The provisions of the bill addressed by this analysis would amend the Penal Code as it relates to the prosecution and punishment for certain offenses regarding the possession or promotion of lewd material depicting a child. Under the provisions of the bill, the definition of related prohibited conduct would be amended, modifications would be made to the elements necessary to prove commission of the offense, the type of evidence required for consideration when determining whether certain elements of the offense have been proven at trial would be enumerated, and certain applicable defenses to prosecution of related offenses would be clarified. Under current statute, the related offense of possession or promotion of child pornography is punishable as a third, second, or first degree felony dependent on the circumstances of the offense.
A first degree felony is punishable by confinement in prison for life or a term from 5 to 99 years and, in addition to confinement, an optional fine not to exceed $10,000. A second degree felony is punishable by confinement in prison for a term from 2 to 20 years and, in addition to confinement, an optional fine not to exceed $10,000. A third degree felony is punishable by confinement in prison for a term from 2 to 10 years and, in addition to confinement, an optional fine not to exceed $10,000.
The child pornography cases involving the related third degree felony involved 61 individuals in fiscal year 2018, 67 in fiscal year 2019, and 57 individuals in fiscal year 2020 who were placed under community supervision. There were fewer than ten cases across the three fiscal years involving the related child pornography cases punished as second degree felony. In fiscal year 2018, there were 85 individuals, 97 in fiscal year 2019, and 66 in fiscal year 2020 who were admitted to a state correctional facility for child pornography cases punished as a third degree felony; there were fewer than ten individuals across the three fiscal years admitted to a state correctional facility for the offense punished as a second degree felony. This analysis assumes implementing the provisions of the bill addressing felony sanctions would not result in a significant impact on state correctional populations or on the demand for state correctional resources.