The United States Sentencing Commission is responsible for
the promulgation and periodic revisions to the United States Sentencing
Guidelines used in the federal courts.
The Commission has recently submitted a report to Congress, in which it
identified thirteen points warranting comment.
One of these areas deals with Guidelines provisions used in child
pornography sentencing, in response to a growing number of such cases, many the
result of expanded federal jurisdiction.
There appears to be a growing chorus of legal experts — on both sides
of the courtroom — urging reform of the sentencing provisions used in such
cases.  We at Prison Law Blog
concur.

Image courtesy fedcure.org

In accordance with the stance which we have taken, the
Prison Law Blog has submitted the following letter to the United States
Sentencing Commission.  We strongly
suggest that you either add your contact information to the below letter and
submit it to the Commission, or write your own letter stating what you feel the
Commission’s priorities should be in this fast-changing legal arena.  The deadline for accepting public comment
ends on July 15, 2013.  So, do not
delay.  Today is the day when your voice
can be heard.  Together we can help to
make the American criminal justice system a more equitable and evenhanded
enterprise.

PRISONLAWBLOG.COM’S
LETTER TO THE UNITED STATES SENTENCING COMMISSION

U.S. Sentencing Commission

One Columbus Circle, NE, Suite 2-500

South Lobby

Washington, DC 20002-8002

Attention: Public Affairs Priorities Comment

July 5, 2013

Dear Sir/Madam:

I am writing in reference to your recent list of tentative
priorities for Congress to address.  I
wish to be heard on this matter and to have my comments considered by your
organization as part of the public comment period.

My primary concern has to do with § 12 of your tentative
priorities, which reads, “Continuation of its work with Congress  and other interested parties on child
pornography offenses to implement the recommendations set forth in the
Commission’s December 2012 report to Congress, titled Federal Child Pornography
Offenses, and to develop appropriate guideline amendments in response to any
related legislation.”

While there are a number of areas of concern with the
sentencing of child pornography offenders, as there are with many components of
the sentencing guidelines, it is my belief that federal sex offenses deserve
the lion’s share of Congress’s sentencing guideline revision time in 2013 and
2014.  As it currently stands, child
pornography offenders are receiving more and more time in federal prison —
calling this a disparate amount of time might not even be out of order — for
offenses which have become easier and easier to commit.  In this age of the internet, all a person has
to do is click on an illegal image or spend a few moments on an
“open” peer-to-peer website in order to go to federal prison for
several decades.  This just doesn’t seem
to make any sense.  The price paid
appears to be in excess of any reasonable sentencing guideline computation and
simply does not reflect the conduct of the offender.  The guidelines in this arena should be based
upon empirical evidence, not emotion or public perception, as they currently
appear to be.

From a sentencing guidelines perspective, I find it
troublesome that federal criminal defendants are being sentenced so severely
for downloading illegal pornography from these “open” peer-to-peer
websites.  In many cases, federal
defendants who go to sites such as Napster.com, Limewire.com, and Kazaa.com are
receiving a cumulative 11-levels of enhancement for the use of a computer, the
types of media obtained, and the number of images possessed.  Since each of these is so significant, and
appear to be central elements of child pornography possession and receipt/distribution,
I’ll take each in turn.

The 2-level sentencing enhancement for use of a computer
appears to be an element of the instant offense.  In fact, according to your Federal Child
Pornography Offenses report, you report that virtually all current child
pornography defendants used a computer in the commission of the crime and that
an astounding 53.4% of such offenders used “open” peer-to-peer
networks to obtain such illegal content.
With such technologies widely available and utilized by the general
population and child pornography defendants alike, they appear to the
reasonable person to be elements of the instant offense, not an aggravating
factor for which a sentencing enhancement should be applied.

The 4-level sentencing enhancement for sadistic and
masochistic images (which can include anything even suggestive of violence or
pain, which normal, adult pornography would certainly qualify as) and the
2-level enhancement for the victim(s) being 12-years or younger also appear to
be general elements of the instant offense.
The foundational point of this argument is that since these free,
“open,” peer-to-peer services neither provide any sort of image
preview or true title indication when an offender is downloading an item, they
are effectively downloading media blind and being enhanced for whatever the
image might contain, irrespective of their true intentions.  Thus, offenders are being enhanced for
sadistic and masochistic images or images of very young victims — of which,
according to your report 74.2% possessed sadistic and masochistic images and
96.1% possessed images depicting pre-pubescent minors — when, in fact, they
might have no intention of obtaining such media.  If an enhancement is to be had in this arena,
it should be based upon aggravating conduct or content, not run-of-the-mill
child pornography which most defendants possess.

The 2- to 5-level sentencing enhancement for such typical
numbers of images is also problematic in that it appears to be a component of
the instant offense (the enhancement thresholds are from 10 to 600 images,
when, according to your report, most offenders possess more than 600 images —
96.9%, according to your Federal Child Pornography Offenses report).  If almost all offenders possess more than 600
images, and all of these receive the 5-level sentencing enhancement, then the
sentencing enhancement should be done away with since this number of images
appears to be part of the crime.
Instead, sentencing enhancements should start after the 600 threshold
has been reached.  Again, sentencing
enhancements should be based upon aggravating factors, not basic elements of
the crime.  When a child pornography
defendant can be enhanced 5 levels for downloading thousands upon thousands of
images within a mere few minutes on a peer-to-peer downloading service — which
might only require him or her to click a mouse half a dozen times — a real
problem has been uncovered.

It also bears mentioning that offenders are being charged
with receipt/distribution charges for merely downloading the pornography for
which they are already being charged with possession or receipt of.  As such, some could argue that the crime of
receipt/distribution — when coupled with possession — is redundant.  Irrespective of this, if modifications are to
be made to the sentencing guidelines for those who possessed child pornography,
then those who were in tandem charged with receipt/distribution — when in
conjunction with downloading from an “open” peer-to-peer website —
should also benefit from a sentence reduction since many times this is not an
aggravating factor, but a standard element of the instant offense.

Federal judges are sentencing more and more child
pornography offenders to terms of incarceration below the recommended
guidelines set forth by your organization — according to your Federal Child
Pornography Offenses report, 83.2% of offenders were sentenced within their
guidelines in 2004, while only 32.7% of offenders were sentenced within their
guidelines by 2011.  This shows that the
guidelines clearly need to be revised downward since even the judiciary is
disagreeing with the current level of severity of the guidelines.  This trend in sentencing current child
pornography defendants with less time than those from even five years ago creates
discord amongst recent past and current defendants; they are receiving
drastically different sentences for the same exact crime.

My general requests are are as follows:

     (1) For both
child pornography possession and child pornography receipt/distribution
offenses (when the distribution offense is not based on distribution, but upon
receipt of the child pornography on an “open” peer-to-peer service)
to be included in any sentencing guideline revisions.  These should be considered an element of the
crime, not an enhancement component.

     (2) For the use of a computer, number of
images, and type of images enhancements to be either eliminated, revised
downward, or specified to create elements of the enhancements which differ from
the instant offense.  When all three of
these areas trigger a regular, cumulative 11-level sentencing enhancement,
something is wrong.  Enhancements are for
aggravating factors, not inherent elements of the crime.

     (3) For the
lifetime term of supervised release to be reduced and quantified into a
realistic and research-based period of supervision, and not to be used as a
political statement.  There is a growing
body of research indicating that recidivism rates and other factors suggesting
that child pornography offenders should not categorically be sentenced to
lifetime terms of supervised release or probation.  They, as all other federal criminal
defendants, should be sentenced according to their individual culpability and
risk, not in wholesale fashion.

     (4) For all
revisions to the child pornography sentencing guidelines to be made retroactive
so that those who have been sentenced to a term of federal incarceration for
such offenses will be positively impacted by any such revision.  This is the only way to ensure that
defendants sentenced 5 or 10 years ago receive the same treatment as defendants
being sentenced today.

My specific requests for modifications to § 2G2.2 are as
follows:

      (1) Revise both
§ 2G2.2(a)(1) and § 2G2.2(a)(2) to reflect a more accurate sentencing
scheme.  A base offense level of 18 or 22
is significantly higher than the regular child pornography defendant’s conduct
indicates.  While this is a serious
matter, and should be dealt as such, the act of downloading free, illegal
pornography from an “open” peer-to-peer network does not call for a
base offense level of 18 or 22.
[Appendix E of your Federal Child Pornography Offenses report indicates
that your commission has the power to reduce these levels to 15 and 17,
respectively.]

     (2) Revise §
2G2.2(b)(2).  In its place, insert categories
which allow for enhancement components which are not a part of the normal
instant offense (e.g., since the vast majority of child pornography defendants
possess images of minors 12-years old and younger, create categories below this
age threshold).  [Appendix E of your
Federal Child Pornography Offenses report indicates that your commission
created this sentencing enhancement in 1987, and expanded it in 1988.  Thus, your commission still retains the power
to revise this 2-level enhancement into various tiers for aggravating or
mitigating conduct.]

     (3) Revise §
2G2.2(b)(4).  As with § 2G2.2(b)(2), most
child pornography defendants possess what is deemed to be images containing
sadistic and masochistic conduct.  If the
vast majority of such defendants receive this enhancement, then it is, for all
intents and purposes, part of the instant offense.  I suggest revising this enhancement to
indicate specific components of the sadistic and masochistic conduct.  By creating a guideline enhancement scheme
within the umbrella of this current enhancement, child pornography defendants
can be sentenced according to the media which they actually possess, not merely
for downloading typical child pornography.
[Appendix E of your Federal Child Pornography Offenses report indicates
that the PROTECT Act (Pub. L. No. 108-21, 401(i), 117 Stat. 650 (2003))
stipulated the 4-level sadistic and masochistic enhancement.  Thus, you would need to petition Congress to
revise this statute.]

     (4) Strike §
2G2.2(b)(6).  The use of a computer is
now an accepted component of the instant offense of child pornography
possession and receipt/distribution.  As
a component of the instant offense, it shouldn’t be an enhancement to the
offense.  This enhancement needs to be
removed in its entirety because it is superfluous to elements of the instant
offense.  [Appendix E of your Federal
Child Pornography Offenses report indicates that the Sex Crimes Against
Children Prevention Act of 1995 (Pub. L. No. 104-71, 109 Stat. 774 (1995)) stipulated
the 2-level use of a computer enhancement.
Thus, you would need to petition Congress to revise this statute.]

     (5) Revise §
2G2.2(b)(7)(A), § 2G2.2(b)(7)(B), § 2G2.2(b)(7)(C), and § 2G2.2(b)(7)(D).  As clearly indicated by your report, almost all
child pornography defendants possess more than 600 images (a 5-level sentencing
enhancement).  At least 10 images results
in a 2-level enhancement.  At least 150
images results in a 3-level enhancement.
At least 300 images results in a 4-level enhancement.  And at least 600 images results in a 5-level
sentencing enhancement.  In light of your
research in this matter, these number of images need to be increased
substantially.  If almost all child
pornography defendants possess 600 or more images, then that should be the
floor and the enhancements should start after this point.  The current sentencing enhancement scheme
results in disparate treatment of offenders who possessed 600 images and those
who possess 60,000 images.  This is
perhaps the sentencing enhancement which is the most pressing because it does
the most damage and is effectively the most discriminatory.  [Appendix E of your Federal Child Pornography
Offenses report indicates that the aforementioned PROTECT Act created the
current image table.  Thus, you would
need to petition Congress to revise this statute.]

Thank you for your time and attention to these important
considerations.  I look forward to seeing
Congress act upon these matters, and to existing sentencing policies concerning
child pornography offenders being based upon common sense and research, instead
of the politically-motivated and emotionally-based model currently in place.

Respectfully Submitted,

Prison Law
Blog

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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