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  • Bailey Beckman

No guidance from sentencing guidelines.

TW: Child Pornography

On April 7, 2022, the Senate confirmed Ketanji Brown Jackson as  a Justice on the Supreme Court—but not before Judiciary Committee members grilled her in a three-day long hearing. The Senators asked the average, anticipated questions all judges and Justices that come before their committee must answer. A few questions this time, however, stood out. 

For those of you who were not following along at the time or who may have forgotten, one Senator went through the sentencing history of individuals then-Judge Jackson sentenced for non-production child pornography crimes. A pattern was evident—almost all of the defendants were sentenced below the sentencing guidelines range. When pressed, then-Judge Jackson explained the guidelines no longer work for the way the crime of child pornography has evolved with the advent of smartphones and easy access to the internet. 

The flaws in the sentencing guidelines for non-production child pornography offenders were not news to judges, lawyers or the sentencing commission. The issue was first formally documented in the U.S. Sentencing Commission’s (“USSC”) 2012 Report to Congress titled Federal Child Pornography Offenses. The report recommended, among other things, that Congress revise the guidelines to account for technological changes in how the offense is committed. In 2021, the USSC doubled down on its conclusion, providing another report to Congress that found sentencing guideline enhancements for non-production child pornography offenders have not kept pace with technological advancements. The Commission wrote these public reports for the benefit of Congress, but Justice Jackson’s confirmation hearing garnered far more attention and headlines. 

The Sentencing Guidelines in §2G2.2 provide for, among other things, an increase in offense level based on the number of images the offense involved and for offenses involving computer use. For example, if an individual was convicted of having 11 images, under the guidelines, his offense level would increase by two levels. If that same individual was caught with 601 images, his offense level would increase by five levels. Logically, this makes sense—the more images, the more victims and the more severe the crime. However, because almost all offenders use computers and some form of a "peer-to-peer" file-sharing program that allows them to share large quantities of images with other offenders, these enhancements now apply to a vast majority of offenders. For example, the median number of images for a non-distribution offender was 4,265 in fiscal year 2019. 

To illustrate how ineffective the current guidelines are, in fiscal year 2019, less than one-third of offenders received a sentence within the guideline range. Additionally, 119 similarly situated defendants—all with the same guideline calculation—were given sentences ranging from probation to 228 months. The average guideline amount for those convicted on non-production offenses has increased from 98 months in 2005 to 136 months in 2019. Technology has changed, yet the guidelines remain the same. These outdated guidelines have muddied the waters for practitioners and made justice unduly determinative on the Judge’s personal views rather than on the offender’s conduct. 

Uniquely, this issue cannot be resolved by the Sentencing Commission. In 2003, Congress passed the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 (“PROTECT Act”). This law, among other things, statutorily created current enhancements based on the number of images involved in the offense and certain mandatory minimums. Because Congress created many of these guideline enhancements through the PROTECT Act in 2003, the Commission recommended Congress enact legislation “providing the Commission express authority to amend guideline provisions that were promulgated pursuant to specific congressional directive.” Currently, the Commission lacks specific authority to change the statutorily created enhancements. It is up to Congress to have the difficult policy debate about the appropriate punishment for such a heinous crime. 

The report from the commission lists several ways the guidelines can be improved, including looking at behaviors such as being active in online forums with other offenders. The mission of the USSC is to collect, analyze and distribute information on federal sentencing issues and serve as a resource for Congress. The question of appropriate punishment for an adult who has victimized a child through the odious crime of child pornography is not an easy one to answer. However, judges across America will continue sentencing these offenders, regardless of whether Congress chooses to act. Hopefully, Congress will work to modernize these guidelines soon. Those impacted by these crimes deserve stability and consistency in sentencing. 


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