Sentencing Adjudication: Lessons from Child Pornography Policy Nullification

Abstract

Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.

The downward variance rate is at its most extreme with a very controversial crime: child pornography offending. The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position. A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.

The Sentencing Commission’s dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued. Bivariate measures showed statistically significant correlations among relevant measures. The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits. A multivariate logistic regression analysis was employed using downward variances as the dependent variable. Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.

The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference. It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline. Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.

Keywords: sentencing, empirical study, criminal justice policy, child pornography, sex offenses, Congress, sentencing commission

JEL Classification: K14