Sentencing Commission Recommendation Uncovers Interesting Recidivism Research

March 13, 2013 by David S. Seltzer

Ever since the U.S. Sentencing Commission came out last month with its new recommendations on sentencing for child pornography crimes, I’ve been writing about the good and bad things about those recommendations. Today, I’d like to discuss something that may have been overlooked in the press: the Commission’s conclusions on recidivism—that is, the propensity to commit another offense—among people who have been convicted of child pornography crimes. Recidivism is a major concern for sentencing courts, which often go on the record saying they are concerned about protecting live children from molestation. Even when the offender has no record of crimes involving sexual contact with children, the assumption is that he or she would like to commit such crimes. The Commission’s research surprised many—and disappointed prosecutors—by concluding that the rate of known recidivism for those crimes is no larger than the rate of recidivism for other criminal offenses.

The Commission dedicated an entire chapter to the issue of recidivism. That chapter focused on offenders sentenced in 1999 and 2000, years chosen to ensure that the offenses took place using modern technology, but long enough ago that the offenders are now free. The study used arrest records, causing the Commission to caution that it could only comment on known recidivism; it’s unlikely that all re-offenders are caught. Of the 610 offenders who ended up being studied, the Commission found that 70 percent did not re-offend at all. Of the 30 percent who did re-offend, less than a third committed new sex offenses; a total of 7.4 percent of the offenders committed some kind of sexual recidivism and 3.6 percent committed sexual recidivism with contact. Nine of the offenders (4.9 percent of the recidivists) had another conviction for a non-production child pornography crime, while 11 offenders (6 percent of all recidivists) had a contact sex crime.

The Commission also dedicated a chapter to discussing prior criminally dangerous sexual behavior as it affects child pornography offenders. That chapter noted that social scientists have consistently found CDSB—or sexual “precidivism”—pose a greater danger to society. These offenders, the Commission wrote, pose a greater risk of later recidivism than people who committed the same non-production child porn crimes without a precidivism history. A known history of CDSB also makes the offender more likely to have committed past CDSB crimes that were not caught. (Some of this data comes from self-reported crimes, surprisingly, and not all were caught by authorities.) Not surprisingly, people with histories of CDSB got longer sentences than people without, and people with contact offenses in their past got longer sentences than people with a CDSB conviction for child porn.

The Commission found that the known recidivism rate for child porn offenders was similar to that of offenders in general. The U.S. Justice Department later objected to these conclusions, saying that the data was too limited to form the basis of any recommendation to be the basis for modifying child pornography sentencing. I agree that the data is limited—the Commission itself pointed this out—but I disagree that the best science available should not be the basis for changing the Guidelines. Even prosecutors agree that the current sentencing scheme is broken, creating inconsistent and sometimes disproportionately harsh sentences. To create consistent, just sentencing schemes, we should absolutely use the science we have at hand. If courts have handed down harsh sentences based on the belief that child porn offenders were likely to commit contact sex offenses against children, new evidence should cause them to reconsider.

Based in Miami, Seltzer Law, P.A., represents clients across the United States who are accused of serious cyber crimes, including child pornography crimes. We take client calls 24 hours a day and seven days a week, because we know police and prosecutors don’t stop doing their jobs after business hours. To learn more or set up a free consultation, send us a message online or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

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