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Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts

26 Pages Posted: 19 Aug 2009 Last revised: 7 Jun 2010

Jesse P. Basbaum

affiliation not provided to SSRN

Date Written: August 19, 2009

Abstract

This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography. In this Note, I argue that the Sentencing Commission should amend the guidelines for possession of child pornography because empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children. Moreover, the guidelines fail to consider the nature of internet downloading, and thus most of the “enhancements” are actually a core facet of basic possession. Numerous federal district courts have taken note of these deficiencies and have sentenced defendants below the applicable guideline ranges.

Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical support, most courts still rely heavily on the guidelines to impose lengthy sentences. Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, as well as the realities of internet use.

Keywords: child pornography, possession, sentencing, section 2G2.2, moral panic, cross-over

Suggested Citation

Basbaum, Jesse P., Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts (August 19, 2009). Hastings Law Journal, Vol. 61, p. 1281, May 2010. Available at SSRN: https://ssrn.com/abstract=1457197

Jesse P. Basbaum (Contact Author)

affiliation not provided to SSRN

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