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