Congress held a hearing on the current penalties in February. Even the Department of Justice had complaints. (Transcript here.)
Why are the guidelines so high? Because instead of being set by Sentencing Commission policy, which uses a systematic, empirical approach, the Commission has been forced to conform the guidelines to Congressional mandates directing it to implement various enhancements. The guidelines are irrationally high because they are set by Congressional fiat, not reason. And now, Congress has ensured sentences will be even higher.
As the Commission has explained, “experience and data showed that several existing enhancements (e.g.,use of a computer, material involving children under 12 years of age, number of images) in the applicable guideline, §2G2.2, apply in almost every case.” 2011 USSC report on mandatory minimum sentences, chapter 10, p, 55)
For an outline of the myriad of problems, as viewed by judges, prosecutors and defense lawyers, see the testimony of Federal Public Defender Deirdre D. von Dornum and U.S. Chief District Court Judge Casey Rogers (N.D. Fla.)
Here's how child p*rn sentencing works now. Here is the Sentencing Commissions 2009 report on the history of child p*orn sentencing guidelines.
According to a 2010 Sentencing Commission survey of federal district court judges (U.S. Sentencing Commission, Results of Survey of the United States District Judges January 2010 Through march 2010, response to Question 19), 70 percent believe the guideline range is too high for possession cases, and 69 percent believe the range is too high for receipt cases.
Among the problems the judges see, according to Chief Judge Rogers:
....the statutory directives increasing the base offense levels and adding large level enhancements have been imposed without supporting empirical data correlating them to the harm caused by a possession or receipt offender or justifying the amount of levels added for a particular offense, thereby creating a concern over disproportionality. Also, because the congressional directives and amendments bypassed the Commission’s traditional role of engaging in empirical study, judges are concerned that the incremental increases accompanying the specific offense characteristics are not reliable and thus
are incapable of yielding results consistent with the original goals of sentencing reform as well as the Section 3553(a) factors in the ordinary case.
How it works now, according to Chief Judge Rogers:
Applying Section 2G2.2 to the typical first-time offender with no criminal history
demonstrates how quickly the offense characteristics ratchet up the sentencing range from the baseoffense level. A typical first-time possession offender with minimal criminal history begins at a level 18. Assuming he possessed child pornography involving a prepubescent minor, add 2 levels (bringing the offense level to level 20); the material portrays sadistic, masochistic or violent conduct, add 4 levels (to level 24); he used a computer to download the material, add 2 levels (to 26); and he possessed some short videos, easily exceeding 600 images, add 5 levels (bringing the total offense level to level 31).
Level 31 for an offender in Criminal History Category I produces a range of 108 - 135 months, which actually exceeds the 120-month statutory maximum at the high end. Under this scenario, for offenders with a Criminal History Category of II or greater, the guidelines sentencing range would exceed the statutory maximum.
Congress' answer: Increase the statutory maximum.
Sex offenders are among the most marginalized members of society. No one wants to stick up for them. But today it's child p*rn, tomorrow it could be any other category of offenders Congress deems it politically profitable to attack.
(Please use asterisks in comments using the word p*rn. It attracts spammers and site blocking software like crazy.)
