Wednesday, November 20, 2019

Change in Child Pornography Guidelines

Historically, guideline sentences for possession of child pornography were a fraction of what they are today. When the U.S. Sentencing Commission first enacted a guideline for possession of child pornography in 1990, the base offense level was 10. The guideline had available one upward adjustment: two levels for images of minors under age 12, resulting in a total exposure based on an offense level of 12, which computes to 10 to 16 months in jail with a possibility of straight probation for first offenders.

Over the last 10 to 15 years, the sentencing Guidelines have undergone 11 amendments that have massively increased the applicable sentence for possession of child pornography. From 2002 to 2007, the average imposed sentence on an offender convicted of a child pornography-related offense increased by 11.9 months. By 2007, the mean sentence for a child pornography offender had grown to 109.6 months (over 9 years). This represents more than a 300 percent increase in the typical imposed sentence since 2002. Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines.

The Child Pornography Guidelines differ from most other guidelines in that the upward modifications were not the result of empirical studies by the Sentencing Commission indicating that the increases were necessary, but largely the result of congressional directives requiring the Commission to make these upward modifications:

“[T]hese changes [were] largely the consequence of numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or study of any kind. Congressionally mandated changes were even enacted to prevent the Commission from implementing carefully considered modifications which would have lowered applicable offense levels.”

In the United States v. Hanson, 561 F.Supp.2d 1004, 1009 (E.D. WI 2008), the Hanson court also noting that the amendments “destroyed some of the careful distinctions the Commission had drawn between true peddlers of child pornography and more simple possessors or transporters.” Indeed, in various instances, the congressional directives were enacted over the objections of the Sentencing Commission it was noted that the five level adjustment for number of images was passed over Sentencing Commission objections, as well as the objections of Chairman of the House Committee on the Judiciary, the Judicial Conference of the United States, and the American Bar Association.

This history is similar to the widely criticized crack cocaine guidelines, which were also the result of congressional directives.

“Much like the crack guideline criticized by the Supreme Court in Kimbrough [v. United States, 128 S. Ct. 558, 570 (2007)], [the] guideline… is not representative of the Commission’s typical role or of empirical study. The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary. Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes.”

In the meantime, since the promulgation of these extremely excessive guidelines, the United States Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005) in which the Court ruled that the guidelines were discretionary rather than mandatory and that the sentencing factors. In Nelson v. United States, 129 S. Ct. 890 (2009), the Supreme Court recently held that it is error for a district court to even presume that a sentence within the range recommended by the Sentencing Guidelines was reasonable, stating that it was inadequate for a district court to simply refrain from treating the Sentencing Guidelines as mandatory.

In the wake of these Supreme Court decisions, and relying on the fact that these child pornography guidelines being increased were not the result of the Sentencing Commission’s ongoing work, but forced upon the Commission by Congressional “morality earmarks” a growing number of federal courts have ruled that these guidelines are either entitled to less consideration than Commission-generated guidelines, or should not be given any weight at all. United States v. Shipley, 560 F. Supp. 2d 739, 744 (S.D. IA 2008) (“These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.

It should be argued that the original guideline level which equals 10 to 16 months for simple possession is closer to what a sentence should be rather than the harsh, totally unreasonable 8 to 9 years that recently has been the norm for so many defendants for simple, non-commercial, private possession of child pornography.

Frequently, first offenders with no criminal record, when confronted with such shocking high sentences are at grave risk for suicide, see The Recorder.

These tragic results would be avoided with a return to more logical and humane sentences.

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