).

The sentencing commission (USSC) only provides the process for determining how multiple counts should be consolidated, or merged, at sentencing. It does not actually determine how many counts one can be charged with or convicted of, nor does it determine constitutionality. That is determined by statute and judicial statutory interpretation. Also note that since the Supreme Court’s Booker decision, the sentencing commission guidelines are not binding and a judge can vary up or down if she sees fit.

Veritas.

When one runs down this particular rabbit hole further–as I did after my previous post–it becomes apparent that the issue is not only complicated, but downright confusing. Courts in different circuits have come to different conclusions through differing and tortured legal analyses. Often, but not universally, the “rule of lenity”–i.e. the tie goes to the runner–is invoked in the defendant’s favor.

When a court must resort to an analysis that goes beyond the plain language of a statute, it means the legislature has not done its job. That is to create an unambiguous statute; which actually takes a lot of thought and work. It is much easier to push that task onto the courts while claiming to be “tough on crime” during the next election cycle.

From a defense standpoint, one should raise every objection, argument or defense in the pretrial stage to preserve them on appeal. It sucks to have a valid defense rejected at the appellate level because it was not raised in lower courts. This requires a tremendous amount of time, energy and research by defense counsel. But that is an entirely different problem.

Veritas (if it can be found in the legal spaghetti).

IL: Here is another similar case just over the southern border from me.
https://www.mystateline.com/news/local-news/judge-sends-south-beloit-child-pornographer-to-prison-for-26-years/

Ill just bet there were some duplicitous charges ( as discussed in this posted case) among this guys wrongdoing too. Prosecutors love duplication because of the exposure to lengthy sentencing limits increases a likelihood or chance of plea.

How many of them have naked pictures of their children or grandchildren? Ones of them being brought into the world as a naked baby, on the toilet, and having their first bath. Wouldn’t those images be pornographic? So they are offenders too!!

Sounds logical 1bust 1court case 1conviction the registery in California must be growing out of control because their trying hard to shrink IML down to only new and teir3 offenders.
It’s been along road iv been dealing with this bullshiit since high school I was 17 when my wife/victim became pregnant with our first born.
2 days after I turned 18 the DA filed charges at the request of social worker who we met at the Social Services office when trying get medical for her.
A detective showed up at my house talk to me and my Mother and informed us I had a court date on calendar involving this case and if I didn’t show up there be A weren’t for my arrest when i went to court the judge released me on my own reconsince i never spent A day in jail.
At 19 I ended up taken a plea deal i was a new father and just wanted too get on with my life little did I know by taken that deal I wasn’t getting on with my life I was ending it.

Good luck

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