Post-Booker Leniency in Child Pornography Sentencing

14 Pages Posted: 29 Oct 2011 Last revised: 8 Aug 2013

Carissa Byrne Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: October 21, 2011

Abstract

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.

Keywords: child pornography, sentencing, judicial discretion, sentencing guidelines, sex offenders

Suggested Citation

Hessick, Carissa Byrne, Post-Booker Leniency in Child Pornography Sentencing (October 21, 2011). Federal Sentencing Reporter, Vol. 24, No. 2, December 2011; University of Utah College of Law Research Paper No. 36. Available at SSRN: https://ssrn.com/abstract=1947386

Carissa Byrne Hessick (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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