Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

The House Judiciary Committee on Tuesday advanced a bill to overturn a state Supreme Court decision and give blessing to prosecutors to charge for each item of child pornography in a person’s possession.

House Bill 1069 passed over the objections of those working in criminal defense, after prosecutors told committee members that in practice, defendants would not face lifetime prison sentences for having hundreds or thousands of images.

“You just cannot pass laws based on promises,” said Laurie Rose Kepros, testifying on behalf of the Colorado Criminal Defense Bar and Office of the State Public Defender.

Reps. Dylan Roberts, D-Avon, and Terri Carver, R-Colorado Springs, revived the bill after a similar version died near the end of the 2020 legislative session. Generally, the measure would modernize the state’s laws surrounding sexually exploitative materials of children — for example, by outlawing live streamed images or videos. It would also apply extended sentencing for sexual exploitation of a child if the victim is under age 12 or subjected to physical force or intercourse, and would impose a surcharge of up to $2,000 on convicted defendants to pay for forensic examinations of computers in child sex crimes.

However, the most contentious provision of the bill would clarify that each item of child pornography possessed — such as images or videos — may merit a separate criminal punishment.

As the law exists now, possession is a class 5 felony that carries a maximum sentence of three years. But if defendants have more than 20 images in their possession, that constitutes a class 4 felony, punishable by up to six years in prison.

In December, the Colorado Supreme Court issued a decision in People v. Bott to clarify how the government may apply that numerical threshold. The defendant, Joshua Christian Bott, possessed nearly 300 sexually exploitative images of children, and El Paso County prosecutors divided the images into batches of 21 or more items, ultimately charging him 12 times.

Bott appealed his convictions and the Court of Appeals agreed that he should have only received a single charge for possessing more than 20 items. Consequently, it threw out 11 of the 12 convictions. The Supreme Court unanimously upheld that decision, determining the General Assembly had intended for the act of possession, and not the individual image, to constitute the offense.

Although prosecutors warned such a ruling would amount to a “volume discount on child pornography,” the justices indicated that to do otherwise would impermissibly allow more than one punishment for the same offense.

In January, another Court of Appeals panel used the Bott decision to rule in a Jefferson County case that possession of child pornography across multiple storage devices still constitutes a single offense.

Speaking in favor of the bill were multiple law enforcement personnel who handle child pornography cases.

“Every single image depicts the moment that that child’s image of themself is shattered,” said Michael Bauman, a detective with the El Paso County Sheriff’s Office. 

Amanda Gall, an assistant district attorney with the First Judicial District in Jefferson and Gilpin counties, said the bill’s proponents stripped the 20-image threshold because law enforcement now rarely sees possession cases involving fewer than 1,000 images. From 2018 to 2019, she told the committee, there were 213 cases involving child pornography charges, and 31 defendants went to prison. The vast majority, she explained, received probation.

The National Center for Missing & Exploited Children, which is the federally-mandated repository for reports of suspected child pornography, has received 82 million reports since 1998, encompassing 322 million videos and images. Law enforcement has identified just over 19,000 victims.

A 2012 report to Congress from the U.S. Sentencing Commission found that on average, those who possess child pornography are typically white males in their early 40s who have limited criminal histories. Nearly three-quarters of distribution occurred through person-to-person file sharing, with email or instant message being the method in roughly 30% of offenses.

In response to a question from committee vice chair Rep. Kerry Tipper, D-Lakewood, Gall said that prosecutors’ discretion to file hundreds or thousands of individual charges would be unrealistic given the traumatizing nature of the work.

“In order for me to charge and have a reasonable likelihood of conviction at trial,” she said, “that detective has to view these images and articulate them sufficient to meet the elements in the affidavit. In my practical experience as a prosecutor, that means they get to 21 and they stop. None of them are looking to spend more time with this material before they go home to their families.”

Gall would “really, really, really have to believe” that she needed to charge a substantial number of images to put a prosecutor or detective through the process of looking through large amounts of child porn.

Rep. Adrienne Benavidez, D-Denver, was the only member of the committee to vote against HB 1069 over concerns that the legislature giving prosecutors permission to charge by the image would put defendants in a significant bind.

“That to me would be like an ace in the hole for plea bargaining — that if you don’t agree to this, I can charge you on all of these separately,” she observed.

“I understand that you’re worried about coercive prosecutors. I understand that you’re worried about lengthy sentences,” Gall responded. But in some instances, she believed stacking per-image charges in sizeable quantities would not be terrible.

“The case on which we would do that, if it’s 1,000 images of pre-pubescent infant bondage porn, I don’t know that that’s not a just outcome, tantamount to a life sentence. Maybe your constituents don’t agree, but frankly, that doesn't keep me up at night,” she told Benavidez.

Although Gall defended the practice of stacking charges to achieve a certain sentence length that she believed would be in the interest of community safety, she acknowledged judges could decline to impose lengthy terms of prison. Benavidez was unpersuaded.

“Forget the practicalities: the clear reading of this statute is we can charge for each one. And I wish I did have faith in every single prosecutor in this state, but I don’t,” she responded. Benavidez, who is also an attorney, elaborated that when courts in the future attempt to ascertain the sense of the legislature in modifying the law, charging defendants per image “is not my sense, I want to tell the court.”

Kepros, with the criminal defense bar, proposed an amendment to the charging section that would maintain class 5 felony status for the possession of up to 20 items of sexually exploitative material. Possessing 21 to 100 items would constitute a class 4 felony, and possession in excess of 100 items would be a new class 3 felony, which carries up to 12 years in prison or possibly more under certain circumstances.

Gall characterized the possession of items beyond 101 as “freebies” under the proposal. The committee declined to consider the amendment.

Other committee members briefly raised concerns with the bill. Rep. Stephanie Luck, R-Penrose, asked if audio materials could be added under the category of sexually exploitative materials. Rep. Jennifer Bacon, D-Denver, was concerned about adverse enforcement against children, including older teenagers, for possessing illicit images on their devices.

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