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Federal Child Pornography Sentencing
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Vol. XXV, No. 2
Spring 2013
The Uncertain Future of
Federal Child Pornography Sentencing


In December 2012, the United States Sentencing Commission (hereinafter “Sentencing Commission”) released its long-awaited 468 page Report (hereinafter “The Report”) on Child Pornography Offenses to Congress. The Report reaches an undeniable conclusion (and one that many of us had reached as much as a decade ago): the United States Sentencing Guidelines (hereinafter “The Guidelines”) grossly overstate a defendant’s culpability for non-production pornography offenses and potentially result in unreasonable sentences.[1] The Report also cites statistics demonstrating that since United States v. Booker, which made the Guidelines merely advisory, there have been far fewer sentences imposed by the United States District Courts within the Guideline ranges for simple possession and receipt of child pornography. The implication is clear: There exists a growing judicial acknowledgement that the Guidelines for child pornography offenses are in need of serious revision in order to reflect the current technology, mores, and ideology of our society. And, if Congress fails to amend the existing Federal Sentencing Guidelines for child pornography, federal judges will continue to use their discretion to impose sentences below the Guidelines range (see United States v. Booker (2005) 543 U.S. 220).

 

A Brief History of the Child Pornography Sentencing Guidelines

Unlike other crimes enumerated in the Federal Sentencing Guidelines, the Guidelines for child pornography offenses were not created using an empirical approach as intended by the Sentencing Commission; rather, they were created predominantly in response to Congressional directives. Originally, Congress created the Commission as an institution with the task of creating national sentencing standards based on “empirical data and national experience, guided by a professional staff with appropriate expertise” (see Kimbrough, 552 U.S. at 109 quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007); see also Fifteen Years of Guidelines Sentencing, supra, at 72-73). As an institution designed to collect empirical data, the clear purpose of the Sentencing Commission is to make sentencing recommendations based on data – and not ideology – in order to accomplish the various goals of sentencing, including avoiding sentencing disparities (see Kimbrough, 552 U.S. at 109; see also 18 U.S.C §3553).[2] However, because of statutory mandatory minimum sentences, as well as social pressure from policy concerns, the Sentencing Commission departed from its past practices and abandoned an empirical approach when determining the base offense levels for child pornography offenses (see Fifteen Years of Guidelines Sentencing, supra, at 72-73).        

For example, and somewhat surprisingly, over the past 25 years, the base offense level for child pornography possession has increased from 10 to 18, which essentially means the range of imprisonment has doubled.  This increase signifies that the potential range of imprisonment for a first time offender in criminal history category I (essentially, no prior criminal history) has increased from a range of 12-18 months to the current range of 27-33 months in prison.[3] In cases of child pornography “receipt”, the base offense level has increased to 22, which would subject a person to a potential sentence of 41 to 51 months in prison.[4]  Further, these stated base offense levels do not account for the numerous enhancements that are added to the sentencing calculus in order to arrive at the final length of potential imprisonment. These base offense levels are merely the starting point—the baseline—for calculating the sentence.  In sum, the lengthy legislative history of the Guidelines for the possession and receipt of child pornography has been a slippery slope of increasingly severe penalties based on congressional directives and strong emotional reactions to these type of offenses, rather than methodical empirical research.[5]

 

The Most Pernicious Problem: Unreasonable Upward Adjustments (Enhancements)

In order to address growing concerns over the justness of the typical Guidelines Sentence for child pornography offenders, the Report to Congress accurately highlights a specific, pernicious problem: the existence of outdated, antiquated upward adjustments (or enhancements) that are applied in nearly all child pornography cases.

For example, the Report analyzes how four of the six sentencing enhancements, found in U.S.S.G. §2G2.2, apply to nearly all people accused of possessing/receipt of child pornography.  One such enhancement is the use of a computer. This enhancement actually increases a potential sentence by two levels (U.S.S.G. §2G2.2(b)(6)). In 2010, according to the Sentencing Commission, 100% of all child pornography possession offenses involved the use of a computer (see Use of Guidelines, supra, at 38). Despite this statistical fact—that the use of a computer has literally become synonymous with the commission of a child pornography offense—the use of a computer still increases a defendant’s potential sentence by 1.5 years or more depending on the initial base offense level.[6]

A similar but, perhaps, even more devastating enhancement, is the five-level enhancement for possessing over 600 images of child pornography (U.S.S.G. §2G2.2(b)(7)(d)). In the modern technological world, every peer-to-peer sharing network and every software download program not only allows for mass downloads, but is actually designed to facilitate mass downloading. Thousands of images can be downloaded with the click of a button, in a matter of minutes, even if the user only intended to download a few specific images. Perhaps most problematically, this mass downloading of images can occur without knowledge on the user’s part (see United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *24 (N.D.Ill. Oct. 27, 2009)—reasoning that “the internet leads to the easy, and sometimes unintended, collection of massive collections of images, including those with violence and prepubescence”). Despite this statistical reality, the Guidelines’ five-level volume enhancement will increase a defendant’s potential sentence by over four years in prison.[7]

The idea of the unintentional mass download underlies a fundamental disconnect in the entire child pornography sentencing scheme. The Guidelines do not permit Judges to adequately differentiate among offenders in terms of culpability. This means that the Guidelines do not allow a Judge to impose a sentence proportionate to the person’s actual culpability because they do not take into consideration a defendant's intent when the crime was allegedly committed.

 

The Guidelines Do Not Account for a Defendant’s Actual Culpability

Analyzing this issue further, a particularly problematic element of the current Guidelines for child pornography is that, other than in the context of distribution, they do not contemplate a defendant’s intent and, therefore, do not enable a Judge to impose a sentence that is commensurate with a defendant's actual culpability. Under the current Guidelines, it is irrelevant whether the defendant intentionally tried to amass a large collection of child pornography or whether he intentionally sought out particularly young images or particularly graphic sexual images. Therefore, a defendant who has intentionally amassed a collection of 100,000 images of child pornography of children under 12 engaging in sexual intercourse and/or violent sadomasochistic sex acts with adults is treated the same as a defendant who accidentally amassed a collection of 601 images with an occasional image of a child under 12 standing naked by a tree. This "intent" problem is systemic within the Guidelines because a majority of the possible enhancements found under U.S.S.G. §2G2.2(b) are routinely applied to all defendants irrespective of intent. As such, the potential for an unjust sentence is substantially increased by the “strict liability” application of the enhancements.

 

Concluding Thoughts

As the Report highlights, the need to reform our federal sentencing structure for child pornography is necessary because, without Sentencing Guidelines that are based on social research, data, and modern beliefs about rehabilitation and punishment, we would be left with arbitrary justice imposed by a few District Court Judges. Without reformed federal sentencing laws for child pornography, society places the lives of many in the hands of a few, with almost unfettered discretion, and without providing these few Judges with any objective guidelines against which to gauge their personal judicial instincts about what type of sentence to impose.

Although the Sentencing Commission’s latest findings are certainly encouraging, it is difficult to say with any level of certainty that the Report will inspire Congress to implement actual legislative change to the Guidelines. This is especially important in light of the new literature and studies regarding how child pornography offenders are qualitatively different than other types of sex-related offenders. It is clear that the punishment prescribed for these complicated offenses needs to be critically re-evaluated to be in accordance with modernity.[8] One thing remains certain: child pornography offenses will continue to be prosecuted in our Internet-fixated world, so the judicial system and legislature needs to find a more just and nuanced approach to addressing these difficult criminal cases.



[1]   See United States Sentencing Commission, Report to the Congress: Sex Offenses Against Children (2012), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_
Reports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/index.cfm

[2] 18 U.S.C §3553 establishes the following factors to be considered by the Court when imposing a sentence:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission...
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission...
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense. 

[3]   In 1994 and 1995, 24 defendants were sentenced under guideline 2G2.4 (possession at that time) and the average prison sentence for was 15.4 months. See United States Sentencing Commission, Report to the Congress: Sex Offenses Against Children, at 12 (1996) available at, http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_
Reports/Sex_Offense_Topics/199606_RtC_Sex_Crimes_Against_Children/199606_RtC_SCAC.PDF
[hereinafter “Report to Congress.”]

[4]   Amazingly enough, and in stark contradiction to basic logic, the United States Sentencing Code and the Guidelines distinguish between “possession” and “receipt” of child pornography.  “Receipt” can lead to the imposition of a five year mandatory minimum sentence.  18 U.S.C. §2252a(2); 18 U.S.C. §2252(b)(1).

[5]   Over the past 30 years, Congress has passed increasingly harsh laws that broadly expand the types of conduct which constitute a child pornography offense. See e.g., the Child Protection and Obscenity Enforcement Act of 1988, codified as amended at 18 U.S.C. §§ 2251 & 2252(a) (making criminal the use of computers to transport, distribute, or receive visual depictions involving minors and also criminalizing intentional interstate transportation and receipt of visual depictions of sexually explicit conduct involving a minor); the Sex Crimes Against Children Act of 1995, codified as amended at 18 U.S.C. §§ 2251 & 2252; the Child Pornography Prevention Act of 1996, codified as amended at 18 U.S.C. § 2251 (criminalizing sexually explicit images that appear to depict minors, as child pornography, but were produced without using any real children), invalidated as unconstitutional in Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), & 2252A; the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act"), codified as amended at 18 U.S.C. §2252B.

[6]   For example, a defendant who starts with a base offense level of 70-87 months under the Guidelines, with the application of this two-level enhancement, would now be facing 87-108 months.

[7]   For example, a defendant who starts with a base offense level of 70-87 months under the Guidelines, with the application of this five-level enhancement, would now be facing 121-151 months.



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