CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, February 27, 2012

Leary on Mandatory Minimums in Child Pornography Cases

Leary maryMary Leary (Catholic University of America) has posted Judicial Challenges to Mandatory Minimum Sentences: A New Frontier in the Debate Over Child Pornography Sentencing? (Sex Offender Law Report, Vol. 13, No. 1, 2012) on SSRN. Here is the abstract:

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit less serious child pornography offenses as compared to producers or distributers) may be sentenced near the statutory maximum. This has caused some judges to inquire into the rationality of guidelines which they argue place even the less culpable offenders at the level of punishment reserved for the most serious of offenders.

Recognizing these concerns, the Department of Justice has asked the United States Sentencing Commission to re-evaluate and update the current guidelines to “better calibrate the severity and culpability of defendants’ criminal conduct” and “ensure that the sentences for certain child exploitation offenses adequately reflect the seriousness of the crimes...[and] changes in the use of technology and in the way these crimes are regularly carried out today...”

As the Sentencing Commission works to assess and resolve some of these concerns, some remain dissatisfied with the sentencing options for child pornography crimes. In response, some judges have attempted to wage a challenge on a new frontier: not the advisory sentencing guidelines, but the legislated mandatory minimum sentences. This article will examine this phenomenon and explore its potential vulnerabilities through an analysis of several recent cases, most notably the U.S. District Court opinion in United States v. C.R., issued in May 2011.

| Permalink


OMG!! Is this the Light I've been praying for???

Posted by: Gloria Pokigo | Feb 28, 2012 8:06:07 AM

Glad to see they are making progress on this issue. They need to make some changes like doing away with the enhancements and then make them retroactive to change sentences to those harshly punished by the recent laws.

Posted by: D. Young | Feb 28, 2012 5:11:33 PM

What is the difference between receipt and possession anyway???? Don't you have to receive in order to possess??? That makes them the same. Doesn't it?

Posted by: Constance Marquardt | Mar 1, 2012 4:46:24 PM

Post a comment