On Point: c. Child porn

State v. William C. MacDonald, 2020AP605-CR, 10/14/21, District 4 (not recommended for publication); case activity (including briefs)

Section 973.042(2) mandates a $500 surcharge for each image “associated with the crime” of possession of child pornography. The State charged MacDonald with 10 counts of possessing child porn. He pled “no contest” to a single charge. The State dismissed and read in 9 charges at sentencing. It then requested a $5,000 surcharge for the 10 images supporting the conceded and read-in charges. But it also requested (and received) $45,000 for MacDonald’s possession of an additional 90 images for which he was not charged.

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.