Child pornography evokes intense feelings of contempt and bias against those whom such charges are leveled.


Illustrative of this contempt is the 50-year prison term imposed on a Rockwall, Texas man by U.S. District Court Judge Sidney A. Fitzwater, sitting in the Northern District of Texas, in July 2016, following guilty pleas to three related counts of child pornography: producing, transporting, and possession, all in violation of 18 U.S.C. § 2251 and § 2252. The judge also ordered Christian Winchel to pay restitution in the amount $1.4 million.


That Winchel’s crimes are offensive and disgusting is not open to debate. Virtually all of his child pornography involved prepubescent children. His collection of child pornography dated as far back as 1994.


Winchel will die in a federal penal or medical facility. The sentence imposed on him reflects the ever-expanding intent of Congress over the past twenty-five years to increase the punishment for child pornography-related offenses.


Average Sentence in Child Pornography Up Over 500%


In 1997, the average sentence in a child pornography case was 20.59 months. Thirteen years later that sentence average had increased by 500 percent to a 118-month average.


While some federal judges have become resistant to the demands for harsher sentencing in child pornography case, there are many others like Judge Fitzwater who believe that the harshest possible sentence should be imposed in these cases. For example, in a 2014 post, we reported about a 38-year prison term U.S. District Court Judge Barbara Lynn imposed on a 44-year-old Dallas man for various child pornography offenses.


Restitution in Criminal Cases


Under Supreme Court precedent, a sentencing federal judge must determine whether a defendant’s conduct proximately caused the victim’s claimed losses before they can impose a restitution order.


Judge Fitzwater did not make that binding factual determination before he imposed the $1.4 million restitution order in the Winchel. The Fifth Circuit Court of Appeals on July 16, 2018 vacated the restitution order and remanded the case for further proceedings. The appeals court observed that an unlawful restitution order affects not only the “substantial rights” of the defendant but also undermines “the fairness and integrity of the judicial proceedings.”


Defense Lawyers should be mindful of both the potential for harsh sentence and unreasonable restitution when defending an individual accused of these emotionally difficult cases and be prepared to make objections to preserve the defendant’s Constitutional rights and the integrity of the judicial proceedings.