A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child Pornography

Authors

Loren Rigsby

Abstract

The United States Sentencing Commission (USSC) has made child pornography related crimes among the most harshly punishable federal offenses. Nevertheless, sentencing judges have regained the right to depart from the recommended Federal Sentencing Guidelines (Guidelines). The Guideline range for child pornography reflects sound and clear congressional intent to impose harsh penalties on defendants to deter, and ultimately eliminate, the market for child pornography. For this reason, this Comment argues that sentences that fall outside the Guidelines range should be reviewed with much greater scrutiny and should not be used solely to reflect a judge’s view that the advised sentence is too harsh for the crime it serves to punish. Specifically, below-Guideline sentences are being imposed with greater frequency because judges fail to consider all appropriate factors—namely, the nature of the offense, the purpose of punishment, and the need to avoid unwarranted sentencing disparities among defendants convicted of similar crimes. Part II of this Comment examines the history of the Federal Sentencing Guidelines, starting with their creation and then the jurisprudence that led to the Guidelines being advisory only. It also tracks the simultaneous legislative and Department of Justice (DOJ) measures that were implemented to impose harsher penalties for child pornography. Part III discusses the current state of sentencing for child pornography by looking at trends over the past decade in a number of prosecutions, the class of defendant that is being prosecuted, and the types of sentences being imposed. It also looks at recent cases in different circuits and examines how judges have been exercising their broad discretion in imposing sentences. Part IV considers arguments that the Guideline levels for child pornography offenses are too high, and posits that these arguments are unpersuasive because child pornography offenses should not be viewed merely as propensity crimes, but as the deliberate and repeated victimization of a child. Additionally, it considers the class of defendants charged with child pornography offenses and argues that such offenses pose a particular challenge to judges because they are demographically atypical. Part V proposes how judges should consider the 18 U.S.C. § 3553(a) sentencing factors in regard to these crimes so that greater predictability in sentencing is once again achieved.

Recommended Citation

Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child Pornography, 33 SEATTLE U. L. REV. 1319 (2010).