Recent U.S. Senate hearings over the Supreme Court nomination of Judge Ketanji Brown Jackson underscored the fact that federal sentencing guidelines for non-production child pornography—the receipt, possession or distribution of such material—are overly severe.
Jackson was challenged by some senators for giving child porn offenders lighter sentences than those recommended by federal sentencing guidelines.
However, the judge noted that she has consistently weighed all statutory factors concerning sentencing, including the recommended sentences in probation officers’ pre-sentencing reports. As noted in the Senate hearing, Jackson’s sentences in child porn cases matched the recommendation by either the prosecution or the probation officer in most cases.
It also was pointed out that a majority of all federal judges, and not just Jackson, have given sentences that were less than the range in federal sentencing guidelines for non-production child pornography.
A 2021 report by the U.S. Sentencing Commission, cited in the hearings, stated that only 30 percent—less than a third—of non-production child pornography offenders received a sentence within the guideline range in the 2019 fiscal year. Almost 60 percent received a lesser sentence than called for by the extreme guidelines.
Overly severe sentencing guidelines are at fault
Clearly, judges across the nation and across political spectrums acknowledge the overly severe nature of federal sentencing guidelines in such cases.
These guidelines date to a time when child pornography was distributed by mail and was not shown on the Internet. Punishments were enhanced or increased based on the volume of material in a collection, which, via the ease of the Internet, then became very high, as opposed to the era of “snail mail.”
The U.S. Sentencing Commission has called punishments set forth by federal sentencing guidelines “overly severe” and noted that they are “based on outdated and disproportionate enhancements related to their collecting behavior.”
In a 2012 report, the commission recommended to Congress that it revise federal sentencing guidelines for non-production child pornography offenders.
Since this has not been done, federal judges—in 59 percent of cases—have handed down lesser sentences, given the overly harsh guidelines as well as recommendations by prosecutors and probation officers themselves.
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How harsh are federal sentencing guidelines for non-production child porn?
As for just how harsh federal sentencing guidelines can be for offenders convicted of possessing—but not producing—child porn, the maximum federal sentence for possession of child porn is 10 years in prison for a 1st offense and 20 years in prison for those with a prior sex offense conviction. Punishments on the state level also can be harsh.
On the federal level, the Sentencing Commission reports that the PROTECT Act of 2003 “contains a series of enhancements that have not kept pace with technological advancements.”
As a result, the average guideline minimum sentence for non-production child pornography offenders rose from 98 months in the 2005 fiscal year to 136 months in 2019. That’s an increase of over 3 years in the average minimum prison sentence set forth by federal guidelines.
As for the sentences themselves, the average prison sentence rose from 91 months in the 2005 fiscal year to 103 months in 2019.
Courts try to compensate for extreme guidelines
The Sentencing Commission has noted that though sentences imposed “remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.”
But even with lesser sentences often granted by judges who believe sentencing guidelines are too severe, life-changing punishments are routine in today’s climate of media grandstanding by authorities, public outrage fueled by politicians and high federal funding to spur sex stings by law enforcement authorities—stings which can snare persons even remotely linked to child porn.
Life-changing can mean life-ending
The prospect of a four- to seven-year sentence for possessing child porn was too much for actor Mark Salling. The former star of the Fox TV series Glee committed suicide in 2018 prior to his sentencing for 1 count of possessing child porn involving a prepubescent minor.
Besides facing a four- to seven-year prison sentence, Salling would have had to pay a $250,000 fine, face 20 years of supervised release and register as a sex offender, which can be extremely damaging.
That punishment would have been for a 1st-time offender convicted of just one count of child porn possession who had no physical sexual contact with any children.
Americans across the nation are being snared in aggressive online solicitation of a minor sex stings led by federal, state and local authorities aimed at catching offenders. Sadly, many of these citizens are innocent of the crime for which they are being charged. Know your legal rights.
Get Houston’s best child porn defense lawyer
If you or a family member face a sex crime charge such as possession of child pornography—which could mean 20 years in prison—you should get the best Houston child porn defense lawyer or attorney you can find.
You can start your search by contacting the award-winning Neal Davis Law Firm. We have many years of experience fighting to protect the legal rights of Americans, and we can fight for you, too. Contact us today to arrange a consultation for your case.
