Sentencing Adjudication: Lessons from Child Pornography Policy Nullification

• Publication year: 2013

Sentencing Adjudication: Lessons from Child Pornography Policy Nullification

Melissa Hamilton

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SENTENCING ADJUDICATION: LESSONS FROM CHILD PORNOGRAPHY POLICY NULLIFICATION

Melissa Hamilton^*

Table of Contents

Introduction.................................................................................376

I. Sentencing Basics....................................................................380

II. Discourses on a Troublesome Guideline............................384

A. Public Discourses..............................................................385
B. Judicial Policy Discourses.................................................391

1. Rationales.....................................................................392

a. Not Empirical.........................................................392
b. Congressional Influence.........................................395
c. Severity of Recommended Sentences......................397
d. Unwarranted Similarity..........................................402
e. Unwarranted Disparities........................................403
f. Comparisons to Other Crimes.................................405

2. Methods of Policy Rejections.......................................407

III. The Constitutionality of a Policy Rejection..................409

A. Anatomy of a Circuit Court Split.......................................410

1. Accepting Policy Rejection...........................................410
2. Repudiating Policy Rejection.......................................421
3. Neutral..........................................................................428

B. The Authority for Policy Nullification...............................432

1. Is Kimbrough Restricted to Crack Cocaine?...............434
2. Does Kimbrough Permit Rejecting Congressional Policy?..........................................................................435
3. Should Courts Reject the Child Pornography Guideline?....................................................................441

IV. Statistical Perspectives......................................................443

A. Bivariate Measures............................................................443
B. Multivariate Results...........................................................453

Conclusions...................................................................................459

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Introduction

Federal sentencing is facing a crisis—and it is not for the usual reasons, i.e., the severity of drug sentences and racial disparities. Instead, there is a raging public debate about sentencing for the crime of child pornography. Child pornography is virtually the new crack cocaine in the sentencing world.¹ Judges, congressmen, academics, and the media are loudly and heatedly arguing about the status of child pornography sentencing for novel reasons, though the central issues are familiar: severity and disparity.

One may wonder how we got to this point. Twenty-five years ago, federal sentencing moved from an indeterminate sentencing system regime to a guidelines-based system operating under the auspices of the newly created United States Sentencing Commission (the Commission).² The benefit of guidelines is their normative value, which can foster certainty, fairness, and national uniformity.³ Congress tried to reach those goals by making the guidelines mandatory on the federal judiciary.⁴ Yet two lodestar decisions from the United States Supreme Court are at the core of current legal and policy debates. In United States v. Booker in 2005, the Court rendered the federal guidelines merely advisory, permitting sentencing judges to vary from guidelines' recommendations based on the individual characteristics of the defendant or the circumstances of the offense.⁵ Then in Kimbrough v. United States in 2007, the Court, in a case involving crack cocaine trafficking, extended discretion to permit a categorical rejection to a guideline for policy reasons, even if the rejection applies to a whole class of offenders.⁶ Many judges have interpreted Kimbrough as not being limited to crack cocaine and have applied its rationale to reject

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guidelines for other offenses, including the child pornography guideline.⁷ But there is disagreement on this issue, and a circuit split has developed as to whether judges can lawfully disregard the child pornography guideline based on policy differences.

The Booker/Kimbrough combination has resulted in an increasing rate of variances from guidelines-recommended sentences overall, but the level of dissension is at its zenith with child pornography crimes. As in any debate, there are two sides. On one side are critics who contend that the child pornography guideline suffers many fundamental flaws, such as the lack of any empirical foundation, the failure to represent the Commission's institutional judgment, and disproportionality.⁸ Because of these flaws, many judges are rejecting the child pornography guideline on policy grounds, arguing that it produces sentencing ranges that fail to distinguish between more and less culpable offenders and generally are reasonable only for the most heinous sexual predators.⁹ On the other side are those who believe that child pornography offending is an extremely serious crime because children are necessarily being sexually exploited by the production and viewing of the material and, as a result, the guidelines' tendency toward very long sentences is justified.¹⁰ They contend an important reason that the guideline does not entirely represent the Commission's independent work is that Congress has expressly directed certain of the child pornography guidelines' contents.¹¹ Such action by Congress is entirely appropriate, it is argued, because Congress is representative of the people, it can better assess systemic needs for punishment, and it properly holds ultimate authority over sentencing judgments.¹²

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The Commission appears frustrated with both Congress and the federal judiciary.¹³ Child pornography has emerged, in metaphorical terms, as the Commission's Achilles' heel. In a lengthy, formal report to Congress on the state of affairs post-Booker, the Commission recently singled out child pornography as the leading source of controversy and nonuniformity in federal sentencing.¹⁴ At the same time, as Congress continues to dictate longer sentences for child pornography crimes, district judges are increasingly varying below-guideline recommendations.¹⁵ In fiscal year 2012, almost one-third of child pornography sentences were within-guideline range while more than half were below-range,¹⁶ a situation unique to this category of federal crime.¹⁷ The Commission bemoans this situation, worrying the influence of this particular guideline has become too attenuated.¹⁸ In its report to Congress, the Commission also expressed significant concern about intercircuit disparities, observing that circuit courts are reaching different outcomes for similarly situated child pornography defendants.¹⁹

The issues raised herein are not limited to the child pornography context. Rather, the rhetoric and drama underlying policy and constitutional debates about this crime make it distinctly suited as an avenue to address larger questions.²⁰ These debates underscore that

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three strong institutions are waged in a sort of war, each vying for dominant power in sentencing federal offenders. The situation also offers rich perspectives on the adjudication of sentencing policy, including policy nullification, and the potential relevance of empirical study.

The Article proceeds as follows. Section I outlines basic principles underlying the operation of modern federal sentencing.²¹ Section II explores how the debate has engaged public discourses in Congress, the federal judiciary, legal publications, and the media.²² It also reviews discourses from district judges on the reasons the child pornography guideline is fundamentally flawed.²³ Section III fleshes out a circuit split on the issue of whether, as a matter of law, district judges may reject the child pornography guideline for policy-based reasons.²⁴ Section III also theorizes the best answer to this issue.²⁵ In sum, it submits that the child pornography guideline is, indeed, flawed and that not only is a policy rejection reasonable, but also precluding district judges from rejecting it would be unconstitutional.²⁶ Section IV provides statistical analyses based on the Commission's fiscal year 2011 datasets.²⁷ It provides information to explain the length of sentences as well as sentencing variations.²⁸ The Section also addresses implications from the circuit split for inconsistent sentencing outcomes.²⁹ The Article ends with a series of conclusions.³⁰

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I. Sentencing Basics

For most of the twentieth century, federal sentencing was an indeterminate system in which district judges were primarily responsible for determining punishment for convicted defendants.³¹ Indeterminate sentencing, though, yielded great diversity in sentences across the country for similarly situated offenders.³² A concerned Congress responded by enacting the Sentencing Reform Act of 1984, establishing the United States Sentencing Commission.³³ Congress charged the Commission with promulgating presumptive sentence guidelines.³⁴ Commission-instituted guidelines were binding on the courts, though a judge was granted limited discretion to depart if there was an aggravating or mitigating factor in the case that the Commission had not adequately considered when formulating the guidelines.³⁵ At the same time, Congress outlined certain factors that should be considered in determining a reasonable sentence for a convicted defendant.³⁶ These factors, codified at 18 U.S.C. § 3553(a), include the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed considering the seriousness of the offense, retribution, deterrence...