New Child Porn Laws: Part 2

1. Notwithstanding the provisions of N.J.S.A. 2C:1-8, a conviction of leader of a child pornography network shall not merge with the conviction for any offense which is the object of the conspiracy, nor shall the other conviction merge with a conviction under this section. Nothing contained in this section shall be construed in any way to preclude or limit the prosecution or conviction of any person for conspiracy under the provisions of N.J.S.A. 2C:5-2, or any prosecution or conviction for endangering the welfare of children under the provisions of N.J.S.A. 2C:24-4 or any other provision of law.
2. As used in this section:

“Interconnected network” means a set of computer nodes, including but not limited to personal computers, mobile devices, and physical or virtual servers that are linked together to facilitate the transmission of data between users.

“Item depicting the sexual exploitation or abuse of a child” shall have the same meaning as provided in subsection b. of N.J.S.A. 2C:24-4.

It is increasingly common for statutes to not only stiffen penalties, but to also prohibit the merger of offenses. These prohibitions effectively nullify years of jurisprudence and judicially-crafted factors and balancing tests for evaluating the appropriateness of mergers. Now, a refusal to merge offenses that would have constituted an abuse of discretion will likely be considered lawful out of deference to the Legislature. Ironically, in rejecting the provisions of N.J.S.A. 2C:1-8, the Legislature is rejecting a statute that they are responsible for drafting and approving. The broadest justification for merger under N.J.S.A. 2C:1-8 reads:

2C:1-8. Method of Prosecution When Conduct Constitutes More Than One Offense. Prosecution for multiple offenses; limitation on convictions.

When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if one offense is included in the other. An offense is so included when it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.