Judge Adelman operationalizes deconstructed child porn guidelines

As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines.  Fortunately for a defendant sentenced today, federal District Judge Lynn Adelman keeps up with his sentencing reading: he cites this new paper in support of a below-guideline sentence in US v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008) (available for download below). Here is the start and a key paragraph from the opinion in Hanson:

The government charged defendant Jon Hanson with transporting and possessing child pornography, contrary to 18 U.S.C. §§ 2252A(a)(1) & (a)(5)(B), and he entered a plea of guilty to the transporting charge, which carries a statutory penalty range of 5 to 20 years. However, due to the numerous enhancements he faced, the sentencing guidelines recommended that defendant spend 210-262 months in prison.  Because I found this range far greater than necessary to satisfy the purposes of sentencing in this case, I imposed a non-guideline sentence of 72 months, followed by life of supervised release. This memorandum sets forth the reasons for the sentence imposed....

In a recent paper published on Professor Douglas Berman’s sentencing website, an Assistant Federal Defender traced the history of this guideline and pointed out its serious flaws, which were clearly evident in this case. See Troy Sabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, available at http://sentencing.typepad.com (June 10, 2008). As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. The most recent changes from 2003 apparently came from two lawyers in the Justice Department who persuaded a novice Congressman to add them to the popular Amber Alert bill. Id. at 27.  To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

Download hanson_written_sen_memo.pdf