July 25, 2012 1:04 am
Counting Crimes When Defendants Possess Many Images of Child Pornography on Several Devices
"Imagine a defendant in a child pornography case has two computers in his home. Each computer contains twenty images of child pornography. Has the defendant committed one single crime of possessing forty images? Or has he committed two crimes of possessing twenty images each? Alternatively, has the defendant committed forty distinct crimes of possession? Put another way, should the number of crimes be determined by the number of images, the number of physical devices, or simply grouped together as a single offense?
Courts have answered these questions by considering the Double Jeopardy Clause of the Fifth Amendment, which instructs that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Under this provision, a defendant cannot be punished twice for the same act. The difficult question is, what exactly is the “act” prohibited by child pornography laws? Courts have answered this question by undertaking careful and sometimes hypertechnical readings of the different laws that punish possession of child pornography. As a result, there is no one answer to the question. Under recent cases, at least, the answer depends on the specific statute.
"[T]he legislature intended these statutes to criminalize each image that
constitutes child pornography because its very existence harms the
victim it depicts [sic]. Even identical images, therefore, result in separate
prosecution and punishment."