The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?
University of Houston Law Center
June 5, 2011
Stanford Law & Policy Review, Vol. 22, No. 2, p. 545, 2011
The federal sentencing guidelines for child pornography offenses are the subject of current debate among the leading institutions responsible for sentencing. During the last two decades, Congress has broadened the scope of child pornography laws and increased minimum and maximum statutory sentences. Congress has also uniquely intruded upon the United States Sentencing Commission’s normal institutional role by forcing higher sentencing ranges recommended by the sentencing guidelines. A divided federal judiciary has played another role in the debate. While many judges are using their recently awarded discretion to reduce child pornography sentences, often far below guidelines ranges, another group of judges adhere to the harsher guidelines in sentencing. The result of the foregoing has been significant disparities in sentencing, which undermine the foundational goals of proportionality and fairness.
As a result of a moral panic about sexual abuse involving children, severe sentencing proponents fundamentally appear to use child pornography offenses as a proxy to punishing undetected child molestation. The theory underlying the proxy approach is that child pornography is a causative or correlative factor for contact sex offending against children. This paper addresses the debate with various analyses. It reviews Congress’ ongoing interventions into child pornography sentencing and summarizes recent developments in the trend toward rising guidelines ranges. Disparities in final sentences are observed in a comprehensive review of case law showing the division of opinion in the federal judiciary and deriving judicial rationales for either downward variances from or adhering to the strict child pornography guidelines ranges. The efficacy of the proxy approach is challenged through a substantive review of the empirical evidence concerning any nexus between child pornography and child sexual abuse. Overall, the studies fail to support any causative connection and generally find a relative few studies that show weak support for any direct correlation. Rather, the evidence generally indicates that child pornography offenders and child molesters are not synonymous groupings. This paper illustrates that sentencing policy would be better served if the interested parties rationally assessed the social science evidence indicating that most child pornography offenders fail to pose a substantial risk of contact offending against children and, thereby, substantively reconfigure the sentencing guidelines accordingly.
Number of Pages in PDF File: 42
Keywords: sentencing, child pornography, law & society, law & psychology
JEL Classification: K14
Date posted: October 11, 2010 ; Last revised: July 27, 2011