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The Complex History and Uncertain Future of Federal Child Pornography Sentencing

Child pornography is unequivocally abusive and exploitative. Yet the legal response to those who possess, distribute and produce these illegal images has been complex and controversial. This article examines the evolution of federal sentencing guidelines for child pornography offenses, the reasoning behind increasingly harsh penalties, and recent calls for reform.

The Origins of Federal Sentencing Guidelines

Prior to 1984, federal judges had wide discretion in sentencing defendants convicted of federal crimes. This led to claims that similarly situated offenders often received very different sentences. To address this issue, Congress passed the Sentencing Reform Act in 1984, which created the United States Sentencing Commission.The Commission was tasked with developing sentencing guidelines to meet the purposes of punishment set out in the Act, including:

• Just punishment
• Deterrence
• Incapacitation
• Rehabilitation

The guidelines were intended to provide recommended sentencing ranges based on the offense conduct and characteristics of the offender. The Commission’s initial guidelines went into effect in 1987.Judges can depart from the guidelines in any case but must provide reasons for doing so. Appellate courts can review sentences outside the guidelines range and overturn them if they find the sentence unreasonable. This system was intended to provide flexibility while also reducing unwarranted disparities.

The Evolution of Child Pornography Penalties

When the initial guidelines went into effect in 1987, possession of child pornography was not specifically addressed. By 1991, the guidelines included a separate section – §2G2.4 – dealing with this offense.Over the next 15 years, penalties increased substantially due to various congressional directives and Commission amendments. For example:

• In 1996, Congress directly amended the guidelines to increase penalties and reduce the incidence of downward departures.
• In 2003, Congress passed the PROTECT Act, directing the Commission to increase penalties for certain child pornography and sex offenses.

Several factors motivated these penalty increases, including:

• Beliefs that child pornography offenses were being treated too leniently
• Concerns these images fueled abuse and exploitation of real children
• Desire to deter growing internet trade
• Claims that those possessing child pornography posed danger to community

By 2004, the average sentence for possession had skyrocketed to over 7 years – more than double the average in 1991.

Calls for Reform of §2G2.2

In the years after passage of the PROTECT Act, frustration grew over the severity and inflexibility of sentences under §2G2.2.Critics argued the guideline failed to adequately distinguish between offenders based on culpability and risk factors. They also claimed the sheer quantity of images triggered excessive enhancements unrelated to sexual dangerousness.For example, in one 2008 article federal public defender Troy Stabenow argued §2G2.2 resulted in penalty ranges higher than necessary to satisfy sentencing purposes. He suggested the Commission reform the guideline to refocus on individual offender characteristics rather than rigid quantity-based enhancements.In 2010, the Commission initiated a review of §2G2.2 as part of a broader examination of child pornography offenses. Their final 2012 report identified several problems, including:

• Ranges too severe for some offenders
• Overemphasis on sheer number of images
• Insufficient consideration of intent and motive
• Need to better account for degree of sexual abuse/exploitation involved

The report ultimately recommended Congress revise the statutory directive underlying §2G2.2 to give judges more discretion. Absent such change, the Commission suggested it might amend the guideline on its own, despite the congressional directive.

The Commission Acts Unilaterally

In 2013, the Commission submitted proposed amendments to §2G2.2 to Congress. However, Congress did not act, so the amendments automatically took effect in November 2014.The revised guideline made several key changes, including:

• Eliminating some quantity-based enhancements
• Reducing level increases for sado-masochistic images
• Adding downward departure for possession with no intent to traffic
• Clarifying judges can depart based on individual offender characteristics

The Commission also made a controversial policy statement declaring §2G2.2 should not be given as much weight as other guidelines due to flaws in its development.This was an unprecedented move – openly encouraging judges to ignore a guideline mandated by Congress. Predictably, it led to a spike in below-range sentences for child pornography offenses.By 2016, over 60% of sentences under §2G2.2 fell below the recommended range. The average sentence length also dropped by nearly 16 months between 2012 and 2018.

Ongoing Controversy and Calls for Legislative Change

In June 2021, the Commission released a new report on federal sentencing for child pornography possession and distribution.It found that sentence severity and disparities have continued to grow:

• Average sentence up slightly since 2012
• Sentences increasingly disconnected from guidelines
• Major inconsistencies between courts and districts

For example, the report highlighted two possession offenders with no prior record and 600-650 images each. One received probation while the other got 19 years.The report traced sentencing variations to differences in:

• Charging decisions
• Plea agreements
• Judicial discretion

It ultimately called on Congress to revise the underlying statutes, arguing the Commission lacks flexibility under current directives to properly calibrate penalties.However, legislative change remains unlikely given longstanding congressional support for harsh child pornography sentences. For example, the EARN IT Act proposed in 2022 would create a new commission empowered to set best practices for internet platforms to curb child sexual abuse material.Critics argue this could pressure companies to weaken encryption protections, enabling greater surveillance and criminalization. But with bipartisan sponsorship, the bill exemplifies ongoing political commitment to an aggressive law enforcement approach.Absent statutory revisions, the Commission will remain limited in its ability to resolve sentencing disparities for child pornography offenses. And judges will likely continue to exercise discretion, resulting in a fragmented, inconsistent legal response.

The Underlying Tensions

The complex evolution of federal child pornography sentencing reflects deeper societal tensions.On one hand, there is understandable outrage at those who produce, distribute and possess these illegal images. Harsh sentences can be seen as completely appropriate given the harm inflicted on vulnerable child victims.But there is also increased recognition that not all offenders are the same. Those who view and share child pornography span a wide spectrum – from disturbed predators to lonely outcasts seeking connection in the wrong places.And some argue that excessively long prison terms may be counterproductive, especially for lower-risk individuals amenable to treatment.Reconciling these tensions, and finding a sentencing scheme that blends punishment with rehabilitation, remains an elusive goal for lawmakers and the courts. The victims deserve justice. But after decades of ever-harsher penalties, it is fair to ask whether the current approach is working.

Resources

Articles

• Rethinking Federal Child Pornography Law (Cardozo Law Review)
• Child Pornography Sentencing and Demographic Data (Brennan Center)