Risk, Proportionality, and Sentencing: Guideline Circumvention in Federal Child Pornography and Sexual Abuse Cases

Abstract

In response to increased fear and attention to the sexual victimization of children, coupled with the proliferation of child pornography on the Internet, Congress has increased the severity of federal sentencing guidelines for child pornography offenses. Recently, federal judges have publicly questioned the appropriateness of these guidelines, arguing that the guidelines do not properly reflect proportionality with regard to the level of harm and risk posed by child pornography offenders. Child pornography cases have the highest rates of guideline departure in the federal court system. Within the legal versus democratic subcultural framework, this study analyzes the factors influencing sentencing decisions in federal child pornography and sexual abuse cases. Our primary focus is on the impact of differences between guideline-generated sentencing recommendations compared with the sentences outlined in the criminal statutes. We find that although a greater divergence between the guidelines and statutes increases the likelihood and magnitude of downward departures generally, this effect is more pronounced in child pornography cases. This finding suggests that judges may face greater difficulty in synthesizing conflicting cues from the legal and democratic subcultures in these types of cases.