The efficacy of severe child pornography sentencing: empirical validity or political rhetoric?

• Author: Hamilton, Melissa

1. INTRODUCTION

   Congress's appetite for expanding the scope of child pornography laws and increasing the length of prison sentences for child pornography offenders endures, despite other officials involved in federal sentencing questioning the necessity and proportionality of severe sentences. While members of Congress ascribe various general harms to the existence of child pornography, it appears as though the real impetus behind Congress's harsh stance is an underlying presumption that child pornography offenders are really undetected child molesters, a particularly scorned group. (1) Congress has repeatedly forced increases in the federal sentencing guidelines using unconventional means for child pornography offenses, notwithstanding opposition from the United States Sentencing Commission. The polarity of opinion concerning the risk that child pornography offenders pose to other children is now evident. Despite strong Congressional belief, a growing number of federal judges instead view most offenders who possess or trade child pornography as mostly harmless to others. The following description is illustrative of the perception of many federal judges: "[w]e have had quite a number of people that are very similarly situated to [defendant], successful, hard working, family people that get caught up in this." (2) Indeed, a recent survey by the Sentencing Commission showed that around seventy percent of federal judges consider the sentencing guidelines too severe for child pornography possession and receipt cases. (3) With their recent Supreme Court-awarded discretion in sentencing, a number of federal judges began to use this discretion to reduce child pornography sentences, in many cases far below sentencing guideline ranges. In part, the reduction in sentences in many cases represents a growing movement among federal judges who dispute Congressional fears that child pornographers are also molesters. Members of Congress have, in turn, sternly criticized the practice of sentencing to lesser terms than Congress intended. (4) This Article, in part, provides a substantial review of the social science literature to reform as to whether the potential link to child molestation is supported.

   The issue is important to the operation of the federal criminal justice system. With the explosion of the Internet, the relative ease with which one can find and distribute child pornography, and the corresponding focus of federal investigators on finding child pornography offenders online, the prison population of child pornographers will inevitably rise. (5) Though child pornographers do not deserve much sympathy, if they are subjected to longer prison sentences than necessary for the purposes of public safety, public monies and resources expended upon incarceration are wasted. In addition, if sentences are disproportionately severe to the crime committed, notions of fairness and justice are compromised. Admittedly, not all child pornography offenders are alike in terms of the harm they pose, and children can suffer greatly in the production of many images. Yet current sentencing guidelines are often oblivious to the differences. As an example, under the current scheme, a middle-aged male who receives a photograph of a prepubescent girl actually being sodomized by an adult man would be assigned the same base offense level for sentencing as would an 18-year-old who engages in sexting by using a computer to send a same-aged friend a consensually taken, nude photo of a 17-year-old girlfriend. (6) With no criminal history, the sentencing range for that offense level would exceed five years (specifically 63-78 months) for each of them. (7)

   The battle among Congress, the United States Sentencing Commission, and the federal judiciary over child pornography sentencing continues. The Commission has taken notice of the judiciary's complaints, publicly confirming in 2010 its intent to review the empirical evidence concerning harms caused by child pornography offenders and to reconsider the child pornography guidelines. (8) On the other hand, Congress proposed legislation in 2009 that would have further lengthened prison sentences for child pornography offenses beyond current guidelines. (9) In the meantime, strife exists in the federal judiciary, where many judges are rejecting the severe sentencing guidelines' approach and instead materially reducing final sentences while a substantial number of federal judges continue to adhere to the guidelines-calculated ranges. (10) Significant disparities in sentencing are the result of the battle, (11) undermining the foundational goals for sentencing of each of these institutions.

   This Article addresses the debate, proceeding in the following format. Part II contains a summary history of Congress's journey in expanding the scope of child pornography laws, and the tussle between Congress and the Sentencing Commission on the length of guideline sentences. It also describes the current framework for federal child pornography sentencing. Part Ill reviews the frequent and polarizing issues that emerge from a comprehensive review of federal case law regarding sentencing child pornography offenders. Part IV parses the empirical literature to assess the commonly perceived correlation between child pornography and child molestation. A brief conclusion follows in Part V.

2. THE LEGAL JOURNEY TO PUNITIVE SENTENCING FOR CHILD PORNOGRAPHY

   The increasingly punitive stance by Congress toward child pornography offenders is primarily the result of a moral panic about the sexual exploitation of children. (12) The moral panic derives from the alluring influence of the combination of sex and violence, with the media and public officials feeding off the public frenzy triggered by high profile, though rare, cases of child abductors who commit heinous acts of sexual violence against children. (13) I contend that those who seek harsh sentencing for child pornography are really using a child pornography charge as a proxy for punishing child molestation. (14) Those who support the proxy approach view child pornography as being so highly correlative with molestation that the offenses deserve almost equivalent sentences. (15) Others more specifically conceptualize child pornography as being a causative factor in sexual assault by fueling the viewer's sexual desire for children (16) and serving as a tool to groom children for sexual escapades. (17) The proxy perspective is akin to penalizing certain behavior at a greater severity level than it deserves because the behavior creates a high risk the offender will commit other, more serious crimes. The analogy is to inchoate offenses, such as conspiracy and solicitation, which constitute crimes because of the increased risk that the target offenses will be completed. (18)

   Traditionally, child pornography was prosecuted by states. (19) The federal role in investigating and prosecuting child pornography offenses accelerated with the proliferation of the Internet and the resulting jurisdictional reach of the federal government by virtue of the necessary use of interstate commerce in internet-based offending. (20) Today, federal criminal justice forces are heavily involved in investigating and prosecuting child pornography crimes, and recent legislation has affirmatively encouraged and substantially increased resources and funding for these efforts in the future. (21) To better understand the federal government's role in this area and the presumption of pornographers as molesters, a summary of the implementation and progression of both Congress's expansion of child pornography laws and lengthening of sentences may be useful.

   1. Federal Child Pornography Laws

      Congress has expanded federal anti-pornography laws over time through various, incremental initiatives. Congress's power has not gone unchecked, though, as the Supreme Court has on occasion considered the constitutionality of certain laws on free speech grounds. (22) In any event, the names of the statutes are highlighted herein as indicative of the moral panic about sexual harm to children that is at the heart of the expanding scope and severity of the criminalization process. The moniker given to statutes also advances the contention that child pornography laws operate as a proxy for punishing child molesters. An abridged version of the history of federal child pornography laws that follows spans the last four decades.

      Federal child pornography law largely began in the 1970s based on growing public concern about the sexual exploitation of children. (23) Concluding that child pornography had become a national problem that harmed children and society, Congress passed the Protection of Children Against Sexual Exploitation Act of 1977. (24) Because officials believed child pornography was funded and operated by highly organized and wealthy groups, this legislation targeted the commercial production of visual and print depictions of obscenity involving minors. (25) The age for a minor under this initial statute was sixteen. (26) At the time, lawmakers apparently assumed that Congress could only outlaw depictions amounting to obscenity because of the Supreme Court's ruling in Miller v. California. In Miller, the Court differentiated pornography, which enjoyed First Amendment protection, from obscenity, which, it ruled, did not. (27) The definition of the latter remains intact: an item is obscene it, taken as a whole, it appeals to the prurient interest of the average person, is patently offensive, and contains no serious literary, artistic, political, or scientific value. (28)

      Whether the Miller standard applied to material with children in sexually explicit scenes was later the subject of New York v. Ferber. (29) In Ferber, the Supreme Court refused to apply the Miller obscenity standard to a state's child pornography law, ruling that child pornography did not deserve First Amendment protection, regardless of whether...