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March 6, 2023

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

March 6, 2023 at 09:20 PM | Permalink


"Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before."

This is the heart of it, and points out the serious negatives of an advisory-only system. It's wrong -- unjust and inequitable -- to return to the luck of the draw. The new Commission should make its first priority a return to Guidelines with teeth.

Posted by: Bill Otis | Mar 6, 2023 10:30:17 PM

In 2012 the U.S. Sent. Commission conducted an exhaustive study re: child pornography statutes and sentencing guidelines. They came up with several recommendations to Congress, such as: "The Commission believes that the current non-production guideline warrants revision in view of its outdated and disproportionate enhancements related to offenders’ collecting behavior as well as its failure to account fully for some offenders’ involvement in child pornography communities and sexually dangerous behavior."

There are a number of other recommendations
that may be found at:


Posted by: SG | Mar 7, 2023 4:29:30 AM

SG - the USSC actually just published 2 new and updated reports in June and October 2021 -

This report updates and expands upon the Commission's 2012 Report to the Congress: Federal Child Pornography Offenses. It provides the Commission’s most in-depth study of child pornography production offenses to date through an analysis of three primary factors that the Commission has identified as relevant to sentencing child pornography production offenders. Focusing on data related to child pornography production offenders’ proximity to the victim, participation in production, and propensity to engage in other abusive behaviors, this report provides insight into how offenders exploit victims and technology to produce child pornography and the factors courts consider in fashioning sentences for these offenses.



This report updates and expands upon the Commission's 2012 Report to the Congress: Federal Child Pornography Offenses. In this report, the Commission provides data from fiscal year 2019 regarding: the content of the offender’s child pornography collection and nature of the offender’s collecting behavior; the offender’s degree of involvement with other offenders, particularly in an internet community devoted to child pornography and child sexual exploitation; and the offender’s engagement in sexually abusive or exploitative conduct in addition to the child pornography offense. The report also examines the evolution of technology since the 2012 Child Pornography Report its continued impact on offender conduct and the widespread applicability of sentencing enhancements. Lastly, it provides a recidivism analysis of non-production offenders.


Posted by: atomicfrog | Mar 7, 2023 6:14:41 AM

Follow-up questions, Bill, based on this assertion: "The new Commission should make its first priority a return to Guidelines with teeth."

1. Do you think the Commission would have the legal authority to make the Guidelines mandatory/presumptive again by incorporating Apprendi/Blakely rights into the operation of the guidelines so that every guideline enhancement would need to be proven to a jury BRD or admitted by the defendant?

2. If you think the Commission would have the authority to "Blakely-ize" the Guidelines, is that what you are advocating for the new Commission to do (or does "Guidelines with teeth" mean something else)?

Posted by: Doug B | Mar 7, 2023 9:06:03 AM

If you posit that kiddie porn victims have an absolute right not to be viewed again and again, then lenience is a tough slog. On the other hand, the internet is a lure for these sickos.

Doug, this is interesting: https://www.latimes.com/california/story/2023-03-06/jury-awards-l-a-prosecutor-1-5-million-in-retaliation-suit-against-d-a-george-gascon

Gascon had implemented a no juvie as adult policy.

Posted by: federalist | Mar 7, 2023 9:58:12 AM

I once worked on a child porn case involving a physician with some unique psych issues; we filed a Motion under 5K2.13 and he got 1/3 off (downward) from his 24 year sentencing Guideline, based upon the Affidavit and testimony of a Professor of Psychiatry. It wasn't enough. He was in Criminal History Category I, no prior criminal history. He could have killed people, and in Kentucky he wouldn't have gotten more than 10 years.

Posted by: Jim Gormley | Mar 7, 2023 10:23:13 AM

The comment doesn't really grapple with this and seems to assume that longer sentences = more justice = less CSAM material on the internet, but those seems like fairly flawed assumptions given that for years CSAM defendants are amongst the most harshly sentenced in all the federal system (not to mention states) and yet it continues to proliferate. Research suggests that likelihood of detection as opposed to severity of consequence matters insofar as deterrence is concerned, but the author doesn't really grapple with that. Is putting a non-production defendant with no prior criminal history in prison for 20 years justice?

I'll also mention that the articles cites the notorious Bourke and Hernandez BOP study, but fails to mention *why* it was retracted: participants were on record as stating that they had to either "confess" to crimes they didn't commit or risk being drummed out of the treatment program for non-compliance. While I appreciate that prosecutors would love to be able to punish people for crimes they haven't committed or been convicted of, presumably we still live in a country where that's not allowed.

Posted by: Guy Hamilton-Smith | Mar 7, 2023 2:56:40 PM

"Is putting a non-production defendant with no prior criminal history in prison for 20 years justice?" How'd you like to know some freak show was watching a video of you being exploited in the most awful way?

Posted by: federalist | Mar 7, 2023 4:21:05 PM

I would not like to know that some "freak show" was watching a video of me being exploited. I wish that desire didn't exist. But no, I don't think I'd insist that he go to jail for 20 years. There are decapitation videos on the internet that many people watch; I wish that didn't exist, but I don't think those people should go to jail for decades either. And that's pretty awful exploitation.

Posted by: lknds | Mar 7, 2023 4:45:31 PM

Doug --

"Do you think the Commission would have the legal authority to make the Guidelines mandatory/presumptive again by incorporating Apprendi/Blakely rights into the operation of the guidelines so that every guideline enhancement would need to be proven to a jury BRD or admitted by the defendant?"

No. The USSC should recommend a return to mandatory guidelines to Congress but that's as far as it has the authority to go. Congress would have to enact it (and has been all but invited to do so, see Breyer's opinion in Booker). And the recommendation should be that only enhancements that would take the sentence above the statutory max would need to be proved BRD. Enhancements short of the max would only need to be proved by a preponderance. See Blakely.

Posted by: Bill Otis | Mar 7, 2023 6:42:36 PM

Bill, I do not think you understand the reach of Apprendi/Blakely/Booker et al, namely that every enhancement raising the legally available punishment range has to be proven BRD. That is what the Booker majority stands for, and the basic idea was explained in Alleyne this way: "When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact."

Do you have any authority for the assertion that in a mandatory guideline scheme with legally significant findings that "Enhancements short of the max would only need to be proved by a preponderance"? I worry you do not have a full grasp of applicable law, unless you are using the term "enhancements" in some unusual way.

Posted by: Doug B | Mar 7, 2023 7:32:19 PM

Guy Hamilton-Smith had the best comment to this discussion. Harsher penalties is not the answer. Early detection of issue with intervention is the only hope of stopping child pornographers.

Posted by: Anne Thompson | Mar 7, 2023 8:18:05 PM

Doug --

Where you go wrong is in your misunderstanding of the phrase in Alleyne, "alters the legally prescribed punishment." The legally prescribed punishment means the parameters of punishment provided under the statute defining the offense of conviction. Aggravating facts WITHIN those parameters need be found (and are found -- again, go down to court to see for yourself) only by a preponderance. OUTSIDE those parameters is a different matter.

But we're getting past the main point, which remains, as I said, that wild variations in sentencing based solely on the luck of the draw are unjust and bizarre, and the USSC should do what it can to rein this in and thus honor the single most important objective of the SRA of 1984. Stevens' dissent to the remedial portion of Booker is devastating on this point.

Posted by: Bill Otis | Mar 7, 2023 8:38:15 PM

Bill, Blakely and Booker both EXPRESSLY rejected your suggestion that only the statutory range matters for Apprendi rights/purposes. As Justice Scalia in Blakely puts in: the prosecutor must "prove to a jury all facts LEGALLY essential to the punishment." You are advocating, as I understand it, for a return to the pre-Booker mandatory guideline system where each fact that operates to enhance the guideline range is "LEGALLY essential to the punishment." Booker clearly held that such a system is unconstitutional unless and until (a) all the facts legally mandating enhancements in the guideline ranges are proven BRD, OR (b) the whole guideline system is made advisory so that no "guideline facts" are legally essential any more.

Do you still not understand the clear holding and significance of Blakely and Booker or are you advocating for something other than a return to the pre-Booker mandatory guideline approach? This is pretty basic stuff that you seem not to understand or are explaining in terms that I do not understand. I assume I must be missing something because I cannot quite imagine, in light of the ruling in Booker, that you think two decades later that a mandatory guideline system can lawfully operate the way you suggest. It seems like you fail to grasp the whole point of Booker and the whole reason the guidelines are now advisory.

Posted by: Doug B | Mar 7, 2023 8:57:01 PM

Doug --

Well gosh, if you were my professor, looks like I'd flunk.

You're not and I didn't. Instead, I won lots more sentencing cases than you ever litigated. Correct?

You're just singing the same old song that every last thing at sentencing has to be proven BRD. But that is not the law (and your knowledge that it's not the law is why you're so fervently supporting the McClinton cert petition that keeps not getting granted).

Posted by: Bill Otis | Mar 8, 2023 12:16:41 AM


Posted by: MC | Mar 8, 2023 3:54:32 AM

Bill, the song I am singing here is the Booker ruling. It absolutely is the law, as Booker holds, that if the Guidelines are mandatory (as you say you want them to be), then enhancement fact-finding within that mandatory system must be BRD by a jury.

I am still just trying to clarify if you are seeking to dispute the merits ruling in Booker or just fail to understand it. Can you clearly address the basic issue: do you realize that Booker held that all fact-finding (other than for a prior conviction) for any Guideline enhancements in a mandatory system has to be BRD? Just trying to have clarity on this basic point of established law that makes your various comments above confusing and perplexing.

(McClinton is dealing with an issue in our current advisory guideline system, which is not what I thought we are talking about. Your 6:42pm comment called for a "return to mandatory guidelines," but with enhancements that "would only need to be proved by a preponderance." The Booker case directly ruled such a system to be unconstitutional, no?)

Posted by: Doug B. | Mar 8, 2023 8:04:43 AM

Doug --

"I am still just trying to clarify if you are seeking to dispute the merits ruling in Booker or just fail to understand it."

You're the one who fails to understand it. See my comment at Mar 7, 2023 8:38:15 PM.

Now of course each of us is going to believe in our own view of this, so let's instead recur to a neutral arbiter, like courts.

How many federal sentencing cases did you win in federal court? And how many did I win?


Posted by: Bill Otis | Mar 8, 2023 2:40:02 PM

Bill, the ruling of the Supreme Court in Booker is not a matter of "views" or opinions. And I am relying on courts, specifically, the Supreme Court's direct on-point ruling in Booker. Here were the facts as stated at the start of the opinion:

"Respondent Booker was charged with possession with intent to distribute at least 50 grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his duffel bag, the jury found him guilty of violating 21 U. S. C. §841(a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for that offense. §841(b)(1)(A)(iii).

"Based upon Booker’s criminal history and the quantity of drugs found by the jury, the Sentencing Guidelines required the District Court Judge to select a 'base' sentence of not less than 210 nor more than 262 months in prison. See United States Sentencing Commission, Guidelines Manual §§2D1.1(c)(4), 4A1.1 (Nov. 2003) (hereinafter USSG). The judge, however, held a post-trial sentencing proceeding and concluded by a preponderance of the evidence that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings mandated that the judge select a sentence between 360 months and life imprisonment; the judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence."

In other words, the judge made factual findings about drug quantity and obstruction in a mandatory guideline system to apply enhancements to result in a mandated (aggravated) guideline range of between 360 months and life imprisonment. That was still within the statutory maximum of life for that offense. § 841(b)(1)(A)(iii). But Booker's sentence was found unconstitutional, via a 5-4 vote, with the merits opinion relying on Apprendi and Blakely to hold that such judicial fact-finding in a mandatory guideline system was unconstitutional.

I am truly gobsmacked that you seem to want to double-down on some weird misunderstanding of the clear holding of Booker. What am I missing? Do you not understand the holding of Booker that within any MANDATORY guideline system, aggravating facts that raise the sentencing range have to be proven BRD to a jury (or admitted by the defendant)? Can you explain or cite any ruling anywhere since Booker that says that, within a mandatory/legally binding system of sentencing rules, aggravating enhancements do not need to be found BRD?

I am not questioning your legal work in the past, Bill. I am trying to understand what you are claiming now about the state of the law.

Posted by: Doug B | Mar 8, 2023 3:18:31 PM

Guy Hamilton Smith is correct.

There were not all these people out in the dark alley looking for csam prior to the internet. The problem is multi layered. More/longer incarceration is not the answer. Just like the war on drugs. A war many decades in and we continue to loose. And just maybe some of this disparity you see is because some of the Judges have learned lessons and are educated more on the subject over the years. My heart breaks for any child who was a victim. I wish we could arrest our way out of this. But we can not. Other and additional approaches are required and should be explored if we really do care about minimizing harm.

Posted by: Mp | Mar 8, 2023 7:27:18 PM

Mp --

Whatever the reason for the disparity, it's a bad thing for a system that aspires to "Equal Justice Under Law," and it would be significantly curbed with mandatory guidelines.

Posted by: Bill Otis | Mar 8, 2023 8:06:57 PM

Bill, since you make the pitch again here for "mandatory guidelines," I hope you can also clarify that you understand the basic holding of Booker --- namely that, if sentencing guidelines are going to be mandatory and find-finding will enhance/aggravate the mandatory sentencing range, then this fact-finding must be BRD by a jury.

I going to keep inquiring about this matter because your March 7/6:42pm comment called for a "return to mandatory guidelines," but with enhancements that "would only need to be proved by a preponderance." I do not understand how that would be constitutional under existing SCOTUS precedent. Ergo, I want to be sure to get clarity on whether you think your recommendation is consistent with existing SCOTUS jurisprudence or if you are advocating a change to that jurisprudence.

Posted by: Doug B | Mar 9, 2023 8:06:02 AM

I think Bill is calling for the reversal of Apprendi. He and I disagree on that point.

Posted by: federalist | Mar 9, 2023 11:49:10 AM

That is what I am trying to clarify, federalist. Is Bill calling for a reversal/change of existing SCOTUS jurisprudence or does he not fully understand it? I am hoping he will answer this question so I can better understand his advocacy to the USSC.

Posted by: Doug B | Mar 9, 2023 12:07:52 PM

I think there would be more votes for Apprendi today. I would bet 7-2.

Posted by: federalist | Mar 9, 2023 12:25:17 PM

I think you are likely right, federalist, and it might even be 8-1 (with Justice Alito as the one). Who is your other anti-Apprendi vote, Justice Barrett? Justice Kavanaugh? The Chief?

Posted by: Doug B | Mar 9, 2023 12:35:29 PM

Roberts--he's a statist. Apprendi is just so . . . right.

Posted by: federalist | Mar 10, 2023 10:18:12 AM

But Bill has won a lot of sentencing cases in the trial court!!!!!

Posted by: Fat Bastard | Mar 15, 2023 12:15:39 AM

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