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Home Archive Volume 62 Volume 62, Issue 6 COMMENT: How Many is "Any"?: Interpreting § 2252A's Unit of Prosecution for Child Pornography Possession
COMMENT: How Many is "Any"?: Interpreting § 2252A's Unit of Prosecution for Child Pornography Possession

By Christina M. Copsey | 62 Am. U. L. Rev. 1675 (2013)

Individuals convicted for possession of child pornography should not receive drastically different sentences based solely on the statute under which they are convicted. Yet courts interpret the current statutory scheme in this way. 

Depending on which of two statutes a prosecutor chooses to bring charges under, and on which circuit has jurisdiction, the same defendant could receive one count of possession—or ten counts or one hundred counts. This discrepancy results from a slight difference in phrasing between two nearidentical statutes: 18 U.S.C. § 2252(a)(4)(B) and § 2252A(a)(5)(B). Under § 2252, a defendant may only be convicted of one count of possession for all illicit materials simultaneously possessed in one place, and sentencing is tailored to the number of images possessed, among other factors. Under § 2252A, however, individuals can be convicted of a separate count for each physical storage device or each type of storage medium utilized. Both statutes are currently in effect, leading to the potential for widely disparate punishments for similar levels of possession. 

Based on the application of various canons of construction, this Comment argues that § 2252A does not authorize separate punishment for separate devices or storage media types simultaneously possessed in one place. Furthermore, this Comment argues that it is neither fair nor productive to penalize a defendant for choosing a certain organizational system rather than for the underlying crime of possessing child pornography.

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