Changes to the United States Sentencing Guidelines Ranges for Child Pornography Offenses

My series of blog posts will discuss the laws and policies related to child pornography (which almost always) occurs in the virtual context. Primarily, these posts will address child pornography from a sentencing perspective, considering changes to sentencing schemes, sentencing disparities, sentencing enhancements, and prospects for departure from sentencing schemes. However, I also plan to dedicate a few posts to non-sentencing issues, like the market theory approach to child pornography.

This first post will review recent changes to the Federal Sentencing Guidelines for child pornography crimes, and argue that the changes were not appropriately reviewed by the United States Sentencing Commission. Next week’s post will highlight the absence of the Commission in changes to the Guidelines by discussing the sentencing disparities created by the changes.

While the United States Sentencing Guidelines provide the Court with a recommended sentence for the Defendant’s conduct, this recommendation is not binding. United States v. Booker, 543 U.S. 220 (2005). Nonetheless, as a matter of national consistency, the Guidelines are a starting point in the determination of a sentence. The Federal Sentencing Guidelines provide Federal Courts with a suggested sentencing range for Federal crimes. Guidelines sentences are determined by a chart which aligns the offense level for the crime charged and the Defendant’s criminal history category.

The offense level is determined by the Department of Probation, and is a reflection of the base offense level (the offense level established for the crime) as well as any enhancements and reductions to the offense level as negotiated between the U.S. Attorney and the Defendant’s attorney. The Defendant’s criminal history category is a reflection of the Defendant’s prior arrests and convictions. The levels assigned to particular crimes, the number of criminal history points assessed for particular prior crimes, and the sentences which result from the overlap of thereof are designated by Congress. However, the Congress is not supposed to make such determinations arbitrarily.

Instead, Congress created the United States Sentencing Commission (herein the USSC) and charged the Commission with researching and reviewing Guidelines sentences. The USSC was intended as the “right hand man” of Congress in all Federal sentencing matters. Why then, was the USSC excluded from participating in the Congress’ recent changes to the Guidelines ranges for child pornography crimes?

Over the last decade, changes to the Guidelines ranges for child pornography crimes were enacted by Congress without requisite research by the Sentencing Commission. For each calendar year between 2002 and 2007, the mean guidelines sentence for child pornography offenses increased by an average 11.9 months.¹ In enhancing the punishment for child pornography crimes, Congress asserted the intent to fight the wide dissemination of child pornography, combat difficulty in investigating the same, minimize the likelihood that child pornography will be viewed by children, and decrease the chances that children will be lured into sexual relations via the web.² While these ends are just, the means employed by Congress to reach them are not.

The changes to the Guidelines were not researched by the USSC, but rather seemed to result from pork-barrel bargaining strategy. They were “not the product of an empirically demonstrated need for consistently tougher sentencing. Instead, these changes are largely the consequence of numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or study of any kind.”³ However the changes were not simply unendorsed by the USSC; they were vigorously opposed by the USSC on several occasions.

In its 1996 report to congress, Sex Offenses Against Children: Findings and Recommendations, the Sentencing Commission expressed that changes to the Guidelines do not account for an offenders culpability in their use of a computer to view child pornography. Distribution sentencing ranges do not account for an individual’s culpability in producing or profiting from the distribution of child pornography. It “seems apparent that a person’s culpability [in distributing child pornography] depends on how they use a computer…. Not all computer use is equal….. Sentencing policy should be sensitive to these differences in culpability so that punishments are tailored to fit the circumstances of each individual’s crime.”⁴

Sans empirical evidence documenting inadequacies in the pre-existing sentencing scheme, or support from the USSC, how can the changes be justified? It seems that, as is all too often the case, that the changes are the result of the knee-jerk reaction of Congress to a politically charged social concern. Certainly, child pornography crimes should be punished. However, the Guidelines ranges for those offenses (which often serve as models for states’ sentencing schemes) should be appropriately considered to balance society’s interest in punishing illegal activity with society’s interests in utilitarian punishment and rehabilitation.

1. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, 1.

2. H.R. Rep. No. 90, 104th Congr., 1st Sess. 3-4 (1995).

3. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, 2.

4. The United States Sentencing Commission, Sex Offenses Against Children: Findings and Recommendations, 29.

~ by lana3 on October 21, 2009.