Improving the Guidelines for Child Pornography Offenses

The Problem: Child pornography possession, receipt, production, and distribution are federal crimes that carry lengthy mandatory minimum sentences and/or lengthy sentences under the federal sentencing guidelines. As the U.S. Congress has created longer and longer sentences for child pornography crimes, it has also required the U.S. Sentencing Commission to increase the advisory federal sentencing guidelines for those offenses. The length of federal child pornography sentences has increased 500 percent in the last 15 years.

Under the sentencing guidelines, child pornography sentences can quickly spiral into decades-long prison sentences, even for first-time offenders who did not actually touch or abuse children or are unlikely to ever do so. This is because the guidelines increase child pornography sentences based on factors and circumstances that do not necessarily reflect the offender’s blameworthiness. For example:

  • The guidelines increase sentences for using a computer to view or distribute child pornography images, but today virtually all child pornography offenses involve computers.
  • The guidelines increase sentences for “distribution” of child pornography images. Because these images are often found on “peer-to-peer” file-sharing websites, a person can often share images with others even if he does not intend to do so – and then receive a longer sentence for “distribution.”
  • The guidelines base sentence increases on the number of images, which can increase rapidly due to computer sharing of large files and counting of “images” contained in digital videos. 

Judges who encounter these problems when using the child pornography guidelines will often impose a lower sentence than what the guidelines call for. This prompted the Commission to take a close look at the guidelines, resulting in a comprehensive report published in 2013. The Commission found that, among other things, sentencing enhancements that once were designed to increase punishment for the most serious offenders now apply to nearly all offenders, and that Congress has been deeply involved in ensuring the Commission provides extremely long sentences for these offenses – often exceeding the mandatory minimum.

Solution: The U.S. Sentencing Commission has asked Congress to address the child pornography penalty structure and give the Commission the flexibility it needs to make the guidelines more proportionate and better able to distinguish among offenders.