Why don’t federal judges follow the recommended sentences for child porn offenders? Here’s a government report answering that question.

by Dale Chappell

If Congress wants to complain that federal judges are “too lenient” on child pornography offenders, it may want to take a look at a recent report by the U.S. Sentencing Commission (“USSC”) for some answers.

The Report, titled “Federal Sentencing of Child Pornography Non-Production Offenses,” was released in June 2021 and is nearly identical to the USSC’s 2012 report on sentencing in child pornography cases, continuing to criticize the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), enacted by Congress in 2003 to curb sex offenses by imposing long prison sentences.

The PROTECT Act, the Report re-emphasized, was the first and only time that Congress directly amended the U.S. Sentencing Guidelines (“USSG”), over the USSC’s objections, adding numerous enhancements to increase the recommended sentencing range for child pornography offenses. The law also directed the USSC not to undo any of the changes Congress made to the child pornography Guidelines.

The Report analyzed child pornography data for non-production offenses and addressed the following areas.

The Typical Child Pornography Offender

The typical federal child pornography offender, the Report says, is a 41-year-old college-educated white male who’s never been in trouble with the law. More specifically, over 80% of offenders were white, compared to just 19% of offenders for other federal crimes. And over half were college-educated, compared to only 20% for other federal offenses.

Comparing Child Pornography Offenses

The Report focused on three separate non-production child pornography offenses — possession, distribution, and receipt — and the Guideline that’s used to craft a recommended sentencing range for each, USSG § 2G2.2. The Report noted that possession and receipt are “materially identical,” but the base offense level for receipt is four levels higher than possession (18 versus 22). All three offenses are subject to the same enhancements, which often ratchets up the sentence for even first-time offenders.

The big difference in this Report, compared to the 2012 Report, is that distribution cases have far exceeded possession cases. The Report says this is because of a change in charging practices by the government, pushing for higher sentences, since distribution and receipt charges carry a mandatory minimum five-year sentence, but possession does not. This gives federal judges less discretion in sentencing child pornography offenders. This charging practice changed in 2011, with receipt and distribution charges exceeding possession charges year after year.

Enhancements for Child Pornography Sentencing

The enhancements for federal child pornography sentencing were the area of focus in the USSC’s Report. The most common enhancements applying to all cases for the three offenses were:

• Victim age less than 12: 96%

• Sadistic or masochistic content: 78 to 90%

• Use of a computer: 96%

• More than 600 images: 87 to 97%

These enhancements, the Report says, increased the recommended sentencing range to well above the base offense level for the offense in nearly all of the cases. The Report cites improvements in technology that have largely been the driver of these enhancements and Congress’ failure to take this into consideration. For example, the average number of images involved in a typical possession case was 2,350 in 2019, thanks to increased and affordable computer storage devices, meaning almost every case received the maximum enhancement for possessing more than 600 images.

Child Pornography Sentencing Trends

Child pornography sentencing trends in the federal courts have steadily veered from the child pornography sentencing Guideline, USSC § 2G2.2, with judges routinely handing out lower sentences than what the Guidelines recommend.

Non-production child pornography cases had the lowest rate of “within-Guidelines” sentences, year after year, the Report states. Only 39.6% of the time, judges imposed a within-Guidelines sentence in a child pornography case. The rest of the time, offenders were handed sentences well below the recommended range under USSG § 2G2.2. This was due to two factors: Judges disregarding USSG § 2G2.2’s recommended sentencing range and the government asking for a lower sentence. Sometimes, it was both.

The minimum recommended sentence under the USSG for non-production offenses has risen from 98 months in 2005 to 136 months in 2019. However, the actual average sentence imposed by judges has remained about the same: 91 months in 2005 and 103 months in 2019.

The Huge Disparity in Child Pornography Sentencing

The problem with the huge disparity in federal child pornography sentencing was summed up best in the Report: “As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.”

The Report cites the disparities by offense type, each offense using the same Guideline calculation with a widely different sentence imposed:

• Possession: Probation to 228 months
• Receipt: 37 months to 180 months
• Distribution: One month to 240 months

Recidivism of Child Pornography Offenders

Despite the popular belief that child pornography offenders almost always commit another sex offense, the Report shows this is not true. Of the 1,340 child pornography offenders sentenced under USSG § 2G2.2, 14.5% were repeat offenders, having had at least one prior qualifying sex offense to enhance their sentence. However, the USSC found that child pornography offenders were arrested for a new sex offense 4.3% of the time and a non-sexual offense 16% of the time.

The Report unsurprisingly found that USSG § 2G2.2 “fails to distinguish adequately between more and less severe offenders” and that the enhancements for child pornography offenses have become “so ubiquitous that they now apply in the vast majority of cases.” Wrapping up the Report, the USSC repeated what it said in its 2012 Report: USSC § 2G2.2 “no longer effectively differentiates among offenders in terms of either the seriousness of the offense or culpability of the offender.” 

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