NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 31st December 2023, 10:30 pm
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, changes were made to the federal sentencing guidelines for child pornography offenses, increasing the recommended penalties. According to analysis from federal public defender Troy Stabenow, these reforms were not motivated by careful research. Instead, they were driven largely by lawmakers‘ understandable emotional reactions to these disturbing crimes. However, the enhancements have contributed to penalties that many argue go far beyond what is justified by empirical evidence regarding harm, deterrence, and recidivism.For example, the average guideline minimum sentence for non-production child pornography offenses increased from 98 months in 2004 to 210 months in 2019. The average actual sentence imposed rose as well but more modestly, from 91 to 103 months during the same period. This suggests judges have been uncomfortable with the severity of the guidelines and used their discretion to impose less extreme sentences. Still, penalties increased substantially.
Flaws in the Child Pornography Sentencing Scheme
In its 2012 review of child pornography sentencing, the U.S. Sentencing Commission identified several flaws with the non-production penalty scheme:Overemphasis on outdated enhancements: Guidelines place undue weight on factors like the number of images and use of a computer, even though such elements are now typical in most cases given technological advances. This results in overly severe sentences even for less culpable offenders.Inconsistency with empirical knowledge: Research does not support extremely harsh sentences as necessary for incapacitation, deterrence or rehabilitation given low recidivism rates for child pornography consumers.Disparity and unpredictability: Wide variability in sentences across jurisdictions and judges undermines fairness and transparency. Unwarranted disparities exist even among seemingly similar offenders.In 2021, the Sentencing Commission reaffirmed these findings, noting “the non- production child pornography sentencing scheme should be revised.” They argue sentences should better account for factors like content, community impact, and actual conduct beyond just viewing images.