The United States Sentencing Commission is responsible for the promulgation and periodic revisions to the United States Sentencing Guidelines used in the federal courts. The Commission has recently submitted a report to Congress, in which it identified thirteen points warranting comment. One of these areas deals with Guidelines provisions used in child pornography sentencing, in response to a growing number of such cases, many the result of expanded federal jurisdiction. There appears to be a growing chorus of legal experts — on both sides of the courtroom — urging reform of the sentencing provisions used in such cases. We at Prison Law Blog concur.
In accordance with the stance which we have taken, the Prison Law Blog has submitted the following letter to the United States Sentencing Commission. We strongly suggest that you either add your contact information to the below letter and submit it to the Commission, or write your own letter stating what you feel the Commission’s priorities should be in this fast-changing legal arena. The deadline for accepting public comment ends on July 15, 2013. So, do not delay. Today is the day when your voice can be heard. Together we can help to make the American criminal justice system a more equitable and evenhanded enterprise.
LETTER TO THE UNITED STATES SENTENCING COMMISSION
U.S. Sentencing Commission
One Columbus Circle, NE, Suite 2-500
Washington, DC 20002-8002
Attention: Public Affairs Priorities Comment
July 5, 2013
I am writing in reference to your recent list of tentative priorities for Congress to address. I wish to be heard on this matter and to have my comments considered by your organization as part of the public comment period.
My primary concern has to do with § 12 of your tentative priorities, which reads, “Continuation of its work with Congress and other interested parties on child pornography offenses to implement the recommendations set forth in the Commission’s December 2012 report to Congress, titled Federal Child Pornography Offenses, and to develop appropriate guideline amendments in response to any related legislation.”
While there are a number of areas of concern with the sentencing of child pornography offenders, as there are with many components of the sentencing guidelines, it is my belief that federal sex offenses deserve the lion’s share of Congress’s sentencing guideline revision time in 2013 and 2014. As it currently stands, child pornography offenders are receiving more and more time in federal prison — calling this a disparate amount of time might not even be out of order — for offenses which have become easier and easier to commit. In this age of the internet, all a person has to do is click on an illegal image or spend a few moments on an “open” peer-to-peer website in order to go to federal prison for several decades. This just doesn’t seem to make any sense. The price paid appears to be in excess of any reasonable sentencing guideline computation and simply does not reflect the conduct of the offender. The guidelines in this arena should be based upon empirical evidence, not emotion or public perception, as they currently appear to be.
From a sentencing guidelines perspective, I find it troublesome that federal criminal defendants are being sentenced so severely for downloading illegal pornography from these “open” peer-to-peer websites. In many cases, federal defendants who go to sites such as Napster.com, Limewire.com, and Kazaa.com are receiving a cumulative 11-levels of enhancement for the use of a computer, the types of media obtained, and the number of images possessed. Since each of these is so significant, and appear to be central elements of child pornography possession and receipt/distribution, I’ll take each in turn.
The 2-level sentencing enhancement for use of a computer appears to be an element of the instant offense. In fact, according to your Federal Child Pornography Offenses report, you report that virtually all current child pornography defendants used a computer in the commission of the crime and that an astounding 53.4% of such offenders used “open” peer-to-peer networks to obtain such illegal content. With such technologies widely available and utilized by the general population and child pornography defendants alike, they appear to the reasonable person to be elements of the instant offense, not an aggravating factor for which a sentencing enhancement should be applied.
The 4-level sentencing enhancement for sadistic and masochistic images (which can include anything even suggestive of violence or pain, which normal, adult pornography would certainly qualify as) and the 2-level enhancement for the victim(s) being 12-years or younger also appear to be general elements of the instant offense. The foundational point of this argument is that since these free, “open,” peer-to-peer services neither provide any sort of image preview or true title indication when an offender is downloading an item, they are effectively downloading media blind and being enhanced for whatever the image might contain, irrespective of their true intentions. Thus, offenders are being enhanced for sadistic and masochistic images or images of very young victims — of which, according to your report 74.2% possessed sadistic and masochistic images and 96.1% possessed images depicting pre-pubescent minors — when, in fact, they might have no intention of obtaining such media. If an enhancement is to be had in this arena, it should be based upon aggravating conduct or content, not run-of-the-mill child pornography which most defendants possess.
The 2- to 5-level sentencing enhancement for such typical numbers of images is also problematic in that it appears to be a component of the instant offense (the enhancement thresholds are from 10 to 600 images, when, according to your report, most offenders possess more than 600 images — 96.9%, according to your Federal Child Pornography Offenses report). If almost all offenders possess more than 600 images, and all of these receive the 5-level sentencing enhancement, then the sentencing enhancement should be done away with since this number of images appears to be part of the crime.
Instead, sentencing enhancements should start after the 600 threshold has been reached. Again, sentencing enhancements should be based upon aggravating factors, not basic elements of the crime. When a child pornography defendant can be enhanced 5 levels for downloading thousands upon thousands of images within a mere few minutes on a peer-to-peer downloading service — which might only require him or her to click a mouse half a dozen times — a real problem has been uncovered.
It also bears mentioning that offenders are being charged with receipt/distribution charges for merely downloading the pornography for which they are already being charged with possession or receipt of. As such, some could argue that the crime of receipt/distribution — when coupled with possession — is redundant. Irrespective of this, if modifications are to be made to the sentencing guidelines for those who possessed child pornography, then those who were in tandem charged with receipt/distribution — when in conjunction with downloading from an “open” peer-to-peer website — should also benefit from a sentence reduction since many times this is not an aggravating factor, but a standard element of the instant offense.
Federal judges are sentencing more and more child pornography offenders to terms of incarceration below the recommended guidelines set forth by your organization — according to your Federal Child Pornography Offenses report, 83.2% of offenders were sentenced within their guidelines in 2004, while only 32.7% of offenders were sentenced within their guidelines by 2011. This shows that the guidelines clearly need to be revised downward since even the judiciary is disagreeing with the current level of severity of the guidelines. This trend in sentencing current child pornography defendants with less time than those from even five years ago creates discord amongst recent past and current defendants; they are receiving drastically different sentences for the same exact crime.
My general requests are are as follows:
(1) For both child pornography possession and child pornography receipt/distribution offenses (when the distribution offense is not based on distribution, but upon receipt of the child pornography on an “open” peer-to-peer service) to be included in any sentencing guideline revisions. These should be considered an element of the crime, not an enhancement component.
(2) For the use of a computer, number of images, and type of images enhancements to be either eliminated, revised downward, or specified to create elements of the enhancements which differ from the instant offense. When all three of these areas trigger a regular, cumulative 11-level sentencing enhancement, something is wrong. Enhancements are for aggravating factors, not inherent elements of the crime.
(3) For the lifetime term of supervised release to be reduced and quantified into a realistic and research-based period of supervision, and not to be used as a political statement. There is a growing body of research indicating that recidivism rates and other factors suggesting that child pornography offenders should not categorically be sentenced to lifetime terms of supervised release or probation. They, as all other federal criminal defendants, should be sentenced according to their individual culpability and risk, not in wholesale fashion.
(4) For all revisions to the child pornography sentencing guidelines to be made retroactive so that those who have been sentenced to a term of federal incarceration for such offenses will be positively impacted by any such revision. This is the only way to ensure that defendants sentenced 5 or 10 years ago receive the same treatment as defendants being sentenced today.
My specific requests for modifications to § 2G2.2 are as follows:
(1) Revise both § 2G2.2(a)(1) and § 2G2.2(a)(2) to reflect a more accurate sentencing scheme. A base offense level of 18 or 22 is significantly higher than the regular child pornography defendant’s conduct indicates. While this is a serious matter, and should be dealt as such, the act of downloading free, illegal pornography from an “open” peer-to-peer network does not call for a base offense level of 18 or 22. [Appendix E of your Federal Child Pornography Offenses report indicates that your commission has the power to reduce these levels to 15 and 17, respectively.]
(2) Revise § 2G2.2(b)(2). In its place, insert categories which allow for enhancement components which are not a part of the normal instant offense (e.g., since the vast majority of child pornography defendants possess images of minors 12-years old and younger, create categories below this age threshold). [Appendix E of your Federal Child Pornography Offenses report indicates that your commission created this sentencing enhancement in 1987, and expanded it in 1988. Thus, your commission still retains the power to revise this 2-level enhancement into various tiers for aggravating or mitigating conduct.]
(3) Revise § 2G2.2(b)(4). As with § 2G2.2(b)(2), most child pornography defendants possess what is deemed to be images containing sadistic and masochistic conduct. If the vast majority of such defendants receive this enhancement, then it is, for all intents and purposes, part of the instant offense. I suggest revising this enhancement to indicate specific components of the sadistic and masochistic conduct. By creating a guideline enhancement scheme within the umbrella of this current enhancement, child pornography defendants can be sentenced according to the media which they actually possess, not merely for downloading typical child pornography. [Appendix E of your Federal Child Pornography Offenses report indicates that the PROTECT Act (Pub. L. No. 108-21, 401(i), 117 Stat. 650 (2003)) stipulated the 4-level sadistic and masochistic enhancement. Thus, you would need to petition Congress to revise this statute.]
(4) Strike § 2G2.2(b)(6). The use of a computer is now an accepted component of the instant offense of child pornography possession and receipt/distribution. As a component of the instant offense, it shouldn’t be an enhancement to the offense. This enhancement needs to be removed in its entirety because it is superfluous to elements of the instant offense. [Appendix E of your Federal Child Pornography Offenses report indicates that the Sex Crimes Against Children Prevention Act of 1995 (Pub. L. No. 104-71, 109 Stat. 774 (1995)) stipulated the 2-level use of a computer enhancement. Thus, you would need to petition Congress to revise this statute.]
(5) Revise § 2G2.2(b)(7)(A), § 2G2.2(b)(7)(B), § 2G2.2(b)(7)(C), and § 2G2.2(b)(7)(D). As clearly indicated by your report, almost all child pornography defendants possess more than 600 images (a 5-level sentencing enhancement). At least 10 images results in a 2-level enhancement. At least 150 images results in a 3-level enhancement. At least 300 images results in a 4-level enhancement. And at least 600 images results in a 5-level sentencing enhancement. In light of your research in this matter, these number of images need to be increased substantially. If almost all child pornography defendants possess 600 or more images, then that should be the floor and the enhancements should start after this point. The current sentencing enhancement scheme results in disparate treatment of offenders who possessed 600 images and those who possess 60,000 images. This is perhaps the sentencing enhancement which is the most pressing because it does the most damage and is effectively the most discriminatory. [Appendix E of your Federal Child Pornography Offenses report indicates that the aforementioned PROTECT Act created the current image table. Thus, you would need to petition Congress to revise this statute.]
Thank you for your time and attention to these important considerations. I look forward to seeing Congress act upon these matters, and to existing sentencing policies concerning child pornography offenders being based upon common sense and research, instead of the politically-motivated and emotionally-based model currently in place.