Risk, Proportionality, and Sentencing

• Author: Paula S. Lannes,Matthew S. Crow
• DOI: 10.1177/0887403414526230
• Published date: 01 August 2015
• Date: 01 August 2015
• Subject Matter: Articles

Criminal Justice Policy Review

2015, Vol. 26(6) 575 –597

© 2014 SAGE Publications

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DOI: 10.1177/0887403414526230

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Article

Risk, Proportionality, and

Sentencing: Guideline

Circumvention in Federal

Child Pornography and Sexual

Abuse Cases

Matthew S. Crow1 and Paula S. Lannes2

Abstract

In response to increased fear and attention to the sexual victimization of children,

coupled with the proliferation of child pornography on the Internet, Congress

has increased the severity of federal sentencing guidelines for child pornography

offenses. Recently, federal judges have publicly questioned the appropriateness of

these guidelines, arguing that the guidelines do not properly reflect proportionality

with regard to the level of harm and risk posed by child pornography offenders.

Child pornography cases have the highest rates of guideline departure in the federal

court system. Within the legal versus democratic subcultural framework, this study

analyzes the factors influencing sentencing decisions in federal child pornography

and sexual abuse cases. Our primary focus is on the impact of differences between

guideline-generated sentencing recommendations compared with the sentences

outlined in the criminal statutes. We find that although a greater divergence between

the guidelines and statutes increases the likelihood and magnitude of downward

departures generally, this effect is more pronounced in child pornography cases. This

finding suggests that judges may face greater difficulty in synthesizing conflicting cues

from the legal and democratic subcultures in these types of cases.

Keywords

sentencing, sex offenders, sentencing policy, child pornography, judicial discretion

1University of West Florida, Pensacola, USA

2Indiana University of Pennsylvania, USA

Corresponding Author:

Matthew S. Crow, Department of Criminal Justice, University of West Florida, 11000 University

Parkway, Pensacola, FL 32514, USA.

Email: mcrow@uwf.edu

526230CJPXXX10.1177/0887403414526230Criminal Justice Policy ReviewCrow and Lannes

research-article2014

576 Criminal Justice Policy Review 26(6)

Introduction

Cases involving the sexual abuse or molestation of children and those involving child

pornography garner overwhelming interest from the public, media, lawmakers, and

the criminal justice system. Sex offenders, particularly those who victimize children,

are often depicted as among the greatest threats to public safety and morality. Although

the seriousness of these crimes is generally recognized, the interest in and attention to

child sex offending has been described by some scholars as moral panic (Fox, 2013;

Jenkins, 1998; Zgoba, 2004; see Leon, 2011, for an alternative view), resulting in a

focus and reaction to child sex offenses that are overly punitive and disproportionate

to their impact on society. Not surprisingly, the past several decades have witnessed

an abundance of new legislation and policies in the form of sex offender registration,

notification laws, and increased penalties aimed at reducing the risk posed by sex

offenders and applying retributive philosophies of punishment to their crimes. Simon

(1998) argues that “the new generation of sex offender laws represents a shift toward

the new penology combined with a strong appeal to populist punitiveness” (p. 456). In

other words, the criminal justice response to child sex offenders is heavily focused on

both risk management and harsh punishment in an effort to satisfy society’s demand

for both safety and retribution. In response, Congress has enacted federal sentencing

guidelines and enhancements for child sex-related crimes that continue to increase in

punitiveness. One of the most controversial aspects of the federal response to the

growing fear of and attention to these types of crimes is the federal child pornography

sentencing guidelines. Originally promulgated in 1987, the federal child pornography

guidelines have been revised nine times subsequent to their enactment, resulting in

increasingly punitive penalties for offenses related to child pornography (United States

Sentencing Commission [USSC], 2009).

Among sex offenses, child pornography offenses pose a particularly compelling

problem within the justice system. Offenses involving child pornography have

received a considerable amount of attention in the last two decades, stimulating

increased criminal justice and public awareness and response to these crimes (Adler,

2001; Eke, Seto, & Williams, 2011). Although child pornography offenses involving

possession or distribution (non-production offenses) are distinguishable from sexual

contact with children, there is a general belief among the public that the use of child

pornography directly causes one to engage in contact sexual offenses (Hamilton, 2011;

Henzey, 2011; Jenkins, 2001; Quayle & Taylor, 2003). Thus, perhaps one aspect of

this intensified reaction toward child pornography is policy maker and public fear and

belief that offenders who view or possess child pornography will physically threaten

children (Hamilton, 2011). In other words, the courts and Congress tend to view child

pornography as directly related to “contact” child sexual abuse (Adler, 2001) and have

reacted to this perceived link by increasing penalties for non-production offenses. This

reaction has occurred despite the nuanced and inconsistent link between non-production

child pornography offending and contact sexual offending demonstrated in the schol-

arly literature addressing the issue (Jenkins, 2001; Seto, Cantor, & Blanchard, 2006;

Seto, Hanson, & Babchishin, 2011; USSC, 2012; Wolak, Finkelhor, & Mitchell,