Over the course of the past fifteen years, the prosecution of child exploitation cases by the federal government has steadily increased. In 2006, child pornography cases constituted 69 percent of the total amount of child exploitation cases referred for federal prosecution, and, in fiscal year 2007, there was a 27.8 percent increase in the number of child pornography indictments filed in comparison to the previous year. Amid the fast-paced development of the Internet and computer software, the federal government has rightly committed itself to spending seemingly limitless amounts of money to combat the spread of child pornography. In 2008 alone, state and local law enforcement agencies received more than seventeen million dollars to combat Internet crimes against children.
Just as the prosecution of federal child pornography cases has sharply increased, so has the length of sentences imposed for such offenses. An invaluable article written by Assistant Federal Defender Troy Stabenow begins with an astonishing statistic: in 1994, the mean sentence for child pornography offenders was 36 months; in 2002, the mean sentence for such offenders was 49.7 months; and, in 2007, the mean sentence imposed was 109.6 months. It is natural for one to wonder what occurred in the sentencing landscape to justify a 300 percent increase in the average sentence imposed in the last fourteen years. An examination of the history of the Guidelines for child pornography offenses reveals that the changes to the child pornography Guidelines were the result of congressionally directed amendments, not empirical study by the United States Sentencing Commission.
The purpose of this Article is to provide an overview of the child pornography sentencing milieu and to furnish arguments for practitioners to present during child pornography sentencing hearings. In so doing, this Article traces the unsettling history of the child pornography Guidelines and highlights how the child pornography Guidelines fail to exemplify the United States Sentencing Commission’s exercise of its appropriate institutional role. Because the child pornography Guidelines are not the result of the Sentencing Commission’s experience and expertise, they are “a less reliable appraisal of a fair sentence.” Part II of this Article examines the first appellate opinion to hold that possession of child pornography is a lesser-included offense of receipt of child pornography; thus, a sentence for both offenses violates the Fifth Amendment’s proscription against double jeopardy. Finally, Part III inventories the broadening rationales recognized by courts as legitimate grounds for variances in recent child pornography sentencing case law. The Article concludes that, in the wake of Gall v. United States and Kimbrough v. United States, the weakness of the rationales supporting the child pornography Guidelines, combined with courts’ authority to vary pursuant to 18 U.S.C. Section 3553(a), arms attorneys with sufficient ammunition to achieve below-Guidelines sentences.
The History and Development of Child Pornography Guidelines
Congress created the United States Sentencing Commission “to formulate and constantly refine national sentencing standards.” To achieve the objectives of honesty, uniformity, and proportionality in sentencing, the Commission employs an empirical methodology that examines data from national experience and past sentencing practices. In formulating the Federal Sentencing Guidelines, the Commission analyzed data drawn from 10,000 presentence investigations, reviewed the United States Parole Commission’s guidelines and resulting statistics, and consulted data from other relevant sources as well. Respect for the Guidelines is rooted in the Commission’s expertise and the fact that “the Guidelines represent an approach that begins with, and builds upon, empirical data.”
Throughout the 2007 term, the United States Supreme Court displayed growing concern over the formulation of certain offense Guidelines. In Gall v. United States, as it defined the scope of reasonableness review of sentences, the United States Supreme Court stated that although some sections of the Guidelines are “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions . . . not all of the Guidelines are tied to this empirical evidence.” This point was further expounded upon by the Supreme Court in Kimbrough v. United States, where the 100-to-1 crack/powder ratio in the crack cocaine Guidelines was called into question. The Supreme Court in Kimbrough explained that rather than employing its usual empirical approach in developing the Guidelines for crack cocaine drug-trafficking and manufacturing offenses, the Commission simply deferred to the weight-driven scheme set forth in the Anti-Drug Abuse Act of 1986, which regarded crack cocaine as a significantly greater scourge than powder cocaine. According to the Supreme Court, “Given the Commission’s departure from its empirical approach in formulating the crack Guidelines and its subsequent criticism of the crack/powder disparity, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ . . . even in a mine-run case.”
Forces similar to those that influenced the development of the crack cocaine Guidelines shaped the child pornography Guidelines as well. Rather than reflecting the experience and judgment of the Commission, the child pornography Guidelines reflect a series of politically driven amendments. Forced to respond to legislative directives and statutory mandatory minimum sentences, the Commission aborted its characteristic empirical approach in the development of the child pornography Guidelines. A majority of the amendments enacted by Congress were intended to target mass producers and distributors of child pornography, as well as those who use the Internet to desensitize children and to entice them to engage in sexual activity. Despite the fact that commercial child pornographers constitute less than five percent of those convicted of child pornography offenses, the changes to the Guidelines have impacted nearly all defendants convicted of child pornography offenses. The mandated amendments blurred “some of the distinctions the Commission had drawn between true peddlers of child pornography and more simple possessors or transporters.”
While trafficking, transporting, and receiving child pornography were always against the law, possession of child pornography was not criminalized until 1990. The 1991 edition of the Federal Sentencing Guidelines Manual marked the appearance of Section 2G2.4, which governed simple possession of child pornography, while trafficking and other child pornography offenses remained subject to the provisions of Section 2G2.2. Even though the Commission recognized problems with the separate Guidelines and proposed consolidation as early as 1996, a merger did not occur until 2004.
Regardless of the existence of separate offense Guidelines until 2004, the pattern of Guidelines development for both offenses remains the same: routine increases in base offense levels and the emergence of specific offense characteristics intended to ratchet up sentences. Rising offense levels resulted not only from lobbyists’ efforts to increase child pornographers’ punishment but also from the Commission’s own attempts to keep pace with mandatory minimum sentences put in place through federal legislation such as the Sex Crimes Against Children Prevention Act of 1995 ("SCACPA"), the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act"), and the Adam Walsh Child Protection and Safety Act ("Adam Walsh Act").
A. The Use of a Computer Enhancement
The two-level enhancement for use of a computer, currently found at Section 2G2.2(b)(6), exemplifies a disconcerting addition to the child pornography Guidelines that is particularly anachronistic in today’s computer-driven society. This enhancement first appeared in the 1996 edition of the Guidelines. The Commission created this enhancement as instructed by the SCACPA. This legislation instructed the Commission to increase offense levels for child pornography crimes; to create an enhancement if a computer was used for the transmission, receipt, or distribution of material; and to increase child pornography sentences by 25 percent overall. Additionally, the SCACPA directed the Commission to prepare a report analyzing sentences imposed in cases involving the sexual exploitation of children.
In its 1996 report, entitled “Sex Offenses Against Children: Findings and Recommendation Regarding Federal Penalties” ("Sex Offense Report"), the Commission expressed its concern over application of the enhancement related to use of a computer. The Commission noted that Internet child pornography stems from the “same pool that can be found in specialty magazines or adult bookstores.” Recognizing the failure of the enhancement to distinguish between “persons who e-mail images to a single voluntary recipient” and those who establish commercial means of distribution, the Commission made the following observations:
What seems apparent is that a person’s culpability depends on how they use a computer. . . . Not all computer use is equal. Some uses lead to more widespread dissemination of child pornography and to increased accessibility of pornography and other sexually explicit dialogue to children. Sentencing policy should be sensitive to these differences in culpability so that punishments are tailored to fit the circumstances of each individual’s case.
In the Sex Offense Report, the Commission emphasized the need to “develop a more finely-tuned system of apportioning punishment in cases involving the use of computers.”
Twelve years ago, when the use of a computer enhancement first took effect and computer use was not routine, the enhancement provided a marginally beneficial means of distinguishing among offenders. With the development of technology, however, the enhancement makes little sense. According to a Bureau of Justice Statistics report entitled “Federal Prosecution of Child Sex Exploitation Offenders, 2006,” 97 percent of those convicted of a child pornography offense used a computer. In 2008, that percentage is certainly higher. With nearly 100 percent of child pornography prosecutions involving defendants who used computers, the use of a computer enhancement retains no value as a means for distinguishing among offenders.
In his article, Troy Stabenow aptly points out that in today’s technology-driven society, use of a computer in connection with a child pornography offense actually facilitates apprehension and prosecution. For example, a defendant who obtains child pornography by means of a peer-to-peer file-sharing network is easily traceable. Through undercover Internet operations, law enforcement officials are able to detect Internet Protocol ("IP") addresses sharing child pornography files. An administrative subpoena to the Internet service provider hosting an IP address will identify the physical address associated with the IP address. Subsequently, law enforcement officials will be able to visit the physical location in an attempt to interview potential suspects. Without the target’s use of the Internet, law enforcement officials would face a much more difficult task in identifying and tracking the individual receiving child pornography. In this factual scenario, the individual did not distribute child pornography and the individual’s computer usage aided prosecution, yet the computer usage provides the grounds for a two-level sentencing enhancement.
B. The Number of Images Enhancement
Equally disconcerting and problematic is the enhancement in the child pornography Guidelines that increases a defendant’s offense level based on the number of images for which the defendant is held responsible. This enhancement first appeared on April 30, 2003, as a direct result of the Feeney Amendment contained in the PROTECT Act. The PROTECT Act directly amended the Guidelines and is most widely recognized for its restriction on the authority of district court judges to depart from the Guidelines in sexual offense and child pornography cases for reasons other than those authorized in Chapter Five, Part K of the Guidelines. Less known, however, is that it is also responsible for limiting the number of federal judges on the Commission and the creation of the two- to five-level enhancement for the number of images involved in a prosecution.
While the PROTECT Act was created to achieve a laudable goal-to strengthen the ability of law enforcement officers to prevent and prosecute crimes against children-the history of the Feeney Amendment is less commendable and casts doubt on the soundness of its amendments to the child pornography Guidelines. Representative Tom Feeney did not draft the amendment he sponsored; instead, he served as the means of introducing proposed legislation drafted by employees of the Department of Justice. After Representative Feeney introduced the proposed legislation, congressional debate spanned a mere twenty minutes. The amendment passed through Congress with minimal input from the Sentencing Commission, bar associations, or the federal judiciary.
Although the legislature did not solicit feedback, many sent letters to Congress expressing their concern about the broad components of the amendment and its inadequate review.
With regard to the research or rationale supporting the number of images enhancement, Representative Feeney did not present any. Nor did he provide any information justifying the amounts of the enhancement. Equally disquieting is the absence of any explanation for the image quantities used as the cutoff point between each level of enhancement. As Judge Lynn Adelman explained in his opinion in United States v. Hanson, “given the unfortunate ease of access to this type of material in the computer age, compiling a collection with hundreds of images is all too easy, yet carries a 5 level enhancement.” Admittedly, an enhancement related to possession or receipt of a large number of images is reasonable. What is unreasonable, however, is the absence of any explanation for the current number of images enhancement scheme.
C. The 75:1 Images to Video Ratio
In 2004, the reach of the enhancement relating to the number of child pornography images was further expanded. The Commission created an Application Note establishing that one video clip constitutes seventy-five still images for purposes of calculating the number of images enhancement. If the length of a video is substantially more than five minutes, the Commission explains that an upward departure may be warranted. Noticeably absent from the Application Note is any differentiation between a video that spans seconds rather than minutes. In the Application Note, the Commission recognizes that longer videos may potentially warrant an upward departure, but fails to account for the injustice in apportioning seventy-five images for one video that lasts a mere ten seconds, which is fairly common in the realm of Internet child pornography videos. This 75:1 ratio illustrates an additional change to the child pornography Guidelines with limited reasoning in support.
By discussing the development of three specific portions of the child pornography Guidelines, this Part aimed to provide practitioners with information useful for crafting objections to presentence investigation reports and for advocating in support of a Guidelines variance. The child pornography Guidelines are largely the result of congressionally mandated amendments with minimal legislative history examining the legitimacy of the directives. Unquestionably, the Feeney Amendment is the most apparent example of Congress essentially usurping the role of the Commission in the creation of the Guidelines, but, as the use of a computer enhancement demonstrates, it is certainly not the only case in point. Many of the shortcomings present in the development of the crack cocaine Guidelines that concerned the Supreme Court in Kimbrough are also present in the evolution of the child pornography Guidelines. As such, practitioners stand on solid ground to argue that in some cases-particularly those of first-time offenders-the child pornography Guidelines produce sentences greater than necessary to achieve the purposes of federal sentencing.