Sentencing disparity is systemic in the American judicial system. There are three primary causes for this disparity: race, economic status, and judicial bias.
White judges generally impose harsher sentences on offenders of color; all judges are typically more lenient on offenders from higher economic statuses; an overwhelming majority of judges are biased against certain particularly offensive crimes and will generally impose harsh sentences on those unfortunate souls who appear before them with offenses that trigger revulsion.
The result of these biases is that the population of the nation’s penal system is disproportionately people of color from the lower economic strata, most of whom could be released without posing a substantial risk to the community.
Child pornography cases illustrate sentencing disparities among the states and within the federal system.
The case of a Maine resident named Eliot Cutler illustrates the fundamental flaw in the nation’s criminal justice system: disparity in offender treatment.
Cutler is a 76-year-old wealthy Ellsworth, Maine attorney with deep ties to Maine and national politics. He was once an aide to Maine’s legendary Senator and former presidential candidate Edmund Muskie and an environmental and energy adviser to President Jimmy Carter. Cutler used these insider political connections to establish a successful and prominent environmental law firm in Washington, D.C.
This wealth and political influence allowed Cutler in 2010 to launch a nearly successful bid as an independent candidate to become Maine’s governor.
Then, for whatever reason, Cutler became addicted to child pornography.
The walls of wealth and privilege came tumbling down in March 2022 when the Maine State Police Crimes Task Force arrested him. A search of his two homes—one in Portland and the other at a waterfront location in Brooklin—revealed thousands of pornographic images of children under the age of 12 being sexually abused. He was charged in state court with four counts of possession of child pornography. He quickly and, quite easily, posted a $50,000 bond. The year before his arrest, Cutler sold his oceanfront Cape Elizabeth mansion for $7.5 million to the nephew of former President George H.W. Bush.
Hancock County District Attorney Robert Granger said Cutler had a “longstanding, untreated and severe addiction to child pornography.” The prosecutor chose to view child pornography possession as an “addiction,” not a crime.
Cutler’s defense team negotiated a plea deal with District Attorney’s office. The deal called for Cutler to plead guilty in exchange for a four-year prison sentence, with all of it being suspended except for nine months.
On May 4, 2023, Cutler entered a guilty plea and received a nine-month jail sentence. Local advocates immediately criticized the extraordinarily lenient sentence . Granger’s office defended the sentence saying it was in line with “similar cases” over the past decade.
There is some merit in the district attorney’s sentencing explanation.
In May 2022, Wesley Libby, who was charged with his father and brother with the same child pornography charge as Eliot Cutler, entered into a plea agreement with Granger’s office and was given a one-year probation sentence. The year before, Libby’s brother, Dillon, was given a three-year prison sentence with two years of it being probated.
Judge Robert Murray also imposed the sentences on the Libby brothers.
That is how many state courts treat possession of child pornography offenders. In fact, as long as there is no indication of real-world sexual abuse, a “contact sex offense,” many courts recognize possession offenses as compulsions and addictions, often driven by their own history of untreated sexual abuse or other mental disorders. Many experts also verify this distinction.
The treatment is strikingly different in federal courts, which impose substantially harsher sentences. And within the federal system itself are broad sentencing disparities rom court to court.
Federal Child Pornography Sentences
According to the U.S. Sentencing Commission, Federal Sentencing of Child Pornography Offenses, 2021, defendants charged with possession of child pornography at the federal level in 2019 received sentences ranging from probation to 228 months even though they had the same sentencing guideline calculation with the same criminal histories and offense characteristics.
In other words, one federal judge imposed a sentence of probation for the same offense for which another federal judge ordered a 228-month sentence.
Federal sentencing in child pornography cases has dramatically increased over the past two decades—much of which can be attributed to the PROTECT Act of 2013, incorporated in Sentencing Guideline §2G2.2, which added six sentencing enhancements in child pornography cases.
The minimum guideline range in possession of child pornography cases increased from 29 months in 2005 to 138 months in 2019. Yet in 2019, less than one-third of the offenders received a sentence within the guideline range due to “downward departures” by federal judges who thought more lenient sentences were in order.
Put simply, some federal judges did not see child pornography offenders as a continuing public threat leading them to find “downward departures” in sentencing, while other federal judges chose harsh sentences in line with the widespread but unsubstantiated view that these offenders pose a continuing threat.
These disparities can be attributed to the Sentencing Commission itself.
In 2019, The Commission tracked 1,093 child pornography offenders released from prison or discharged from probation and found that only 4.3 percent (47 offenders) were rearrested for a sex offense within three years. Only 8.1 percent (88 offenders) did not register as sex offenders as required by law in their residing states. An additional 7.3 percent of offenders were arrested or had their term of supervised release revoked for failing to register as a sex offender.
Therein lies the disparity.
Sentencing disparity in child pornography cases, however, is not unique among the federal courts.
While a Hancock County, Maine judge imposed a nine-month jail sentence on a prominent local attorney—a sentence in keeping with similar cases in the county—a judge last year in Harris County, Texas imposed a 10-year prison sentence on a former local sheriff’s deputy for facts similar to the possession cases in Maine. The Texas judge could have imposed probation but elected to assess the maximum 10-year sentence as recommended by the Harris County District Attorney’s Office.
What is the difference between the two cases and the sentences the defendants received?
The same question can be asked about federal cases.
Why would one federal judge impose a sentence of probation and another federal judge a 228-month sentence for a similar offense?
Race of the offender, the economic status of the offender, and individual offense biases by judges all contribute to the far-reaching sentencing disparities in child pornography cases at both the state and federal levels.
The 2021 report concluded, “A central theme of the Commission’s 2012 Child Pornography Report remains true today: the sentencing enhancements in §2G2.2 have not kept pace with technological advancements…A more granular analysis revealed, however, significant sentencing disparities among similarly situated offenders as courts and the government contend with the outdated statutory and guideline structure. The analysis shows pervasive sentencing disparities not only between similarly situated offenders convicted of possession and offenders convicted of receipt, but also among similarly situated possession offenders as a distinct group and similarly situated receipt offenders as a distinct group. Charging practices, the resulting guideline ranges, and sentencing practices of judges all contributed to some degree to these disparities.”
The Federal Sentencing Guidelines were created in 1984 with the intended purpose of providing “certainty and fairness in meeting the purposes of sentencing by avoiding unwarranted disparity among offenders with similar characteristics convicted of similar criminal conduct, while permitting sufficient judicial flexibility to take into account relevant aggravating and mitigating factors.” Unfortunately, the Guidelines have become draconian, outdated, and rife with disparities. Judges often rely on them to avoid the hard work of assessing the individual defendant and the best interest of the community.
That is the fundamental unfairness in this particular sentencing scheme, in both state and federal court.