U.S. Sentencing Commission to Decide on Modifications to Child Pornography Sentencing

February 19, 2013 by David S. Seltzer

Because I frequently represent clients charged with child pornography offenses, I was extremely interested to see that the U.S. Sentencing Commission is taking public comments on possible revisions to sentencing for child pornography crimes. The Sentencing Commission is the body that makes recommendations on sentencing and guides federal courts in interpreting sentencing guidelines. Last February, the commission held a public hearing on updating the guidelines for child pornography crimes. Importantly, one of the reasons it did so was because of its own findings that federal judges depart downward from the guidelines 43 percent of the time—as opposed to 18 percent of the time in all criminal cases. The Commission has not set a date for making recommendations, but it’s taking public comments right now.

One such draft comment argues that the guidelines currently call for draconian sentences for first-time offenders who had no in-person sexual contact with minors. Because the sentences are disproportionate to the crime and don’t protect children, the comment says, they violate the Eighth Amendment prohibition on cruel and unusual punishment. It pointed to studies suggesting that consuming child pornography, by itself, is not a risk factor for hands-on sex offenses. Another study compared child pornography offenders to offenders who were in trouble for having sexual contact with minors, and found no contact sex crimes and much lower rates of supervised release violations. As a result, it argued, “sentences are based on moral outrage and unsubstantiated fears regarding recidivism.” It called for much lower sentences for non-contact offenders and a clearer distinction between those offenders and those who create child porn.

In making its argument, the draft cites widespread judicial opposition to the child pornography guidelines. The Sentencing Commission’s own study found that 71 percent of federal judges believe mandatory minimums for child pornography possession are too high. In a recent report on sentencing after U.S. v. Booker, the Commission noted that even though the guidelines for non-contact child porn offenses (including receipt and transmission as well as possession) have increased, actual sentencing has stayed flat—suggesting that judges frequently depart downward from the guidelines. That’s confirmed by the Commission’s finding that judges depart downward in child pornography cases 43 percent of the time. Even prosecutors see problems with the guidelines; the Department of Justice testified to the Commission last year that some current aggravating conduct is too common to be considered an aggravator, while other aggravating conduct is ignored.

I strongly agree. Observers of child pornography sentencing have realized for years that the current guidelines haven’t kept up with technology. For example, using a computer is an aggravating factor—but almost all child pornography offenses now involve a computer. This results in inflated sentences. Another problem is that child pornography offenders are a convenient political whipping boy, which is part of the reason why the Sentencing Commission notes that the guidelines sentences tripled over about 15 years. The Commission’s job is to make recommendations to Congress about sentencing for criminal offenses—and if its recommendations are in line with this draft comment, I hope Congress listens.

Seltzer Law, P.A., represents clients across the United States who are charged with serious crimes involving computers, technology and the Internet. If you or someone you love is facing charges, don’t wait to call us for a free consultation. You can reach us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Brooklyn Judge Defies Mandatory Minimum Sentencing for Child Pornography

Conviction Upheld For Defendant Who Didn’t Realize Transporting Child Porn Is Illegal – U.S. v. Dean

Eighth Circuit Rejects Argument That Child Pornography Sentencing Guidelines Are Inflated – U.S. v. Black