Sentencing disparity in child pornography cases is an infectious virus undermining the integrity of the federal judiciary. We discussed this problem as far back as 2010. The problem has gotten worse.
This horrific federal sentencing problem was created, and has been perpetuated, by Congress which revised the U.S. Sentencing Guidelines nine times between 1987 and 2009. The result of this Congressional meddling has been dramatic: for example, in 1997, the average sentence imposed in a child pornography case was 20 months and by 2010, it had increased to 118 months. Today is not uncommon to see a sentence of one year to 25 years imposed in child pornography cases whose factual circumstances are remarkably similar.
Striking Disparities Exist Within Districts
In 2013, the Sentencing Law and Policy blog did a brief, cursory examination of one small homogenous federal district court’s sentencing in child pornography cases. The result was striking as evidenced by the following sentences imposed on 10 different child pornography offenders: 6 months, 12 months; 60 months; 84 months; 151 months; 192 months; 20 months; 300 months; and 340 months.
Two recent decisions (here and here) handed down by the Fifth and Eighth Circuits Court of Appeals illustrate the sentencing disparity in child pornography cases. The Fifth Circuit case involved David Diehl who, between 1999 and 2000, produced ten videos of child pornography. He was arrested in 2010 and charged with ten counts of sexual exploitation of a child and production of child pornography in the Western District of Texas. He waived his right to a jury trial and elected to be tried by a judge who found him guilty on all counts. The U.S. Sentencing Guidelines as they existed in 2000 recommended a sentence of 210 to 262 months of imprisonment. The judge instead imposed a sentence of 600 months of imprisonment—or 50 years.
The Eighth Circuit case involved Corey Bevins who, in 2015, pled guilty to nine counts of production of child pornography, receipt of child pornography and possession of child pornography. In January 2014, the FBI executed a search warrant of Bevins’ Minnesota residence where they found 274 videos that contained hundreds of images of child pornography. The U.S. Sentencing Guidelines as they existed in 2015 recommended a sentence of 720 months. The judge instead imposed a sentence of 300 months—or 25 years.
Federal Law Instructs Courts to Avoid Disparities
The factual circumstances of both cases are remarkably similar, and both circuits are known as “conservative” courts. So why did one defendant receive a 600 month sentence—almost three times the recommended range—while another defendant received a 300 month sentence—less than half of the recommended range?
This seems like a strange question to ask when federal law, 18 U.S.C. § 3553(a)(6), requires federal courts “to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
What makes the sentencing disparity in these two cases more shocking is that even repeat child pornography offenders in other federal districts receive lesser terms of imprisonment. Take the case of Christopher Sparks, for example. In September 2013, a federal district court judge in Oregon imposed a 12-year sentence on Sparks for his second child pornography conviction. The U.S. Attorney handling the case had this to say about the sentence:
“My office aggressively prosecutes child exploitation offenses. The defendant did not get that message the first time. The 12-year sentence imposed today is a clear reminder to those who seek gratification from the exploitation of children that their conduct will not be tolerated, especially when they are repeat offenders like Christopher Sparks.”
This is the mess Congress has created when it comes to child pornography-related charges—a second offender in Oregon gets a 12-year sentence while a first offender in Texas gets a 50-year sentence; and a first offender is Minnesota gets a 25-year sentence while the Texas first offender gets a 50-year term. All three sentences were imposed during the past five years.
Efforts at Sentencing Reform Likely to Die
During these same five years, there has been a bipartisan effort in Congress to bring about federal sentencing reform. Under the new administration, especially with Jeff Sessions in charge of the U.S. Justice Department, efforts to create fair and consistent sentencing for similarly situated offenders, we fear, will die on the vine and unchecked sentencing disparities will be the order of the day federal cases.