A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led to Disparity and Unpredictability in Federal Sentencings for Child Pornography

• Publication year: 2010
• Citation: Vol. 33 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 33, No. 4SUMMER 2010

A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child Pornography

Loren Rigsby (fn*)

I. Introduction

In the past decade, possession of child pornography has been recognized as one of the most serious federal crimes.(fn1) In an effort to close the thriving Internet market for obscene depictions of children, Congress has proscribed a base-level sentencing range of twenty-seven to thirty-three months in federal prison for defendants convicted of child pornography offenses.(fn2) This sentencing range can increase drastically based on a multitude of often-applicable sentencing enhancements.(fn3)

Similarly, the United States Sentencing Commission (USSC) has made child pornography related crimes among the most harshly punishable federal offenses.(fn4) Nevertheless, sentencing judges have regained the right to depart from the recommended Federal Sentencing Guidelines (Guidelines), and have done so with increasing frequency for these offenses.(fn5) Child pornography sentences have thus functioned as the equivalent of a lightning strike; the congressionally mandated harsh sentences strike some defendants but miss many others. The cases discussed below illustrate the disparate results that characterize federal sentencings for child pornography offenses.

In July 2006, an investigation in Europe uncovered an Internet bulletin board called "Funny World," which was designed to facilitate the exchange of child pornography.(fn6) The board was shut down soon after, but not before, law enforcement agents recovered numerous screen captures of Internet provider (IP) addresses belonging to users of the data-base.(fn7) One of these IP addresses was traced back to Ralph Rausch, a forty-nine-year-old divorced ex-Air Force Sergeant with three children, who lived in Colorado.(fn8)

Upon searching Rausch's home, federal agents uncovered several thousand images and videos depicting what was described as explicit, "hard-core" child pornography.(fn9) Further inquiry into "Funny World" revealed that Rausch had made over one hundred postings to the group in the span of less than three months.(fn10) The postings varied from those sharing photos of young children in sexually explicit positions to comments about Rausch's own sexual excitement while viewing the images to other users' requests for child pornography material.(fn11) Rausch admitted that looking at child pornography had been a "hobby" for him since 2000 and that he had visited several other Internet bulletin boards where he would trade and share up to 100 child pornography images a night with other users.(fn12)

Rausch pled guilty in federal district court to one count of possession of child pornography.(fn13) His advisory Guideline range was 97-120 months in federal prison.(fn14) He was sentenced to one day in prison, with credit for time served, and supervised release.(fn15) The sentencing judge in Rausch found the defendant's poor physical health to be the biggest mitigating factor justifying his exceptionally low sentence.(fn16)

Less than two months after the Rausch decision, the Eighth Circuit Court of Appeals had occasion to review a similar case.(fn17) The defendant, Orville Toothman, had pled guilty to one count of possession of child pornography(fn18) and had the same advisory sentencing range as Rausch: 97-121 months.(fn19) Toothman sought the mandatory minimum sentence of sixty months due in large part to his poor health.(fn20) He was completely blind in one eye, legally blind in the other, and suffered from hypertension, high blood pressure, diabetes, and low blood sugar. Additionally, Toothman was at high risk of needing an emergency retina-repair surgery that could not be performed in a timely manner if he were incarcerated.(fn21) Toothman's treating ophthalmologist testified at his sentencing hearing that Toothman would be completely blind in both eyes in three years and would be unable to defend himself in a prison setting.(fn22) The Court of Appeals upheld the district court judge's sentence of ninety-seven months in prison.(fn23)

These widely disparate sentences for very similar crimes are an unfortunate, and alarmingly frequent, side effect of judicial uncertainty in imposing sentences. Recent years have seen a marked increase in federal prosecutions for the crimes of distribution, production, and possession of child pornography,(fn24) and as a result of the Guidelines being only advi-sory,(fn25) judges are afforded a great deal of discretion in imposing sentences. This broad discretion has led to widely disparate sentences for similarly situated defendants such as Rausch and Toothman, who served one day and ninety-seven months, respectively, for the same offense. This outcome is contrary to the very purpose for which the Guidelines were imposed in the first place-to achieve fairness and proportionality among defendants convicted of similar crimes.(fn26) Judges exercise their discretion in imposing below-Guideline sentences for the crime of child pornography to circumvent the Guidelines completely and substitute their personal opinion for that of Congress and the Sentencing Commission.

The Guideline range for child pornography reflects sound and clear congressional intent to impose harsh penalties on defendants to deter, and ultimately eliminate, the market for child pornography. For this reason, this Comment argues that sentences that fall outside the Guidelines range should be reviewed with much greater scrutiny and should not be used solely to reflect a judge's view that the advised sentence is too harsh for the crime it serves to punish. Specifically, below-Guideline sentences are being imposed with greater frequency because judges fail to consider all appropriate factors-namely, the nature of the offense, the purpose of punishment, and the need to avoid unwarranted sentencing disparities among defendants convicted of similar crimes.

Part II of this Comment examines the history of the Federal Sentencing Guidelines, starting with their creation and then the jurisprudence that led to the Guidelines being advisory only. It also tracks the simultaneous legislative and Department of Justice (DOJ) measures that were implemented to impose harsher penalties for child pornography. Part III discusses the current state of sentencing for child pornography by looking at trends over the past decade in a number of prosecutions, the class of defendant that is being prosecuted, and the types of sentences being imposed. It also looks at recent cases in different circuits and examines how judges have been exercising their broad discretion in imposing sentences. Part IV considers arguments that the Guideline levels for child pornography offenses are too high, and posits that these arguments are unpersuasive because child pornography offenses should not be viewed merely as propensity crimes, but as the deliberate and repeated victimization of a child. Additionally, it considers the class of defendants charged with child pornography offenses and argues that such offenses pose a particular challenge to judges because they are demographically atypical. Part V proposes how judges should consider the 18 U.S.C. § 3553(a) sentencing factors in regard to these crimes so that greater predictability in sentencing is once again achieved.

II. Judicial and Legislative History of the Federal Sentencing Guidelines and Child Pornography Law

The current sentencing structure affords federal district judges significant discretion in imposing sentences for all federal offenses.(fn27) Although Congress has frequently attempted to limit the sentencing discretion of judges through legislative enactment, successful constitutional challenges to mandatory sentencing have restored the historical role of judges in choosing from a wide range of sentencing options.(fn28)

This Part briefly summarizes the legal and historical background that has given rise to the current system of federal sentencing. First, it discusses the USSC's creation of the Guidelines. Second, it considers the congressional limit placed on judicial discretion through the PROTECT Act. Third, it discusses the landmark Supreme Court decision of United States v. Booker , which rendered the Guidelines advisory only. Finally, it analyzes the string of post-Booker Supreme Court decisions that further define the role of the advisory Guidelines and the ways in which reviewing courts must consider a sentence that deviates from the Guidelines.

A. The Shift from Judicial Discretion to Mandatory Guidelines

Prior to 1984, the U.S. had a long history of indeterminate sentencing in federal criminal matters.(fn29) Although Congress prescribed statutory maximum penalties, a great deal of judicial discretion was afforded to the sentencing judge.(fn30) This broad discretion had the adverse effect of creating unpredictable sentencing disparities among defendants convicted of similar crimes.(fn31) To achieve fairer and more consistent sentences, Congress passed the Sentencing Reform Act of 1984 (SRA),(fn32) which established a statutory framework for federal sentencing.(fn33)

Among other things, the SRA created the USSC, an independent commission of the Judicial Branch in charge of creating sentencing guidelines that would be mandatory for all courts.(fn34) The Guidelines yielded a sentencing...