“Fundamentally Flawed?”

• Date: 01 May 2014
• Published date: 01 May 2014
• Author: Kimberly A. Kaiser,Cassia Spohn
• DOI: http://doi.org/10.1111/1745-9133.12082

RESEARCH ARTICLE

DOWNWARD DEPARTURES IN CHILD

PORNOGRAPHY SENTENCING

“Fundamentally Flawed?”

Exploring the Use of Policy Disagreements in Judicial

Downward Departures for Child Pornography Sentences

Kimberly A. Kaiser

Cassia Spohn

Arizona State University

Research Summary

Using U.S. Sentencing Commission data, this study assesses whether judicial downward

departures are more prevalent among child pornography offenders compared with a

matched sample of defendants convicted of other offenses. Additionally, we examine

reasons given by judges when departing from the guidelines for these offenders. We

found that child pornography defendants received significant reductions in sentences by

way of judicial downward departures.

Policy Implications

In 2007, the Supreme Court considerably altered the federal sentencing process. In

Kimbrough v. United States (2007), the Court held that judicial departures were

permissible on grounds of a policy disagreement. Many circuit courts have authorized

sentencing judges to depart from the guidelines in child pornography cases based on

such a policy disagreement. The findings of this study suggest that judicial downward

departures for these offenders cannot be explained by individual characteristics, such

as race, gender, or age, and may be indicative of a specific disagreement with this

particular sentencing policy. An examination of the reasonsprovided by judges supports

. The authors wish to thank Xia Wang and Kevin Wright for their helpful comments on previous drafts of

this article and Mario Cano for his insightful advice at the early stages of this project. Additionally, we

gratefully acknowledge the thoughtful comments and suggestions by Senior Editor Melissa Hamilton

and the anonymous reviewers. Direct correspondence to Kimberly A. Kaiser, 411 N. Central Ave., Suite

600, Phoenix, AZ 85004-0685 (e-mail: Kimberly.A.Kaiser@asu.edu).

DOI:10.1111/1745-9133.12082 C2014 American Society of Criminology 241

Criminology & Public Policy rVolume 13 rIssue 2

Research Article Child Pornography Sentencing

the hypothesis that judges may be attempting to remedy what they perceive as unjustly

harsh sentencing guidelines.

In 1984, Congress enacted the Sentencing Reform Act, which created the U.S. Sentencing

Commission (USSC) and authorized the Commission to develop and implement presump-

tive sentencing guidelines designed to achieve “honesty,”“uniformity,”and “proportionality”

in sentencing. The Act also abolished discretionary release on parole, stated that departures

from the guidelines would be permitted with written justification, and provided for ap-

pellate review of sentences to determine whether the guidelines were correctly applied or a

departure was reasonable.

Restructuring the federal sentencing process has not been without its challenges and

limitations, and a recent U.S. Supreme Court decision significantly altered the process by

requiring the guidelines to function in an advisory role (United States v. Booker, 2005).

Concomitantly, Congress has imposed directives that, some contend, abandon the true

objectives of the guidelines and may instead exploit public fear to inform sentencing policy

(Basbaum, 2010; Kimbrough v. United States, 2007). Critics also contend that congression-

ally enacted policies have led to controversial sentencing practices such as the crack- and

powder-cocaine disparity (Kautt and Spohn, 2002). This led the Supreme Court to rule,

in Kimbrough v. United States(2007), that sentencing judges are free to disregard these sen-

tencing guidelines if they believe that their application results in sentences for crack cocaine

offenses that are unreasonably severe. Three years later, the U.S. Court of Appeals for the

Second Circuit applied the reasoning established in Kimbrough to the child pornography

guidelines (United States v.Dorvee, 2010). The court noted that these guidelines require sen-

tence enhancements for most offenders and thus result in “unwarranted similarities among

sentences for defendants who have been found guilty of dissimilar conduct” (p. 187). The

court further stated that this inherent inconsistency with the principles underlying the sen-

tencing guidelines meant that “a district court may vary from the Guidelines range based

solely on a policy disagreement with the Guidelines, even where that disagreement applies

to a wide class of offenders or offenses” (p. 188). This decision has been followed by many

other circuit court opinions reiterating this position.1

The purpose of this article is to determine how often judges use their discretion to

depart from sentencing guidelines for child pornography offenses and to identify the reasons

for judicial downward departures in these cases. This article will be the one of the first to

review departures in child pornography cases empirically (see also Hamilton, 2014), which

are a newer group of offenses to have their guideline usefulness and appropriateness debated.

1.

United States v. Huffstatler

(7th Cir., 2009);

United States v. Dorvee

(2nd Cir., 2010);

United States v.

Grober

(3rd Cir., 2010);

United States v. Pape

(7th Cir., 2010);

United States v. Henderson

(9th Cir., 2011);

United States v. Garthus

(7th Cir., 2011);

United States v. Halliday

(7th Cir., 2012).

242 Criminology & Public Policy