As law enforcement officers and policy makers toughen prosecutions for the distribution and possession of child pornography, they are encountering increasing resistance from federal judges in what has become a caustic conflict over the appropriate punishment for a heinous crime.
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.
That figure has been steadily increasing since the Supreme Court in 2005 and 2007 affirmed that judges have the right to depart from commission recommendations.
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....
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.
Judges, including several locally, argue that changes in child pornography sentencing approved by Congress over the past decade, which add extra time for various factors such as the number of images involved, have resulted in sentences that are far too severe.
“Congress sets policy, but Congress doesn’t sentence individuals, judges do,’’ said retired US District Court Judge Nancy Gertner, who served on the bench in Boston until September 2011. “The guidelines don’t make sense, even for one who wants to be tough on pornography. The measure of the guidelines doesn’t match the culpability of the defendant.’’
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.’’
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