Colorado’s Supreme Court justices on Wednesday morning heard oral arguments about how exactly the General Assembly intended for people to be charged and sentenced for possessing child pornography.
“It’s undisputed that a single item of sexually exploitative material is sufficient to support a conviction,” said William Kozeliski, representing the attorney general’s office. “The question in this case is whether the statute permits a conviction for each item possessed simultaneously, or each separate group of items possessed simultaneously.”
Under Colorado law, possessing sexually exploitative material of children is a class 5 felony, punishable by up to three years in prison. However, possessing more than “twenty different items” is a class 4 felony, with up to six years in prison.
The case arises from the 2015 trial of Joshua Christian Bott, whom a jury convicted for possessing nearly 300 images of child porn. His convictions included 12 counts of sexual exploitation of a child for possessing the material, which police discovered soon after Bott completed sex offender treatment for a previous offense.
El Paso County prosecutors charged him with 12 class 4 felonies for possessing more than 20 images by dividing the total images into separate criminal counts. Bott countered that the state statute envisioned he only receive a single charge for possessing more than 20 images.
In July 2019, a three-member panel of the Colorado Court of Appeals agreed with him.
“[T]he unit of prosecution is an act of possession, not an individual image,” wrote Judge Elizabeth L. Harris, referring to the manner in which a defendant’s conduct is divided into acts for prosecution. The panel decided his 12 convictions violated the constitutional protection against double jeopardy by imposing more than one punishment for an offense, and overturned all but one of Bott’s possession convictions.
“The People contend that construing the statute in this way will lead to absurd results because a person who possesses twenty-one images will face the same consequences as a person who possesses 21,000 images,” Harris observed. “Even assuming that our construction of the statute gives rise to ‘undesirable results,” it would be the General Assembly’s responsibility to adjust the law.
However, as Kozeliski argued to the justices, the appellate panel’s ruling would allow for the exploitation of additional children or the further victimization of an individual child if there were no deterrence for the accumulation of pornography above 20 images.
“The General Assembly intended to deter the possession of each item of sexually exploitative material. Each item victimizes the child. Each further viewing of each item victimizes the child,” he said. “The General Assembly did not intend a volume discount on child pornography.”
Mark Evans, representing Bott, countered that the math did not add up: the General Assembly would not have established an explicit six-year sentence for possessing 21 pornographic images if prosecutors could charge each image as a separate class 4 felony and potentially reach a 63-year sentence.
The law’s structure “does not incentivize crime. It punishes crime on a graduated basis with a recognition that at some point there is an upper limit to the amount of punishment that society is willing to impose for any particular act,” Evans explained.
“I’ll tell you, I think this is a very difficult case,” Justice Richard L. Gabriel observed. “It does seem odd to give a prosecutor the authority, in this case where you had 294 images, to charge 294 separate counts with a maximum penalty if the court stacks them at three years a pop.”
Justice Monica M. Márquez seemed open to a per-image charging interpretation, saying that each image amounted to an instance of exploitation. She posed the same question to Kozeliski that the appellate panel addressed about a lack of proportional punishment for someone with a large volume of illegal material.
“Isn’t that a legislative problem?” she asked. “Couldn’t the legislature have said, ‘And for a defendant who possesses more than 100 or more than 1,000, it becomes [a class 3 or class 2 felony]?’”
Kozeliski indicated that a prosecutor has the discretion to charge each item or group of items separately, but acknowledged such discretion may lead to one person charged with a single count of possessing more than 20 images receiving a lesser sentence than someone who receives separate convictions for each image.
A bill proposed in 2020 would have eliminated the separate charge of possession of more than 20 images. However, it would have defined sexual exploitation of a child as an extraordinary risk crime subject to longer sentences if the material showed a child under 12 years of age or who was subject to physical force or sexual intercourse. A Senate committee killed the bill after the legislature reconvened from its pandemic-related hiatus.
The case is People v. Bott.