Length of Child Pornography Sentence Depends on Geography More Than Offense, Report Finds

March 20, 2013 by David S. Seltzer

The U.S. Sentencing Commission report on child pornography sentencing made a splash in the criminal defense community by recommending sentencing changes that many believe are long overdue. (Of course, because Congress must enact most changes, we must hope Congress agrees.) One of the often-cited bases for this is the fact that different offenders get widely varying sentences for the same non-production child pornography offenses. Because the Sentencing Commission was so thorough with its report, there is a study showing this. The Commission examined sentencing data from similar cases around the United States in the same year, controlling for factors like a prior history of criminally dangerous sexual behavior. Tellingly, it found that geography—physical location, and possibly the inclinations of federal judges in that location—played a large role than criminal history.

The issue is addressed in Chapter 8 of the report: “Examination of Sentencing Disparities in Sec. 2G2.2 Cases.” Those are cases involving receipt, transport, distribution or possession of child pornography, which are distinct from production cases because production necessarily involves participating in or orchestrating the rape of a child. The Commission looked at non-production cases that were sentenced in 2010, involving defendants with no criminal history (including no previous sex offenses) and had an offense level, for Guidelines purposes, of at least 13. The first comparison looked at disparities both within people convicted of the same offenses and between different offense types. It found substantial disparities in both, with receipt, possession and distribution carrying a wide range of months in prison despite the similarity of the conduct. This was one basis for the Commission’s later recommendation to align sentencing for receipt and possession.

The next section looked at what case features cause courts and prosecutors to limit the sentences of non-production child porn offenders. This too caused a substantial variance in sentences. The cases where someone acted to limit the sentence had a median sentence of 63 months, whereas cases where no one limited the sentence had a median sentence of 135 months—twice as long. To explain the difference between the groups, the Commission examined the effects of distribution conduct; prior criminal history; demographic characteristics; substance abuse; military service; and history of sexual abuse. None of these seemed to make a significant difference in whether prosecutors or courts limited their exposure. A prior history of criminally dangerous sexual behavior did seem to result in an increased sentence. But the most surprising finding was that geographical location played a large role. Courts in the Seventh and Eleventh Circuits were least likely to limit sentencing exposure, while the Second and Third were most likely.

This is particularly interesting for me because the Eleventh Circuit is the home circuit for my clients here in South Florida. While I represent clients across the United States and am admitted to practice in multiple federal district courts, I’m concerned that my Florida defendants are not getting the same consideration as defendants in, say, Philadelphia. Indeed, the report goes on to say that the Middle District of Florida (the Orlando area) has one of the highest numbers of cases of non-production child pornography offenses, but limits sentencing exposure in far fewer cases than other high-volume districts. However, it’s also telling to see that even the jurisdictions with the least limitations on sentences are still most likely to limit sentences. Cases in the Seventh Circuit limited sentencing exposure 63.1 percent of the time, which is more than half the time. That’s encouraging, because it shows that judges recognize that child porn sentencing is broken and will take steps to fix it even if the Commission’s recommendations are not realized.

From offices in downtown Miami, Seltzer Law, P.A., represents clients in Florida and across the United States who are facing serious child pornography or other criminal charges. We answer the phone 24 hours a day and seven days a week—because we know criminal charges don’t stop after business hours. For a free, confidential consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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