NORFOLK, Va- from www.hamptonroads.com – Defense attorney Sonny Stallings nearly threw his client under the bus.

Prosecutors asked U.S. District Judge Henry Coke Morgan Jr. to sentence Stallings’ client, Daniel Boynton, to between 17 and 20 years in prison .

Assistant U.S. Attorney Elizabeth Yusi argued that Boynton’s twice-a-day habit of viewing child pornography makes him a likely future child molester.

“He could act on it,” Yusi said. “It needs to be dealt with.”

“If that’s what you think, your honor,” Stallings retorted, “then give him 20 years.”

Stallings argued for five years, and Morgan essentially split the difference, giving Boynton, a first-time offender, 12½ years in prison. The day before, the judge said, he had sentenced a defendant with almost identical circumstances to about the same sentence.

But in sentencing, the judge refused to consider as a factor Boynton’s potential to be a child abuser, as the government argued.

Federal prosecutors, acting under congressional mandate, are taking a tough stance on sentencing child pornography defendants. But defense attorneys and even some judges are balking at lengthy prison terms for first-time offenders.

Congress, over the past 12 years, has made the punishments increasingly harsh. A first-time offender with more than 600 images on his computer faces a minimum of five years in prison. That number can quickly jump to 10 years if the victim is younger than 12, if the images were shared over the Internet and if they depict violence. A repeat offender is looking at a minimum of 20 years.

Possessing videos of child pornography typically brings tougher penalties. One three-second video clip contains 75 images. Someone caught with just eight, three-second video clips would get a longer prison sentence for having 600 or more images.

But in more than 40 percent of federal child pornography cases in the last fiscal year, judges have granted leniency, sentencing defendants to below-guideline prison terms or even giving probation, according to the U.S. Sentencing Commission. That’s higher than any other offense, although drug cases are a close second.

The Federal Public Defender Office, which has handled most of the child pornography cases in Hampton Roads, has taken a particularly aggressive stance, filing 15- to 20-page sentencing briefs calling for punishments below recommended guidelines.

Michael Nachmanoff, the federal public defender for the Eastern District of Virginia, said his office simply seeks fairness.

“We believe in individual sentencings. We don’t believe in one-size-fits-all justice,” he said. “We try to advocate for our clients as human beings.”

Defense attorneys emphasize the disparity between those who view or even trade images of child pornography and those who molest the children and produce the films.

They frequently cite the St. Louis case of Joe Champion, who was sentenced to 15 years in prison for paying a woman to hold down her 9-year-old daughter while he raped her, twice a week for two years.

They also cite the case of a young girl known publicly only as Misty. The Misty films are among the most popular child pornographic films distributed on the Internet. The man who raped her, filmed the acts and sold them on the Internet received just 10 years in prison.

Some defendants convicted of downloading, viewing and trading the Misty series have received prison terms twice that long.

Keith Kimball, an assistant federal public defender in Norfolk, raised some of these issues at the Dec. 14 sentencing of Jonathan Scott Spencer, a 35-year-old former National Guard aviation technician and first-time offender.

Because of aggravating factors such as the number of images and age of the children in the films , Spencer’s recommended guidelines under federal sentencing rules actually exceeded the 10-year maximum in his case. Kimball asked for half that.

“The recommended guidelines range overstates the seriousness of Mr. Spencer’s conduct,” Kimball wrote to the judge.

“We should consider carefully the utility of telling society 200 forced rapes of a nine-year-old will result in a similar punishment than possessing and viewing illegal images,” he wrote.

U.S. District Judge Raymond A. Jackson sentenced Spencer to the maximum – 10 years in prison.

Over the past 12 years, Congress has steadily increased the penalties for child pornography. Under 2002 sentencing rules, Spencer would have faced about half as much prison time.

U.S. Attorney Neil H. MacBride, who has added more prosecutors to handle the growing load of child pornography cases , said his office generally asks for punishments that fall within the recommended guideline range.

“We are not asking for ‘the max’ in these cases. We are asking for a guideline sentence,” he said. “To be clear, there certainly are instances, more rare, where we would ask for a top-end” sentence .

Congress and the U.S. Sentencing Commission are continuing to study reforming federal mandatory minimum prison terms.

“We’re prosecuting the voyeurs, if you will. I don’t know if that’s what these guidelines were intended for,” Stallings said. “I can hit you in the head with a hammer and get only six years.”