Sentencing Law and Policy

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Despite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

• Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
  • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
  • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.

• Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
  • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
  • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.

• Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
  • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
  • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.

• Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
  • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
  • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
  • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.

• Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
  • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
  • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.

• Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
  • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
  • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).

• As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
  • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.

• When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
  • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
  • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

One prisoner's reaction to Bush's commutation of Libby's prison term

I recently received an e-mail and letter entitled "Page from a Prison Diary," which set forth one prisoner's reaction to President Bush's decision to commute entirely Scooter Libby's prison term.  The text of this "diary entry" is set forth below (and is reprinted here with the author's permission):

PAGE FROM A PRISON DIARY

July 4, 2007

The decision of King George the Dubyah to "fix" the 30 month sentence of his good friend Scooter Libby just came down. It must be nice to have such forgiving padres in high places.  Justice for just us! Too bad us commoners must actually abide by the law, no matter how strict, repressive and draconian.  Our cases were found to be "reasonable" recently by all 12 Circuit Court of Appeals in the country specifically because each of our respective judges adhered to the U.S. Sentencing Guidelines, which were also used to sentence Mr. Libby. Every federal court in the land has held that any sentence meted out according to the Guidelines can't be "excessive" by virtue of the fact that it does conform to Congressional legislation via the Guidelines.

Most people in prison feel like Libby got a raw deal, which is normal when you deal with the feds.  Almost every person that deals with the feds gets shafted in one way or another.  It's just what the feds do.  Prior to coming to prison 30 months would have been unthinkable, now I eat lunch with guys who have been given 30 years or more on little more than the word of a jailhouse snitch, to save his own ass and a "Nifonged" prosecutor.  Our system will devour you if you have little or no money.  Our Criminal Justice "system" is truly "criminal" in every sense of the word.  Why worry about the law when Dubyah says, "Don't do the time if you a friend a mine!" "All animals are equal, some are just more equal than others" is a fitting testament to our biased system of judicial mine fields, fine tuned for maximum harm (to some).

America is a great country but do we really want to lead the rest of the entire planet in locking up millions of our citizens, many times with questionable suspect charges and slanted courts? A similar thing happened many years ago in ancient Rome when Tacitus wrote in his diary, "Rome (and the U.S.) shall suffer now from its laws as it hither to forth suffered from its vices."

Regards form the other side,

Rita makes a Libby motion of sorts in seeking SCOTUS reconsideration

Lyle Denniston reports here at SCOTUSblog that Victor Rita's lawyer "relying on President Bush's clemency ruling in the CIA leak case, urged the Supreme Court on Monday to reconsider its June 21 ruling upholding the 33-month prison sentence" for his client.  There's more:

Going even further, Assistant Federal Public Defender Thomas N. Cochran of Greensboro urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. (The text of the petition, with attachments, can be found here.)

The President's explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, "directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive's own Solicitor General in this case."

It would be, of course, very surprising for the Supreme Court to decide to reconsider Rita or Booker, but perhaps the Court will at least order the Solicitor General to respond. 

Anyone know when the Court last granted a motion for reconsideration?  Anyone know what timing rules would apply for anyone interested in filing an amicus brief in support of reconsideration?  Anyone else hoping that maybe Justice Scalia will see fit to write an opinion in response to this motion no matter what the Court decides to do?

Will "Libby motions" ever work? Will we be able to tell?

Writing in the San Francisco Chronicle, Bob Egelko has this new article entitled "Double Standard: Bush's leniency for Libby doesn't jibe with administration's push to enforce mandatory minimum sentences."  The title spotlights the article's main theme, though the piece ends by noting two cases involving so-called "Libby motions" — i.e., arguments from defense attorneys likening a defendant's circumstances to Libby's and quoting Bush's commutation message when seeking a below-guidelines sentence. 

This article's discussion of two cases involving Libby motions highlights the challenges that observers and researchers may face when trying to gauge and assess the impact of Bush's commutation on federal sentencing realities.  I doubt that many (or even any) federal judges will state on the record that that they reducing a defendant's sentence simply because President Bush reduced Libby's sentence.  And yet, even if a judge asserts that the President's sentencing break for Libby is irrelevant to the case at hand, it is certainly possible that the judge has concluded (perhaps subconsciously) that some defendants other than just Libby merit a bit more compassion in the application of federal sentencing rules.

More notable commutation ripples in the sentencing waters

I have started a new category archive entitled Post-Libby commutation developments, in part because the ripple effects of President Bush's sentencing work in the Libby case could take many forms and could last longer than Scooter's terms of supervised release.  (Indeed, a thoughtful sentencing advocate wrote me suggesting that everyone "interested in federal sentencing reform should welcome [the commutation], which is much bigger than Libby, and may be the most important development in federal sentencing since 1984.")

One notable ripple from the commutation stone thrown into the sentencing pond appears in this post from the blog at Stop the Drug War, which is entitled "We Want Pardons: Petition to Save Bush's Legacy by Persuading Him to Pardon Thousands of Nonviolent Drug Offenders and Not Be a Hypocrite."  The post provides the text to this on-line petition addressed to President Bush, and here are some excerpts from the petition: 

We, the undersigned, ask you to save your legacy by releasing thousands of nonviolent drug offenders from federal prison before you leave office.  Short of taking such a measure, you will be doomed to go down in history as a hypocrite.

Unlike President Clinton, you cannot point to a record of mercy toward people caught in the criminal justice system.  While the overall Clinton record in criminal justice was not lenient, he did commute the sentences of 63 people, most of them neither wealthy nor powerful, including 29 nonviolent drug offenders.

You, by contrast, commuted only three prisoners' sentences prior to helping Scooter Libby, one every two years.  You have pardoned four times as many Thanksgiving turkeys as people you've released from prison....

You have a year and a half left to prove that justice is for everyone -- not just for your friends. Will you rise to the occasion?  History is watching.

Similarly, this new editorial from Newsday, entitled "Use Libby case to fix sentencing," seeks to make lemonade from Libby lemons.  Here is an snippet:

Though not Bush's intention at all (which is clear from the pile of 2,500 commutation and 1,000 pardon requests sitting at the Department of Justice), the president, by calling Libby's sentence "excessive," cast attention on minimum sentencing guidelines, the very ones his administration has been working to make mandatory.  The message behind Bush's self-protective benevolence has validity despite its messenger and surrounding circumstances.

America's pastimes?: Baseball, clemency, obstruction

At yesterday's House Judiciary Committee hearing on Bush's commutation of Libby's sentence (basics here), there was only a little discussion of whether and how lawyers and judges would respond to the President's sentencing work in other cases.  But this issue has been very effectively covered at White Collar Crime Prof, where Peter Henning now has this new post discussing (and providing this link) to  a supplemental brief filedt by the defense team for Troy Ellerman, which is "aligning the attorney who leaked the grand jury testimony of Barry Bonds and other athletes about their steroid use in the Balco investigation with the erstwhile former chief of staff to Vice President Cheney."