Momentum Grows for U.S. Sentencing Commission to Revise Child Porn Guidelines

February 20, 2013 by David S. Seltzer

Because I routinely defend serious sex crimes, I’ve kept a close eye on the legal profession’s internal debate about sentencing for child pornography crimes. Child pornography crimes—possession, receipt, distribution and production—are some of the crimes that most commonly end up in the appeals courts, and that’s partly because of the very long sentences they carry. Child pornography possession in particular has come under fire as over-penalized, relative to the harm to society and chance of re-offending. A study by the United States Sentencing Commission found that of all crimes, judges are most likely to depart downward from the sentencing guidelines for child pornography. Partly as a result, the Sentencing Commission held a hearing last year to take public input on the possible changes.

When handing down harsh sentences for child pornography possessors, some courts have have reasoned that child pornography possession makes a person more likely to rape a flesh-and-blood child, making it wise to take that person out of society. But critics of the current sentencing regime argue that studies don’t show that child pornography possession correlates with contact crimes against children. Indeed, many federal judges now agree; 71 percent told the Sentencing Commission that the mandatory minimum sentence for receipt of child pornography is too high. The Commission has also found that even though the Guidelines sentences for child porn offenses have risen, the sentences themselves that remained flat. That is, judges in the post-U.S. v. Booker era have increasingly refused to apply the Guidelines. When they do, however, child pornography offenders can receive more time in prison than someone who committed a crime of violence.

A large part of the problem is that even a downward departure may not fit the crime, depending on the circumstances. The Guidelines sentence for first-offense, no-contact child pornography possession is a minimum of 10 years in prison, largely thanks to the input of Congress. According to the Boston Bar Journal, Congress has repeatedly raised the base offense level and mandatory minimum for child porn offenses, often despite Sentencing Commission recommendations to lower them. Congress also is responsible for a sentence enhancement for use of the Internet, which was in 1995; computers are now involved in virtually all such crimes, making the enhancement meaningless yet highly punitive. Another now-meaningless enhancement is for having 10 or more images; the Internet permits offenders to collect that many with no trouble.

The Commission is taking public comments on the Guidelines for child porn offenses; it hasn’t set a date for the resulting recommendations to Congress. Unfortunately, it’s not clear that Congress will receive these recommendations any more enthusiastically than they did in previous years. The same political problem remains: no politician wants to be viewed as “soft” on child molesters. Proportional sentences are not “soft” and child pornography possessors are not necessarily molesters, but these distinctions may not matter to politicians if they believe they won’t matter to voters. Congress had the political courage to change crack cocaine sentencing; perhaps now is the time it will do the same with child pornography.

Seltzer Law, P.A., represents clients accused of child pornography crimes and other serious criminal offenses. Lead attorney David Seltzer is a former cyber crime prosecutor with the Miami-Dade State’s Attorney’s office, so he understands how law and technology intersect—and he knows how prosecutors build their cases. For a free, confidential consultation, send us an email or call toll-free at 1-888-THE-DEFENSE.

Similar blog posts:

Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer

Eleventh Circuit Denies Sentence Reduction Request Based on Crack Guidelines Change – U.S. v. Berry

Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford