United States Sentencing Guidelines

The United States Sentencing Guidelines set out recommended penalties for federal child pornography offenses. |Some judges have been departing from the sentencing guidelines; for example, Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines. One of the main criticisms of the reasonableness of the child pornography guidelines is that the steep enhancements they provide apply in nearly every case and almost always boost the sentencing range to the higher end of the statutory range.

In a 2010 survey of federal judges by the U.S. Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes. That figure has been steadily increasing since the Supreme Court in 2005 (in United States v. Booker) affirmed that judges have the right to depart from commission recommendations. A concern with this high rate of departures is that it could create "unwarranted disparities" in how similar offenders who commit similar crimes are sentenced, which is anathema to the goals of the Sentencing Reform Act.

Sentencing practices

In 2007, 351 out of 1025 defendants sentenced for nonproduction-related offenses received downward departures from the recommended Guideline range. Today, over forty percent of defendants convicted of federal child pornography offenses receive sentences below the Guidelines.

Because our typical defendant is using a computer, his offense level is increased by two. Because his P2P software is probably making images available to others, his level is increased by another two. Because he probably has an image of a minor under twelve, his level is increased by another two. Because he probably has an image that involves penetration or bondage, his offense level is increased by four. Assuming he has at least two images—a fairly safe assumption—his offense level is increased by another two. In sum, the typical offender probably qualifies for an offense level of thirty. Assuming, as is very likely the case, he has no criminal history, he is looking at a penalty under the Guidelines of approximately nine years.

Guidelines

Evolution of United States Sentencing Guideline Section 2G2.2

The guideline governing possession and distribution of child pornography, United States Sentencing Guidelines section 2G2.2, was first promulgated by the Sentencing Commission in 1987. In the past several years, the section has been amended several times, resulting in increasingly lengthy sentences. These strict penalties result from amendments that have increased the number and severity of various sentencing enhancements. The current guideline includes enhancements if any of the following circumstances are established: the material includes prepubescent children or minors under twelve; the material depicts sadistic or masochistic conduct; the defendant has exhibited a "pattern of activity" involving sexual abuse of a minor; or the offense involved the use of a computer. Additional enhancements apply if the defendant distributed the material rather than merely possessing it. Finally, section 2G2.2 allows for escalating enhancements depending on the number of images possessed. Without any enhancement, the mandatory minimum for receipt of child pornography is five years.

In a comprehensive analysis of the history of section 2G2.2, Assistant Federal Public Defender Troy Stabenow examined the guideline's amendment history and determined that the changes resulted from "numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or empirical study of any kind." Stabenow describes how then-Senator Jesse Helms of North Carolina introduced a "morality earmark" into House Resolution 2622, the Treasury-Postal Service Appropriations Bill of 1991. Two religious organizations, Morality in the Media and the Religious Alliance Against Pornography, had sent letters to Senator Helms urging him to propose upward adjustments to the guidelines for child pornography crimes. Accordingly, the proposed amendment instructed the Sentencing Commission to increase the penalties for child pornography offenders.

The Sentencing Commission lobbied against the upward adjustments. The chair of the Commission wrote a letter to the House of Representatives opposing the proposed amendment and noting that it "would negate the Commission's carefully structured efforts to treat similar conduct similarly and to provide proportionality among different grades of seriousness of these offenses." The amendment was nevertheless added to the House bill and was eventually signed into law. Stabenow notes that this amendment marked the beginning of a series of changes to child pornography guidelines that "would come from Congress [rather than the Sentencing Commission], and would be dictated not by experience and study, but instead by a general moral sense that the penalties for "smut peddlers' should always, and regularly, be made stricter, not weaker." Stabenow then details several more congressionally mandated increases in the child pornography sentencing guidelines that were based on moral sensibilities rather than on scientific studies and empirical research.

The most far-reaching of these amendments arose in 2003 when two officials from the Department of Justice convinced freshman Congressman Tom Feeney to insert changes to the child pornography guidelines into an unrelated bill. Representative Feeney's amendment adjusted the sentencing guidelines for child pornography in various ways, including creating a five-year mandatory minimum and a potential five-level increase depending on the number of images possessed. Debate on the amendment was limited to twenty minutes, and it was eventually inserted into the Child Abduction Prevention Act. The Feeney Amendment was widely criticized for its failure to consult with the Sentencing Commission and for its lack of empirical support. It was opposed not only by the Sentencing Commission itself, but also by the Chairman of the House Committee on the Judiciary, the Judicial Conference of the United States, and the American Bar Association. Professor Steven Chanenson has summarized some of the concerns as follows:

“

Congress [for the first time] directly amended the Federal Sentencing Guidelines by drafting Guidelines text. In the past, Congress often had been content to issue directions to and requests for study from the Commission, but left it to the Commission to craft specific Guidelines text. This time, Congress completely ignored the expert role the Sentencing Commission was designed to play, cut the Commission out of the process entirely, and directly wrote Guidelines text to its own specifications.

”

The politicization of child pornography sentencing guidelines has resulted in a flawed and irrational sentencing scheme. For example, Stabenow describes a typical defendant with no criminal history who is convicted of possessing four short video clips and ten pictures. Since most of the enhancements are triggered in the average case, the recommended range for this hypothetical defendant would be 188 to 235 months (roughly fifteen-and-a-half to nineteen-and-a-half years). Stabenow compares this sentence to that of a fifty-year-old man who contacts a twelve-year-old girl over the internet and eventually arranges a meeting with her during which they have repeated sex. The conduct would be a violation of 18 U.S.C. § 2422(b), and the defendant would be sentenced under section 2G1.3. His recommended range would be 108 to 135 months (nine to just over eleven years). Stabenow concludes that this sentencing disparity, between a typical possessor of child pornography and a man who entices a child to have repeated sex with him, underscores the disproportionality of section 2G2.2.

Table

U.S. Sentencing Guideline	U.S. Code
U.S.S.G. § 2G1.3 Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor	8 U.S.C. § 1328 (only if the offense involved a minor) 18 U.S.C. § 1591 (only if the offense involved a minor) 18 U.S.C. § 2421 (only if the offense involved a minor) 18 U.S.C. § 2422 (only if the offense involved a minor) 18 U.S.C. § 2423 18 U.S.C. § 2425
U.S.S.G. § 2G2.1 Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production	18 U.S.C. § 1591 18 U.S.C. § 2251(a) 18 U.S.C. § 2251(b) 18 U.S.C. § 2251(c) 18 U.S.C. § 2251(d)(1)(B) 18 U.S.C. § 2260(a)
U.S.S.G. § 2G2.2 Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor	18 U.S.C. § 1466A 18 U.S.C. § 2252 18 U.S.C. § 2252A(a) 18 U.S.C. § 2252A(b) 18 U.S.C. § 2260(b)
U.S.S.G. § 2G2.3 Selling or Buying of Children for Use in the Production of Pornography	18 U.S.C. § 2251A
U.S.S.G. § 2G2.5 Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Email	15 U.S.C. § 7704(d) 18 U.S.C. § 2257 18 U.S.C. § 2257A
U.S.S.G. § 2G2.6 Child Exploitation Enterprises	18 U.S.C. § 2252A(g)

Supervised release

The guidelines provide, "If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended."