The Flawed Progression of Child Pornography Sentencing Guidelines

In a previous entry, I wrote about the Federal Sentencing Guidelines for child pornography. Recently, I read a 2009 report written by federal public defender, Troy Stabenow, entitled, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. In his report, Stabenow recounts the evolution of the guidelines from their introduction in 1987 to their present form, and reveals that all congressionally mandated changes to the guidelines after 1991 were guided by fear and misinformation as opposed to legitimate study and empirical evidence. As a result, the present day guidelines are arbitrary, overzealous, and provide no means for justice.

To prove this point, I thought it would be interesting to summarize Stabenow’s findings and recalculate my own sentence based on the guideline revisions from the past three decades.

The United States Sentencing Commission was created by Congress under the Sentencing Reform Act of 1984 as an independent entity within the judicial branch. The Commission is responsible for the creation and maintenance of the Federal Sentencing Guidelines which establish uniform sentences across all federal prosecutions.

Below is the most up-to-date Sentencing Table used to calculate federal sentences (in months).

Offense level Criminal History Category (Criminal History Points)
I
(0 or 1)
II
(2 or 3)
III
(4,5,6)
IV
(7,8,9)
V
(10,11,12)
VI
(13 or more)
Zone A 1 0-6 0-6 0-6 0-6 0-6 0-6
2 0-6 0-6 0-6 0-6 0-6 1-7
3 0-6 0-6 0-6 0-6 2-8 3-9
4 0-6 0-6 0-6 2-8 4-10 6-12
5 0-6 0-6 1-7 4-10 6-12 9-15
6 0-6 1-7 2-8 6-12 9-15 12-18
7 0-6 2-8 4-10 8-14 12-18 15-21
8 0-6 4-10 6-12 10-16 15-21 18-24
Zone B 9 4-10 6-12 8-14 12-18 18-24 21-27
10 6-12 8-14 10-16 15-21 21-27 24-30
Zone C 11 8-14 10-16 12-18 18-24 24-30 27-33
12 10-16 12-18 15-21 21-27 27-33 30-37
Zone D 13 12-18 15-21 18-24 24-30 30-37 33-41
14 15-21 18-24 21-27 27-33 33-41 37-46
15 18-24 21-27 24-30 30-37 37-46 41-51
16 21-27 24-30 27-33 33-41 41-51 46-57
17 24-30 27-33 30-37 37-46 46-57 51-63
18 27-33 30-37 33-41 41-51 51-63 57-71
19 30-37 33-41 37-46 46-57 57-71 63-78
20 33-41 37-46 41-51 51-63 63-78 70-87
21 37-46 41-51 46-57 57-71 70-87 77-96
22 41-51 46-57 51-63 63-78 77-96 84-105
23 46-57 51-63 57-71 70-87 84-105 92-115
24 51-63 57-71 63-78 77-96 92-115 100-125
25 57-71 63-78 70-87 84-105 100-125 110-137
26 63-78 70-87 78-97 92-115 110-137 120-150
27 70-87 78-97 87-108 100-125 120-150 130-162
28 78-97 87-108 97-121 110-137 130-162 140-175
29 87-108 97-121 108-135 121-151 140-175 151-188
30 97-121 108-135 121-151 135-168 151-188 168-210
31 108-135 121-151 135-168 151-188 168-210 188-235
32 121-151 135-168 151-188 168-210 188-235 210-262
33 135-168 151-188 168-210 188-235 210-262 235-293
34 151-188 168-210 188-235 210-262 235-293 262-327
35 168-210 188-235 210-262 235-293 262-327 292-365
36 188-235 210-262 235-293 262-327 292-365 324-405
37 210-262 235-293 262-327 292-365 324-405 360-life
38 235-293 262-327 292-365 324-405 360-life 360-life
39 262-327 292-365 324-405 360-life 360-life 360-life
40 292-365 324-405 360-life 360-life 360-life 360-life
41 324-405 360-life 360-life 360-life 360-life 360-life
42 360-life 360-life 360-life 360-life 360-life 360-life
43 life life life life life life

There are two components necessary to determine federal sentences: the Total Offense Level and the defendant’s Criminal History Category. The offense level is calculated by taking the crime’s Base Offense Level and adding or subtracting points based on characteristics of the specific crime. Criminal history points are calculated based on the number and sentence length of the defendant’s prior convictions, if any. A first time offender, such as myself, falls into Criminal History Category I.

Sentencing ranges can fall into one of four zones. Defendants sentenced within Zone A (0-6 months) are eligible for probation and are not required to serve a term of imprisonment. Zone B defendants are eligible for probation under certain conditions and must serve at least one month of their sentence in prison. Zone C defendants are also eligible for probation but must serve at least half of their sentence in prison. Zone D defendants are not eligible for probation.

Therefore, according to the Sentencing Table, my sentence is between 210 to 262 months for the offense level of 37 that was calculated in my presentence report. Because this range falls within Zone D, I am not eligible for probation.

I should note that this calculated imprisonment range is beyond the 20-year statutory maximum for 18 U.S.C § 2252A(a)(2)—transportation of child pornography. Therefore, the most time I can receive is 20 years (as opposed to the calculated maximum of 21.83 years). The statutory minimum is five years.

Another important thing I should mention is that up until 2004, judges were required by law to sentence defendants within the guideline range. In United States v. Booker, the Supreme Court ruled that the guidelines violated the 6th Amendment right to trial by jury. Today, Federal Sentencing Guidelines are advisory, and it is up to the judge’s discretion to review sentences for “reasonableness.”

In 2007, 33% of child pornography defendants were sentenced below the guidelines. The evaluation and polygraph I underwent in recent weeks were conducted in the effort to persuade my judge not to follow the sentencing guidelines and award leniency based on good character and the low risk of recidivism.

U.S.S.G § 2G2.2 is the formal name for the guidelines under which my offense level was calculated. On April 30, 1987, when the federal guidelines were formally adopted, the simple possession of child pornography had not yet been illegalized. Therefore, in 1987, § 2G2.2 pertained only to the transportation, receipt, and trafficking of child pornography. These original guidelines were crafted solely by the Commission without interference from Congress.

(Note: Specific characteristics which apply to my case are highlighted in yellow.)

§ 2G2.2: Transportation, Receipt, and Trafficking (April 30, 1987)
Base Offense Level 13
Specific Characteristics
(b)(1) a minor under 12 years +2
(b)(2) if distribution of < $100,000 in value +5
(b)(2) if > $100,000 in value, see 2F1.1  
Total Offense Level after Acceptance (-3) 13

On November 29, 1990, Congress criminalized the possession of child pornography. The Commission reasoned that a new set of guidelines, § 2G2.4, be created for possession and the related offenses of receipt and transportation (since it’s impossible to possess something without first receiving it) and modify § 2G2.2 to apply only to the more serious offenses of selling and possessing with the intent to sell.

Also, at the request of Congress, the Commission enhanced the original § 2G2.2 guidelines to provide harsher punishments in cases where the material portrayed “sadistic or masochistic conduct” or other violence. The Commission also noted in the § 2G2.2 revision that they recommended an upward departure from the guidelines in cases where the defendant has a history of sexually abusing children.

The new guidelines became effective November 1, 1991.

(Note: Additions and changes are emphasized.)

§ 2G2.2: Selling or Possessing with the Intent to Sell (November 1, 1991)
Base Offense Level 13
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution of < $100,000 in value +5
(b)(2) if > $100,000 in value, see 2F1.1  
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
The Commission recommends an upward departure for defendants with a history of sexually abusing children.
Total Offense Level after Acceptance (-3) 16
§ 2G2.4: Possession, Receipt, Transportation (November 1, 1991)
Base Offense Level 10
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years  +2

These carefully studied revisions, however, were short-lived. Senator Jesse Helms of North Carolina, under the mistaken assumption that the guidelines reduced sentences for “smut peddlers and pedophiles,” introduced Amendment Number 780 to the Treasury-Postal Service Appropriations Bill of 1991.

The proposed amendment would reassign receipt back to § 2G2.2 where it would join trafficking, transportation, shipping, advertising, and possession with the intent to traffic. Simple possession would remain under § 2G2.4. This introduced the very problem the Commission had carefully avoided with the previous revision. Since it’s impossible to possess material without first receiving it, any defendant in possession of child pornography, even if they had no intent to traffic it, could be sentenced under the harsher guidelines intended for the more serious offense of trafficking. The less harsh § 2G2.4 guidelines would serve only for plea bargaining tactics.

After passing the Senate, the bill reached the House. Included in the record was a letter from the Commission warning of the problems introduced by the proposed amendment.

Senate Amendment No. 780, unfortunately, would negate the Commission’s carefully structured efforts to treat similar conduct similarly and to provide proportionality among different grades of seriousness of these offenses. Instead, it would require the Commission to rewrite the guidelines for these offenses in a manner that will reintroduce sentencing disparity among similar defendants and render the guidelines susceptible to plea bargaining manipulation.

In addition, the amendment would require the Base Offense Levels for § 2G2.2 and § 2G2.4 be raised and a two-level enhancement be added to § 2G2.4 for the possession of 10 or more “books, magazines, periodicals, films, video tapes, or other items containing a visual depiction involving the sexual exploitation of a minor.”

Amendment 780 was passed by the House after a brief discussion by only three representatives. On November 27, 1991, only 26 days after the Commission’s last revision, the guidelines were dramatically rewritten to accommodate Senator Helms’ morality earmark.

§ 2G2.2: Trafficking, Receipt, Transportation, Shipping, Possessing with Intent to Traffic (November 27, 1991)
Base Offense Level 15
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution of < $100,000 in value +5
(b)(2) if > $100,000 in value, see 2F1.1  
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(4) Pattern of Abuse  +5
Total Offense Level after Acceptance (-3) 18
§ 2G2.4: Possession (November 27, 1991)
Base Offense Level 13
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years  +2
(b)(2) if 10 or more items  +2

On April 6, 1995, Senators Grassley, Hatch, and Thurmond jointly proposed an amendment to the Sex Crimes Against Children Protection Act of 1995. The amendment would again increase the Base Offense Levels for both § 2G2.2 and § 2G2.4 offenses. With the rise in popularity of the Internet, a two-level enhancement was added to both guidelines for offenses involving the use of a computer. This measure was seen as a way to help “fight the wide dissemination and instantaneous transmission in computer-assisted trafficking of child pornography” and “combat the increased difficulty of investigation and prosecution” of these crimes.

Finally, the amendment required the Commission to submit a report to Congress assessing the impact of these increased penalties.

The Sex Crimes Against Children Protection Act was passed on December 23, 1995. On November 1, 1996, the Commission revised the guidelines to accommodate the newly passed bill.

§ 2G2.2: Trafficking, Receipt, Transportation, Shipping, Possessing with Intent to Traffic (November 1, 1996)
Base Offense Level 17
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution of < $100,000 in value +5
(b)(2) if > $100,000 in value, see 2F1.1  
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(4) Pattern of Abuse  +5
(b)(5) transmission of material or notice by computer  +2
Total Offense Level after Acceptance (-3) 22
§ 2G2.4: Possession (November 1, 1996)
Base Offense Level 15
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years  +2
(b)(2) if 10 or more items  +2
(b)(3) Possession as a result of computer use  +2

The Commission submitted its report to Congress assessing the increased penalties in November of 1996. In preparation of its report, the Commission reviewed 112 federally prosecuted child pornography cases from 1994 to 1995. In their analysis, they discovered that many of the defendants in these cases had prior criminal histories and were therefore at higher risk of recidivism. With this in mind, the Commission suggested that § 2G2.2 be amended to provide harsher sentences for these more dangerous offenders.

The Commission also suggested that the “use of a computer” enhancement be further defined to distinguish between offenders who email images to single recipients and those who, more egregiously, distribute material over websites and large-scale Internet bulletin boards.

Finally, the Commission again raised the concern it had in 1991. It is not possible to possess something without first receiving it, therefore the Commission noted it may be necessary to consolidate § 2G2.2 and § 2G2.4 at some point in the future.

While it may have been valid at the time, the Commission’s report is irrelevant today for two reasons.

It’s important to understand that in the mid-1990s, when this report was written, most child pornography cases were handled by the state and only the most egregious cases were federally prosecuted. Today, the federal government routinely prosecutes a much greater number of less egregious offenses and almost 80% of these defendants have no prior convictions. Therefore, the large-scale, commercial pornographers and repeat offenders prosecuted under § 2G2.2 in 1996 bear no resemblance to those prosecuted under the same guidelines today.

Another thing to consider is that the “use of a computer” enhancement was originally targeted at people who distribute child pornography over websites and large-scale Internet bulletin boards. In 1995, this enhancement was applied to 28% of child pornography cases; however, in its 1996 report, the Commission found that only eight of the 112 cases they studied actually involved the widespread distribution the enhancement was originally designed to address.

In 2006, 97% of child pornography cases involved the use of a computer. In each of these cases, the two-level enhancement was applied, regardless of whether the defendant traded one image via email or distributed thousands over a peer-to-peer network.

Also, today’s advances in computer forensics make it easier, not harder, for law enforcement officials to prosecute child pornography cases.

In reaction to the Commission’s report, congress passed the Protection of Children for Sexual Predators Act of 1998. The bill directed the Commission to modify the term “distribution” and provide varying enhancements based on the distribution’s intended purpose and audience. The new guidelines went into effect November 1, 2000.

§ 2G2.2: Trafficking, Receipt, Transportation, Shipping, Possessing with Intent to Traffic (November 1, 2000)
Base Offense Level 17
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution
A) For pecuniary gain, see 2F1.1 but not less than  +5
B) For value but not pecuniary gain  +5
C) To a minor  +5
D) To pursuade a minor to engage in sexual conduct  +7
E) Other than for the reasons above  +2
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(4) Pattern of Abuse  +5
(b)(5) transmission of material or notice by computer  +2
Total Offense Level after Acceptance (-3) 27
§ 2G2.4: Possession (November 1, 2000)
Base Offense Level 15
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years  +2
(b)(2) if 10 or more items  +2
(b)(3) Possession as a result of computer use  +2

Of all the congressionally mandated changes since 1991, none would have as far reaching an effect as those imposed by the Protect Act. In 2003, two unknown government attorneys, acting on behalf of the US Justice Department, convinced Tom Feeney, a novice congressman, to insert changes into the child pornography guidelines via an unrelated and popular bill.

The Feeney Amendment directly amended various guidelines, barred downward departures not sponsored by government attorneys, added enhancements based on the number of images possessed, added the “sadistic or masochistic” enhancement to § 2G2.4, and raised the mandatory minimum sentences and statutory maximum sentences for all child pornography offenses. The amendment also prohibited the Commission from creating any new downward departure guidelines for the next two years.

No rationale, research, or study was provided to justify any of the guideline changes the Feeney Amendment offered, and after only 20 minutes of debate, the Protect Act became law on April 30, 2003.

With the passage of the Protect Act, defendants in possession of child pornography were essentially sentenced with the same severity as traffickers.

§ 2G2.2: Trafficking, Receipt, Transportation, Shipping, Possessing with Intent to Traffic (April 30, 2003)
Base Offense Level 17
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution
A) For pecuniary gain, see 2B1.1 but not less than  +5
B) For value but not pecuniary gain  +5
C) To a minor  +5
D) To pursuade a minor to engage in sexual conduct  +7
E) Other than for the reasons above  +2
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(4) Pattern of Abuse  +5
(b)(5) transmission of material or notice by computer  +2
(b)(6) if
A) 10-150 images  +2
B) 150-300 images  +3
C) 300-600 images  +4
D) 600+ images  +5
Total Offense Level after Acceptance (-3) 32
§ 2G2.4: Possession (April 30, 2003)
Base Offense Level 15
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years  +2
(b)(2) if 10 or more items  +2
(b)(3) Possession as a result of computer use  +2
(b)(4) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(5) if
A) 10-150 images  +2
B) 150-300 images  +3
C) 300-600 images  +4
D) 600+ images  +5

A commentator later summarized the magnitude of the Protect Act.

Congress directly amended [for the first time] the Federal Sentencing Guidelines by drafting Guideline text. In the past, Congress often . . . issued[d] directions to and requests for study from the Commission, but left it to the Commission to craft specific Guideline text. This time, congress completely ignored the expert role the Sentencing Commission was designed to play, cut the Commission out of the process entirely, and directly wrote Guideline text to its own specification.

On November 1, 2004, the Commission amended the guidelines to increase the Base Offense Levels to match the statutory limits imposed by the Protect Act. The new Base Offense Levels made it so that no defendant could be sentenced below the new five-year statutory minimum. Essentially, the guidelines were rewritten to fit what had already been made law.

The Commission also followed through with their plan from 1996 to consolidate § 2G2.4 into § 2G2.2.

§ 2G2.2 (November 1, 2004)
Base Offense Level
(a)(1): If Possession 18
(a)(2): If Trafficking, Reciept, Transportation, Shipping, Possessing with Intent to Traffic, but 22
If (a)(2) and conduct was limited to receipt or solicitation with no intent to traffic or distribute, then -2
Specific Characteristics
(b)(1) prepubescent or a minor under 12 years +2
(b)(2) if distribution
A) For pecuniary gain, see 2B1.1 but not less than  +5
B) For value but not pecuniary gain  +5
C) To a minor  +5
D) To a minor to pursuade the minor to engage in illegal activity other than E)  +6
E) To pursuade a minor to engage in sexual conduct  +7
F) Other than for the reasons above  +2
(b)(3) if material portrays sadistic or masochistic conduct, or other violence  +4
(b)(4) Pattern of Abuse  +5
(b)(5) transmission of material or notice by computer  +2
(b)(6) if
A) 10-150 images  +2
B) 150-300 images  +3
C) 300-600 images  +4
D) 600+ images  +5
Total Offense Level after Acceptance (-3) 37

The 2004 revisions were the last made and are the guidelines with which my own case has been calculated. If you were to recalculate my offense level according to the guidelines from all seven major revisions, you can see that the severity of my punishment increased by 1750% from 1987.

Guideline Revision Total Offense Level Sentence in Months
April 30, 1987 13 12-18
November 1, 1991 16 21-27
November 27, 1991 18 27-33
November 1, 1996 22 41-51
November 1, 2000 27 70-87
April 30, 2003 32 121-151
November 1, 2004 37 210-262

One problem with today’s guidelines is that it is common for first-time offenders to reach the statutory maximum sentence. 97% of child pornography offenses involved the use of a computer in 2006. Most defendants distribute pornography in order to receive more in return, and due to the nature of the Internet, acquiring over 600 images is easy, especially when each video is worth 75 images a piece. Furthermore, many of this material involves children under the age of 12, and “sadistic or masochistic” can mean almost anything.

Because it’s easy for first-time offenders to reach the statutory maximum sentence, the guidelines afford no difference between first-time offenders and reoffenders. The whole principal behind the guideline system is to provide harsher penalties for offenders with prior convictions; however, under the current guidelines, it is common for a first-time offender to receive a sentence of 210 to 240 months and an offender in Criminal History Category II to receive 235 to 240 months. Offenders with any higher a Criminal History Category max out at the 20-year statutory limit.

The single biggest problem with the current state of the guidelines is that they provide harsher sentences for possession of child pornography than the guidelines for contact offenses. Defendants charged with the sexual assault of a child typically receive sentences that are less than the five-year statutory minimum allowed under child pornography laws.

To illustrate this absurdity, Stabenow calculates the sentence for a hypothetical, yet typical, contact offense.

…consider the hypothetical of a fifty year-old man who ‘meets’ a thirteen year-old girl on the internet. After the offender discovers that the girl lives on a nearby military post, and that her father is away at training, he uses his superior worldliness to create a complex relationship with the child. Ultimately, he persuades her to meet at a park on the base. Over the course of several months, until they are discovered, they regularly meet for sex. This violation of 18 U.S.C. § 2243 is subject to Guideline 2A3.2. Applying a Base Offense Level of 18, a four-level enhancement for unduly influencing a child (b)(2), and a two-level enhancement for use of a computer (b)(3), the Total Offense Level is 24. After Acceptance, the Guideline range for this Category I offender would be 37-46 months.

Essentially, my calculated sentence is 567% higher for trading pornography than the sentence given to a man who coerces a 13-year-old girl into sex.

When I began this journey over a year ago, I had no knowledge of the federal justice system outside of the average high school government class curriculum. I realize now how oversimplified those old textbooks had been. The good are exonerated and the bad are punished. That was always the message. There was never any mention of how easily justice could be manipulated by misguided politicians and selfish agendas.

Perhaps, had I been a little wiser and known what I do now, I might not have made the mistakes that I did. But I’m learning to forgive myself and accept my fate, however unjust it may be. There’s some comfort in knowing that a lesson was learned, and perhaps I can better myself in the future because of it.

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