A second-degree charge for distribution of child pornography in New Jersey is a serious criminal offense with significant State Prison exposure. When we represented a retired businessperson charged with both distributing and possessing sexually explicit images of children, the State initially sought to detain him and he faced the possibility of years in prison.
He ultimately did not go to State Prison.
That result did not happen because the seriousness of the conduct was minimized. It came from addressing the case immediately, understanding the issues that contributed to our client’s conduct, getting him appropriate treatment and developing a record that allowed us to demonstrate that incarceration was not necessary to protect the community.
Second-Degree Distribution of Child Pornography in New Jersey
New Jersey prosecutes offenses involving child pornography, also referred to under current law as child sexual abuse or exploitation material, under the Endangering the Welfare of a Child statute, N.J.S.A. 2C:24-4.
Our client faced two different types of allegations. He had downloaded and saved nude and sexually explicit images of children, resulting in a possession charge. The State also alleged that he had shared images with others, exposing him to the much more serious charge of second-degree distribution under N.J.S.A. 2C:24-4(b)(5)(a)(i).
A second-degree crime ordinarily carries a sentencing range of five to ten years in New Jersey State Prison, together with a presumption of imprisonment. Avoiding incarceration under those circumstances requires far more than simply asking a prosecutor or judge for leniency.
We needed to develop a reasoned and persuasive basis for why State Prison was not necessary for this particular client.
We Started Addressing the Problem Immediately
Our client was retired after a successful business career. As we came to understand his history, we learned that he had longstanding unresolved issues dating back to childhood. Viewing and sharing these images had become an unhealthy way for him to deal with those issues.
His history did not excuse the conduct. It did, however, help us understand what needed to be addressed if we were going to reduce the risk of the behavior ever occurring again.
We got him into appropriate therapy immediately.
The timing was important. Therapy was not something we introduced shortly before sentencing to make our client appear more sympathetic. He participated consistently while the case was pending. Through treatment, he developed insight into his behavior, confronted the underlying issues that contributed to it, and began learning healthier ways of dealing with those issues.
That gave us something concrete to present to the prosecutor: Evidence that our client understood there was a problem and was actively addressing it.
The Prosecutor Initially Sought Detention
Our first challenge was keeping our client out of jail while the case was pending.
The prosecutor initially sought pretrial detention. We argued that the concerns presented by the allegations could be addressed through appropriate conditions of release rather than incarceration.
The court agreed and released our client subject to conditions that included continued therapy and no unsupervised contact with children. Of course, he had to remain offense-free and appear for all court dates.
He followed those conditions carefully throughout the case.
That compliance became important. We were eventually able to point to his actual conduct while on release, not merely our prediction about what he might do in the future. He had remained in the community under court supervision, continued treatment, complied with the restrictions placed upon him and committed no violations.
Building the Argument Against State Prison
When a client faces a second-degree charge, an attorney must understand that simply presenting the client’s accomplishments or asking the court for compassion is unlikely to be enough.
We focused instead on the purposes incarceration would serve in this particular case.
By the time we were negotiating a resolution, our client had established a meaningful record. He had engaged in treatment, developed greater insight into his conduct, complied with the conditions imposed by the court and demonstrated that he could be safely supervised in the community.
We were able to argue that the objectives of protecting the public and preventing future criminal conduct could be accomplished without sending him to State Prison.
Importantly, we did not minimize the nature of the images or suggest that the conduct was harmless. A persuasive defense in a case like this has to acknowledge the seriousness of the allegations while demonstrating why the appropriate result for the individual client does not require incarceration.
Ultimately, we persuaded the prosecutor that State Prison was not appropriate.
The prison sentence was suspended, and our client served no State Prison time.
Instead, the second-degree distribution charge was dismissed and he pled guilty to the lesser third-degree possession charge. He agreed to Parole Supervision for Life (PSL). PSL is a significant consequence involving long-term supervision and restrictions. In our client’s case, however, it provided a means of assuring continued oversight and community safety without requiring incarceration.
For a retired client facing a second-degree distribution charge and the possibility of spending years in State Prison, that distinction was critical.
What This Case Teaches About Defending Child Pornography Charges
Every case is different. Facts matter. A person’s background and attitude matter. The evidence, the client’s history, the nature of the alleged conduct, treatment considerations and many other factors can affect the outcome.
This case does demonstrate why the defense should begin as soon as possible.
A defense attorney should carefully examine the State’s evidence, including how law enforcement identified the defendant, the search and seizure of computers and electronic devices, the forensic evidence, the number and location of the files, whether the State can establish knowing possession, and what evidence actually supports an allegation of distribution.
At the same time, when the circumstances warrant it, an experienced attorney should be thinking beyond the evidence. If there are underlying issues that contributed to the alleged conduct, identifying and appropriately addressing those issues early can become an important part of the defense.
The goal is not to manufacture mitigation. It is to understand the client and determine what can legitimately be done to place that person in the strongest possible position when the case is ultimately resolved.
Our client came to us facing a second-degree distribution charge and substantial prison exposure. He ultimately remained in the community without serving any period of incarceration.