Post-Booker Leniency in Child Pornography Sentencing
Carissa Byrne Hessick
University of North Carolina (UNC) at Chapel Hill - School of Law
October 21, 2011
Federal Sentencing Reporter, Vol. 24, No. 2, December 2011
University of Utah College of Law Research Paper No. 36
As a number of commentators and courts have noted, the Guideline sentences for possession of child pornography are quite harsh. A number of district courts have used their post-Booker discretion to impose below-Guideline sentences on those who possess child pornography.
This short commentary explains how the state of federal sentencing after Booker is particularly hospitable to arguments for sentencing leniency for defendants convicted of possessing child pornography. One argument calls on a district court to use its sentencing policy discretion under Kimbrough v. United States to impose a lower sentence. Another argument rests on a distinct-facts-and-circumstances argument under Gall v. United States. Finally, on an appeal of a within-Guideline sentence, there is an argument that, drawing on the analysis in Rita v. United States, a presumption of reasonableness ought not apply to within-Guideline sentences for those who possess child pornography.
Number of Pages in PDF File: 14
Keywords: child pornography, sentencing, judicial discretion, sentencing guidelines, sex offenders
Date posted: October 29, 2011 ; Last revised: August 8, 2013