We heard a lot in the last week about judges who sentence people to too little prison time for child pornography. In case it was not obvious coming from foamy-mouthed demagogues in what was once the world’s greatest deliberative body, it was all hogwash. Child pornography sentences are off-the-charts too high in almost every case. Just ask the U.S. Sentencing Commission, professionals like parole officers and therapists who work with people convicted of child pornography, and anyone who studies recidivism among people convicted of various crimes. The only well-informed people who think child pornography sentences are too low are insecure men searching for a reason to vote against the best qualified judicial nominee we have seen since, well, the last Justice Jackson was appointed in 1941 (that’s the one who wrote, on ZMO Law’s 2016 holiday card: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”).
So how do child pornography sentences actually work? It’s complicated, but here are the basics for the federal courts. State laws vary and, in New York at least, are significantly more lenient. If you are convicted of possession of child pornography in federal court, you can be sentenced from zero to 10 years for the first offense, more for subsequent offenses (and 20 years if the victim was under 12). If you are convicted of receipt or distribution of child pornography, the minimum sentence is five years and the maximum is 20 years. So, for most cases, it is up to the government to decide how long your minimum sentence is, since almost all cases can be charged as either possession or receipt.
It is up to the judge—federal trial judges like Ketanji Brown Jackson used to be—to decide where in that range the sentence will fall. The judge has broad discretion, but is mandated by the Sentencing Reform Act to consider a number of factors ranging from the abstract (“the need for the sentence imposed to afford adequate deterrence”), to the personal (“the history and characteristics of the defendant”), to the confusingly specific.
That last category is the beast known as the United States Sentencing Guidelines, which are written by a commission Judge Ketanji Brown Jackson used to sit on. The U.S. Sentencing Guidelines Manual is a phonebook-sized tome that tries to consider every variation of human criminal experience and circumstance. It uses a complicated system of tables, charts, points, base offense levels, specific offense characteristics, criminal history categories and more to spit out a sentencing range from something like 0-6 months up to 360 months-to-life. It usually fails to come out with anything remotely sensible, routinely generating absurdly high or absurdly low sentences for similar crimes. That’s part of the reason the Supreme Court in 2005 struck down the mandatory system that implemented the Guidelines, replacing it with today’s system leaving sentencing to individual judges, guided but not dictated by the Guidelines.
Layer onto this morass the “eccentric’“ Guidelines for child pornography. Unlike other Guidelines that are the product of empirical study by qualified professionals on the Sentencing Commission, the child pornography Guidelines were imposed on the Sentencing Commission through a secret budgeting process spearheaded by Sen. Jesse Helms. The Sentencing Commission and courts alike have criticized the Guidelines and almost uniformly refused to apply them. The Guidelines add years to sentences for ridiculous factors such as “use of a computer” or distinguishing between 200 and 300 images when most cases involve thousands of images downloaded with the click of a button. As Judge Jackson pointed out, they were written with brown-paper-wrapped mailings from Europe in mind.
Judge Jackson tried to explain the difficult sentencing choices judges face to Sen. Lindsey Graham, but he was far too busy mansplaining to her (and all of us) that he thinks sexual exploitation of children is bad and she doesn’t (“You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison,” she said, when Mr. Graham interrupted, “Good, absolutely good.”).
The solution to some of the problem is judicial discretion. Most judges sentence in good faith and follow the Sentencing Reform Act’s mandate to look at all the circumstances of the crime and the person being sentenced. Like Judge Jackson, the routinely sentence below the Guidelines, but usually not far enough.
But when prosecutors overcharge, judges are bound to impose mandatory minimums, at least. United States Attorneys wield enormous power to determine whether someone goes to prison for a few months for a small amount of child pornography, or for five years. While the system cries out for radical change, child porn defendants and their lawyers are reduced to making impassioned pitches not only to judges, but to prosecutors, to see them as human beings, not monsters bent on the destruction of innocent children.