Child Pornography and Criminal Justice Reform

Abstract

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason. The defining attributes of prevailing drug policy—severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process—apply to the child pornography context as well. In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse. The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them. Judges have done just that, varying in 63% of all cases, more than any other offense type. Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform. We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

Keywords: federal sentencing, sentencing guidelines, child pornography, criminal justice reform, circuit splits, variance, Kimbrough, Gall, appellate review, substantive reasonableness, mandatory minimums