Timely discussion of federal judicial concerns with guideline sentences

Today’s Boston Globe has this notable article on a controversial component of the federal sentencing guidelines.  The piece is headlined “US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime.”  Here are excerpts:

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines….

Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography — far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal.  The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines,” she said in open court in issuing the sentence.

In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.

The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority.  A public hearing is set for Feb. 15 in Washington….

Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability.  But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences.  They say Congress — and society — have called for the toughened penalties for the crime.

“There’s been recognition nationwide that there’s been an epidemic,” said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared.”

Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003.  The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.

But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified,” said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor.  He co-authored a journal in a law trade magazine in October calling for sentencing reforms.  “It’s important to justice.  But it’s hard to do, because child pornography is so highly emotional.”…

Opponents of the guideline argue that the additional penalties — known as enhancements — are inherent factors in the crime, and unfairly increase the guidelines.  The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old — factors that exist in more than 90 percent of the cases, according to Sentencing Commission data.  Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.

Read the rest here….