U.S. Sentencing Commission Report Recommends New Sentencing Factors In Possession of Child Pornography Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Who are “passive pedophiles?” These are individuals who possess child pornography. They do not try to sexually abuse or molest children. Instead they want to view sexually explicit material involving children, some of which graphically portrays children being sexually abused or molested by adults and other children. This material is “child pornography.” Federal law, 28 U.S.C. § 2256, defines child pornography as any visual depiction of sexually explicit conduct involving someone under 18 years of age. Three other federal statutes, 28 U.S.C. §§§ 2251, 2252 and 2252A, criminalize the production, distribution, reception and possession of child pornography.


While there has been an increasing recognition among federal judges, the defense bar, and some prominent criminal justice professionals that child pornography penalties under U.S. Sentencing Guidelines, especially those for simple possession, are far too harsh, attorneys general in two states (Texas and New Jersey) favor increasing state penalties for possession of such material. There are two overriding reasons for this law enforcement conflict. First, there is a general belief that the possession of child pornography, which fuels the production of such material, is as psychologically damaging to the victim as the sexual abuse itself. More than three decades ago former Supreme Court Justice Byron White wrote: “Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him for future years, long after the original misdeed took place.” However, David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, says there is no empirical evidence to support this position: “The evidence doesn’t yet tell us to what extent the experience of being a pornography victim aggravates the experience of the sexual abuse itself.”


Second, there is the strong belief that individuals who possess child pornography have an interest in sexually abusing children, and their addiction to such material demonstrates they lack the ability to control their active pedophilia desires. But a December 2012 report by the U.S. Sentencing Commission—Report to Congress: Federal Child Pornography Offenses (Reprt)—which was submitted to Congress in February, reviewed 2700 child pornography cases and found only one in three of the child pornography offenders had a known history of actual child sexual abuse. Once again the empirical evidence does not support the broad range of misconceptions about child pornography and active pedophilia.


These misconceptions resulted in the Sentencing Guidelines, spurred by Congressional legislation, to recommend harsher penalties for child pornography-related offenses over the last two decades. In 2004, the average penalty for possession of child pornography was 4 ½ years which had ballooned to nearly eight years by 2010. The harsher, more aggressive attitude about child pornography also resulted in a staggering increase in child pornography prosecutions up from 700 a decade ago to 2000 annually today, according to the Report.


These harsher trends have caused a significant number of federal judges to re-think their sentencing attitude in child pornography cases. For example, in 2004, 84 percent of the sentences in these cases were within the recommended Guidelines’ range, but, in the wake of United States v. Booker (a 2005 Supreme Court case which held that the Guidelines are only “advisory”), today only half of child porn sentences are within the recommended Guidelines range.


The Report recognized the concern of those federal judges who believe that child pornography penalties are too harsh and the sentencing process needs to be overhauled, at least in receipt and possession cases. This judicial concern, shared by the U.S. Justice Department and the defense bar, reflect five “criticisms” that the child pornography Guidelines are “neither ‘empirically’ based nor a reflection of the Commission’s normal institutional expertise and, instead, reflects outmoded congressional directives,” according to the Report. The criticisms are directed mostly as the form and operation of the “non-production guideline” and were listed in the Report as follows

  • ·         Criticism #1. The specific offense characteristics in §2G2.2 (b) do not reflect the changes in technology and typical offense conduct that have occurred in recent years. As a result, several of the enhancements apply to the vast majority of offenders today and result in overly severe penalty ranges for typical offenders—particularly those convicted of receipt or possession—and also fail to meaningfully distinguish among offenders in terms of their culpability and dangerous.
  • ·         Criticism #2. In some cases, the penalty scheme entirely fails to account for certain types of aggravated conduct that may be worthy of targeted, incremental punishment (e.g., an offender’s possession of child pornography depicting sexual abuse of very young victims, including infants and toddlers; an offender’s involvement in a child pornography Internet “community”).
  • ·         Criticism #3. The current guideline does not adequately assist sentencing judges in differentiating among offenders with respect to their past and future sexual dangerousness. Furthermore, the severe penalty ranges appear to assume that the typical offender both has engaged in sexual abuse of children in the past (before being arrested for a child pornography offense) and likely will engage in sexual recidivism in the future (after reentering the community)—an assumption that is called into question by emerging social science research.
  • ·         Criticism #4. In some §2G2.2 cases, there is a lack of proportionality in sentence length compared to typical sentences for many “contact” sex offenders. Some child pornography offenders with no history of sexually abusing a child receive prison sentences equal to or greater than the sentences received by “contact” sex offenders prosecuted and sentenced in federal court.
  • ·         Criticism #5. There is no rational basis to treat receipt offenses (which carry a mandatory minimum five-year term of imprisonment) and possession offenses (which do not carry a mandatory minimum term of imprisonment) differently under the guidelines or penal statutes. Virtually all offenders who possess child pornography knowingly received it.


This current sentencing scheme, critics charge, has resulted in “widespread sentencing disparities among similarly situated offenders”—the very thing the Guidelines were established to eliminate in 1984. This undeniable fact prompted the Report to conclude: “In accord with the general consensus among stakeholders, the Commission believes that child pornography offenses are extremely serious. The Commission, however, also concurs with the many stakeholders who contend that the sentencing scheme should be revised to better reflect both technological changes in offense conduct and emerging social science research and also better account for the variations in offenders’ culpability and their dangerousness. This report is intended to provide a basis for beginning the process of revising the sentencing scheme … The Commission stands ready to work with Congress and various stakeholders in the federal criminal justice system in order to revise the penalty structure.”

While we do not anticipate that Congress will react significantly, much less favorably, to the Report, the Commission has at least put the child pornography penalty debate in the public arena. We endorse the ten extensive recommendations advocated by the Report—recommendations too extensive to express here. But suffice it to say that these recommendations are the only cure for the sentencing disparities that now plague child pornography cases.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization