The Bad News: Sentence Disparity

First, the Bad News

Even though the U.S. Sentencing Commission has focused on sentencing reform and seems to recognize the injustice of not fitting the potential punishment to the crime, or in one defendant getting much worse punishment than another does in similar circumstances, we still have a long way to go.

Here's the bad news in a nutshell:

  • Prison time. Federal prosecutors are still authorized to hang harsh punishment over peoples' heads- 15-40 years in prison for production, as one example-which in some circumstances forces people into handing over guilty pleas rather than facing the possibility of a guilty verdict at trial.
  • Enhancements. The potential punishment gets worse for distribution, sharing, child pornography of children under 12, and depictions of masochistic behavior.
  • Stacking. Under 18 U.S.C. § 924(c), multiple convictions based on the same general offense can be "stacked," or set one on top of the other, making punishment even worse.
  • Sex offender registration. You may have to register your name and whereabouts on a regular basis for many years or for the rest of your life. This will affect where you can live, whether and how you can work, and pegs you as a "sexual predator." (Failure to register is its own federal offense.)

Potential Prison Time by Type of Child Pornography Offense

Most child pornography is a "Zone D" offense, meaning they automatically carry the longest sentence terms, anywhere from many months to life in prison. The potential and actual outcome of any case is fact-specific. No two cases are the same.

  • Production: 15 to 40 years in prison
  • Receipt, transportation, or distribution: 5 to 20 years
  • Simple possession: No minimum but the possibility of 10 to 20 years

In general, the potential punishment for any of these offenses can be greater or lesser, depending on the circumstances. And while there is no mandatory minimum for simple possession, judges do have discretion to impose sentences that are just as long as offenses related to actual production, which is why the punishment often does not fit the crime.

Take this example ( via the Sentencing Law and Policy blog):

In one state case, a person's sentence for possession was two years in prison with all but 45 days suspended. In another case, the man got an aggregate sentence of 100 years in prison. But the two cases were very much alike. Both involved possession of child pornography, not manufacture or distribution.

Sentence Disparity is 'Sad and Disturbing'

As law professor Douglas Berman writes:

"I think it is safe to assert that, not just in South Dakota, but all across this great nation, 'gross disparity in the sentence length for possession of child pornography exists.' I have seen and heard of many state (and [a] few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida [the defendant] received a sentence of life without the possibility of parole for mere child porn possession! What a sad and disturbing mess."