Florida Life Sentence For Possession Of Child Pornography

Last week, a 26 year old East Naples, Florida man was sentenced to life imprisonment for possession of child pornography. This has set off a debate among prosecutors, defense attorneys, law school professors, former judges and commentators: namely, does the punishment fit the crime? The background is that Daniel Enrique Guevara Vilca, a 26 year old stockroom employee with no prior criminal background, was found to have downloaded 300 sexually explicit photographs and 38 hours of child pornography on his home computer. He was charged with 454 counts of child pornography under Florida law, which makes possession of child pornography a third degree felony, punishable by up to five years in prison. However, since Mr. Vilca was charged with one count for each image he had stored on his computer, he faced more than 300 years in prison, with a minimum of 152 years in state prison.

Mr. Vilca was offered a plea deal of 25 years before trial. His sentence came after a guilty verdict was delivered by a six person jury on October 6, 2011. Mr. Vilca’s sentence was the harshest in the history of Collier County. Previously, one of the harshest sentences for this crime was in 2009, when Naples resident Douglas Deering received a 25 year sentence after pleading guilty to 197 child pornography possession counts.

Vilca’s defense lawyer Lee Hollander argued that people who create child pornography or have been convicted of child molestation do not receive sentences as harsh as his client, and noted: The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute. Daniel has nothing to do with the original victimization of these people; there is no evidence that he’s ever touched anybody improperly, adult or minor; and life in prison for looking at images, even child images, is beyond comprehension.” Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sexual offender statutes, stated: I don’t think [possession of child pornography] should be the same as somebody who commits first degree murder or a string of violent crimes. Part of what the justice system needs to do is punish proportionality.” Douglas Berman, who has a sentencing blog and is a law professor from Ohio State University, noted that in the Vilca case there was a failure to distinguish between the viewers of child pornography and those who actually abuse children sexually, resulting in a “lack of nuance and proportionality that our law demands.”

Conversely, the prosecutor on the Vilca case, Steve Maresca opined that consumers of child pornography keep the market for child sexual abuse alive, and that the sentence sent a message that possession of child pornography is a serious crime, with the images on a computer lasting forever.

Mr. Hollander has indicated that he intends to appeal his client’s sentence, alleging that the sentence violates the 8th Amendment of the U.S. Constitution which prohibits cruel and inhuman punishment. Interestingly, Mr. Vilca could have received a lighter sentence if he had been sentenced under federal guidelines, with federal guidelines recommending a minimum of 57 to 71 months in prison for possession of 600 or more images of young children. Paul Cassell, a former federal judge and present University of Utah law professor stated that a “life sentence is what we give first degree murderers…and possession of child pornography is not the equivalent of first degree murder.”

In New York, under section 263.11 of the Penal Law, possession of an obscene sexual performance by a child is an E felony, punishable by up to four years in prison, 10 years probation, the requirement to register as a sexual offender under Megan’s Law, and fines of up to $5,000.00.


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