To mark the 25th Anniversary of the Sentencing Reform Act of 1984, the U.S. Sentencing Commission has held a series of public hearings around the country, with the hopes of gauging the impact of the federal sentencing guidelines. As announced earlier this year in a press release presented by the Commission, the hearings have featured a variety of commentators, including law enforcement, defense attorneys, prosecutors, members of the academic community and federal judges.
Although the comments have varied from one hearing to the next, a consistent trend has emerged: many federal judges across the country are calling for more consistent, reduced sentences in cases involving child pornography possession.
Those convicted of possessing child pornography and related crimes have faced increasingly stricter penalties in the past 15 years. As Troy Stabenow notes in his widely cited article, Deconstructing the Myth of Careful Study: the Flawed Progression of the Child Pornography Guidelines, a person convicted of possessing, receiving or distributing child pornography in 1997 received an average sentence of less than two years. In contrast, a person convicted of these offenses in 2007 was sentenced, on average, to nearly eight years confinement.
In addition to the fact that the punishments have increased, the sentences defendants receive are receiving across the nation for these offenses are markedly varied. One would expect that a case involving sexual contact with a child would result in more severe punishments than those simply involving viewing or sharing child pornography, but this is not always true.
In 2008, a Virginia man convicted of possessing at least 650,000 child pornography images — who also admitted to traveling to Mexico and Thailand to pay for sex with minors — was sentenced to 12 years in prison, according to the Virginian Pilot. This stands in stark contrast to a 2009 case reported by The News-Herald, where an Ohio man with no prior criminal record who was sentenced to 20 years in prison for possession and distribution of child pornography.
While the mandatory, minimum sentence for someone convicted of molestation or intent to act is greater than that for possession and sharing, child pornography viewers often collect "enhancements." These are additional penalties leveraged in cases involving computer use or large quantities of images; these penalties may also be added based on the age of the children in such images.
The federal judges arguing for reduced penalties claim that viewing child pornography, while reprehensible, does not guarantee actual physical contact or even attempted physical contact with a child in the future. According to a recent article by The Denver Post, this point has been the anchor for most arguments made in favor of reducing sentences for those convicted of such crimes. As U.S. District Judge Robin J. Cauthron testified before the Sentencing Commission in Oklahoma City, "It is too often the case that a defendant appears to be a social misfit looking at dirty pictures in the privacy of his own home without any real prospect of touching or otherwise acting out as to any person."
Opponents to current sentencing guidelines also advocate for treatment over incarceration. Some compare it to other addictions, such as drugs or alcohol, and claim that jail time punishes, but doesn't cure. As The Denver Post notes, several judges have testified before the Sentencing Commission asserting that there is no empirical research in the sentencing schemes to indicate whether long prison sentences will help defendants overcome compulsions to view child pornography or keep them from reoffending.
The opposition voices to such reductions in sentencing focus on the fact that child pornography is not a victimless crime. As president and chief executive of the National Center for Missing and Exploited Children Ernie Allen has argued, possession of these images re-victimizes the children who are forced to participate. Furthermore, the demand for these images establishes an ongoing market, thereby ensuring the future exploitation of children.
Despite these arguments, many still find it strange that the penalty for possession can extend far beyond that for actual physical abuse or intent to abuse. Through these hearings, perhaps the Sentencing Commission will be able to effectively address this discrepancy.