Child Porn Prosecutions Soaring

SAN FRANCISCO (AP) - FBI agent Stacie Lane sat at her computer at the FBI headquarters in Maryland one June morning in 2007, launched the notorious file-sharing software LimeWire, typed the search query "10yo" and went hunting for child pornography.

Within an hour, Lane was downloading images from Max Budziak's home computer in San Jose.

Last month, a federal jury in San Jose convicted Budziak, 66, of possessing and distributing child pornography. The former letter carrier with no previous criminal history was immediately taken into custody and is facing a minimum of five years in prison when he is sentenced April 25. Budziak is likely to receive a more severe penalty - a common occurrence with federal child pornography prosecutions because the influential U.S. Sentencing Commission guidelines typically advise judges to mete out longer sentences than the minimum.

The number of federal child porn cases has exploded during the last 15 years as Congress passed mandatory five-year minimum sentences and federal authorities have declared such investigations a priority.

The FBI has made more than 10,000 arrests since 1996 and U.S. Immigration and Customs Enforcement agency reports a similar number of arrests since its creation in 2003. The U.S. Department of Justice says prosecutions are up 40 percent since 2006 resulting in roughly 9,000 cases. In 2009, 2,315 suspects were indicted.

Local authorities across the country are also stepping up their child pornography investigations, which often require little more than a technically savvy agent, a high-speed Internet connection and so-called peer-to-peer software that millions of computer owners use to legally - and illegally - swap music, videos and other digital files.

The number of child pornography prosecutions is still dwarfed by drug and immigration cases that flood federal court dockets, but no other crime is growing at the 2,500 percent rate the FBI claims for child porn arrests.

The FBI predicts that the cases will only continue to grow as appeals courts approve their search and seizure methods. The convictions are expected to continue even though a federal judge shut down LimeWire after the recording industry sued the company for copyright infringement.

LimeWire was a popular file swapping tool, which the FBI modified for its child pornography purposes. But similar peer-to-peer programs are accessible online and offenders continue to swap images by e-mail.

A typical child pornography conviction resulted in an average prison sentence of slightly more than a year in 1996.

Defense attorneys, legal scholars and even some federal judges bemoan the prosecution and sentencing developments as draconian for failing to distinguish between hardcore producers of child pornography and hapless Web surfers with mental problems.

"It's not pretty," said the attorney Michael Whelan, who represents Budziak. "There are exceptions, but generally speaking most prosecutions are of a sorry individual with a bad habit."

Last year, U.S. District Court Judge Jack Weinstein of New York publicly blasted child pornography punishment when he rejected prosecutors call for a prison sentence of more than 11 years for Pietro Polizzi, a father of five caught with thousands of images on his computer. Weinstein reluctantly sentenced Polizzi, who claimed to have been repeatedly raped as a child in Sicily, to the mandatory minimum sentence of five years.

The judge said that Polizzi needs mental health treatment rather than incarceration and said he posed no risks to the community.

"Convincing evidence demonstrates that he presents no appreciable risk to any child or adult, but that he needs treatment for childhood based psychiatric problems," the judge said in a written statement last month explaining his sentence. Other judges have called on the U.S. Sentencing Commission to give them more flexibility in sentencing first-time offenders convicted of distributing child pornography.

For their part, prosecutors and child advocates such as the National Center for Missing and Exploited Children argue the harsh penalties are justified. They say that consumers of child pornography keep the trade alive.

Appeals courts agree. Last month, the Atlanta-based 11th Circuit Court of Appeals ordered those convicted of child pornography to pay restitution to the victims whenever possible. It's the second appellate court to make such a ruling.

"The end users of child pornography enable and support the continued production of child pornography," Judge Charles R. Wilson wrote for the unanimous three judge panel on Jan. 28. "They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child's privacy by possessing their image. All of these harms stem directly from an individual's possession of child abuse images."

That's what prosecutors argued last month in insisting that Zachary Snead, 25, serve seven years in prison after pleading guilty to distributing child pornography via e-mail.

A chat room buddy turned Snead into the National Center for Missing and Exploited Children after he began boasting about having sex with a 7-year-old boy and a toddler. The center, in turn, turned over the tip to investigators, who found hundreds of child porn images on his computer. They concluded, however, that Snead's molestation boasts were twisted fantasies on which he didn't act.

Nonetheless, Assistant U.S. Attorney Daniel Kaleba told U.S. District Court Judge Jeremy Fogel in San Jose that the college graduate's crime was a violent one requiring the harsh sentence.

"Mr. Snead engaged in such conduct to fulfill his disturbing and aberrant sexual interests," Kaleba said in court papers. "He also victimized the children portrayed in the images by viewing and distributing such images."

The judge agreed and sentenced Snead to seven years in prison and ordered him taken into custody immediately. Snead will have to register as a sex offender upon his release from prison.

"He will have to carry the stigma of an ex-con and a registered sex offender for the rest of his life," his mother Angela Snead wrote in a letter to the judge before the Jan. 20 sentencing. "It will be a waste of a young person's life and his human potential as a whole, functioning, taxpaying citizen."