Sentencing Policy Disputes

• Author: Melissa Hamilton
• DOI: http://doi.org/10.1111/1745-9133.12091
• Date: 01 May 2014
• Published date: 01 May 2014

EDITORIAL INTRODUCTION

DOWNWARD DEPARTURES IN CHILD

PORNOGRAPHY SENTENCING

Sentencing Policy Disputes

Melissa Hamilton

University of Houston Law Center

Last year, Blomberg, Mestre,and Mann (2013) in Criminolog y & PublicPolicy called

on criminologists to embolden themselves to offer the best empirical research to

inform public policy discussions concerning criminal justice issues, even if their

research cannot show causality. The main research article in this segment represents a

wonderful example of such a contribution. Kaiser and Spohn’s (2014, this issue) research

directly confronts an area of criminal justice in current turmoil because of doctrinal and

moral policy disputes. The realm is the federal sentencing system. Created by Congress

in the Sentencing Reform Act of 1984, the U.S. Sentencing Commission was tasked with

the responsibility of establishing presumptive sentencing guidelines to direct sentencing

judges in determining a reasonable sentence. A goal of the reform legislation was to foster

consistency in sentencing practices and thereby reduce unwarranted disparities. Yet the

U.S. Supreme Court untethered the presumptive sentencing guideline regime in the case

of United States v. Booker in 2005 when it remedied a constitutional errorit found plagued

the guideline structure by rendering the guideline system advisory in nature. Federal dis-

trict judges were given further leeway when the Supreme Court in Kimbrough v. United

States (2007) ruled the judiciar y could rejectguideline recommendations based on a policy

disagreement. Tension has existed ever since these rulings in terms of a power struggle for

determining reasonable punishments, spawning discussions and debates among researchers,

academics, practitioners, and policy makers about how to repair the discord and, perhaps

more importantly, meliorate policies.

Kaiser and Spohn (2014) investigate the reasons that federal district judges are using

discretionary downward departures at a rate of 46.2% (as of fiscal 2013) for nonproduc-

tion child pornography sentences (U.S. Sentencing Commission, 2013). This percentage is

higher than the downward departure rate for any other category of crime except one (civil

rights). Clearly something is amiss when judges dismiss guidelines’ recommendations in so

Direct correspondence to Melissa Hamilton, University of Houston Law Center, 100 Law Center, Houston, TX

77204 (e-mail: mhamilt4@central.uh.edu).

DOI:10.1111/1745-9133.12091 C2014 American Society of Criminology 237

Criminology & Public Policy rVolume 13 rIssue 2