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March 7, 2013

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken

Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).  Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC.   ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.

The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics.  And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:

[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines.  Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness.  The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.

Download DOJ letter to USSC on CP report

As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.

Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)

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Comments

I have already discussed how a federal prosecution is a great opportunity to destroy the life of a prosecutor, her male running dogs, their supervisors, and even their responsible political appointee.

One has to wonder , now, about the Sentencing Commission. They are guideline makers. There is a guideline maker duty to do no harm, even if the court has not applied the guidelines. Does the Sentencing Commission have tort immunity? Does it have a duty to provide safe and effective guidelines, with scientific validation, or some other measure of benefit or fairness? If they have sovereign immunity, which is an abomination, has anyone filed a Section 1983 claim? Defund them with ruinous litigation. To deter.

Posted by: Supremacy Claus | Mar 7, 2013 7:31:08 PM

Doug, I read that DOJ letter rather differently than you do. There is agreement from DOJ that the guidelines need some revision. but I don't see agreement that the guidelines are "badly broken" (as you characterize it).

Posted by: Orin Kerr | Mar 8, 2013 1:15:22 AM

The heart of this letter, Orin, details 9 specific factors concerning CP sentencing, and DOJ seems to indicate that the current guideline gets at most 2 or 3 of these factors right. If my calculator gave me an accurate result only when I used only 2 or 3 of its digits, I think it would be accurate to call it badly broken. And I sure would not use that calculator when trying to calculate anything very important.

Posted by: Doug B. | Mar 8, 2013 5:48:48 AM

It is silly to claim that recidivism studies are inadequate because CP offenses are underreported. CP offenses are among the most detectable of all crimes. Most users are unsophisticated, and leave clear computer traces. Indeed, it is very, very difficult not to get caught if one is using his own computer or a computer in a place one frequents. And that is precisely where most of the offenders are accessing these images from (remember, privacy is key). DOJ's claim in this regard is completely baseless.

Also sad to see a lack of agreement on eliminating mandatory minimums. DOJ apparently only trusts itself to decide when a MM is appropriate (insofar as it may decide whether to charge possession vs. receipt). It does not trust judges to make that call. It doesn't matter that both the Commission and judges of all political stripes think that the MMs do injustice in many cases.

More generally, DOJ seems to criticize certain aspects of the Report without citing to any evidence to support its own positions. There is never perfect information. We can only go on what we have. This letter seems to have been cobbled together in a few minutes, with little effort.

I am, however, glad to see DOJ at least coming to terms with what the Commission and judges (of all political stripes) have known for some time: the Guidelines for CP offenses are severely flawed. This is particularly so in its agreement that the computer enhancer should be abolishied and in its perfunctory(though extremely important) acknowledgement that the guidelines can advise an unduly harsh sentence. Sadly, however, the vast majority of this seems to be that more enhancers are necessary. That strikes me as odd. The only people who seem to think the current sentencing scheme is not harsh enough on CP offenders are those that really are not satisfied unless the offender is either killed or imprisoned forever.

Posted by: Subethis | Mar 8, 2013 2:32:18 PM

I personally feel they need to change the mm guidelines especially for those who are first time offendors, having sharing progams and many users on their pc. They should also consider the possibilty of vindictive partners who are capable of setting others up for a grave fall. Lawyers also scare the crap out of clients who otherwise have never been in any proir legal trouble in thier life. This often prompting a plea deal resulting in stiff mandatory minimum sentencing with being listed on a sex offendor registry with a ruined name for the rest of thier life.

Posted by: Robyn Liburdi | Mar 12, 2013 4:08:32 PM

Hello, My name is Terry Ballard and I wish to bring my situation to your attention. I feel that I am being treated very unfairly and bullied by a Federal Prosecutor in the Northern District of Iowa.

I am a 37 year old father of 3 beautiful girls 19, 14, and 5. I am a stay at home dad/farmer working with my parents on the family farms. My youngest daughter was born at 26 weeks and weighing just over 1lb. It was a very rough road for both mother and baby, but by the grace of God they are both healthy today. The only problem is that my daughter has been diagnosed with separation anxiety. It has caused me to become a stay at home dad and my wife to take a job with the USPS working six days a week, just so I would always be able to be there for Logan. They said that due to her mother not being able to be with her for the first week that she formed an amazing bond with me...and honestly I love it!.

Now my problem...In 2012 Federal agents served a search warrant and seized 8 computers from my home and talked with me, for 3 years I heard nothing more. In 2015 I got a call telling that they were returning my computers, to come to the office to pick them up. I showed up and they informed me that they had found thumbnail images in a hidden file on one computer and that they would be keeping the laptop. I asked if I needed a lawyer, the response was.." If you want one". We then sat and talked, during which I was honest and answered all their questions. They never mentioned me being indicted until we stood to leave, I guess this is where having a little more experience being in trouble may have helped, I wouldn't have been quite so naive.

Now jump to March, I receive a letter stating that they would be charging me and that I would need to get an attorney which i promptly did. They stated that they could charge me Federally but would make this a special case and throw it to the state, if I would agree to the maximum sentence...plea guilty, accept a 2yr prison sentence, 10 yrs special parole, never appeal my case or try to shorten my sentence...or they would charge me federally with a manditory minimum sentence of 10 yrs. Oh..and better yet...the statute of limitations was expiring in less than a month!..not really giving me any sort options. I am totally boxed in with no way saving my family. Even taking the state plea will cause extreme distress. So much for "with liberty and justice for all".

Now I admitted that I watched a segment on Primetime about adopted Russian children to be used in the sex trade here, on which they showed many censored images. As an over protective father I was stunned and I was left with many questions..were they all foreign children?, were the photos taken at the same place?,Were they all one group of sick people or one man?, How many families in the US were really doing this?, among others. I very stupidly used Limewire to kind of research these facts. I did break the law, I admitted that I viewed illegal images, but I am not a sex offender!! I never made anything available to others and I never kept images on my computer longer than a few minutes. The one computer they found thumbnails on is from 2006-2007, none of the other 7 from 2007 till present day showed any sort illegal actions. Proving that there was not any more searching or re offending. My computers are my families computers, There was not and never is any sort of pornography stored on them.

I am whole heartedly willing to stand up for what I've done, Much in the same way reporters view those sort of images, I also viewed them. I have no other record of any sort of crime, there has never been any sort of complaint about me...nothing. I am confident that you would not hear a bad thing from anyone in the community about me. I am just a simple farm boy from Iowa trying his best to raise his children right.

I have done a lot of research online and found lots of instances where people convicted of worse crimes or multiple counts have received far less sentences. One in particular happened in Spencer,Iowa. The accused man was able to plea guilty to 6 counts of exploitation and 1 count of distributing....Far more than what I am being accused of and he is a free man on probation today, or the Iowa Pastor who was convicted of raping boys to make them "straight"...60 counts of sexual exploitation, sentenced to 17yrs but had them suspended and instead walked away with probation. I do not understand why the district attorney won't even consider anything with my case. Remember...I have never disputed the charge, or even asked for an "easy way out", just to be reasonable, look at my record,consider my life....Why it so imperative that I go to prison when so many other offenders of violent crimes are given a chance?!.I would think it would be cheaper for the state not to have me imprisoned. I have no history showing that I am any sort of threat to society, the years of clean computers shows that I am not re offending. I have even provided him with a letter from my daughters pediatrician stating that all positive progress we have made would be lost, and that there would be likely lifelong effects if I am abruptly removed from the home. Now as of April 8th my middle daughter has been diagnosed and being treated for severe depression and stress. I can already see my family being torn apart and I've not even been sentenced yet. Why is this man punishing my family? How is it that because of one man who doesn't care about MY family I get my life destroyed. I have offered to accept ANY other form of punishment, even if it meant pleading guilty to more than just the one charge....I can handle it...my family cannot.

Multiple attorneys I have met with have stated that he is doing this because he can and that if I lived in any other district my case would probably have a much different outcome....that doesn't seem right or fair by any means. Dont we all call this great state our home?? I am not even allowed to appeal my case to clear my name, due to the way federal law is written, the fact that there are thumbnails present, I will be sentenced to prison. I will now be labeled a sex offender for viewing some images years ago for a very different reason. I have never disputed the fact that they found thumbnails, all I asked was for a way to take my punishment without destroying my family.

Sorry for such a long letter, but knowing that my baby girl may not be the same in a year because of one unreasonable man has stirred many emotions. While there are certainly more mitigating factors of why prison seems very harsh, I have taken up enough of your time.

For any concerned parties I am more than happy to speak with you, but please keep your negative comments/bashing to yourself, my family and I are dealing with enough.

Thanks for your time. Respectfully, Terry Ballard
319-721-8104

Posted by: Terry Ballard | Apr 16, 2015 7:36:37 PM

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