Child Porn Sentencing Guidelines Being Criticized

An article on Law.com this morning looked over what some are saying appears as "a strong trend that has developed among federal judges to reject the proposed prison terms as draconian even as the sentencing guidelines for child pornography crimes have grown increasingly harsh…. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined that trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so…."

"In United States v. Grober," the article said, "the Justice Department last June urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for a David Grober was 'outrageously high.' Hayden, who sits in New Jersey, had set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair." ( District Court Opinion Here ). The 3rd Circuit commented "in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination – but without ever challenging the substantive reasonableness of the ultimate sentence imposed – the government has found what it describes as procedural error, and we will affirm."

Four months earlier, the 2nd Circuit had handed down its opinion in United States v. Dorvee, a ruling that overturned a within-guidelines sentence in a child pornography case on the grounds that the sentence was also too harsh, calling the child pornography guideline 'fundamentally different' from other guidelines and saying that, unless it is 'applied with great care, can lead to unreasonable sentences,' the article said. The 2nd Circuit also faulted the guidelines for failing to distinguish between "run-of-the-mill" offenders and the most dangerous offenders, citing as proof of the "irrationality" of the law that a defendant who actually engages in sexual conduct with a minor may be subject to a lower guidelines range than one who distributes child pornography. As a result, the 2nd Circuit concluded that the "eccentric guideline of highly unusual provenance" is not worthy of the weight afforded to other guidelines.

The 3rd Circuit cited the 2nd. Circuit's Dorvee ruling with approval as it rejected the Justice Department's appeal of Hayden's sentencing rationale.