Amber Cohoon Child Pornography Sentencing Paper

Federal judges that lower sentences on child pornography offenders put children at risk. Child pornography offenders get the benefit of lower sentences because of a policy disagreement over the sentencing guidelines and judicial ignorance of the true impact of child pornography. The losers are the victims and future child victims of the possessors, distributors, and producers of child pornography. Amber Cohoon1 I.

Introduction

The idea that the federal judiciary is helping the child pornography offender is astonishing, but the case law2 and sentencing statistics support this conclusion.3 The federal judiciary has been in revolt against the PROTECT Act of 20034 because the sentencing guidelines were handed down from our legislative body rather than the unelected Sentencing Commission.5 The same Sentencing Guidelines, which were relegated as advisory by the Supreme Court in United States v. Booker,6 are now the poster-child for the Judiciary alleging an overzealous Congress.7 The policy dispute that so many of the federal judges have against the Sentencing Guidelines for child pornography is that the sentences are “too harsh” for these unsuspecting, otherwise law-abiding citizens.8 The federal judges must be naïve to dismiss the overwhelming data and reports that show the child pornography offenders9 are not “innocent” or “law-abiding” but harmful and dangerous to children.10 A possessor of child pornography is a vicarious, pleasure-seeking consumer of the sexual abuse and exploitation of a child.11 Child pornography is a federal and state crime; the convicted offenders are not innocent. This paper will argue that the sentencing guidelines are an antiquated starting point that the judges and prosecutors seem quick to abandon. Updated guidelines would give judges and prosecutors more reason to sentence within the applicable guideline range and less room to dispute the policy issues. The guidelines are continually weakened by the judicial departures and variances authorized by United States v. Booker, and the prosecutorial charging decisions and judicial discretion results in softening the sentences for convicted child pornographers. 1

Juris Doctorate Candidate for May 2016 at Texas A&M University School of Law. United States Sentencing Commission, Full Report to Congress: Federal Child Pornography Offenses, Table 6-5, p.133 (Dec. 2012). 3 Kathryn A. Kimball, Note, Losing Our Soul: Judicial Discretion in Sentencing Child Pornography Offenders, 63 Fla. L. Rev. 1515 (2011). 4 Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (“PROTECT”) Act of 2003, Pub. L. No. 108–21, 117 Stat. 650 (2014). 5 Full Report to Congress, supra note 2, at 239 (citing United States v. Dorvee, 616 F.3d 174, 184-85 (2d Cir. 2010)). 6 United States v. Booker, 543 U.S. 220, 245 (2005). 7 United States v. Dorvee, 616 F.3d 174, 182 (2d Cir. 2010). 8 United States v. Hardrick, No. 13-50195, D.C. No.3:12-cr-03061-H-1(U.S. Ct. App. 9th Cir. Sept. 4, 2014). 9 Accounting for the prosecution of offenders that have images that do not contain real children (computer generated images). 10 Full Report, supra note 2, at vii (Once an image is distributed via the Internet, it is impossible to eradicate all copies of it. The harm to victims thus is lifelong.) 11 18 U.S.C. § 2251 (2014). 2

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Recommendations will be listed to promote initiatives that will discourage downward departures and variances, and increase stronger and appropriate sentences that punish the offender for the true nature of their criminal acts. The identification of more victims will help to reduce the hidden incidents of actual child sexual abuse among child pornography offenders.

II.

Why is child pornography a problem?

Child pornography is the pictorial and video documentation of sexual abuse and exploitation of children from infant to minors under the age of 17.12 Child pornography offenders use the Internet to procure their desires, which in 2006 was estimated to be a $20 billion dollar global industry and is now estimated to be less than a million.13 While this is encouraging to law enforcement and the efforts of the Financial Coalition Against Child Pornography,14 it is the result of child pornography offenders going underground to possess and distribute child pornography on free sites, peer-to-peer file sharing programs, and Internet Relay Chat.15 These platforms provide for free, bartered or traded images that cannot be accounted for within that illegal commercial market.16 The technology used to capture child pornography has grown and become more sophisticated because of cell phones, mobile devices, digital cameras, webcams, and the large capacity storage devices.17 These new tools mean that a child pornography offender does not have to process his film at the drugstore and risk detection; he can capture hundreds of thousands of images on the digital devices and store them undetected.18 During one week in October 2013, the Child Victim Identification Program reviewed more than 964,000 images and videos of child pornography to identify victims.19 This crime is often unreported and not discovered because of the vulnerability of the victim and the secrecy involved in the crime.20 The sexual abuse and exploitation that the victim experiences is magnified by the continual viewing and sharing of the images of them being hurt and sexually tortured.21 Possessors are the consumers of the images of abuse that the Producers create and the PROTECT Act, §401, 117 Stat 650 (2014) (For federal crimes -“the term ‘minor’ means an individual who has not attained the age of 17 years”). 13 The Protecting Children from Internet Pornographers Act: Hearing Before the Subcomm. on Crime, Terrorism and Homeland Security of the H. Comm. on the Judiciary,112th Cong. (2011) (“What once was believed to be a multi-billion dollar global industry has recently been estimated to be less than a million dollar a year industry worldwide, according to the U.S. Department of Treasury.”) (statement of Ernie Allen, President and CEO, Nat’l Ctr for Missing and Exploited Children). 14 Allen Statement, supra note 13. 15 Allen Statement, supra note 13. 16 Allen Statement, supra note 13. 17 Allen Statement, supra note 13. 18 Allen Statement, supra note 13. 19 Protecting Vulnerable Children: Preventing and Addressing Sex Trafficking of Youth in Foster Care: Hearing Before the Subcomm. on Human Resources of H. Comm. on Ways and Means, 113th Cong.(2013) (statement of John D. Ryan, CEO, Nat’l Ctr. for Missing & Exploited Children). 20 Cory Jewell Jensen, Patti Bailey, & Steven Jensen, Feature: Selection, Engagement and Seduction of Children and Adults by Child Molesters, The Prosecutor, No. 28, 41 (November/December 2002). 21 Gelber, Alexandra, Response to “A Reluctant Rebellion,” 3 (July 1, 2009), http://www.justice.gov/criminal/ ceos/downloads/ReluctantRebellionResponse.pdf (Another child pornography victim, who was raped and bound repeatedly by a relative for 2 years starting at age 10, writes “thinking about all those sick perverts viewing my body 12

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Distributors get to the eager consumers, the Possessor. Producers create the images of abuse and distribute to the eager consumer. This cycle is a simple model of supply and demand. Each level of the model has to be eliminated to protect and ensure children are not continually victimized.22 The producer, distributor, and consumer are all possessors. An offender should always be charged with at least possession and the other higher offense, to reflect the true nature of his crime. In New York v. Ferber,23 the Supreme Court said, The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the childrens participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. . . . The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties . . . .24 In Osborne v. Ohio, the Supreme Court said the government has an interest to protect children from exploitation by “stamping out the vice of child pornography at all levels in the distribution chain.”25 The court determined that the state could logically conclude that punishing the viewers and possessors of child pornography will decrease demand and, therefore, decrease production of child pornography.26 The judges need to understand that each possessor, distributor, and producer sustains the child pornography marketplace and contributes to the harm and increase in child sexual abuse.

III.

Adult pornography usage can be the gateway to Child Pornography.

The adult pornography industry has between ten and fourteen billion annual sales27 and it is gaining public acceptance throughout the United States.28 Despite its popularity and acceptance, pornography consumption is linked to the desire to engage in the behavior depicted being ravished and hurt like that makes me feel like I was raped by each and every one of them. I was so young ... It terrifies me that people enjoy viewing things like this ... Each person who has found enjoyment in these sick images needs to be brought to justice ... even though I don’t know them, they are hurting me still. They have exploited me in the most horrible way.). 22 18 U.S.C.S. § 2251 (LexisNexis 2008). Congressional findings. Act Sept. 30, 1996, P.L. 104-208, Div A, Title I, § 101(a) [Title I, § 121(subsec. 1)], 110 Stat. 3009-26, provides: “(13) the elimination of child pornography and the protection of children from sexual exploitation provide a compelling governmental interest for prohibiting the production, distribution, possession, sale, or viewing of visual depictions of children engaging in sexually explicit conduct, including both photographic images of actual children engaging in such conduct.”) 23 New York v. Ferber, 458 U.S. 747 (1982). 24 Id. at 759-760. 25 Osborne v. Ohio, 495 U.S. 103, 110 (1990). 26 Id. 27 Forbes, http://www.forbes.com/2001/05/25/0524porn.html (last visited January 3, 2016). 28 Brigham Young University, BYU Study: College Women More Accepting Of Pornography than Their Fathers. (Dec. 7, 2007), http://news.byu.edu/archive07-Dec-porn.aspx.

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in the pornography.29 When a person is “’viewing something sexual . . .,’ [h]owever, simply watching isn't sufficient to elicit an orgasm. This is why the need to masturbate or to seek an actual sex partner becomes so overpowering that men can't resist it.”30 While viewing adult pornography is legal, the link between viewers of adult pornography and those that view child porngraphy is concerning.31 The pornography user starts off with a small supply of pornography to stimulate them but as they find it harder to achieve the previous enjoyment or high (like a drug user) they seek out more and more pornography.32 When the quantity does not satisfy, then the viewer must venture into areas of pornography that they may have never desired before to satisfy their growing desire.33 This can lead to more deviant and illegal behavior. In most cases, a large percentage of child pornography offenders are pedophiles. While viewing and masturbating to child pornography alone is not the only indicator that a users appetite will increase, it is scientifically proven that the need will continue to grow.34 That may mean that a purveyor of regular legal adult pornography starts dabbling in more deviant pornography, including child pornography, animal pornography, and violent pornography.35 What was once taboo and reprehensible to the individual pornography user may start to be the best avenue to achieve the otherwise elusive highs or orgasms that were once successful while watching legal adult pornography.36 Alternatively, the individual may have always sought child pornography but it may have started with looking at young children in local advertising circulars or photos from friends and relatives. Then the need increases to sexualized pictures of children, or violent images of child sexual abuse becomes the stimulus needed.37 To understand the biological response that individuals feel when looking at pornography, the principal chemical in the brain will need to be understood further. Dopamine releases in the brain in “pleasure reward-seeking behavior.”38 “It is released during pleasurable situations and stimulates one to seek out the pleasurable activity or occupation. This means food, sex, and several drugs are also stimulants of dopamine release in the brain.”39 Pornography, whether adult or child, is pleasurable, and it overwhelms the brain with dopamine.40 Dopamine is continually released when using pornography and the more a person 29

Is Porn Harmful? How Porn Rewires Your Brain, Hijacks Your Libido, And Threatens Your Sex Life (And Just Might Improve It, Too), Men’s Health Magazine, (Oct. 16, 2012), http://www.menshealth.com/sex-women/porndebate/page/2. 30 Is Porn Harmful?, supra note 29. 31 Is Porn Harmful?, supra note 29. 32 Fight the New Drug, Porn Addiction Escalates, http://www.fightthenewdrug.org/porn-addictionescalates/#sthash.vYiZ8FHn.dpuf (last updated May 9, 2015). 33 Porn Addiction Escalates, supra note 32. 34 Porn Addiction Escalates, supra note 32. 35 Porn Addiction Escalates, supra note 32. 36 Porn Addiction Escalates, supra note 32. 37 Porn Addiction Escalates, supra note 32. 38 Mandal, Ananya MD, News Medical, Dopamine Functions, http://www.news-medical.net/health/DopamineFunctions.aspx (last updated May 9, 2015). 39 Mandal, supra note 38. 40 Fight the New Drug, Porn Changes the Brain, http://www.fightthenewdrug.org/porn-changes-thebrain/#sthash.OGSTOPQX.dpuf (last updated May 9, 2015) (citing Hilton, D. L. (2013). Pornography Addiction— A Supranormal Stimulus Considered in the Context of Neuroplasticity. Socioaffective Neuroscience & Psychology

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uses pornography, the flood of dopamine causes the brain to cut back on some of the dopamine receptors.41 The receptors are “like tiny ears on the end of a neuron that hear dopamine’s message.”42 When the brain has fewer receptors for dopamine, the person will not feel the same pleasurable effect despite the fact that the level of dopamine is the same as before.43 A repetitive pornography user’s brain gets acclimated to the increased levels of dopamine, then the normal activities that previously would cause a happy feeling44 are no longer effective to bring about that result.45 The user is let down because normally enjoyable activities are no longer giving the pleasure that came previously.46 Once a person is addicted, then the brain is affected by inhibiting a person’s ability to make good choices.47 Recent studies show that addition of food, electronics, drugs, and sexual compulsion are all similar in how they affect the decision-making process in an addicted brain.48 The prevalence of pornography and deviant images that flood the internet means that its availability allows some men* who did not have an inclination towards sexualizing children to seek child pornography out. “In a 2012 survey of 1,500 guys, 56% said their tastes in porn had become ‘increasingly extreme or deviant.’”49 In the 2006 Online Victimization Survey, “more than two-thirds of offenders50 (68%) possessed at least some adult pornography and 21 percent of offenders possessed nonsexual images of children.”51 A very concerning trend is the community-centered groups for child pornography. Some communities are there for trading child pornography, while others' purpose is to expand and encourage the sexual interests of their members for children.52 Not all offenders are members of these communities, and there are various levels of membership for the child pornographer.53 These communities provide a sanctuary for like-minded men that encourages and drives others to increase their deviance in child pornography.54 Membership in the closed private 3:20767; Georgiadis, J. R. (2006). Regional Cerebral Blood Flow Changes Associated with Clitorally Induced Orgasm in Healthy Women. European Journal of Neuroscience 24, 11: 3305–3316.) *This paper refers to the child pornography offender as male because over 96% of offenders are male. Women are also offenders, so where there is a male designation it will also refer to the female designation as well. Full Report, supra note 2, at 142. 41 Porn Changes the Brain, supra note 40. 42 Porn Changes the Brain, supra note 40. 43 Porn Changes the Brain, supra note 40. 44 Release of dopamine. 45 Porn Changes the Brain, supra note 40. 46 Porn Changes the Brain, supra note 40. 47 Porn Changes the Brain, supra note 40. 48 Porn Changes the Brain, supra note 40. 49 Fight the New Drug, Porn Affects Your Behavior, http://www.fightthenewdrug.org/porn-affects-yourbehavior/#sthash.RLE2CsOU.dpuf .(last updated May 9, 2015). 50 Child pornography offenders. 51 Full Report, supra note 2, at 86. Online Victimization Survey reports is conducted through interviews with over 2,500 United States agencies about the pornography collections of arrested offenders. 52 Full Report, supra note 2, at 92. 53 Full Report, supra note 2, at 93. 54 Full Report, supra note 2, at 96.

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groups is strictly enforced for protection and avoidance of detection by law enforcement.55 Some of these “groups have explicit rules about content and demand that its members use security precautions.”56 It pushes the child pornography viewer who has expended all his satisfaction on the images he has or can find outside of these groups to seek admittance because of the new and more extreme images these groups contain.57 These communities value new images of child pornography and gaining access means becoming a producer of child pornography.58 “One child pornography offender stated that individuals in his child pornography trading community “were reluctant to give me access to any of that material unless I could come up with any new material . . . It was then that I thought about . . . involving my daughter.”59 Another defendant frequently offered new images of child pornography he produced to gain free access to child pornography websites and communities.60 For some, the rapid descent into an illegal and violent world of child pornography and the countless hours of viewing creates the desire to act on their fantasies and the acts depicted in the images. Jon Hanson, a defendant, that claimed to “not to be a danger to children” wrote on a community board that he “wanted to f**k one so bad” after viewing images of a seven-year old girl being raped by a man.61 In Jon Hanson’s case, his history of early exposure to pornography contributed significantly to his desensitization in viewing child pornography.62 Jon’s treating doctor testified that Jon possessed child pornography is explained by his early exposure to sexual abuse and pornography as a boy.63 This exposure made pornography acceptable and his long history of viewing adult pornography lead to an addition, which open the door to child pornography.64 We can only speculate how far Jon Hanson’s desires may have taken him if it were not for the efforts of the law enforcement task force that exposed his crime.65 He was 48 years old at the time of his arrest. That left many more years available for child pornography collecting. 66 55

Full Report, supra note 2, at 95. Full Report, supra note 2, at 95. 57 Full Report, supra note 2, at 95. 58 Full Report, supra note 2, at 96. 59 Full Report, supra note 2, at 96 (quoting “Taylor & Quayle, supra note 41, at 161; see also Testimony of Francey Hakes, National Coordinator Child Exploitation Prevention & Interdiction, to the Commission, at 382–84 (Feb.15, 2012) (on behalf of the United States Department of Justice) (recounting the case of an offender who was moved to produce increasingly violent child pornography images of a child in his control in order to have new images to trade). 60 United States v. Irey, 612 F.3d 1160, 1168, (11th Cir. Fla. 2010). 61 Gelber, supra note 21, at 7 (citing Eastern District of Wisconsin, No. 07-cr-330, Sentencing Transcript, June 19, 2008, page 23). 62 United States v. Hanson, 561 F. Supp. 2d 1004, 1008, (E.D. Wis. 2008). 63 Id. 64 Id. 65 NewsRadio 620 WTMJ, http://www.620wtmj.com/news/local/45133192.html (Hanson, who's 48, was one of thousands caught in a sting called "Operation Predator," carried out by the Department of Homeland Security, Immigration and Customs Enforcement.). 66 NewsRadio, supra note 65. 56

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According to Francis Hakes, offenders similar to Jon Hanson who participate in community based platforms for trading child pornography are more likely to begin child molestation to keep up with the demand and access to other member’s images.67 All of these communities are there to be a successful platform for members to trade child pornography and it has levels of access that members gain entrance to by their own activities.68 The “members’ upward progression within the site’s hierarchy is achieved most readily by producing child pornography and distributing it to other members; and communication between members typically normalizes, encourages, and facilitates the sexual abuse of children.”69 The increasing appetite for images of children being violently assaulted is directly linked to the predilection of the user to support and act out the violence himself.70 “An analysis of 33 different studies found that exposure to both non-violent and violent porn increases aggressive behavior, including having both violent fantasies and actually committing violent assaults.”71 Many images of child pornography show the children smiling or conveying that they are enjoying themselves while being raped or molested.72 “[W]hen porn shows the victims of violence accepting or enjoying being hurt, the person watching is learning that people want and like to be treated that way, giving viewers added permission to act that way themselves.”73 The viewing of child pornography contributes to the marketplace for the systematic abuse of young children.74 The continual viewing of child pornography75 also increases the likelihood that their viewing and possessing behaviors will expand to more illicit and violent means.76 Many judges see the exterior character or appearance of the offender and may find it hard to reconcile the extreme, hidden, deviant behavior. So the judge will search for understanding and their ignorance of the true nature of a child pornographer will allow them to underestimate the offender’s dangerous tendencies.

IV.

History

The Child Pornography Guidelines: Hearing Before the U.S. Sentencing Comm’n, 14-15 (Feb. 15, 2012) (statement for the record of James M. Fottrell, Steve Debrota, And Francey Hakes, Department Of Justice). Francy Hakes, National Coordinator for Child Exploitation Prevention and Interdiction from January 2010 to March 2012. 68 Statement for the Record, supra note 67. 69 Statement for the Record, supra note 67. 70 Fight the New Drug, Porn leads to Violence, http://www.fightthenewdrug.org/porn-leads-toviolence/#sthash.GJmGi21M.dpuf (Not surprisingly, the more violent the porn, the more likely the user is to support and act out violence.). 71 Porn leads to Violence, supra note 70. 72 Full Report, supra note 2, at 110 (citing Taylor & Quayle, supra note 13, at 22 (noting that “[a] common characteristic of child pornography is that the subject is smiling . . . [s]miling is important because it suggests that the child is happy, even enjoying, what is happening”). 73 Porn leads to Violence, supra note 70. 74 Full Report, supra note 2, at 93. 75 Porn leads to Violence, supra note 70. 76 Full Report, supra note 2, at 93. 67

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Problems with child pornography had grown since the late 1970s when Congress passed a law to prohibit the production, distribution, and possession of it.77 Child pornography depicts child molestation, sexual assault, and sexual abuse.78 The level of punishment through sentencing varies depending on the type of offense against children.79 The state courts handle the bulk of these offenses,80 but the federal government is increasingly involved due to the large use of the internet, which causes child sexual crimes to crosses state and jurisdictional boundaries.81 The PROTECT Act of 2003 was enacted to dam the downward departures and probation given to pornography offenders.82 With respect to the prosecution and sentencing of federal child pornogrpahy offenses, there are three key time periods: pre and post-PROTECT Act, and PostBooker.

Pre-PROTECT ACT In the late-1970s, the Department of Justice with Congress understood that child pornography was having devastating effects on the children that were subjects of the production, distribution, and possession of it.83 In the 1980s, the state law banning possession, distribution, and production of child pornography was upheld by the Supreme Court.84 Then Congress through the Sentencing Reform Act (SRA) of 198485 created the United States Sentencing Commission to promote “certainty, uniformity, and proportionality in criminal sentencing.”86 The SRA required the United States Sentencing Commission to address the area of child pornography and establish guidelines for it and all other federal offenses.87 It was in 1990, that possession was added to the list of child pornography offenses.88 Despite these efforts, the sentences were still not reflecting the serious nature of the crimes.89

Post-PROTECT Act and Booker The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act in 200390 was passed by Congress in response to the downward departures by

77

Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 § 2 (1978) This Act outlawed the production, distribution, and receipt of child pornography; distribution and receipt offenses were criminalized only if they related to the commercial sale of child pornography. 78 See generally Full Report, supra note 2. 79 See 18 U.S.C. §§ 2251, 2252, 2252A, & 2260. 80 United States Sentencing Commission, Sentencing Federal Sexual Offenders: Protection of Children from Sexual Predators Act of 1998, 7 n.19 (Feb. 17, 2000). 81 Sentencing Federal Sexual Offenders, supra note 80. 82 See generally Full Report, supra note 2. 83 Kimball, supra note 3 at 1517. 84 Kimball, supra note 3 at 1517 (citing New York v. Ferber, 458 U.S. 747, 761, 778 (1982)). 85 Sentencing Reform Act of 1984, Pub. L. No. 98–473, Chapter II, § 212(a), 98 Stat. 1837 (1984). 86 United States Sentencing Commission, The History of the Child Pornography Guidelines, 2 (Oct. 2009). 87 The History, supra note 87, at 2 (citing 28 U.S.C. §994(m), “In the SRA, Congress also stated that “in many cases, current sentences do not accurately reflect the seriousness of the offense.”). 88 The History, supra note 87, at 17 (citing Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789, Title III, § 323(a),(b) (1990)). 89 The History, supra note 87, at 3. 90 Kimball, supra note 3 at 1522.

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judges for sexual offenses against children and to reestablished de novo appellate review.91 PreBooker, the Sentencing Guidelines, were mandatory for the courts to determine the sentence for the convicted defendant.92 In United States v. Booker93, the Supreme Court held that the mandatory sentencing guidelines violated the Sixth Amendment. The Court said that a sentence could not be raised past the maximum penalty for the convicted crime due to crimes that were not proven during a trial and beyond a reasonable doubt.94 Since the Sentencing Guidelines provision provided for exceeding maximum sentences due to other crimes based on a preponderance of the evidence, the Supreme Court held that the Sentencing Guidelines were advisory and not mandatory.95 It also established the “reasonableness” standard for appellate review of sentencing decisions to mandate consistency.96

Post-Booker The Supreme Court in Rita v. United States97 held that the Court of Appeals needs to vacate federal sentences if the sentence is found to be unreasonable, which means the trial court abused its discretion.98 The Court said if the sentence fell within the guidelines then it could be presumed to be reasonable.99 In Gall v United States,100 the Supreme Court said, “district courts remain compelled to consider the § 3553(a) factors when departing from the Guidelines.”101 The Supreme Court’s opinions in two cases dealing with the appeal of sentences based on the guidelines for the crack-to-powder ratios102 further rendered the Sentencing Guidelines impotent. In Kimbrough v. United States103 and United States v. Spears104 “created a precedential legacy that enables district court judges to reject categorically a Guideline range simply because they believe it yields too severe a result.”105 Essentially if the District Court had a policy disagreement with the guidelines, then that is “reasonable” to outweigh the § 3553(a) factors when determining the sentence.106 There was a large increase in downward departures post-Booker. Percentage of Downward Departures for Child Pornography Offenses.107

91

Kimball, supra note 3 at 1522.

92

Booker, 543 U.S. at 220. Id. 94 Id. at 226 95 Id. at 266. 96 Id. at 263. 97 Rita v. United States, 551 U.S. 338 (2007). 98 Id. at 341. Cited in Kimball, supra note 3 at 1523. 99 Id. at 347. Cited in Kimball, supra note 3 at 1523. 100 Gall v. United States, 552 U.S. 38 (2007). 101 Kimball, supra note 3 at 1523 (citing Gall, 552 U.S. at 49-50). 102 The crack to cocaine difference was pushed by Congress due to the belief that crack was more dangerous and more addictive. The sentencing and punishment for crack created a large prison population of African Americans that had a small amount of crack. 103 Kimbrough v. United States, 552 U.S. 85 (2007). 104 Spears v. United States, 555 U.S. 261 (2009). 105 Kimball, supra note 3 at 1525. 106 Kimball, supra note 3 at 1525. 93

107

Kimball, supra note 3 at 1525 (citing Final Report to Congress on the Impact of United States v. Booker on Federal Sentencing, pg. 122.)

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Production Distribution and Trafficking Possession

Pre-PROTECT

Post-PROTECT/ Pre-Booker

Post-Booker

3.8%

1.8%

11.3%

13.7%

12.2%

19.1%

25%

12.3%

26.3%

The incidents of downward departures for production, distribution, and possession do not hold up to a policy disagreement108 because the judges feel penalties are too harsh since Congress developed the penalties rather than the Sentencing Commission.109 The Supreme Court confirms that the child pornography possession is a significant and serious crime that harms children. 110 The policy dispute against the current penalties for child pornography possessors does not parallel the nature of the crack-to-cocaine 100-1 penalties, this is the issue drove the court can use a policy dispute to disregard the guidelines.111 The child pornography penalties are not harsh considering the offender's actual behavior. Many of the possessors are undercharged and many times fit the elements to be charged with higher crimes of production and distribution.112 Many judges use cases of child pornography possessors to argue that they are just “viewers”113 and they did not harm a child, but what is there explanation for the 11.3% downward departures for production.114 Producers of child pornography had contact with a child, why is 15 years115 too harsh for that? The judges must be unaware of the type of harm that child pornography possessors pose.

V.

Prosecutors

Prosecutorial discretion means the power the prosecutor has to determine and file charges against a defendant if a plea bargain should be offered, and to recommend a sentence for the convicted.116 “Jurists have repeatedly acknowledged that federal prosecutors have tremendous discretion117 and that United States Attorneys enjoy considerable autonomy when deciding whether or not to charge.”118 The United States Attorney who prosecutes the federal cases against child pornography offenders often only bring one count for the charges they file.

108

Full Report, supra note 2, at 240; (citing United States v. Bistline, 665 F.3d 758, 762 (6th Cir. 2012)). Kimball, supra note 3 at 1542. 110 New York v. Ferber, 458 U.S. 747 (1982). 111 Spears v. United States, 555 U.S. 261 (2009). Rita v. United States, 551 U.S. 338 (2007). Gall v. United States, 552 U.S. 38 (2007). Kimbrough v. United States, 552 U.S. 85 (2007). 112 Full Report, supra note 2, at 166. 113 Full Report, supra note 2, at c-7. 114 Kimball, supra note 3 at 1525. 115 18 U.S.C. §2251. Minimum sentence for production of child pornography. 116 Black's Law Dictionary (10th ed. 2014). (prosecutorial discretion (1960) 1. Criminal law. A prosecutor's power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a sentence to the court.”) 117 Caves, Michael A., The Prosecutor’s Dilemma: Obligatory Charging Under the Ashcroft Memo, 9 J. L. & Soc. Challenges (Spring 2008) (See Osler, supra note 8, at 626 (“Regardless of where we are in this battle, one constant remains: Even given these sudden shifts, federal prosecutors today still wield tremendous discretion....”).” 118 Caves, supra note 117. 109

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One count means that the maximum penalty will be guided by the Sentencing Guidelines for the crime and its sentence range. Under 18 U.S.C. §2252A,119 possession of child pornography120 has a range of zero to five years prison sentence,121 receipt and distribution of child pornography122 separately have a range of 5 to 20 years123 with no aggravating factors. For images involving children under the age of 12, the possession sentence goes from zero to 20 years;124 the other crimes do not have the designation concerning age of the child in the image. The other aggravating circumstance of a prior federal or state conviction for child sexual offense125 attaches to all of the offenses to heighten the penalty. The increased penalty for prior convictions for possession bring the sentence range from 10 to 20 years,126 and receipt or distribution sentence is from 15 to 20 years.127 Under 18 U.S.C. §2251,128 production of child pornography129 sentence is from 15 to 30 years.130 With prior sexual offenses,131 it is from 25 to 50 years,132 and if the convicted has two or more prior sexual-based convictions then it is from 35 years to life.133 If the crime results in the death of the victim, then the penalty is death or from 35 years to life.134 There are other offenses within the code that cover a variety of crimes against minors. These statutes address the maximum and minimum sentences for each offense. Citizen's Guide to U.S. Federal Law on Child Pornography135 18 U.S.C. § 2251- Sexual Exploitation of Children (Production of child pornography) 18 U.S.C. § 2251A- Selling and Buying of Children 18 U.S.C. § 2252- Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography) 18 U.S.C. § 2252A- Certain activities relating to material constituting or containing child pornography 18 U.S.C. § 2256- Definitions 18 U.S.C. § 2260- Production of sexually explicit depictions of a minor for importation into the United States

119

18 U.S.C. § 2252A (2012).Certain activities relating to material constituting or containing child pornography. § 2252A(a)(5). 121 § 2252A(b)(2). 122 § 2252A(a)(2). 123 § 2252A(b)(1). 124 § 2252A(a)(2). 125 § 2252A. 126 § 2252A(a)(2). 127 § 2252A(b)(1). 128 18 U.S.C. § 2251 (2008). Sexual exploitation of children. 129 § 2251(a). 130 § 2251(e). 131 § 2251(e). 132 § 2251(e). 133 § 2251(e). 134 § 2251(e). 135 Department of Justice, Citizen’s Guide, http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html (last updated May 9, 2015). 120

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If the average offender only has a charge of possession of child pornography with images of children under age 12 and doesn’t have any priors, then that convicted offender could face no prison time, or up to 20 years.136 Child pornography depicting children below age 12 are especially egregious because of the child’s inherent youth and immaturity, that they do not understand and have trouble disclosing the crime.137 Congress wants to punish and deter the behavior, so the penalty increased is a way to do that.138 The guideline sentence is purposefully a heavy penalty because Congress has determined it is the best way to cut off the child pornography market by attacking every level.139 If the U.S. Attorney charges a child pornography offender with one count of possession, distribution, and receipt if the facts and evidence support that claim. The sentencing range is from 0 to 10 years on the possession count and 15 to 20 years on each of the receipt and distribution counts. The sentences are designed to run consecutively,140 so the defendant is facing 30 to 50 years if the court uses the guidelines. If the court decided to give a downward departure, since over 63 percent are downgraded,141 then the court would have to explain a belowguidelines sentence when the defendant was facing a minimum sentence of 30 years. If the United States Attorney charged just the one count of possession, which is a large portion of how cases are charged,142 then the defendant would be facing 0 to 10 years. That one-count conviction is easier for a judge to depart downwardly and justify with a policy concern. Alternatively, the penalty could stay within the guidelines by sentencing the defendant to probation or a few years in prison. If the United States Attorney filed the multiple charges, it would force the hand of the district judge to stay closer to the guidelines range for fear of reversal on appeal due to an “unreasonable” sentence. The United States Attorney will appeal the downward departures or below-guideline sentence for “unreasonableness”, but the appeal is a large expenditure of taxpayer funds as well as United States Attorney time and effort to argue the appeal.143 Potentially if the United States Attorney filed the three- count charge and got a conviction, then the need for an appeal due to the judge departing below the guidelines may be eliminated in many cases.

136

§ 2252A Selection, Engagement and Seduction, supra note 20, at 41 (Some offenders said they offended children who were ‘too young to testify’ or molested children had total control over.). 138 § 2251, Legislative History, Pub. L. 110–358, title I, §102, Oct. 8, 2008, 122 Stat. 4001, provided that: (Congress finds the following: “(1) Child pornography is estimated to be a multibillion dollar industry of global proportions, facilitated by the growth of the Internet. ‘(2) Data has shown that 83 percent of child pornography possessors had images of children younger than 12 years old, 39 percent had images of children younger than 6 years old, and 19 percent had images of children younger than 3 years old.) 139 § 2251, supra note 138, (Congress finds the following: “(2) The Government has a compelling state interest in protecting children from those who sexually exploit them, including both child molesters and child pornographers. ‘The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance . . .). 140 United States Sentencing Commission, http://www.ussc.gov/guidelines-manual/2010/2010-5g12. 141 Full Report, supra note 2, at ii (By fiscal year 2011, that rate was 62.8 percent.). 142 Full Report, supra note 2, at 166 (While 97.5 percent of §2G2.2 offenders engaged in knowing receipt and/or distribution conduct according to their PSRs and/or plea agreements, less than half of §2G2.2 offenders were convicted of an R/T/D offense in fiscal year 2010. The remainder (53.1%) were convicted only of possession.) 143 See generally: United States v. Irey, 612 F.3d 1160 (11th Cir. 2010). 137

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The guidelines and the statutes rely heavily on unconvicted behavior to increase the penalty for the convicted. While it is easier to prove the unconvicted behavior for sentences under the preponderance of the evidence standard rather than beyond a reasonable doubt, 144 the effect is negative. The judge can disregard the other unconvicted criminal acts because of the judge deemed “harsh” sentences policy stance.145 After the passing of the PROTECT Act of 2003, Attorney General John Ashcroft sent a memo to the all federal prosecutors about “department policy concerning charging criminal offenses, disposition of charges, and sentencing.”146 The Ashcroft memo instructed the prosecutors to charge the highest crime that the evidence allowed.147 Despite this directive, over eight years later, the United States Sentencing Commission issued its report to Congress about Child Pornography Offenders.148 It showed overwhelmingly that offenders are being charged and convicted of possession when higher charges of receipt and distribution are warranted.149 The United States Attorneys are not bringing the highest charge that is capable of being prosecuted.150 In the United States v. LaDeau,151 the initial charge was possession of child pornography, and after the evidence was suppressed, the prosecutor brought a new higher charge of “conspiracy to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2)”152 from the same facts. It was dismissed for prosecutorial vindictiveness.153 Whether the United States Attorney was vindictive in his decision to bring the other charge is irrelevant for this paper’s argument.154 The argument is that if he had charged the defendant with possession, receipt, and conspiracy in the beginning, then the whole case would not have been dismissed.155 Even with the evidence of the child pornography images being suppressed there would still be evidence of the conspiracy charge and the defendant may have faced some punishment. The court said, “First, there is little reason to suspect that the prosecutor’s view of LaDeau’s case changed significantly between the two indictments, given that the government already possessed all of the

144

Full Report, supra note 2, at 145. United States Sentencing Commission, Results of Survey of United State District Judges: January 2010 through March 2010, p. 7, 13 (June 2010). 146 Memo Regarding Policy On Charging Of Criminal Defendants. John Ashcroft, United States Attorney General, (Sept. 22, 2003) http://www.justice.gov/archive/opa/pr/2003/September/03_ag_516.htm. 147 Ashcroft Memo, supra note 146 (It is the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case . . . The most serious offense or offenses are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence.). 148 Full Report, supra note 2, at 221. 149 Full Report, supra note 2, at 221 n.43 (See id. at 148 (Figure 6–16). Of the 878 defendants convicted of possession, 818 defendants (93.2%) were convicted of a possession offense that did not carry a mandatory minimum term of imprisonment, while 60 (6.8%) of those possession defendants had predicate convictions for sex offenses and, thus, faced a statutory mandatory minimum sentence of ten years of imprisonment.). 150 Full Report, supra note 2, at 219 (Charging practices that do not reflect the most serious offense conduct.). 151 United States v. LaDeau, 734 F.3d 561(6th Cir. 2013). 152 Id. 153 Id. 154 Id. 155 Id. 145

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relevant evidence that supported the superseding indictment well before procuring the first indictment.”156 The government argues, “…it was reasonable to pursue a receipt conspiracy rather than a possession conspiracy because the two charges were not equally provable;” instead, “the evidence available to the government best fit a charge of conspiracy to receive” rather than conspiracy to possess.157 This is apparently because the pertinent letters discussed “how to obtain child pornography over the internet, i.e., how to receive it” rather than detailing the concealment or preservation of child pornography “already in [LaDeau’s] possession.” 158 Here, the Government had the evidence all along to bring the higher charge that carries a mandatory sentence guideline of 5 to 20 years.159 The possession charge that was originally brought only carried a 0 to 10-year sentence.160 This prosecutorial discretion to decide what charges to bring seems to be going against the directive from Attorney General Ashcroft in his 2003 memorandum to charge the highest count that results in the longest sentence.161 The decision to bring charges and under what theory is the prosecutor’s, but justice must guide it through fair, uniform, and a tough charging policy.162 A policy of charging the highest crime must be supported by the evidence.163 The sentence determined after conviction should not be dependent upon which judge a defendant was sentenced under, and the charges brought against the defendant should not be variable because of the particular prosecutor.164 The federal prosecutors play an important role in deciding the charges to bring against a defendant and the plea or sentencing recommendations to the court.165 The court is relying on the evidence and charges that the prosecutors bring to determine the level of harm a defendant may pose upon conviction.166 The discretion in federal prosecution167 is also contributing to the judicial misconception about child pornography offenders' behavior because they are charged with one count of 156

Id. Id. at 12. 158 Id. 159 Id. 160 Id. 161 Ashcroft Memo, supra note 146. 162 John Ashcroft, Attorney General, Prepared Remarks of Attorney General John Ashcroft, Milwaukee, Wis., (Sept. 22, 2003). http://www.justice.gov/archive/ag/speeches/2003/092203milwaukee.htm, (The PROTECT Act reaffirms what the people, through their representatives in Congress, sought to achieve in enacting sentencing reform: sentences should be fair, uniform and tough. Sentencing guidelines are not merely recommendations to federal judges; they are the law, and they protect the public. I believe that when a predator commits a crime, he should do the time. . . . .In virtually all cases, prosecutors must bring the toughest charges available, yielding the toughest penalties under the sentencing guidelines.). 163 Ashcroft Remarks, supra note 162. 164 Ashcroft Memo, supra note 138 (Just as the sentence a defendant receives should not depend upon which particular judge presides over the case, so too the charges a defendant faces should not depend upon the particular prosecutor assigned to handle the case.). 165 Ashcroft Memo, supra note 146. 166 See generally: Irey, 612 F.3d at 1226 (Dissent Tjoflat). 167 Sentencing Federal Sexual Offenders, supra note 80, at 11. 157

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possession when evidence exists to support a stronger, higher charge.168 In United States v. Price,169 he took pictures of his daughter while molesting her, distributed it and had stashes of images found on his computers.170 The pornography he produced had been found in over 160 other investigations.171 He was charged with one count production and one count possession.172 He was facing 15 to 40 years in prison. Why not distribution as well? If they charged distribution too, then he would have been facing 30 to 70 years. The sentence the judge handed down was 18 years for the production and 6 years to be served concurrently for the possession.173 The sentence was upheld because it was within the range and the policy disagreement was allowed.174 The appeal by the U.S. Attorney would have been more fruitful if they had the three counts originally, then Price would most likely be facing more than 30 years in prison, which was closer to the amount of time the prosecutor was going for originally.175 In both waves of the [National Juvenile Online Victimization] Study, one out of every six cases that began with an investigation of C[hild] P[ornography] found a dual offender who had also sexually abused a child or attempted to do so. It is clear that targeting C[hild] P[ornography] possessors does reveal a considerable number of child sexual abusers as well, particularly among those offenders who live with children or have access to children through employment.176 The federal prosecutors are charging the offenders with possession more frequently than with receipt, production or distribution when the facts may support a higher charge.177 Since possession carries no minimum sentence and a lower maximum so these offenders are released back into their community to potentially perpetrate more harm on children.

VI.

Judges

In federal cases, the judges have to determine the sentence after the conviction by consulting the sentencing guidelines, the pre-sentencing report (PSR), and recommendations from the prosecutor and defense attorney.178 The judges plays a vital role because their decision allows the convicted child pornography offender to receive either probation, a few years, the minimum, the maximum and other ancillary punishments.179 If the judge is previously biased to believe that child pornography sentences are “too harsh” then what will the judge do when he is 168

Sentencing Federal Sexual Offenders, supra note 80, at 11 United States v. Price, Nos. 12-1630 & 12-1880 (U.S. Ct. App. 7th Cir. Dec. 5, 2014). 170 Id. at 2. 171 Id. 172 Id. at 1. 173 Id. at 2. 174 Id. 175 Id. at 7. §2251. 176 Janis Wolak, David Finkelhor, & Kimberly J. Mitchell, Child-Pornography Possessors Arrested in InternetRelated Crimes: Findings From the Nat’l Juvenile Online Victimization Study, p. 39 (2005). 177 Full Report, supra note 2, at 147. 178 See generally. Irey, 612 F.3d at 1170. 179 Id. 169

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faced with behavior and crimes that do not fit their understanding of the offense?180 Many prosecutors expressed “frustration that some judges did not view child pornography possession as a serious crime.”181 Before the PROTECT Act of 2003, the sentences of child pornography offenders was a problem, and it continues.182 “The appallingly low sentences received by offenders of child sexual abuse in the 1990's further illustrates the judiciary is out of touch with the evil perpetrated by the abuse of children and the pornography that results.”183 The two tables below are from the United States Sentencing Commission Results of Survey of United States District Judges: January 2010 through March 2010.184 Question 1. Mandatory Minimum Table 1. Was the mandatory minimum sentence generally appropriate for these offenses? Too Appropriate Too Low High Minimum sentence Child Pornography Production 67 10 23 15 years Distribution 57 6 37 5 years Receipt 26 2 71 5 years *Possession is not listed because it does not have a mandatory minimum without aggravating factors. *Numbers are in percentages. Question 2. Appropriateness of Guideline Ranges Table 1. Is the guideline range generally appropriate for each following type of offense? No-Too Sentence Yes No - Too Low High Range Child Pornography 15-30 Production 72 13 16 years 5-20 Distribution 62 8 30 years 5-20 Receipt 28 3 69 years 0-10 Possession 26 3 70 years *Numbers are in percentages.

Sentence Range

15-30 years 5-20 years 5-20 years 0-10 years

*Crack Cocaine (28 yes, 2 No—Too Low, and 70 No—Too High) was the only other offense in Question 8 that had similar numbers to Receipt and Possession.

180

Id. NJOV Study, supra note 176, at 25. 182 Sentencing Federal Sexual Offenders, supra note 80. 183 Sentencing Federal Sexual Offenders, supra note 80. 184 United States Sentencing Commission, Results of Survey of United States District Judges: January 2010 through March 2010, p. 7, 13 (June 2010). 181

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In United States v. Hardrick, the defendant, was convicted on two counts of knowingly receiving child pornography under 18 U.S.C. § 2252(a)(2).185 The defendant argued that a hacker had downloaded the images and video on his computers. 186 The evidence was conclusive that the time and location of the files rebutted the defendant’s assertion.187 There were two concurrences written by Judge Reinhardt and Judge Noonan express their confusion and frustration that “law-abiding” people keep viewing child pornography.188 Reinhardt believes that an illness causes people to view child pornography and the ten-year sentence for possession is not a good answer.189 Noonan believed that good citizens who happen to view child pornography are not aware that this is illegal, and that this behavior is penalized so heavily.190 Noonan espouses that public service announcements need to be used to get the message out to the lawful citizens.191 Noonan and Reinhardt provide a prime example of judges who do not understand the seriousness and danger that child pornography offenders pose.192 They look at the defendant’s age, education and family to decide that it does not add up for this man to be so bad.193 The Table 13 below list the defendant characteristics that district judges admit are taken into consideration when determining a sentence.194

The Sentencing Reform Act requires the related policy statements issued by the Sentencing Commission to be considered about variances.195 The majority of characteristics that 185

Hardrick, No. 13-50195. Id 187 Id 188 Id 189 Id 190 Id 191 Id 192 NJOV Study, supra note 176, at 25 193 Barry J. McMillion, Congressional Research Service, U.S. Circuit and District Court Judges: Profile of Select Characteristics, Analyst on the Federal Judiciary, (March 19, 2014.). 194 Results of Survey, supra note 80, at 18. 186

195

Irey, 612 F.3d at 1218-1219 (In addition to requiring consideration of the guidelines range, the Sentencing Reform Act also requires that district courts consider any pertinent policy statement issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(5). The policy statements in the guidelines that are relevant to this case address when departures are appropriate in calculating the sentencing range. We are not dealing with a guidelines departure

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district court judges rely upon196 when determining a sentence are the same characteristics that the Sentencing Commission policy statements prohibit a court from using to justify a downward departure in child pornography cases.197 Russell Wheeler at the Brookings Institute compiled data on the federal judiciary in 2009 and it showed that of the 607 active District Court judges, 59% are white men, and 20% are white women.198 In the entire federal judiciary199 there are 1,268 judges and 70% are white men, and 15% are white women.200 The average age of a federal district judge is 63.201 The typical child pornography offender looks similar to the federal district court judges; most possessors of child pornography are “white male, United States citizens with little or no criminal history.”202 The non-production child pornography offenders had the average age of 42.203 In 2010, 81% of non-production offenders did not have a criminal history. 204 Perhaps the federal district court judges cannot fathom how a man similar to themselves is looking at child pornography. They may think there must be something wrong with the offender, and they cannot control their behavior.205 It may be that the judges do not understand the nature of pornography, the severity of the offender’s actions, and their depravity due to usage.206 Some judges shed light on their beliefs by the statements and opinions they pen regarding the sentencing of the child pornography offender.207 The United States Courts of Appeals in the decision here, but a § 3553(a) variance decision. Still, even though the policy statements are in no way binding, § 3553(a)(5) requires that they be considered in making decisions about variances. All of the policy statements point in one direction in this case and that is away from a below-the-guidelines sentence.) 196 Characteristics from list in Table 13 above. 197 Irey, 612 F.3d at 1218-1219. 198 Russell Wheeler, The Changing Face of the Federal Judiciary, Governance Studies at the Brooking Institute, p.1. (August 2009). 199 This includes senior and active district court, and the court of appeals judges. 200 The Changing Face, supra note 198. 201 McMillion, supra note 193, at 19 (The average (and median) age of active U.S. circuit court judges is 62.7 (63.0) and their average (median) number of years of service as a circuit judge is 12.3 (10.9) years.). 202 Full Report, supra note 2, at 141. 203 Full Report, supra note 2, at 143. 204 Full Report, supra note 2, at 239 (citing United States v. Henderson, 649 F.3d 955, 960 (9th Cir. 2011) “In fiscal year 2010, 81.1 percent of R/T/D offenders and 82.2 percent of possession offenders were in Criminal History Category I. . . .”). 205 See generally: NJOV Study, supra note 176, at 25; Irey,612 F.3d at 1200-1201 (citing: See generally Bruce J. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, 4 Psychol. Pub. Pol'y & L. 505, 524 (1998) (People diagnosed with pedophilia do not molest children in the presence of police officers or in other situations presenting a high likelihood of apprehension. Rather, they act with stealth, deception, and premeditation in an effort to avoid detection. This is purposeful, planned, and goal-directed conduct, not spontaneous and uncontrollable action or action that is substantially beyond the individual's ability to avoid.). 206 NJOV Study, supra note 176. 207 See Irey,612 F.3d at 1222 (The district court suggested that these factors weighed in Irey's favor: he was 50 years old; his family still loved him; when he was not consorting with prostitutes in this country or raping, sodomizing, and torturing little girls in Cambodia, he was not such a bad guy; the "illness" of pedophilia rendered his criminal acts "not purely volitional"; and he was a victim of child pornography on the internet. The court discounted the value of general deterrence for sexual crimes against children.).

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Second, Third, Seventh208, and Ninth Circuits have held that a judge may disregard 18 U.S.C.A. §2G2.2209 for policy reasons when sentencing under the Kimbrough’s reasoning.210 The Fifth, Sixth, and Eleventh Circuits have refused to let district court “categorically reject §2G2.2 based on congressional involvement in amending the guideline” and the court must consider the guidelines even if they decide the sentence upon other reasons.211 The remaining circuits allow a district court to object to the sentencing guidelines for policy reasons but let district courts impose a sentence that falls within the range set out by §2G2.2.212 A much harder position against disagreements regarding the sentencing guidelines comes from the Sixth Circuit. It has “called other courts’ categorical rejection of §2G2.2 based on the many congressional directives reflected in it as ‘misguided’ by noting that, in our system of government, defining crimes and fixing penalties are legislative functions.”213 It noted that the Sentencing Commission received its authority from Congress and when Congress acts within its power it is not a negative.214 The Sixth Circuit allows district courts to voice policy disagreements about the child pornography guidelines, but ‘the fact of Congress’ role in amending a guideline is not itself a valid reason to disagree with the guideline.”215 Judges are letting a policy disagreement cloud their judgment and not process the entirety of the deplorable act by the offender when deciding the punishment.216 The reality is the production offender made a conscious choice to sexually assault and document that assault for later viewing or distribution.217 The possessors are the customers for the producers.218 Their deviant desires drive the producers to continue their sexual abuse.219 The viewing can lead to actual child sexual abuse by the previous possessor.220 The inconsistent sentencing for child pornographers must be due to the federal judiciary's belief that “viewers” of pornography are just contributing to a “victimless crime.”221 In some cases, the judge even believes the perpetrator of torture and sexual abuse of over 50 young children is the victim, as well, due to an illness of pedophilia.222

208

Full Report, supra note 2, at 239. 18 U.S.C.A. § 2G2.2. 210 Full Report, supra note 2, at 239 n.68. 211 Full Report, supra note 2, at 240 n.73. 212 Full Report, supra note 2, at 240 n.72. 213 Full Report, supra note 2, at 240 (citing United States v. Bistline, 665 F.3d 758, 762 (6th Cir. 2012). 214 Full Report, supra note 2, at 240. Bistline, 665 F.3d at 762. “quoting “While Congress has delegated some authority to the Commission, ‘it is normally a constitutional virtue, rather than vice, that Congress exercises its power directly, rather than hand it off to an unelected commission.’”). 215 Full Report, supra note 2, at 240. Bistline, 665 F.3d at 762. 216 Full Report, supra note 2, at 240. Bistline, 665 F.3d at 762. 217 Full Report, supra note 2, at 14. 218 Full Report, supra note 2, at 14. 219 Full Report, supra note 2, at 14. 220 Full Report, supra note 2, at 14. 221 Id. at 24. See United States v. Chapman, 60 F.3d 894 (1st Cir. 1995). 222 Irey, 612 F.3d at 1198 (Irey travel to Cambodia over 5 years to sexually abuse and torture young indigent Cambodian girls and documented his sadistic sexual escapades and trade with others.). 209

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Why are our prisons filled with African Americans who possessed or deal drugs but not with white, middle-aged men who possessed or distributed child pornography?223 Does the mainly white, middle-aged, college-educated federal judiciary have a hard time believing that someone similar to themselves224 could knowingly be guilty of the acts necessary for possession of child pornography? In court cases around the country, evidence is brought in for viewing by the judges and jury to assist in the determination of the case.225 Are the judges not viewing the child pornography evidence? Is it easier to dismiss child pornography as a victimless crime when one never sees the infant screaming while being digitally raped by the white, middle-aged man? What do these judges think the offenders do, just pursue the images occasionally? These “viewers” are using child pornography to conjuring up fantasies of themselves as the abuser of the children.226 Although it is known that legal adult pornography is used throughout the world to stroke the desires of the many men who view it, do the judges think that child pornography is dissimilar? Are judges really so naïve to believe that child pornography just appeared on the offender's computer, and they are not using it to stroke those fantasies for their pleasure at the expense of a young child’s innocence and safety. The United States Sentencing Commission and the many experts in the arena believe that the tactics employed by law enforcement to find the child pornographers are only catching the tip of the iceberg.227 The less sophisticated of the criminals are ensnared in the nets of the police because the methods to catch these men cannot penetrate the deeply secret networks of child pornographers.228 The increasing sophistication of the entrenched child pornography rings and groups block the entrance of those that cannot follow their strict rules to the entrance and also produce new and increasingly graphic images of child pornography.229 If the current array of convicted child pornography possessors are the small fish230 and they have thousands of images of child pornography, then what is the level of deviance and horrible crimes the big fish are perpetrating. Congress and the courts believed the way to cut off the drug trade is to prosecute the users, as well as the traffickers, suppliers, distributors, and producers.231 This tactic is also used in the prosecution of child pornography because the possessors are driving the trade and production of the child pornography.232

223

Child Pornography offenses are a small percentage of federal crimes. See generally McMillion, supra note 183, at. 225 Steven Goode and Olin Guy Wellborn III, Courtroom Evidence Handbook, 2014-2015 Student Edition, p. 278279. (West 2014) (Federal Rules of Evidence 1002. Comment (7) “…there are situation where the contents of a photograph are sought to be proved. In these instances the rule applies, and oral testimony describing the photograph would be incompetent. United States v. Levine, 546 F.2d 658, 66-68 (5th Cir.1997) (Rule 1002 applied to film in obscenity case.). 226 Gelber, supra note 21, at 5. 227 Full Report, supra note 2, at 228 Id. 229 Id. 230 Similar to the drug user in the large-scale operation of drug rings. It is analogous to finding a perported drug users with kilos of drugs for his own use. 231 Osborne v. Ohio, 495 U.S. 103, 110-11(1990). 232 Ashcroft v. Free Speech Coal, 535 U.S. 234, 245 (2002), (See Congressional Findings, notes following § 2251; Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.). 224

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The investigations and prosecution of child pornographers were made more difficult by the ruling in the Ashcroft v. Free Speech Coalition. The court said, “If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.”233 A presumption is that child pornography is just to view children in sexual performance. Abusing and having sexual contact with children is the main purpose of child pornography and child sexual abuse. Computer generated images (CGI) despite the level of indistinguishability will not overtake the market because the child sex abuse and documentation of it are the drivers in the child pornography market.234 The court gives the offender too much credit to choose wisely and avoid illegal pornography to satisfy their desire. This has not been borne out by the increasing prevalence of child pornography and it does not take into account the pleasure sought by the child pornography producer of having sex with a child or other sex acts with a child and documenting it. It also does not account for the high cost of producing computer-generated pornography when the real child pornography is cheaper and easily attainable, even though, illegal. Computerized images do not typically suffice for the child pornography producer. As a result of this ruling, the prosecutors are compelled to convince a jury that the images are of real children to rebut235 the common defense that they are computer-generated.236 For courts that do not require an identifiable victim, an expert witness (doctor, child pornography historian, investigator) must testify that it is a real child in the image.237 The overwhelming statistics show that federal prosecutors are bringing cases only when an already identified victim is within the collection of the child pornographer.238 Does this mean a child pornography producer can hide the faces of his victims to avoid prosecution? When images do not show faces or distinguishing marks or background markers that allow law enforcement to find or identify already existing victims, then the images are not used as evidence.239 The goal is to prosecute those that harm and sexually abuse children and in doing so produce images and video to distribute it to the large public of child pornographers. This ruling has throttled that effort because the producer is discouraged from disclosing victims in the images since the defendant would lose the opportunity to use the “computer-generated image” defense.240 The Supreme Court referred to the defendant in a child pornography possession case as the “innocent possessor.” The government requested the defendant, should bear the burden of proving the child pornography is indeed computer-generated.241 The court disagreed. It referred to the defendant as the “innocent possessor” and discussed how difficult it would be for this

233

Id. at 254. Id. at 236-37. 235 §2251. 236 Ashcroft, 535 U.S. at 242 (2002). 237 Susan S. Kreston, Defeating the Virtual Defense in Child Pornography Prosecutions, 4 J. High Tech. L. 49 (2004), quoting United States v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.D.N.Y. 2003). 238 §2251. 239 Kreston, supra note 224, at 49. 240 §2251. 241 Ashcroft, 535 U.S. at 255-56. 234

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“innocent possessor”242 to prove the child pornography he had was not actually child pornography. The label for the alleged possessor of child pornography must be innocently done considering how thoughtful the Supreme Court is with the language it employs for their opinions. A more accurate term would be “presumed innocent possessor” or “alleged possessor,” but that is not the wording. The court deems the person on trial for possession of child pornography to be an “innocent possessor.”243 To illustrate the misguided bias and ignorance from the Judiciary about the dangers of child pornography offenders, we will look next at cases of child pornography that have sentencing departures.

VII.

Cases

In the case of United States v Price,244 Jeffrey Price took sexual photos of his daughter and images of his sexual assault of his daughter were among the images of child pornography.245 He was charged and convicted of producing246 and possession247 of child pornography.248 The images that he took of his daughter have been confiscated in over 160 child pornography investigations across the country.249 The Seventh Circuit admits that Price is more dangerous than most convicted child pornographers because he molested his daughter and he sexually abused his sister.250 The abuse of his sister was regular over a six-year period (between age 8 and 14) during their childhood.251 Price’s laptop had 934 images and 17 videos of child pornography.252 The recommended sentence for Price was 40 years; that is 30 years for the production of child pornography and ten years for possession.253 The sentences were to run consecutively.254 He was charged with one count each of production and possession of child pornography.255 They had an identifiable victim, the daughter, and there were several images taken (over 100 images),256 so why the one count of production? Moreover, with over 934 images, why only one count of possession?257 The facts in the case seem to warrant not only production and possession charges but also distribution.258 How else did the images of his daughter end up on the computers of over 160 other child pornographers?259 242

Id. Id. 244 Price, Nos. 12-1630 & 12-1880. 245 Id. 246 §2251(a). 247 §2252A(a)(5)(B). 248 Price, Nos. 12-1630 & 12-1880. 249 Id. at 1. 250 Id. 251 Id. at 2. 252 Id. 253 Id. 254 § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). 255 Price, Nos. 12-1630 & 12-1880. 256 Id. at 6. 257 Id. at 2. 258 Id. 259 Id. 243

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Price touched his daughter’s genitals, inserted his fingers into her vagina, applied yeast infection medication to her, and fondled her breasts.260 He offered to teach her how to masturbate and tried to get his daughter to have sex with him.261 He asked if he came in to have sex with her at night would she resist, and he told her that she could pretend to be asleep.262 The court said that the district court seemed to weigh the aggravating factors heavily in determining the sentence for Price.263 Price was convicted of both production and possession.264 Specifically, the district court considered the facts that he abused his daughter, abused the trust relationship, placed the photos on the internet, and desired to profit from the pornography and that made “his case more serious than the average” child pornographer.265 His behavior included molesting his daughter and sister on multiple occasions.266 The judge listed the past criminal history that accounted for his criminal history category II.267 The offenses include conviction of soliciting a sex act, two DUI arrests, and other traffic violations.268 The district court judge also believed that Price would likely re-offend if the opportunity presented itself with young girls again.269 So the judge weighed the factors and despite the enormous weight showing that Price was a danger to society and young girls and needed strong punishment for the horrible crimes, the desire to make a grandious policy stand must have been heavier.270 Instead of life imprisonment or even 40 years, the judge sentenced Price to 18 years for the production charge and six years for the possession to be served concurrently.271 The judge let a political statement that the sentencing guidelines were overly harsh for child pornography offenses greatly outweigh Price’s horrible crime.272 The Seventh Circuit gave indications in its opinion that it did not agree with the low sentence handed down by the judge, but it falls within the reasonableness test, so the court does not reverse it.273 What little girls will be safe when Price is released at 65 years old and still likes to look at and molest 8-year-old little girls?274 Although there might be hope for the neighborhood girls because Price seems to only like to molest girls in his family, so the nieces and granddaughters should watch out for him. He will do just as much harm at 65 years275 old that he did at age 47, 260

Id. at 6-7. Id. at 7. 262 Id. 263 Id. 264 Id.at 10. 265 Id. 266 Id. 267 Id. 268 Id. 269 Id. 270 Id. 271 Id. 272 Id. 273 Id. 274 Id. at 6. 275 Ivey, 612 F.3d at 1213-1214 (No one testified that the risk of recidivism is ‘academic’ for a pedophile in his sixties or seventies, probably because that simply in not true.). (then Circuit Judge Carnes lists cases that involved 261

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but now he will have that fake “sweet old man” persona to win the girls over. Price’s case was not one of a typical child pornography possession case where there was no evidence of contact with children. Price was an opportunistic child molester that also documented his acts through images and video. Since he liked to share his videos, he fell under the federal jurisdiction. Seventy percent of federal district judges believe the guideline range for possession cases are too high and only 16% believe that the ranges for production are too high.276 Price’s case involved both and it seems that his case would not be the one to use a policy disagreement stance to reduce the sentence of harmful offender. In United States v. Kane,277 the court reversed and remanded a 120-month sentence for a mother who had held down her daughter for over 200 sexual assaults while the co-defendant raped the child.278 The District Court departed downward 90 months due to the belief that the mother posed a low recidivism risk, and the co-defendant was more responsible for the assault.279 The policy stands are counter-productive. Congress sees the Judiciary being soft on child pornography and tells the Sentencing Commission to tighten it up; then Booker comes, and now the Judiciary gets to stick its tongue out to the Sentencing Commission and Congress.280 The courts will use its discretion and be as much of a “conscientious objector” in their disgust that Congress handed down the PROTECT Act and did not go through the unelected Sentencing Commission.281 Congress will again see the reports that show the large percentage of downward departures in child pornography sentences since the Booker decision. The reports will show that prosecutorial discretion contributes to the downward departures because the prosecutors fail to bring sufficient charges to raise the minimum sentence. Congress will most likely step in again to fix the sentences. The future work that Congress does would be better served to work with the Sentencing Commission in writing the guidelines, but Congress may distrust the largely judge-run Sentencing Commission. The real losers in this political battle are the victims and the general public that live next door to the offenders. The Myth of No Prior Criminal History The Assistant Deputy Chief, Child Exploitation and Obscenity Section, Criminal Division, United States Department of Justice, Alexandra Gelber wrote in Response to “A elderly defendant that sexually abused children. United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (mid-80s years old); Zastrow, 534 F.3d 854(8th Cir. 2008) (73 years old); United States v. MacEwan, 445 F.3d 237, 240 (3d Cir. 2006)(approx. 66 and 70 years old); Weiler v. Purkett, 104 F.3d 149, 152 (8th Cir. 1997)(approx. 70 years old).).“When compared with rapists and sexual sadists, pedophiles comprise 60% of all older offenders, indicating that pedophiles offend in their later years at a greater rate than other sexual offenders." citing Hall & Hall, supra at 457-58.). 276 Result of Survey, supra note 78, at 7, 13. 277 United States v. Kane, 639 F.3d 1121 (8th Cir. 2011). 278 Id. 279 United States Sentencing Comm’n, 32 (2014) http://www.ussc.gov/sites/default/files/pdf/training/primers/2014_Primer_Sex_Offense_Register.pdf (citing: United States v. Kane, 639 F.3d 1121 (8th Cir. 2011). cert.denied , 132 S. Ct. 1590 (2012). 280 Full Report, supra note 2, at 4. 281 Full Report, supra note 2, at 239.

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Reluctant Rebellion” that “often, the lack of a criminal history hides years of systemic criminal behavior. The defendants simply had never been caught–the anonymous nature of internet-based crimes and the silent and secret nature of sex crimes in general (particularly with a vulnerable population such as children) protect defendants from detection by law enforcement whether they are collectors or molesters.”282 In United States v. Irey, the sexual abuse and torture of young Cambodian girls occurred over five years, but he did not have any prior criminal history, so he was considered under the criminal history category I.283 Irey was potentially afforded a lower sentence because of his category I, but his offense and aggravating factors pushed him far over the limit of 43 points, which calls for a life sentence.284 In Irey’s case, the lack of criminal may have had a persuasive effect on the district judge.285 The existence of criminal behavior spanning five years admittedly by Irey seems to negate the technicality of no prior convictions.286 Are the criminal history categories benefiting the criminal who has successfully evaded detection by law enforcement? Judge Noonan says in United States v. Hardwick, “[t]hose convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but 287 “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.”288 In his opinion, he quotes Alexandra Gelber’s Response to “A Reluctant Rebellion,” but it seems that he is not aware of the content of this article or Gelber’s purpose.289 Noonan seems to believe that since these convicted child pornography possessors, distributors, and producers have no criminal history, they are assumed to be law abiding.290 This assumption is rebutted in the article and Gelber’s point is that these “upstanding citizen” are wolves in sheep clothing.291 Child Pornography Offender as Victim Circuit Judge Carnes said it best in United States v. Irey, when he invalidated the district court judges' framing of Irey as a victim of his pedophilia illness. 292 Carnes said, “[T]he judge's reasoning is like saying that other than the fact he had an "illness" that made him want to kill young women, Ted Bundy was a pretty nice guy and a valuable member of his community.”293 This essentially was spoken about Bundy by a fellow suicide prevention line worker that said, “[Ted Bundy] also saved lives. I know he did because I was there when he did."294 Judge Carnes expounded about the folly in the district court’s reasoning by analogizing it to saying Jeffrey 282

Gelber, supra note 21, at 7. Irey, 612 F.3d at 1169. 284 Id. 285 Id. at 1204. 286 Id. at 1201. 287 Hardrick, No. 13-50195. 288 Gelber, supra note 21, at 7. 289 Gelber, supra note 21, at 7. 290 Gelber, supra note 21, at 7. 291 Gelber, supra note 21, at 7. 292 Irey, 612 F.3d at 1203. 293 Id. 294 Id. 283

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Dahmer was not so bad “but for his taste for human flesh and how he satisfied it [eating human victims].”295 In United States v. Hardwick,296 the one part of the concurrence that this paper will not disagree with from Judge Noonan is that it would be “[b]etter to stop a crime’s commission than mop the consequences.”297 Noonan’s ideas about how to combat this issue are not what this paper will recommend. This concurrence does reflect a general lack of understanding of the real issue of child pornography. These two judges seem to place Hardwick as the victim of the sentence and his circumstances.298 VIII.

Recommended Changes

This paper intends to drive home the point that prosecutors and the federal judiciary are not doing enough to punish the child pornography offenders who possess, distribute, and produce child pornography. The policy issues that federal judges use to justify the below-sentence guideline punishments are contributing to a thriving illegal market that preys on the vulnerability and sexual abuse of young children. The players in this market need to be punished by harsh prison time and prevented from furthering the harm and, in some cases, abuse to the young children. The cases299 that set the precedent to deviate from the Sentencing Guidelines due to policy disputes should have been narrowly decided only to impact the crack-to-cocaine sentencing disparities.300 There are changes that need to occur at many levels in the process of bringing charges to sentencing a child pornography offender. The Full Report to Congress: Federal Child Pornography Offenses, December 2012 provides many recommendations that would go a long way to making the sentences appropriate for the offense level and offender’s characteristics and criminal behavior. This paper will not rehash its numerous recommendations. 1. Prosecutors bring multiple charges and counts when the evidence supports them to prevent downward departures and expensive appeals. 2. Prosecutors bring the appropriate charge, such as distribution, when the evidence supports it and do not just charge possession. 3. In plea bargaining, the Prosecutors should not be bringing the offense down to the possessor level when there is substantial evidence of child pornography distribution.

295

Id. Hardrick, No. 13-50195. 297 Id. 298 Id. (This case is about receiving child pornography but the facts show that the Department of Homeland Security was alerted to the defendant’s home when two Internet Protocol (IP) addresses were making child pornography available for download. This fact alone seems to implicate a distribution of child pornography charge under 18 U.S. Code § 2252A.) 299 Booker, 543 U.S. 220 (2005), Spears, 555 U.S. 261 (2009); Gall, 552 U.S. 38 (2007); Kimbrough, 552 U.S. 85 (2007). 300 Kimball, supra note 3 at 1546. 296

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4. The child pornography images that depict the sexual abuse and torture of the child needs to be admitted and viewed by the jury and if during plea bargaining, the presiding judge. These images must be shown to illustrate the real horror and evil that is perpetrated on these children and what the offender is viewing to satisfy their own deviant pleasure.301 “Hearing testimony about the realness of the pictures and the names of the children victimized by CP possession may underscore to judges the reality of the crimes these children suffered and counter the tendency of some to minimize the severity of CP possession.”302 5. Age ranges for sentences should be broken out instead of just age 12 and under to more precise ages to represent the growing trend in abuse and child pornography. Children age 0-3 (newborn to toddler) because the emotional development and communication skills for children in this age group are deficient to bring about an outcry. The next age range should be ages 4 to 6 years of age. Then age 7 to 12 years of age. If there is reluctance to adjust the age range because it would require a burden on the prosecution to identify the age of the victim, then the modification could be a larger range of under 3 years of age, then under 6 years of age, and under 12 years of age. 6. Penalties should be increased due to the age of the victims. Age ranges should change because of the growing body of child pornography that involves infants and toddlers. This sexual abuse of helpless, dependent, babies is so horrifying and beyond the bounds of decency, that the egregious nature of the offense needs to be differentiated between it and the abuse of an older child. The abuse and sexual assault of all children is deplorable, but the younger the victim the more likely the child will not be identified, rescued, and could suffer from horrible injuries or diseases from the sexual contact. 7. Offenders that provide assistant to government by identifying the actual victims in the

images will help to reduce the prison sentence. Substantial assistance departures (§5K1.1) have been rare for all child pornography offenders. In fiscal year 2010, such departures occurred in 34 of 791 (4.3%) of R/T/D cases and in 17 of 886 (1.9%) of possession cases.303 Above range sentences have fluctuated but, like substantial assistance departures, have constituted a relatively small percentage of cases.304 While this may be because the offender truly does not know the identity of the victims, it could also mean that there is not a great incentive for the offender to disclose the identities of potential victims. For every verified victim of sexual contact, the offender can remove one month from their sentence. There should be a bottom number so that an offender (sentenced to 60 months) who sexually abused 100 children and identifies them would 301

Kimball, supra note 3 at 1542. (In sum, courts should consider the graphic nature of the child pornography the defendant actually possessed, distributed, or produced. Unlike other crimes, child pornography offenses open a window into the mind of a defendant: the court can literally see what sort of images a defendant intentionally sought out to sexually gratify himself. Masochistic and sadistic acts pose a greater threat to society, necessitating incapacitation; sexual victimization of numerous children is more culpable, demanding retribution; and intentional delight in a victim’s suffering displays cognitive rationality, requiring deterrence. Taken together, these purposes of punishment validate the severity of the Guidelines’ sentences.) 302 NJOV Study, supra note 176, at 25. 303 Full Report, supra note 2, at 133. 304 Full Report, supra note 2, at 133.

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not be able to receive no prison time. The incentive needs to be meaningful for the offender to disclose but also leave a penalty to punish the offender for the conviction. 8. Assistance to the victims that are identified to get earlier therapy and intervention for the harm they received through the abuse. “First, these data, when taken at face value, reveal that approximately 60%–70% of adults do not recall ever disclosing their abuse as children, and only a small minority of participants (10%–18%) recalled that their cases were reported to the authorities. (see Table 1, Column 7).”305 “the results of the 10 other retrospective studies indicated that only one third of adults who suffered CSA revealed the abuse to anyone during childhood.”306

9. There also needs to be an incentive for offenders who are members of communities to assist law enforcement in gathering evidence that leads to the prosecution of other members of the illegal child pornography communities. 10. Incentives could include: located at a federal prison near their family, reducing the fees or fines for their conviction, placement or priority in sexual offender rehabilitation programs, placement in special prison sections to segregate from general population for their safety, use of computers in prison, and other incentives that may entice offenders to disclose actual victims. 11. Polygraph tests should be used on child pornography offenders to ensure compliance with allocutions and disclosures of actual victims. 12. Mandate participation in online pornography addiction programs while in prison. 13. Flatly disallow using age, especially elder age, as a factor to mitigate the sentence. There are hundreds of cases where elderly men are sexually abusing young children. Old age is not a good reason to reduce the sentence.307 14. Judges cannot disregard the sentencing guidelines and §3553 factors due to a policy argument. 15. Judges need to follow the sentencing guidelines and the §3553 factors. 16. The manner of review established by the United States Court of Appeals Eleventh Circuit should be the standard for other circuits for sentencing guidelines departures and variances.

305

Kamala London, Maggie Bruck; Stephen J. Ceci; Daniel W. Shuman, Disclosure Of Child Sexual Abuse What Does the Research Tell Us About the Ways That Children Tell?, 11 Psy., P. Policy , & Law 194-226 (2005). 306 Disclosure of Child, supra note 305, at 201. 307 Kimball, supra note 3 at 1541. (citing Matt Hart, Note, The Geriatric Sex Offender: Senile or Pedophile?, 32 L. & PSYCHOL. REV. 153 (2008). “Yet some courts perceive age as a mitigating factor on the theory that an offender’s physiological deterioration decreases his sexual arousal towards children. However, studies show that a sex offender’s age does not slow commission of his crimes, and he is likely to begin or continue offending in his elder years.”)

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17. Training and education for judges that gives a real depiction of the law enforcement task in procuring the evidence in child pornography cases. Mandatory CLE for child pornography cases. There are no easy solutions to the sentencing disparities and downward departures. I believe many players have to be committed to cutting off the child pornography trade at all avenues. The recommendations are to help courts fully understand the seriousness of the child pornography issue. Then, hopefully, the policy disagreements will be left to the ballot box and not the sentencing of convicted offenders.

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