HB 522-FN - AS INTRODUCED

AN ACT relative to penalties for child pornography.

SPONSORS: Rep. Itse, Rock 80; Rep. Gonzalez, Hills 49

AN ACT relative to penalties for child pornography.

AN ACT relative to penalties for child pornography.

The Judicial Branch, Judicial Council, and Department of Corrections have determined this bill will increase state expenditures by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on local and county expenditures or state, county and local revenues.

The Judicial Branch stated this bill provides for minimum sentences for convictions of certain child pornography offenses. On the assumption that this statutory change would not increase the number of child pornography prosecutions, one would conclude on the surface that there would be no fiscal impact of this change to the Judicial Branch. However, bills creating minimum mandatory sentences generally limit the ability of the State and the defendant to enter into a plea bargain. The result is more cases going to jury trials. It is impossible to quantify this effect, but to the extent that the minimum mandatory sentence results in more jury trials, there will be an increased fiscal impact on the Judicial Branch.

The Judicial Council stated this bill adds minimum mandatory terms of imprisonment to the existing child pornography charges of at least one year for a first offense and at least five years for second offense. Further, this bill states that no portion of a minimum mandatory sentence imposed under this bill shall be suspended, nor shall any case brought to enforce be continued for sentencing. While this bill on its face may appear to deal only with restricting the judge's role in sentencing, it's actual impact will fall to the defense attorney who must aggressively, and more likely through trial, seek to properly defend his client who under the terms of this legislation, would face a mandatory term of imprisonment of a least one year for first offense, and five years for a second offense, with no portion of the minimum mandatory sentence able to be suspended, or may the sentencing be continued. Potential increased costs are driven by the need for a more aggressive representation due to the imposition of minimum mandatory sentence upon conviction of the underlying offense. For the assigned counsel attorney the need to commit more time to a case results in larger bills at the $60 per hour rate, and generally, more cases exceeding the fee cap. The overall costs to the system of this tier of representation are impossible to predict, but it will be greater with the imposition of minimum mandatory

terms. Otherwise, it would be assumed that in determining the potential fiscal impact, all of the statutes relating to indigent defense have been properly followed, and that it is most likely that in the first instance, the case has been assigned to either a public defender or contract attorney, either of whom are compensated at the fixed contract rate of $687.50 per felony charged (the rate is the same for a class A and B felony). If an assigned counsel attorney must be used, due to either conflict of interest or for reason of caseload limitations (that is the likely result), the $60 per hour rate, with a fee cap of $3,000 per felony will be charged- This fee cap may be waived upon motion filed in advance of exceeding the fee cap, and approved by the court. Such motions are routinely approved. If any "services other than counsel" are approved as an essential component of the case, there will also be charges against this class of expenditure. Since it is not possible to accurately predict how much additional time will need to be committed to these cases by the attorney providing representation (this is a case specific determination), it is therefore not possible to place an exact dollar figure on the potential costs associated with such representation for these proposed mandatory minimum sentences for child pornography offenses. It is important to this analysis to recognize that there is a direct cost to the complexity of cases which is not clearly calculable for the public defender and contract attorney representation, which are both paid at the flat fee contract rate of $687.50 per felony charged, whether a felony B or felony A. The cost of such representation present themselves indirectly, limiting the number of other cases that the attorneys in these programs can otherwise handle, shifting additional cases to either the contract program or to the more costly, less predictable assigned counsel system. Clearly the increased responsibilities of handling a case when a mandatory minimum sentence is in place will increase the cost of representation for any component of the three tiered delivery system for indigent defense. It is simply not possible to quantify this cost for the flat fee based components that constitute more than 90% of the overall caseload.

The Department of Corrections has two individuals serving time for child pornography. One has a 5-20 year sentence, the other has a 3-7 year sentence, and a suspended 3 ½ -7 year sentence. This bill would mandate no suspended sentence. The Department estimated, based on current populations, no more than 2 additional years would be served in a state prison facility by the inmate. The average cost of incarceration is $24,866 per inmate per year.

The Department of Justice stated the agency seldom becomes involved in instances involving the prosecution of child pornography offenses and it is assumed the agency would continue not

to be involved in such cases. Based on these assumptions, the agency's limited involvement would be handled within existing appropriations.