Blogger Argues That Sentencing for Child Porn Crimes Should Be Presumed Unreasonable

March 18, 2013 by David S. Seltzer

I’ve been writing here for the past few weeks about the new U.S. Sentencing Commission report suggesting substantial modifications to the way child pornography crimes are sentenced in the United States. The report calls for sweeping changes because, it says, the way the crimes are currently sentenced results in unreasonably high sentences for some offenders and unreasonably low sentences for others. The report details all the reasons for this in a total of 468 pages, and notes that because of the uneven sentencing scheme, judges and sometimes even prosecutors manipulate the outcomes in individual cases to reduce sentences—resulting in disparate sentences for similar crimes. So I was interested to see that a well-known legal blog suggested that the report should create a presumption of unreasonableness when child porn cases go to appeals courts.

The Sentencing Law and Policy Blog is authored by Professor Douglas Berman of Ohio State’s law school. Berman, who focuses his studies on sentencing, is referring to a rule that many federal appeals courts have adopted when reviewing appeals of sentencing decisions. The “presumption of reasonableness” rule says that appeals courts may presume any sentence that is within the U.S. Sentencing Guidelines is reasonable, although the defendant challenging the sentence may rebut that presumption. Not every appeals court has this rule. Berman is critical of the rule, which he says makes sentences “functionally immune” from review in the circuits that have adopted it. He notes that in the eight years since this rule was adopted, no circuit that has adopted it has found a sentence substantively unreasonable.

Berman believes the report on child pornography sentencing shows that Guidelines sentences in this area of the law are actually unreasonable. He points to passages from the report saying that the current Guidelines result in sentences that are too long for some offenders and not long enough for others. From my previous reading of the report—and my professional experience defending cyber crimes—I know a lot of sentence enhancements come under fire for inflating sentences unnecessarily. Possibly as a result, different judges give widely varying sentences for the same crimes, and prosecutors may even change their charging behavior. Berman argues that this shows the guidelines are “broken”—they don’t ensure “just, effective and proportionate punishment.” Because of that, he would like circuits with the presumption of reasonableness rule to drop it with child porn sentencing appeals.

As a criminal defense attorney who works with many child pornography possession defendants, I would also like some judicial recognition that the Guidelines are broken. In fact, if the Sentencing Commission’s report is to be believed, a lot of federal district courts do already recognize this. But it’s the appeals courts Berman is addressing, and they may not see the problems with the Guidelines because they are somewhat divorced from the facts of criminal cases; appeals courts are concerned with applying the law. That’s their job, but it means they may not see the problem with simply declaring a sentence substantively reasonable if it stays within the Guidelines. As Berman argued, when the evidence is clear that the Guidelines don’t work well, it may be time to reconsider.

Seltzer Law, P.A., represents clients across the United States who are accused of child pornography crimes and other cyber crimes. Lead attorney David Seltzer is a former cyber crime prosecutor who is putting his experience to work to defend serious crimes involving technology and the Internet. To learn more or for a free, confidential consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message through our website.

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