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November 30, 2010

"Most federal judges not comfortable with tough guidelines"

The title of this post is the headline of this article about federal child porn sentencing realities appearing in today's Pittsburgh Post-Gazzette.  Here is how it gets started:

Before Richard Leo Smith III could ask for leniency for possessing child pornography, a federal judge in Pittsburgh signaled he would grant it.  The judge disagrees with guidelines that recommend a minimum of more than six years in prison.  "The guideline is largely the product of congressional directives," U.S. District Judge Gary Lancaster said recently, before sentencing Smith, 28, of Indiana Township to 2-1/2 years in prison.

A survey this year suggests a similar scenario plays out frequently across the country. About 70 percent of federal judges think sentencing guidelines for possession or receipt of child pornography are unreasonable.  The U.S. Sentencing Commission intends to review the guidelines.  The stakes could hardly be higher: years of defendants' lives vs. the safety of children.

Public defender Penn Hackney, who represented Smith, told Lancaster that uncertainty about the guidelines put him in a bind.  Some federal judges limit sentences to probation in such cases; others hand out 10 years or more in prison.  "This landscape is so shifting, I don't know what to ask for anymore," Hackney said.

Some related prior federal child porn prosecution and sentencing posts:

November 30, 2010 at 10:58 AM | Permalink


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These judges had best be careful or the guidelines might well turn into mandatory sentences. It might not be popular right this moment due to the economy but I suspect that situation will improve (or at least enough gloss put on it to provide an illusion of improvement) and then the cost of implementing things will again fade.

Posted by: Soronel Haetir | Nov 30, 2010 12:09:22 PM

Soronel - Um, let me introduce you to my friend, Mr. Booker.

(I hope I didn't just respond to a spammer)

Posted by: disenfranchised | Nov 30, 2010 8:52:49 PM

disenfranchised --

It's the complaining judges, not Soronel, who need to be introduced to Booker.

District judges fretted for years that they wanted more discretion. Almost six years ago, they got it.

Time for them to stop whining and use what they got.

Posted by: Bill Otis | Dec 1, 2010 12:21:58 AM


Booker isn't at all relevant when discussing mandatory minimum sentences. Congress could easily change their guideline ratcheting bills to mandatory sentence bills instead and then the judges who don't like the guidelines would be stuck.

Posted by: Soronel Haetir | Dec 1, 2010 9:42:41 AM

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