Child pornography punishments can be quite severe, but not all such punishments fit the realities of individual offenders. That’s why federal judges in child porn cases have rights, known as “judicial discretion.”
Judicial discretion allows federal judges to give lesser punishments than federal laws might prescribe in certain situations. Such discretion often occurs in child porn cases, since federal sentencing guidelines are so extreme, fed by public hysteria toward the offense and possible offenders.
However, judicial discretion can work both ways — judges can issue harsher sentences than those set forth in the legal guidelines.
Indeed, judges can exercise their own discretion in child porn cases to impose either below-guideline or above-guideline sentences in federal cases. Even more, a person can be charged for the same child porn crime in both federal and state courts.
But usually such decisions favor defendants. In fact, thanks to the right of judicial discretion, child porn cases have the highest rate of sentencing guideline departures in the federal court system.
Still, the battle for this right persists.
Congress has repeatedly tried to limit judicial discretion in child porn sentencing and has enacted laws with severe child porn punishments. But the Supreme Court has repeatedly contradicted Congress by supporting discretionary powers in sentencing for district judges — which is to say federal judges in U.S. District Courts.
One landmark Supreme Court case was United States v. Booker. In this 2005 case, the high court held that mandatory sentencing guidelines were constitutionally impermissible.
For example, a person cannot face a mandatory sentence of 20 years in prison merely for possession of child pornography. Thus, judicial discretion remains in play as an aspect of judicial independence.
Since the Booker case, judicial discretion has been marked by more leniency toward defendants during sentencing — especially since federal sentencing guidelines are so harsh.
A lesser sentence might be a judge’s choice when mitigating circumstances favor the defendant. For instance, the defendant might be a first-time offender with an otherwise clean criminal record and, as an employed family provider, might be seen as more of an asset than a threat to the community.
On the other hand, a harsher sentence might be a judge’s discretionary choice when aggravating circumstances exist. For instance, the defendant might have had prior child porn charges and convictions, and also might be seen as a violent threat to the community.
Thwarted by judicial discretion which provides lighter sentences, Congress has raised the severity of federal sentencing guidelines for child porn offenses. In response, federal judges have questioned the appropriateness of such guidelines, given the level of harm and danger posed by child porn offenders.
With all this in mind, it’s important that you engage an experienced child porn defense lawyer if you or a loved one face such a charge. For those in Houston, Harris County, Montgomery County or Fort Bend County, the Neal Davis Law Firm can help.
First, we will work to get your charge reduced or even dismissed. Then, if your case goes to trial, we can fight for your innocence. Finally, if the verdict goes against you, we can argue for sentencing leniency given the judicial discretionary powers allowed in child porn cases.
Contact us today and let us help you explore your options with a legal review of your case.
