Sentencing Commission touches the third rail

The Sentencing Commission released a comprehensive report on February 27 and asked Congress for broad authority to scrap the current penalties for child pornography and build an entirely new guideline for those crimes.  Read more about it in this Washington Post article.

Why did the Commission dare to touch this third rail at all?  After all, the Commission has been increasing the sentences recommended for receiving, possessing, or passing on child pornography (from an average of 54 months in 2004 to 95 months in 2010) partly at the behest of Congress, which has made its views about these sentences clear:  Increase them!  But as sentences for non-production child pornography crimes have increased, so has the rate at which the guidelines are ignored.  Today, judges impose the recommended sentences in only 32.7% of non-production child pornography cases.  This is the lowest within-guideline rate of any major crime.

What is going on?

Below-guideline sentences these extreme once were red meat for the Department of Justice, which in the past would point to such flagrant disregard of the law as evidence that judges were straying too far from sentencing guidelines and should be reined in. 

But, remarkably, the Department of Justice has been leading the charge on lower child pornography crime sentences!

First, federal prosecutors use their toolboxes to secure lower sentences for such offenders.  Using creative charging, plea agreements, and straight-up requests for judges to vary, prosecutors are responsible for 55.7% of all below-guideline sentences.

Second, the Department of Justice has added its voice to those of the defense bar, judges, and advocacy groups like FAMM, asking the Commission to reexamine and revise this very troubling guideline. 

The report teaches, among other things, that

• The guideline was written for a much earlier time. Technology has changed how receipt and possession take place and the ease with which someone can access thousands of images (numbers of images lead to increased guideline sentences). The reasons that sentences can be increased don’t have much to do with a person’s culpability and dangerousness. 

• Receipt of child pornography is subject to a five-year mandatory minimum, while possession (hardly possible without receipt) is not. Prosecutors use their charging discretion in this area to reduce sentences they consider excessive or pressure defendants to plead guilty to get a lower sentence and avoid the mandatory minimum. This leads to “widespread and growing sentencing disparities.” 

• While child pornography offenders share a 30% recidivism rate with the general federal offender population, only 7% commit new sexual crimes.

Clearly this is a guideline that needs an overhaul, but the Commission does not believe it can fix the problems without Congress’s permission. The Commission feels it needs congressional permission because many of the existing guideline sentences are required by federal laws that only Congress can change.

Will Congress have the courage to let the neutral body of experts do its job?

Mary Price

General Counsel and Vice President, FAMM