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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 ยง 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

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