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Child Pornography Sentencing Guidelines

The Complex History and Uncertain Future of Federal Child Pornography Sentencing

Child pornography is undoubtedly a serious crime that causes significant harm. However, federal sentencing guidelines for non-production child pornography offenses have become increasingly severe over time, often driven more by emotional reactions and political pressures rather than empirical evidence. This has resulted in confusion, inconsistencies, and unduly harsh punishments that many argue are disproportionate to the culpability of offenders. Reforming these flawed guidelines will require nuanced conversations and a willingness to analyze tough issues objectively.

The Origins of Harsh Sentencing Enhancements

In the early 2000s, Congress passed several laws directing the United States Sentencing Commission to increase penalties for child pornography offenses. These included mandatory minimum sentences and specific offense level increases. For example, the PROTECT Act of 2003 directly amended the sentencing guidelines to add a 2-level enhancement for using a computer in the offense and reduced the ability of judges to depart downwards from the guidelines.At the time, these sentencing policies were likely driven more by public emotion and desire for harsh punishment rather than empirical analysis. As explained in a 2011 law review article by federal public defender Troy Stabenow:

“The political pressures that motivate changes to the child pornography guidelines severely limit the ability of the Sentencing Commission to develop these guidelines based on data, national experience, and input from experts.”

Unfortunately, in the years since, Congress has continued to pass laws directing further guideline amendments to increase penalties. The Sentencing Commission lacks clear authority to independently review or modify guidelines that were directly amended by Congress.This has resulted in a complex and disjointed sentencing structure with unduly severe penalties, as we’ll explore next.

The Result – Confusion, Disparity, and Excessive Punishments

According to a 2021 report by the Sentencing Commission analyzing data from fiscal year 2019:

• Less than one-third of child pornography offenders received a sentence within the calculated guideline range due to routine downward departures and variances by judges.
• There were significant inconsistencies in sentences between jurisdictions and even among similar offenders in the same courthouse. For example:
  • Sentences for 119 similarly situated possession offenders ranged from probation to 228 months
  • Sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months
• The average guideline minimum increased from 98 months in 2005 to 210 months in 2019, while average sentences imposed rose at a slower pace from 91 to 103 months over the same period.

This data shows the guidelines are clearly flawed and fail to provide consistency and proportionality in sentencing. Even within the same courthouses, similarly situated offenders often receive vastly divergent sentences.At the same time, sentences remain extremely lengthy even after accounting for routine downward departures by judges. As one analysis noted, these trends suggest “the statutory and guideline penalty structure governing child pornography offenses is fundamentally broken.”

Driving Factors Behind Inconsistency and Disproportionate Punishments

There are several key factors that help explain the problems with federal child pornography sentencing:

Overly Broad Sentencing Enhancements

The sentencing guidelines provide enhancements that apply very broadly, rather than targeting the most egregious offenses and offenders. For example, the +2 level enhancement for images depicting sadistic/masochistic conduct is defined so broadly that it applies routinely, rather than only for the most extreme content.Similarly, enhancements related to the number of images provide sharp increases in penalties based solely on arbitrary numerical thresholds rather than meaningful gradations in offense severity or culpability.

Lack of Empirical Support

Many of the specific offense levels and enhancements lack empirical support regarding their impact on sentencing proportionality or effectiveness as public policy.Congress and the Commission have increased penalties without research into actual recidivism rates or danger posed by subgroups of offenders. This contradicts the Sentencing Commission’s original empirical approach when first developing sentencing guidelines in the 1980s.

Technological Changes

The sentencing scheme has not kept pace with significant technological changes over the past 15-20 years. Offense levels and enhancements fail to account for the realities of digital content, including ease of copying and sharing massive collections online.As a result, guidelines often recommend sentences of 15, 20 years, or even life in prison for many non-production cases based predominantly on the arbitrary number of images in a collection.

Lack of Judicial Discretion

Statutory mandatory minimums and restrictive guidelines constrain the ability of judges to impose sentences tailored to the individual circumstances of each case. This contributes to inconsistencies as judges find ways to work around the guidelines to avoid imposing unduly harsh punishments they consider unjust.

The Path Forward – Reforming Flawed Policies

There seems to be growing recognition within the legal community that reforming federal child pornography sentencing is needed. But finding solutions remains challenging due to the complex legislative history and emotionally charged nature of these offenses.In testimony to the Sentencing Commission in 2012, even Justice Department representatives acknowledged issues with sentencing proportionality and suggested “the time is right to revisit the sentencing scheme.”Many experts argue comprehensive statutory changes by Congress are required to truly fix the dysfunctional sentencing structure. Suggested reforms include:

• Granting the Sentencing Commission express authority to independently review and modify Congressionally-amended guidelines. Currently they lack clear power to do so.
• Revising mandatory minimums and statutory penalty ranges to better allow for judicial discretion and avoid disproportionate sentences.
• More narrowly tailoring sentencing enhancements to target only the most culpable behaviors rather than routine applying broadly.
• Basing any further penalty increases on empirical data regarding harm, recidivism risk, and public safety impacts – rather than emotion or politics.

For real progress, policymakers must be willing to analyze these issues objectively, even when the subject matter makes that difficult. Research shows most child pornography offenders have little or no prior criminal history and low rates of sexual recidivism.Sentencing policies should account for such data to avoid imposing unjust punishments that lack public safety benefits. With a reasoned, evidence-based approach, a more fair and rational federal sentencing framework can emerge.

Resources

Articles

• Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines – Explains the history and lack of empirical basis for sentencing enhancements over time.
• Child Pornography and Criminal Justice Reform – Discusses problems with the statutory penalty structure and need for comprehensive reform.

Data and Reports

• 2021 Sentencing Commission Report on Child Pornography Sentencing – Thorough data analysis showing sentencing disparities and lack of proportionality.
• 2012 Sentencing Commission Report to Congress – Finding sentencing structure too severe, inconsistencies, and need for reforms.