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July 14, 2010

Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?

Among the many interesting aspect of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here) is its discussion of possible reform of the sentencing guidelines for child porn offenses.  Consider, in particular, these passages:

We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary. These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses....

The goal of any such reform would be to update the guidelines to address changing technology and realities surrounding these offenses, improve the consistency of sentences across child exploitation crimes, and ensure that the sentences for ceiiain child exploitation offenses adequately reflect the seriousness of the crimes.

We think the report to Congress ought to recommend legislation that permits the Sentencing Commission to revise the sentencing guidelines for child pornography offenses and that suggests what any revised guidelines might look like....

We believe changes in the use of technology and in the way these crimes are regularly carried out today suggest that the time is ripe for evaluating the current guidelines and considering whether reforms are warranted.  Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct with the applicable guideline sentencing ranges.  Because the current guidelines are largely mandated by statute, though, legislation will be required to modify them.

The references here to "changes in the use of technology" and to the need for "the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants' criminal conduct" suggest to me that the Justice Department largely agrees with the view of many federal judges that the guidelines are too severe when recommending very long prison sentences for defendants who merely download lots of child porn pictures via file-sharing programs.  I suspect the Justice Department sensibly and wisely believes that reformed federal guidelines recommending shorter (but still significant) prison terms for child porn downloading would lead to more consistency in the sentencing of these offenses.

Of course, DOJ does not here openly urge reductions in guideline ranges (probably wisely, because doing so could prompt a sound-bite political backlash).  But the last sentence of the passage above is likely a give-away of DOJ's fundamental perspective: the US Sentencing Commission would not really need new legislation from Congress in order to  make the child porn guidelines harsher.  And though it is not obvious the USSC needs new legislation from Congress in order to reduce the severity of the child porn guidelines, that the DOJ suggests legislative reforms indicates that it may be eager to get behind a thoughtful and measured reduction in the severity of the current guidelines for child pornography possession offenses.

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Answer to question in your post-heading: Yes.

Posted by: another FPD | Jul 14, 2010 1:04:47 PM

I have been reading your blogs for a while now as my husband just days ago had to report to Big Springs TX to start a federal sentence of 5 yrs for 1 count of possession of child pornography. I would like to see the federal mandates reduced or dealt with because he has no criminal history, gainfully employed, good family. Limewire is a poison when you aren't computer savy to know exactly what you are doing and what is happening.

I would like to know how to change some of this so the crime fits the individual not painting everyone with the same brush. Any help you can offer?

Posted by: Brandi | Jul 15, 2010 1:12:24 PM

Why isn't there a mention of the difference in sentencing between Possession and Receipt? It has been referred to as a "distinction without a difference". One count of possession gets much less time than one count of receipt.
You can be charged with Receipt if you get a piece of spam from a stranger who is distributing illegal images, you can get charged with Receipt if you happen across a misleading thumbnail in Limewire.
If you are lucky enough to get a prosecutor who isn't trying to make a name for themselves you can get charged with possession for both of the above instances. When can we put a stop to making Prosecutors de facto judges??

Posted by: BGrace | Jul 27, 2010 4:20:51 PM

I am a psychotherapist of many years in private practice but have at least four years working with child protective services in Maryland.
The sex offender laws have got to be among the worst examples of mixing apples and oranges legally I've ever seen. Presently MOST of the people on the registry are not dangerous, and especially not dangerous to children. The worst examples of who's been put on the registry are the Romeo/Juliet cases but there are so many who don't belong on there. Those downloading porn that includes adolescents ("child" porn) have not been harming a child, these are VIRTUAL crimes yet, people are in PRISON for this. What is wrong with America that this kind of extreme reaction has been happening with these laws. Out of control states attorneys hell bent on not seeing differences between people who do not actually physically harm someone and someone who does. Do distinctions like this NOT MATTER ANYMORE?? Where is justice?

Posted by: suetiggers | Aug 4, 2010 8:48:10 PM

I received a 24 month federal sentence for possession of child porn in 2003 - this was from email from a Yahoo Group called "Candyman" The group didn't say what it was until you signed to receive email (mandatory). When I saw what it was, I deleted & didn't think any more of it (this is Jan 2001). I was arrested in Mar 2002! I spent most of my time in county jail & 5 mo. in fed prison in AR. The kicker? The pic was of a little girl & I am gay! This is federal prosecution run amuck. Now I'm a lifetime child sex offender for seeing something I had no interest in! The child porn & sex offender registry laws are insane! We're dealing with the sex Nazis now on federal & state levels. Fascism is back!

Posted by: jnhaugh | Aug 4, 2010 9:49:15 PM

Did you know that treatment for former offenders has been proven effective and that most sex offenders never commit another crime? Did you also know that making it more difficult for former offender to reintegrate into society increases recidivism?

Would you like more *FACTS* ? If so, look at this website and please sign our petition:

CanadiansForAJustSociety [dot] webs [dot] com

Posted by: Steven Yoon | Aug 17, 2010 12:42:39 PM

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