Disparities Created by Changes to the Child Pornography Guidelines

The absence of input from the United States Sentencing Commission in changes to the Guidelines is particularly evidenced by the sentencing disparities created by those changes. “[T]he need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” is codified in 18 U.S.C. § 3553(a)(6). Courts are required to avoid sentencing disparities among similarly situated defendants convicted of the same crime. More, the Courts must avoid sentencing a defendant more harshly than would be sentenced a defendant convicted of a more serious crime. These basic tenants of consistency in sentencing have been eliminated in the child pornography context, but for those Courts that deviate from the Guidelines.

First, the changes have created disparities among similarly situated defendants. For each calendar year between 2002 and 2007, the mean guidelines sentence for child pornography offenses increased by an average 11.9 months.1 While a defendant guilty of possessing child pornography between 1994 and 1995 would receive a mean sentence of 36 months of imprisonment, by 2007 the same defendant would receive a mean sentence of 109.6 months. In other words, the typically imposed sentence increased by 300 percent in the span of a little more than ten years.

Second, the changes have created a paradigm where child pornography offenses can be punished more harshly than more serious offenses against children. (While, again, child pornography crimes are grave offenses which are deserving of serious punishments, it seems fair to assume that the rape of a child is more heinous than the possession of child pornography.) Employing statistics from the United States Sentencing Commission’s 2007 Sourcebook,2 Federal Public Defender Troy Stabenow explores the inequity created by the changes to the Guidelines with a description of three defendants, their crimes, and their sentences.3 The sentence for an offender guilty of possessing child pornography falls within a guidelines range that exceeds that of a defendant who violently raped a nine year old girl more than 200 times. (I created the following chart using examples from Federal Public Defender Stabenow’s article.)

Click here fore the Chart: Sentences for Pornography v. Rape

The chart illustrates the disparities created by the Guidelines recommendations among crimes that vary in their degree of seriousness. The credibility of the Guidelines is denigrated by the disparities created by the child pornography ranges. Without a consistent, research-qualified rubric, the Guidelines will only create arbitrariness in sentencing. Unfortunately, because child pornography is such a sensitive issue, Congress will likely never remedy the disparities created by the Guidelines. Any member of Congress that suggests amending the child pornography Guidelines will be lambasted by the media and child welfare groups, and will likely be skewered when it comes time for reelection. (And of course, because child pornography defendants are social undesirables, fairness and justice for those defendants is not worth losing an election.)

Perhaps in recognition of these disparities, Federal Courts regularly depart from the Guidelines in sentencing offenders guilty of child pornography crimes. Next week’s blog will consider the grounds for departure which are written into the Guidelines, as well as the Supreme Court’s decision in Kimbrough which speaks directly to deviation in the face of unwarranted sentencing disparities.

1. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, 1. See also Pub. L. 104-208, Pub. L. 105-314, Pub. L. 108-21.

2. United States Sentencing Commission, U.S. Sentencing Commision’s Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/annrpt/2007/sbtoc07.htm.

3. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, 23-24.

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~ by lana3 on October 29, 2009.

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