Volume 86, No. 3, Spring 2014

The Potential Power of Federal Child Pornography Sentencing Disparities

Congress and some of the judiciary are divided on child pornography sentencing. Since the late 1980s, Congress has consistently increased sentences and penalties for child pornography offenders.  Some federal judges disagree with this congressional policy and have departed downward from child pornography sentences in response.  Significant sentencing disparities have developed among similarly situated offenders, and the question is what effect these disparities will have on the child pornography Guidelines and the entire sentencing system.

Judicially created sentencing disparities among similarly situated defendants have historically held great power to compel legislative reform in sentencing. With the Sentencing Reform Act of 1984, Congress first sought to mitigate sentencing disparities that had developed as the result of broad judicial discretion in sentencing.  To curtail these disparities, the Sentencing Reform Act created the U.S. Sentencing Commission (Commission), which in turn created the Federal Sentencing Guidelines (Guidelines), a set of mandatory sentencing guidelines for federal judges to follow.  But the mandatory Guidelines failed to fully realize Congress’s desired uniformity in sentencing, so Congress imposed additional restrictions on judicial discretion with the Feeney Amendment to the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act).

The Supreme Court then halted Congress’s march toward limited judicial discretion in sentencing. In 2004, the Court decided United States v. Booker, holding that the mandatory Guidelines were unconstitutional under the Sixth Amendment and therefore now “effectively advisory.” The Booker Court also excised the provision requiring de novo appellate review of sentences and reinstated a more deferential standard of appellate review of sentences.

In 2007, the Court again transformed federal sentencing when it decided Kimbrough v. United States, a case examining crack cocaine sentencing. To address problems associated with crack cocaine during the 1980s, Congress passed the Anti-Drug Abuse Act of 1986, which established a 100-to-1 powder-to-crack quantity ratio in cocaine sentencing.  Despite this ratio’s lack of an empirical basis, the Commission adopted it as part of the mandatory sentencing Guidelines in 1987.  The Commission, however, recognized its error and submitted reports from 1995 to 2007 to Congress recommending a lower ratio—but Congress did not act.  Importantly, some federal judges shared the Commission’s discontent with the cocaine-sentencing ratio. Using their post-Booker discretion, these judges began departing downward when sentencing crack cocaine offenders, leading to the Court’s holding in Kimbrough that district courts could consider a policy disagreement with the 100-to-1 ratio when departing downward from a crack cocaine defendant’s Guidelines sentence.  Relying on Kimbrough, judges increasingly deviated from the ratio based on a policy disagreement with it, but others adhered to it.  Sentencing disparities thus increased among similarly situated crack cocaine defendants.

In 2010, Congress reduced the 100-to-1 ratio to 18-to-1 with the Fair Sentencing Act.  On its face, this Act addressed a different sentencing disparity than the Sentencing Reform Act of 1984 and the Feeney Amendment to the PROTECT Act. The Sentencing Reform Act and the Feeney Amendment focused on mitigating the sentencing disparities that developed when individual judges sentenced differently two defendants who had the same criminal history and were convicted of the same offense.  The Fair Sentencing Act, on the other hand, is commonly understood as Congress’s solution to the disparity that occurred when a crack cocaine defendant was sentenced 100 times more harshly than a powder cocaine defendant.

The history leading up to this Act, however, suggests it was also Congress’s solution to the sentencing disparities that had developed among similarly situated crack cocaine defendants. Prior to the Court’s holdings in Booker and Kimbrough, Congress had no reason to act on the Commission’s recommendations to reduce the ratio because supporting such legislation could label a member of Congress “soft on crime.”  But the emergence of sentencing disparities among similar defendants caused by Booker and Kimbrough provided the motivation historically necessary for legislative reform in sentencing.  Rather than constraining judicial discretion, though, Congress reduced the ratio from 100-to-1 to 18-to-1 to achieve uniformity in crack cocaine sentencing.  That is, judges with differing positions on the 100-to-1 ratio presumably would all apply the new 18-to-1 ratio, thereby mitigating sentencing disparities among similarly situated crack cocaine defendants.

Some federal judges have relied on Kimbrough as authority to depart downward in child pornography cases. They feel that the child pornography Guidelines, like the 100-to-1 ratio, are the result of uninformed congressional legislation rather than empirical evidence, causing unreasonable outcomes in many cases.  Given the parallels between the crack cocaine and child pornography Guidelines, similar legislative reform of the child pornography Guidelines seems possible. After examining the differences between crack cocaine and child pornography sentencing, however, this Comment concludes that Congress is more likely to revert to its historical response to sentencing disparities of constraining judicial discretion in sentencing.