I wrote here last week about the exciting new report by the United States Sentencing Commission, calling for substantial changes to the way child pornography crimes are sentenced in this country. The report essentially says that child pornography sentencing doesn’t work well in this country, because the law is written in a way that gives too much weight to some factors and not enough weight to others, resulting in overly harsh sentences for some and too much lenience for others. I strongly agree; in my role as a cyber crime defense lawyer, I’ve seen plenty of sentences that were faithful to the Sentencing Guidelines but nonetheless wrong for the crime and the circumstances. But I was extremely interested to see that the Justice Department—the department for federal prosecutors—agrees to some extent with the recommendations.
The Justice Department sent a letter March 5 to the Sentencing Commission, thanking it for the opportunity to comment and agreeing with several of its recommendations. In particular, it agreed with the Commission’s recommendation that the current Specific Office Characteristics for section 2G2.2 of the Guidelines be changed. Section 2G2.2 describes sentencing recommendations for child pornography offenses other than production—possession, receipt, transmission and distribution. The Guideline divides offenders into possession only; receipt with no intent to distribute; and receipt with intent, or transmission or distribution. It also has six sentence enhancements for things like the ages of the children, the violence in the images, the number of images, whether there was distribution, whether there was a “pattern of activity” involving sexual abuse of minors and whether a computer was used.
The Commission’s report found that four of those six sentence enhancements now apply to a typical non-production child porn offender. That is, courts are routinely adding the sentence enhancements to the crime because they are very common characteristics of the crime. This has helped contribute to much higher sentences for non-production offenders: the average was 50 months in 2004 and 95 months in 2010. It has also contributed to judges’ habit of departing downward from the Guidelines. The Justice Department recommended that new sentence enhancements take into account how the pornography was acquired; how long the offender has been collecting and the care that went into the collection; how the offender escapes detection; and whether the offender participates in an online community. It recommended that the “use of a computer” enhancement be abandoned and that the number of images that qualify for an enhancement be increased to reflect the ease of collecting images online.
I cannot agree strongly enough with those last two recommendations. As I noted last week, the current Guidelines were written before the Internet was in nearly every American home. As a result, people are being sent to prison for longer than their conduct warrants because of the sentence enhancements written for a pre-Internet era, when collecting required much more dedication and risk. I am also cautiously optimistic about the Department’s proposed new sentence enhancements, as long as they are implemented in a way that distinguishes between casual and hard-core child porn users. And an enhancement for previous contact sex offenses might improve matters if it helps clarify what conduct should qualify. I look forward to hearing more in the coming months about whether Congress takes these recommendations to heart.
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