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April 7, 2009

Seventh Circuit notes, but dodges, attacks on federal child porn guidelines

In a new per curiam ruling in US v. Huffstatler, No. 08-2622 (7th Cir. April 6, 2009) (available here), a Seventh Circuit panel discusses the attacks being made on federal child porn guidelines in the course of affirming an above-guideline sentence.  Here is part of the discussion:

Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing....

Furthermore, since it was the Commission’s failure to exercise its “characteristic institutional role” that persuaded the Supreme Court that district courts possess the discretion to sentence below the crack guidelines based on policy disagreements, see Kimbrough, 128 S. Ct. at 575, Huffstatler contends that sentencing judges possess the same discretion when dealing with the child-exploitation guidelines. This argument was developed by federal defender Troy Stabenow in a 2008 paper, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/ child%20porn%20july%20revision.pdf. Over the past year, district courts have repeatedly cited Stabenow’s article for the proposition that the child-pornography guidelines’ lack of empirical support provides sentencing judges the discretion to sentence below those guidelines based on policy disagreements with them....

But we are confronted with a different question.  Huffstatler ... attempts to invalidate the child-exploitation guidelines, arguing that district judges not only may impose below-guidelines sentences based on their policy disagreements with the child-exploitation guidelines, they must.... Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here), Huffstatler’s argument is without merit.

Those troubled by the federal child porn sentencing guidelines should not be troubled at all by how this issue gets dodged in Huffstatler.  The defendant in Huffstatler was a producer, not merely a downloader, of kiddie porn and he had a long and ugly criminal history.  In other words, Huffstatler is a terrible test case for the attacks on the child porn guidelines brought in other courts; in context, the per curiam opinion in Huffstatler is effective and sound for its cautious (and praiseworthy?) discussion of what lower courts have done in other contexts.

April 7, 2009 at 01:40 AM | Permalink

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Comments

Huffstatler should be executed for this crime.

Posted by: federalist | Apr 7, 2009 3:01:30 AM

As the Bashmanator has explained, it can be tricky to link to Seventh Circuit opinions:

http://howappealing.law.com/112106.html#019769

I believe that this link should be stable:

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-2622_003.pdf

Posted by: anonymous | Apr 7, 2009 5:45:53 PM

federalist: Totally agreed. Just think of how much worse we could punish Huffstatler if he'd raped the kid, or raped and murdered him.

"What's a worse punishment than the death penalty?", some of the moonbats around here may ask.

Easy. We could take all his guns away first.

Posted by: fair_and_balanced | Apr 7, 2009 6:48:35 PM

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