A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines.

• Author: Newton, Brent E.

Abstract

The current sentencing guideline for non-production child-pornography offenses is fundamentally broken, as evidenced by the fact that only 28.4% of defendants sentenced under U.S. Sentencing Guidelines section 2G2.2 receive within-range sentences and 69.1% of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program). The vast majority of child-pornography defendants receive downward variances from their guideline ranges based on sentencing judges' subjective senses of what appropriate sentences should be. Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist--in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission. Therefore, this Article sets forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional author-ization. If the Commission does not amend the guideline, then this proposal provides a detailed roadmap for federal district judges to "vary" from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

CONTENTS INTRODUCTION I. THE EVOLUTION OF THE CHILD PORNOGRAPHY STATUTES AND GUIDELINES A. The Rapid Ascent of the Criminalization of Child Pornography Offenses B. The Evolution of Section 2G2.2 II. THE (MANY) PROBLEMS WITH SECTION 2G2.2 III. A PARTIAL (BUT MEANINGFUL) SOLUTION TO THE PROBLEMS A. Proposed Amendment B. Section-by-Section Explanation of Proposed Amendment 1. Base Offense Levels 2. Amended Specific Offense Characteristics i. New Section 2G2.2(b)(1) ii. New Section 2G2.2(b)(2) 3. Examples of How the Amended Guideline Would Work in Practice 4. One Additional Proposed Fix: A Change in the Recommended Lifetime Term of Supervised Release in USSG [section] 5D1.2(b) CONCLUSION INTRODUCTION

Except for the criminal penalties for crack cocaine offenses, (1) no specific federal non-capital-penalty structure has been more widely criticized than U.S. Sentencing Guidelines ("USSG") [section] 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. [section][section] 2252 and 2252A. (2) Together, those provisions govern penalties for child pornography offenses other than those involving the actual production of child pornography (henceforth, "non-production offenses"). (3) Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012, Federal Child Pornography Offenses, (4) contained a compelling case for changing both the guideline and, to a lesser degree, the statutes. The Second Circuit has interpreted the Commission's report as "effectively disavow[ing] [section] 2G2.2." (5)

The best solution to the problems with section 2G2.2 would be to completely scrap the current guideline and rewrite it from scratch. Yet such a wholesale revision by the Commission would require congressional authorization in view of the number of prior statutory directives mandating that the Commission amend section 2G2.2 in many ways. As I discuss below, Congress appears unwilling to allow the Commission to completely rewrite the guideline. However, as I also explain, there is a partial--and quite significant--fix available without congressional permission. That partial fix could be best accomplished by the Sentencing Commission via an amendment to section 2G2.2. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to "vary" from the current broken guideline, pursuant to their authority under United States v. Booker (6) and Kimbrough v. United States. (7)

1. THE EVOLUTION OF THE CHILD PORNOGRAPHY STATUTES AND GUIDELINES

   1. The Rapid Ascent of the Criminalization of Child Pornography Offenses

      The criminalization of child pornography offenses is a relatively recent occurrence in the history of American criminal justice. It was not until 1977 that federal law first addressed it by outlawing the production and commercial distribution and receipt of child pornography; but the law did not criminalize non-commercial distribution, receipt, and possession of child pornography until several years later. (8) Yet, despite its belated action in outlawing child pornography, Congress very quickly came to consider such offenses to be among the most serious in the federal system.

      Repeated amendments to the statutory provisions and repeated congressional directives to the Sentencing Commission to amend section 2G2.2, from 1990 until 2012, (9) have resulted in some of the most severe federal non-capital penalties--for typical cases--among all common offense types. (10) Today, the average prison sentence for offenders convicted of non-production child pornography offenses is 101 months (or nearly 8-and-one-half years). (11) Notably, that average sentence is noticeably below the average guideline range minimum--139 months--called for by section 2G2.2. (12) As an indication of the relative severity of child pornography penalties among all federal offense types, their average sentence and guideline minimums are higher than the corresponding averages for federal drug-trafficking offenses serious enough to carry mandatory minimum statutory penalties. (13) Furthermore, the averages for those drug-trafficking offenders reflect much higher average criminal histories than those for child pornography offenders--meaning the actual penalty levels for child pornography offenders are actually significantly higher than those for comparable drug-trafficking offenders. (14)

      The comparison to federal drug-trafficking offenses is not intended to diminish the seriousness of federal non-production offenses. They are, generally speaking, serious offenses that almost always warrant imprisonment. Yet there is a wide spectrum of non-production offenses: from the indiscriminate downloading of digital files used solely for self-gratification, (15) to the active trading of files in sophisticated child pornography online "communities," (16) to the use of child pornography to "groom" children into participating in sexually-explicit activities, or even to facilitate rape. (17) As discussed below, the current penalty scheme does a woefully inadequate job of distinguishing among child pornography offenders in terms of their culpability and dangerousness. The current guideline, in particular, treats the overwhelming majority of offenders as if they are the worst offenders on the spectrum. And, for that reason, federal district judges today sentence below the guideline ranges in the vast majority of cases.

   2. THE EVOLUTION OF SECTION 2G2.2

      Section 2G2.2 has evolved from a simple guideline, carrying very low penalty ranges in the original 1987 Guidelines Manual, (18) to the current complex guideline, carrying severe penalty ranges. The current guideline, which has changed relatively little since 2003, is set forth below:

      Section 2G2.2 [current version] (19) (a) Base Offense Level: (1) 18, if the defendant is convicted of 18 U.S.C. [section] 1466A(b), [section] 2252(a)(4), [section] 2252A(a) (5), or [section] 2252A(a) (7). (2) 22, otherwise (b) Specific Offense Characteristics (1) If (A) subsection (a)(2) applies; (B) the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels. (2) If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels. (3) (Apply the greatest): (A) If the offense involved distribution for pecuniary gain, increase by the number of levels from the table in [section]2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels. (B) If the defendant distributed in exchange for any valuable consideration, but not for pecuniary gain, increase by 5 levels. (C) If the offense involved distribution to a minor, increase by 5 levels. (D) If the offense involved distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels. (E) If the offense involved distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels. (F) If the defendant knowingly engaged in distribution, other than distribution described in subdivisions (A) through (E), increase by 2 levels. (4) If the offense involved material that, portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler, increase by 4 levels. (5) If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels. (6) If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels. (7) If the offense involved-- (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150...