Guidelines Criticism & Proposed Amendments

GUIDELINES CRITICISM

Since their enactment in 1987, the federal child pornography sentencing guidelines have become increasingly punitive with each revision, especially following the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (“PROTECT”) Act of 2003, which added new sentencing enhancements and created new statutory mandatory minimum penalties. However, research indicates that there is no link between non-production child pornography offending and contact sexual offending, and sentencing guidelines fail to distinguish between different levels of harm, culpability, and recidivism risks. For example, the recidivism rate for non-contact child pornography offenders is between 2-6%, and for contact offenders is between 13-17%. The United States Sentencing Commission issued a report that child pornography sentencing enhancements “result in overly severe penalty ranges for typical offenders…and also fail to meaningfully distinguish offenders in terms of their culpability and dangerousness.”[1] Thus, the majority of federal judges frequently depart from the guidelines; in 2011, the average rate of judge-initiated downward departure for non-contact child pornography cases was 44.8%, compared to 18.1% of contact sexual abuse cases.[2]

Notable findings from the Sentencing Commission’s 2021 report includes:[3]

• Because of advancements in technology, child pornography offenses increasingly involve large quantities of material that are graphic and involve very young children. In 2019, the median number of images was 4,265, with some people possessing and distributing millions of images and videos. Over half of non-production offenses included videos of infants and toddlers, and nearly every offense (99.4%) included prepubescent victims.
• Four of the six sentencing enhancements cover conduct that is now incredibly common, so they now apply in the majority of cases. For example, over 95% of non-production offenders received enhancements for computer use and for victims under 12, 84% for sadism/masochism, and 77% for 600 or more images.
• The average guideline minimum for non-production offenses have increased from 98 months in 2005 to 136 months in 2019. The average sentence imposed increased from 91 months to 103 months.
• Judges increasingly apply downward variances. In 2019, 30% of non-production offenders received a sentence within the guideline range, while the majority (59%) received a variance below the guideline range.
• The sentencing guidelines does not address the relevant aggravating factors identified in the Sentencing Commission’s 2012 report, such as participation in an online child pornography community or aggravating sexual conduct prior to or concurrently with the child pornography offense. Yet, courts typically appeal to these factors during sentencing, and this is reflected in sentence lengths, such as by increased average sentences for offenders who participated in an online community or aggravated sexual conduct.
• Sentencing disparities among similarly situated non-production offenders have become increasingly common. For example, for 119 similarly situated possession offenders, the sentences ranged from probation to 228 months, despite the same guideline calculations for the same offense characteristics and criminal history.
• The majority of child pornography Internet offenders pose a low risk. Of non-production offenders released in 2015, only 4.3% were rearrested for a sex offense within three years.

[1] United States Sentencing Commission. (2012). Report to Congress: Federal child pornography cases. Washington, DC. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf.

[2] United States Sentencing Commission. (2011). 2011 Sourcebook of federal sentencing statistics. Retrieved from http://www.ussc.gov/Research_and_Statistics/Annual_Reports_and_Sourcebooks/2011/sbtoc11.htm

[3] United States Sentencing Commission. (2021). Federal Sentencing of Child Pornography: Non-Production Offenses. Washington, DC. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210629_Non-Production-CP.pdf.

PROPOSED AMENDMENTS

In 2012, the Sentencing Commission recommended that sentencing be revised “to account for technological changes in offense conduct, emerging social science research about offender behavior, and variation in offender culpability and sexual dangerousness.” They called for Congress to authorize the Sentencing Commission to revise §2G2.2 to eliminate outdated enhancements and more fully account for relevant aggravating factors. They recommended three factors for consideration in revising non-production sentencing:

1. Content of the child pornography collection and nature of collecting behavior
2. Involvement with community of other offenders

• Sexually abusive or exploitative conduct in addition to child pornography offense

This involves revising enhancements based on the type and number of images, distribution and computer use to reflect the modern use of computers and the Internet, and the “pattern of activity” enhancement to shift focus to involvement in child pornography communities. They also recommend aligning the statutory penalty schemes for receipt and possession offenses, as the rationale for punishing receipt more severely than possession is now outdated. Furthermore, the sentencing for distribution should be revised to reflect the modern use of technology and to differentiate between different types of distribution.

However, Congress has yet to implement the Sentencing Commission’s statutory or guideline recommendations. In 2021, the Sentencing Commission released an updated report with updated data, the evolution of technology since the 2012 report, and a recidivism analysis of non-production offenses. The updated report concludes that the sentencing enhancements have not kept pace with technological advancements, making enhancements intended to target more culpable offenders apply to the vast majority of cases, while more significant aggravating factors are not accounted for.

See Sentencing Hearings for information on including the information from the Sentencing Commission’s reports in arguments during sentencing hearings.