September 13, 2009
"Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?"The title of this post is the title of this notable student note by Jesse Basbaum that I just noticed on SSRN. Here is the abstract:
This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography. In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences. Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.
Some related federal child porn prosecution and sentencing posts:
Virginia prosecutors seeking November execution date for DC sniperThis CNN article details that Virginia prosecutors are hoping to execute the condemned DC sniper, John Allen Muhammad, before the end of this year:
Virginia prosecutors are asking a state court to set a November 9 execution date for John Allen Muhammad, convicted in a series of sniper-style shootings that terrorized the Washington area in 2002. In a letter dated Wednesday, Senior Assistant Attorney General Katherine B. Burnett said the November date "has been carefully coordinated with the governor's office to insure his availability for any clemency petition Muhammad may wish to pursue." Burnett enclosed a copy of a proposed execution order "for the court's convenience."
Muhammad's attorney said he will file an appeal with the U.S. Supreme Court, and will ask the governor for clemency. During a three-week period in October 2002, police say, Muhammad and his young protege, Lee Boyd Malvo, shot 13 people, killing 10. The two also are suspected in other shootings and murders in Tacoma, Washington, Montgomery, Alabama, and the Washington, D.C., area.
Muhammad, now 48, was convicted of murder in the death of Dean Harold Meyers at a Manassas, Virginia, filling station. Meyers was killed by a single bullet, which became the signature of the two-person sniper team.
Ultimately, Muhammad was convicted of the Meyers' killing and of one Maryland murder, which prosecutors there said was "insurance" in case the Virginia conviction was overturned. Malvo was convicted of one Virginia shooting and was sentenced to life imprisonment....
The letter, addressed to the chief judge of the Prince William County Circuit Court, says the court must hold a hearing within 10 days of receiving the letter, and must set an execution date no later than 60 days after the hearing.