Risk,Proportionality,and Sentencing

Abstract

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

Keywords

sentencing sex offenders sentencing policy child pornography judicial discretion

Introduction

Cases involving the sexual abuse or molestation of children and those involving child pornography garner overwhelming interest from the public, media, lawmakers, and the criminal justice system. Sex offenders, particularly those who victimize children, are often depicted as among the greatest threats to public safety and morality. Although the seriousness of these crimes is generally recognized, the interest in and attention to child sex offending has been described by some scholars as moral panic (Fox, 2013; Jenkins, 1998; Zgoba, 2004; see Leon, 2011, for an alternative view), resulting in a focus and reaction to child sex offenses that are overly punitive and disproportionate to their impact on society. Not surprisingly, the past several decades have witnessed an abundance of new legislation and policies in the form of sex offender registration, notification laws, and increased penalties aimed at reducing the risk posed by sex offenders and applying retributive philosophies of punishment to their crimes. Simon (1998) argues that “the new generation of sex offender laws represents a shift toward the new penology combined with a strong appeal to populist punitiveness” (p. 456). In other words, the criminal justice response to child sex offenders is heavily focused on both risk management and harsh punishment in an effort to satisfy society’s demand for both safety and retribution. In response, Congress has enacted federal sentencing guidelines and enhancements for child sex-related crimes that continue to increase in punitiveness. One of the most controversial aspects of the federal response to the growing fear of and attention to these types of crimes is the federal child pornography sentencing guidelines. Originally promulgated in 1987, the federal child pornography guidelines have been revised nine times subsequent to their enactment, resulting in increasingly punitive penalties for offenses related to child pornography (United States Sentencing Commission [USSC], 2009).

Among sex offenses, child pornography offenses pose a particularly compelling problem within the justice system. Offenses involving child pornography have received a considerable amount of attention in the last two decades, stimulating increased criminal justice and public awareness and response to these crimes (Adler, 2001; Eke, Seto, & Williams, 2011). Although child pornography offenses involving possession or distribution (non-production offenses) are distinguishable from sexual contact with children, there is a general belief among the public that the use of child pornography directly causes one to engage in contact sexual offenses (Hamilton, 2011; Henzey, 2011; Jenkins, 2001; Quayle & Taylor, 2003). Thus, perhaps one aspect of this intensified reaction toward child pornography is policy maker and public fear and belief that offenders who view or possess child pornography will physically threaten children (Hamilton, 2011). In other words, the courts and Congress tend to view child pornography as directly related to “contact” child sexual abuse (Adler, 2001) and have reacted to this perceived link by increasing penalties for non-production offenses. This reaction has occurred despite the nuanced and inconsistent link between non-production child pornography offending and contact sexual offending demonstrated in the scholarly literature addressing the issue (Jenkins, 2001; Seto, Cantor, & Blanchard, 2006; Seto, Hanson, & Babchishin, 2011; USSC, 2012; Wolak, Finkelhor, & Mitchell, 2011). As a result, there is an increasing concern that the child pornography guidelines fail to reflect the social science evidence suggesting the need to better distinguish levels of harm, dangerousness, and culpability among child pornography offenders.

The increased punitiveness in child pornography laws has resulted in a view among the majority of federal judges that guidelines for these cases produce disproportionate sentences (USSC, 2012). Among the criticisms of the current federal child pornography sentencing scheme are assertions that child pornography sentencing enhancements “result in overly severe penalty ranges for typical offenders . . . and also fail to meaningfully distinguish among offenders in terms of their culpability and dangerousness” (USSC, 2012, p. 11) and that “there is a lack of proportionality in sentence length compared to typical sentences for many ‘contact’ sex offenders” resulting in “some child pornography offenders with no history of sexually abusing a child receiv[ing] prison sentences equal to or greater than the sentence received by ‘contact’ sex offenders . . . ” (p. 13). As a result, child pornography cases are among those with the highest guideline departure rate in the federal courts. Federal child pornography cases “have grown substantially both in total numbers and as a percentage of the total [federal] caseload” (USSC, 2012, p. ii). Furthermore,

since the enactment of the PROTECT Act of 2003 and United States v. Booker, which made the [federal sentencing] guidelines “effectively advisory” in 2005, there has been a steadily decreasing rate of sentences imposed within the applicable guideline ranges in non-production [child pornography] cases. (USSC, 2012, p. ii)

Specifically, in 2011, the average rate of a judge-initiated downward departure for all types of cases was 17.4%, whereas 44.8% of child pornography cases were sentenced below the guideline range; 18.1% of contact sexual abuse cases received downward departure sentences¹ (USSC, 2011). We investigate the various factors that explain guideline departure in child pornography and sexual abuse cases, focusing primarily on the impact of incongruence between guideline-recommended sentences and penalties outlined in statutes.

The Current Study

The current study examines the factors associated with downward departures from the federal sentencing guidelines for both sexual abuse and child pornography cases. The two types of offenses were chosen because both represent sex-related crimes; however, the assessment of actual, tangible harm may, arguably, differ across these offenses. Specifically, sexual abuse crimes have readily apparent victims, for whom the physical and emotional effects are often clearly observable, whereas the determination of harm caused by the offense is often more abstract and difficult to determine in cases involving the possession, receipt, or distribution of child pornography (as opposed to manufacturing child pornography, which would involve the real-time sexual abuse of a child). Nevertheless, public discourse often fails to distinguish between these two types of offenses. Federal judges, however, appear to recognize a clear distinction in the level of harm and have expressed concern that the child pornography guidelines result in the inability to adequately reflect differences in the level of harm, dangerousness, and culpability between non-production child pornography offenders and sexual abuse cases involving contact offenses (Rodgers, 2012; USSC, 2012). If judges are, as Zimring (1996) suggests, serving as insulation between public punitive sentiment and policy outcomes, one would expect to see differences in sentencing outcomes across these two related crime categories. The primary focus of the analyses is on the effect of differences between statutory sentencing ranges and guideline-recommended sentencing ranges.

Theoretical Framework

Richardson and Vines (1970) outlined the interaction between the law and politics in their perspective of legal and democratic subcultural conflict and synthesis. Judges are formally and informally socialized through law school education, bar membership, and other types of professional socialization to respond to cues from the legal subculture, which are often represented by the law and legal precedent (Crow & Gertz, 2008). However, in an effort to maintain legitimacy and support from the public, judges must also consider cues from the democratic subculture, commonly expressed as public opinion and judges’ socialization that occurs within the broader society. These cues from the two subcultures sometimes overlap, often conflict, and require synthesis to satisfy the complex demands of each. As Zimring (1996) has noted, the social authority traditionally afforded to judges (and other professionals) often serves as insulation between popular sentiment and criminal justice policies. However, a decline in trust in government has led to the erosion of deference to judicial expertise (Zimring & Johnson, 2006), which resulted in sentencing policies, such as mandatory minimum sentences and sentencing guidelines restricting judicial discretion, that more directly reflect popular punitive sentiments. As such, in sexual abuse and child pornography cases, demands from legal and democratic forces have resulted in somewhat conflicting cues from the legal subculture in the form of disparity between the statutory sentence ranges and the (often) more punitive ranges outlined in the guidelines. In other words, the increasingly punitive enhancements and mandatory minimum provisions that have been incorporated into the law and sentencing guidelines often conflict with statutory ranges for these offenses. Similarly, the cues from the democratic subculture can create tensions when one considers public support for justice in the form of harsh punishment of sexual and child pornography offenders, while simultaneously demanding justice in the form of proportionality between punishments and actual harm caused by the offense. We can predict that there is less difficulty in synthesizing the various legal and democratic subcultural cues regarding sentencing in sexual abuse cases, for in these cases the discrepancy between statutory and guideline sentencing ranges is smaller and determination of actual harm is more readily apparent and agreed upon within society.

Within this framework of an overlapping, yet conflicting, environment of legal and democratic subcultures, judges make decisions by contemplating three focal concerns: blameworthiness (culpability), dangerousness (protection of the community), and practical constraints and consequences (Steffensmeier, Kramer, & Streifel, 1993; Steffensmeier, Ulmer, & Kramer, 1998). Blameworthiness is often associated with offense type or with one’s role in a particular offense. Dangerousness relates to the need to incapacitate an offender due to the level of risk he or she posed to the community and is associated with criminal history. Practical constraints and consequences involve the impact that sentencing decisions will have on the operation and functioning of the criminal justice apparatus, as well as on offenders, their families, and their communities. The difference between the presumptive (guideline-recommended) sentence and the statutory sentence is likely to have an effect on the cumulative assessment of the three focal concerns. An assessment of blameworthiness and dangerousness, for instance, can be determined, at least in part, by the presumptive sentence, which incorporates the type and severity of offense, criminal history, and any sentence enhancements; however, when juxtaposed against a statutory minimum sentence that is significantly lower, the cues from the legal subculture appear mixed. Similarly, differences between the presumptive and statutory sentence may influence judges’ assessment of practical constraints and consequences given their desire for proportionality in punishment and the need to maintain the courts’ legitimacy in the eyes of the public.

As such, we expect that greater differences between the guideline-recommended sentence and the sentence outlined in the applicable statute will result in an increased likelihood of downward departures from the guideline range and in larger departures below the guideline range for those cases receiving a departure sentence. This relationship should hold true for both child pornography and sexual abuse cases; however, the likelihood of downward departures and their magnitude should be greater in child pornography cases. The rationale for this expected result is summed up in testimony before the USSC on behalf of the Judicial Conference of the U.S. Committee on Criminal Law by Northern District of Florida Chief Judge Rodgers:

On one hand, Congress has provided a broad statutory range for [child pornography] offenses, spanning from zero to ten years for possession and five to twenty years for a receipt offense . . . On the other hand, Congress has issued directives and amendments to the guidelines that have the effect of ignoring this wide range by placing all first-time offenders at the high end of the statutory range. (Rodgers, 2012, pp. 10-11)

The judge also states,

Applying the guideline as drafted has produced a conflict for judges . . . because imposing a within-guidelines sentence often appears disproportionate to the harm, and yet imposing a sentence that varies in order to achieve a better sense of proportionality frustrates the goal of uniformity in sentencing. (Rodgers, 2012, p. 7)

These statements exemplify the challenge judges face in synthesizing the conflicting cues that emerge from the legal and democratic subcultures with regard to sentencing offenders convicted of child pornography offenses. Sexual abuse cases, with readily apparent victims experiencing physical harm, do not appear to pose the same level of conflict.

Child Pornography and Contact Sex Offenses

Public attention to and concern about sex offenders, along with the criminal justice response to sex offenses related to children, have varied over time (Jenkins, 1998; Petrunik, 2002). Simon (1998) describes the public’s desire for severe punishments for sex offenders as “populist punitiveness,” which advocates and supports vengeance against the dangerous and “monstrous” child molester through harsher punishments and zero tolerance. Jenkins (1998) traces the period of heightened concern about sex offending against children back to the late 19th century. This first wave of attention resulted in legislative action, as did increased public and media attention during the 1930s through 1950s and then again beginning in the 1990s. The level of attention from the media, the public, politicians, and lawmakers has increased in recent years, which has led some scholars to describe the current climate as a sustained moral panic (Fox, 2013; Jenkins, 1998; Zgoba, 2004) resulting in increasingly severe responses from legislators and policy makers. Alternatively, Leon (2011) argues that public perception and fear of sexual offenders has remained relatively unchanged over time. Instead, she contends that recent punitive policy changes have resulted not from increased populist punitiveness related to sex offenders, but from the erosion of confidence in social scientific and practitioner expertise, which permitted a more direct democratic influence of populist punitiveness on the punishment of sex offenders. Although the exact mechanism of change is beyond the scope of this study, it is clear that punitive sex offender legislation, often in the form of mandatory sentences, has resulted. It is important to recognize that sex offender legislation, although a response to populist punitiveness, is also heavily focused on risk management (Petrunik, 2002; Simon, 1998). Mandatory minimum sentences and sex offender registration and notification laws, while clearly increasing the severity of punishment, are also aimed at reducing the risk posed by sex offenders by keeping them incapacitated longer and then under surveillance following their release.

A connection between child pornography and the sexual molestation or abuse of children, while relatively understudied, is widely recognized among the public, media, lawmakers, and criminal justice professionals. Research on this connection, however, provides a more nuanced picture. In a recent meta-analysis, Seto et al. (2011) reported that approximately 12% of child pornography offenders had an officially known prior record of contact sexual offending, but 55% of child pornography offenders self-reported having engaged in a contact sexual offense. In the same analysis, Seto et al. (2011) reported that only 2% of child pornography offenders committed a contact sexual offense after their conviction for child pornography. Similarly, a recidivism study of non-production child pornography offenders conducted by the USSC (2012) reported that 3.6% of those offenders were arrested for or convicted of contact sexual offenses subsequent to release from prison. As such, Seto et al. (2011) concluded that there is a distinct group of child pornography offenders who pose little risk of engaging in contact sexual offenses, but those offenders with a history of contact sexual offenses pose a greater risk of engaging in similar offenses in the future. Despite this nuanced evidence, policy makers rarely distinguish among the different risks posed by child pornography offenders and have expanded their response to the populist punitiveness regarding sex offenders to include managing the perceived high risk posed by all child pornography offenders.

The advance of technology has also influenced the increased popular and professional consciousness about the seriousness of child pornography offenses. Child pornography existed before the appearance of the Internet (Finkelhor, 1984; Quayle & Taylor, 2002), but the Internet has resulted in child pornography becoming more pervasive and accessible (Wells, Finkelhor, Wolak, & Mitchell, 2007). Over the past two decades, the Internet has become the most important medium for the dissemination and easy accessibility of child pornography material (Quayle & Taylor, 2002). Many authors have argued that the Internet facilitated child pornography investigations by law enforcement, which led to an increased number of arrests and growth in the number of child pornography cases entering the criminal justice system (Adler, 2001; Bourke & Hernandez, 2009; Eke et al., 2011; Hamilton, 2011; Quayle & Taylor, 2003). Therefore, the impact of the Internet on child pornography policy warrants consideration because many of the changes in the sentencing guidelines were responses to the role of the Internet in promoting child pornography (Wells et al., 2007).

The increased societal and political concern with child pornography crimes has implications for the criminal justice system because it forces legislators and practitioners to adapt and alter their behavior to respond to the fast pace in which child pornography cases have proliferated over the years. Indeed, over the past two decades, there were several changes that altered sentencing policies related to child pornography (Woodlee, 2010). These changes reflect shifts in the public’s perception of the scope of the child pornography problems. As child pornography crimes have progressively become a greater public concern, Congress has provided a great deal of support for more punitive sentences for child pornography offenders. In fact, the USSC (2009) has “reviewed and substantively revised the child pornography guidelines nine times” since their inception in 1987 (p. 2). More importantly, all changes made in the guidelines demonstrated Congress’ willingness to increase sentence severity for child pornography offenses (USSC, 2009). The increased punitiveness of child pornography guidelines has led some judges to question the fairness of the guidelines, placing child pornography cases among those with the highest guideline departure rate. Increased departure from the guidelines may result from judges’ perceptions that these guidelines do not reflect the severity of the offense (Rodgers, 2012).

Prior Sentencing Research and Guidelines Departures

The Federal Sentencing Reform Act of 1984 established the USSC and mandated the creation and implementation of presumptive sentencing guidelines. The federal sentencing guidelines were enacted in 1987. The guidelines as originally enacted were presumptive, with strict restrictions on judicial departures from the sentence ranges outlined. The guidelines went through several alterations subsequent to their enactment, some of which increased judicial discretion and some of which limited such discretion; however, the U.S. Supreme Court ruled in United States v. Booker (2005), and a joint case, United States v. Fanfan, that the sentencing guidelines would be advisory subsequent to the Court’s decision. Therefore, in all sentencing decisions following the Booker case, federal judges used the guidelines in an advisory capacity, but could depart from the guideline recommendations.

Most of the extant research examining sentencing in the federal courts is based on pre-Booker cases (Albonetti, 1991, 1997; Cano & Spohn, 2012; Doerner & Demuth, 2014; Johnson, Ulmer, & Kramer, 2008; Logue, 2011; Mustard, 2001; Spohn & Sample, 2013; Stacey & Spohn, 2006; Ulmer, Eisenstein, & Johnson, 2010), although several more recent studies analyze post-Booker sentencing decisions (Ulmer, Light, & Kramer, 2011a, 2011b; Wolfe, Pyrooz, & Spohn, 2011). Various sentencing outcomes have been examined, including the incarceration decision, sentence length, and departure from the guidelines. Guideline departures are a particularly important sentencing outcome due to the role of departure sentences in producing sentencing disparity (Mustard, 2001). Within the federal system, there are two different types of departure sentences. The first, commonly called “substantial assistance departures,” are requested by the prosecutor when the defendant provides assistance to the government. The second type of departure is a judge-initiated departure sentence. This second type can result in a sentence either above the guideline range (upward departure) or below the guideline range (downward departure). Evidence suggests that departure sentences are a primary source of sentencing disparity in the federal courts (Mustard, 2001; Spohn, 2005). Regardless of which outcome is examined, the vast majority of federal sentencing studies, whether examining pre- or post-Booker cases, focus primarily on the effects of extra-legal influences on sentencing outcomes.

Race, ethnicity, and gender are the factors most often discussed in federal sentencing research. Evidence suggests that each has a relatively small, but significant, impact on various sentencing outcomes. Mustard (2001), for example, provides evidence that Blacks, Hispanics, and males were significantly less likely to receive downward departures and when they do, the adjustments are smaller compared with their White and female counterparts. A number of other studies report similar findings regarding the use of substantial assistance departures (Albonetti, 1997; Everett & Wojtkiewicz, 2002; Hartley, Maddan, & Spohn, 2007; Stacey & Spohn, 2006). In addition to race, ethnicity, and gender, studies also find that citizenship status, education level, family ties, and age impact sentencing outcomes at the federal level (Demuth, 2002; Everett & Wojtkiewicz, 2002; Hartley et al., 2007; Johnson et al., 2008; Logue, 2011; Spohn & Fornango, 2009; Wolfe et al., 2011). Generally, non-citizens, younger offenders, offenders with dependents, and those with less education tend to receive more severe sentences compared with their counterparts.

In addition to extra-legal offender characteristics, two process-related variables are also shown to affect sentencing outcomes at the federal level. Offenders whose cases are resolved through trial and those who are detained prior to trial receive less favorable sentencing outcomes. (Johnson & Betsinger, 2009; Johnson et al., 2008). Recent analyses by Fischman and Schanzenbach (2012) and Cano and Spohn (2012) reveal that the presence of mandatory minimum sentences also plays an important role in sentencing decisions because gender and racial disparity in sentencing outcomes is associated with the application of mandatory minimum sentencing provisions.

Although the focus on unwarranted disparity in sentencing has uncovered evidence of racial, ethnic, gender, and case processing effects at the federal level, the most consistent findings throughout the literature relate to the impact of legal factors such as offense type, offense severity, criminal history, and presumptive sentence. In short, the effect of these case-related variables is near universally significant and substantial in prior sentencing studies. Furthermore, prior federal sentencing research commonly focuses on either drug offenses specifically or all offenses collectively with controls for broad offense types (e.g., violent, property, drugs, firearms, immigration). As such, sexual abuse and child pornography cases are either not included in these studies or are lumped into an “other” category. Given the recent attention of federal judges on child pornography guidelines, coupled with the media’s and public’s sustained interest in and fear of all sex offenders, the current study comes at an opportune time to investigate the factors that influence sentencing in these cases.

Data and Method

The data utilized for the current study are from the USSC for FY2007-FY2011. These data are collected and compiled by the USSC and combine information from several sources, including the Judgment and Conviction order, presentence reports, reports of sentencing hearings, and court orders. The data include cases from all federal district courts. The USSC data include an indicator for primary offense type² that was used to identify child pornography cases³ (n = 5,968) and sexual assault cases (n = 2,002). Child pornography cases include offenses for sale, distribution, receipt, possession, or transportation of sexually exploitive materials involving minors. Sexual abuse cases include sexual abuse of a minor, transportation of a minor for sex, criminal sexual abuse, and abusive sexual contact.

Variables

Two related dependent variables are analyzed in the current study (see Table 1). The first dependent variable is an indicator of whether the sentence imposed represented a judge-initiated downward departure from the guideline-recommended sentence.⁴ Judge-initiated downward departures were coded as 1. All other cases were coded as 0. For child pornography cases, 48% of the offenders received a downward departure, whereas 24% of sexual abuse offenders received a downward departure. The second dependent variable is a measure of the magnitude of the judge-initiated downward departure. To make this variable more meaningful, the length of the downward departure was standardized by dividing it by the guideline minimum and expressing it as a percentage. Therefore, the magnitude of departures is expressed as a percentage of the guideline minimum sentence. For example, if the guideline minimum for a particular case is 63 months and the actual departure length of the departure is 13 months, then the departure magnitude is 20.6% below the guideline minimum. In child pornography cases, among those receiving a downward departure the mean length of departure was 36.47% below the guideline minimum; for sexual abuse cases, the mean length of departure was 35.55% below the guideline minimum.

Table 1.

Descriptive Statistics for Federal Child Pornography and Sexual Abuse Cases, 2007-2011.

	Child pornography cases					Sexual abuse cases
	M	SD	Minimum	Maximum	n	M	SD	Minimum	Maximum	n
Dependent variables
Downward departure	0.48	0.50	0	1.00	5,966	0.24	0.43	0	1	2,012
Departure length %	36.47	21.42	0	99.98	2,772	35.55	23.36	0.00	99.98	446
Independent variables
Offense level	31.69	5.65	12	43		25.56	8.60	4	43
Criminal history	1.42	0.97	1	6		1.88	1.45	1	6
Guideline minimum/statutory minimum difference	81.16	68.21	0	470.00		62.82	77.95	0	470
Child porn possession	0.34	0.47	0	1
Child porn receipt/transportation/distribution	0.53	0.50	0	1
Child porn production	0.13	0.34	0	1
Multiple convictions	0.31	0.46	0	1		0.19	0.40	0	1
Guideline year post-2003	0.96	0.20	0	1		0.94	0.24	0	1
Trial	0.05	0.22	0	1		0.13	0.33	0	1
Pretrial detention	0.66	0.48	0	1		0.80	0.40	0	1
Age	42.18	12.74	19	88		37.64	12.58	17	84
Black	0.04	0.19	0	1		0.09	0.29	0	1
Hispanic	0.06	0.24	0	1		0.09	0.29	0	1
Other race	0.02	0.13	0	1		0.33	0.47	0	1
Non-citizen	0.03	0.16	0	1		0.06	0.23	0	1
Dependents	0.33	0.47	0	1		0.48	0.50	0	1
College	0.53	0.50	0	1		0.36	0.48	0	1

The primary independent variable of interest in the current study is the difference, in months, between the adjusted guideline minimum sentence and the statutory minimum sentence for the specific offense. In addition to recent increases in the severity of the guideline range, the adjusted guideline minimum sentence includes all sentencing enhancements and mandatory minimum penalties enacted by Congress.⁵ Therefore, the Guideline–Statutory Minimum variable reflects the difference between the actual presumptive minimum sentence in a particular case and the minimum sentence permitted by statute. This variable has a range of 0 to 470 months; for child pornography cases, the mean difference between the guideline minimum and the statutory minimum is 81.16 months compared with 62.82 months in sexual abuse cases (the mean for all cases is 76.53 months). In other words, there is significantly more disparity between the guideline-recommended sentence and statutory minimum sentence for child pornography cases compared with sexual abuse cases (p< .001).

We also include several legal and extra-legal variables commonly used in federal sentencing studies in the multivariate analyses that follow. Among the legal variables in the analyses are offense level,⁶ criminal history score, and a measure of whether the defendant was convicted on multiple counts. Offense level is a 43-point scale based on the severity of the offense. Criminal history score ranges from 1 to 6.⁷ The descriptive statistics for these variables indicate that child pornography cases had a higher mean offense level, lower mean criminal history score, and greater likelihood of multiple conviction counts compared with sexual abuse cases. For child pornography cases, we include a control for whether the case involved possession, receipt/transportation/distribution (R/T/D), or production. Over half (53%) of the child pornography cases were categorized as R/T/D and 34% were possession cases. The remaining 13% involved the production of child pornography. In 2003, there was a substantial increase in the punitiveness of the child pornography guidelines; therefore, we include a measure of whether the case was sentenced under guidelines that went into effect after 2003 to control for the effects of this change.

Two process-related variables are also included in the analysis. The first measures the mode of conviction, trial or plea, whereas the second measures whether the defendant was detained prior to conviction. Only 5% of the child pornography cases, compared with 13% of the sexual abuse cases, resulted from conviction at trial. Eighty percent of sexual abuse offenders were detained prior to conviction compared with 66% of child pornography offenders. Finally, several demographic variables are included in the analyses. Age is coded in years at time of sentencing. Dummy variables are used to control for the offender’s race/ethnicity. Race/ethnicity is categorized as Black, Hispanic, and Other with White serving as the reference category. Child pornography offenders were, on average, older, more likely to be White and have some college education, and less likely to have dependents.

Findings

Table 2 presents the results from the combined logistic regression model for downward departures with both child pornography and sexual abuse cases included. As expected, the odds of receiving a downward departure sentence decrease as offense level or criminal history score increase. Specifically, each one-unit increase in the offense level reduces the odds of receiving a downward departure by 1.9%, whereas a 1-point increase in criminal history results in a 10.8% decrease in departure odds. Consistent with our hypothesis, offenders convicted of child pornography possession were over three times (odds ratio [OR] = 3.348, p = .000) more likely to receive a downward departure compared with sexual abuse offenders, and the odds of a downward departure for those convicted of receipt, transportation, or distribution of child pornography were 2.9 times higher (p = .000) than sexual abuse offenders. Not surprisingly, there was no statistically significant difference in the odds of a downward departure between child pornography production and sexual abuse cases. Although judges’ motives cannot be discerned from this analysis, this finding lends some evidence to the argument that judges are considering the level of actual harm when making decisions about guideline departures.

Table 2.

Logistic Regression, Downward Departure: All Cases.

	B	SE	Odds ratio
Offense level	−0.020	0.007	0.981**
Criminal history	−0.114	0.026	0.892***
Guideline minimum/statutory minimum difference	0.010	0.001	1.010***
Child porn possession	1.208	0.085	3.348***
Child porn R/T/D	1.052	0.089	2.864***
Child porn production	0.155	0.129	1.168
Multiple convictions	−0.290	0.063	0.748***
GL year post-2003	0.655	0.131	1.925***
Trial	−0.265	0.112	0.767*
Pretrial detention	−1.091	0.058	0.336***
Age	−0.009	0.002	0.991***
Black	0.176	0.122	1.193
Hispanic	0.218	0.108	1.244*
Other race	0.271	0.106	1.311**
Non-citizen	0.244	0.147	1.277^†
Dependents	−0.047	0.053	0.954**
College	0.161	0.052	1.174**
Nagelkerke R²	0.24
	n = 7,978

Note. OLS = ordinary least squares; R/T/D = receipt/transportation/distribution.

†

p< .10. *p< .05. **p< .01. ***p< .001.

The hypothesis regarding the effect of disparity between the guideline minimum and statutory minimum sentence is also supported by the results in Table 2. Each month of disparity between the guideline minimum and statutory minimum results in a 1.0% increase (p< .001) in the odds of a downward departure. Although appearing to be a small effect, the impact of this relationship can actually be substantial because this effect is cumulative. For example, in a case in which the guideline minimum sentence is 12 months higher than the statutory minimum sentence, the odds of departure are 12.7% greater compared with cases in which there is an agreement between the guidelines and the statute. A case with the mean level of disparity between the guidelines and the statute (76.53 months) would result in 2.1 times greater odds of departure compared with one in which no disparity exists. Table 2 also reveals that having multiple convictions (OR = 0.748, p< .001), conviction at trial (OR = 0.767, p< .05), detention prior to conviction (OR = 0.336, p< .001), and being older (OR = 0.991, p< .001) all result in a lower likelihood of receiving a downward departure. Finally, offenders convicted under guidelines that went into effect after 2003 (OR = 1.925, p< .001), those with any college education (OR = 1.174, p< .01), Hispanics (OR = 1.244, p< .05), “Other” races (OR = 1.311, p< .01), and non-citizens (OR = 1.277, p< .10), all have significantly greater odds of receiving downward departures from the sentencing guidelines.

The results of the ordinary least squares (OLS) regression analysis for the magnitude of downward departures (see Table 3) are similar in most respects to the findings regarding the likelihood of receiving a downward departure. Consistent with expectations, a greater disparity between the guideline minimum and statutory minimum results in a small statistically significant increase in the magnitude of departures. On average, a 12-month difference between the guideline minimum and statutory minimum would result in a departure 1.12% below the guideline minimum. Also consistent with expectations, higher offense levels and higher criminal history scores are associated with smaller departures relative to the guideline minimum. Offenders convicted of child pornography possession receive proportionately greater departure lengths compared with sexual abuse offenders, whereas child pornography production is associated with proportionately shorter departure lengths. Offenders with multiple conviction counts and those who were detained pretrial also received smaller departures relative to their presumptive guideline sentence, whereas offenders with some college education and those sentenced under post-2003 guidelines received departures of greater magnitude.

Table 3.

OLS Regression, Departure Length %: All Cases.

	b	SE
Offense level	−0.517***	0.116
Criminal history	−1.547***	0.408
Guideline minimum/statutory minimum. difference	0.093***	0.009
Child porn possession	5.052***	1.375
Child porn R/T/D	−0.627	1.462
Child porn production	−9.974***	2.015
Multiple convictions	−4.488***	0.911
GL year post-2003	4.477*	2.160
Trial	−1.167	1.636
Pretrial detention	−9.519***	0.782
Age	−0.021	0.027
Black	0.745	1.820
Hispanic	2.533^†	1.495
Other race	2.577	1.618
Non-citizen	0.767	2.045
Dependents	−1.249^†	0.750
College	1.669*	0.728
R ²	0.15
n = 3,218

Note. OLS = ordinary least squares; R/T/D = receipt/transportation/distribution.

†

p< .10. *p< .05. **p< .01. ***p< .001.

To examine the existence of the hypothesized differential impact of guideline/statutory disparity, we ran separate models for child pornography and sexual abuse cases.⁸ We then calculated z scores to identify statistically significant differences in the effects of each independent variable across offense types (Brame, Paternoster, Mazerolle, & Piquero, 1998; Paternoster, Brame, Mazerolle, & Piquero, 1998). Table 4 reports the results for the logistic regression models of downward departures and from the OLS regression models predicting the magnitude of departures for offense level, criminal history, and the measure of difference between the guidelines and statutory minimums.

Table 4.

Child Pornography and Sexual Abuse Cases: Comparison of Select Regression Coefficients.

	Downward departure logistic regression^a
	Child pornography cases			Sexual abuse cases
	b	SE	Odds ratio	b	SE	Odds ratio	z score
Offense level	−0.065	0.008	0.937***	0.001	0.010	1.001	−5.15
Criminal history	−0.246	0.034	0.782***	0.109	0.042	1.115**	−6.57
Guideline minimum/statutory minimum difference	0.012	0.001	1.012***	0.008	0.001	1.008***	2.83
	n = 5,966			n = 2,012
	Downward departure magnitude OLS regression^a
	Child pornography cases			Sexual abuse cases
	b		SE	b		SE	z score
Offense level	−1.125***		0.116	−0.581**		0.195	−2.40
Criminal history	−1.850***		0.520	−1.439^†		0.751	−0.45
Guideline minimum/statutory minimum difference	0.122***		0.009	0.070***		0.018	2.58
	n = 2,772			n = 446

Note. OLS = ordinary least squares.

Selected variables are shown. Full models are available on request.

†

p< .10. *p< .05. **p< .01. ***p< .001.

The findings support the hypothesis that the impact of guideline/statutory disparity is greater for child pornography cases compared with sexual abuse cases. Specifically, with regard to the likelihood of downward departures, each month of difference between the guideline minimum and statutory minimum sentence results in a 1.2% increase in the odds of downward departures for child pornography cases compared with a 0.8% increase for sexual abuse cases, which represents a statistically significant difference (z score = 2.83). To put this difference into context, a guideline sentence that is 12 months over the statutory sentence would result in, on average, 15.4% higher odds of downward departures for child pornography offenders compared with cases in which the guidelines and statutory sentences are consistent. For sexual abuse offenders, the difference is 10.3% higher odds corresponding to a 12-month disparity in guidelines and statutory sentences. If the difference between the guidelines and statutory sentences increases to 60 months, the odds of downward departures for child pornography offenders increase to 105% compared with 61% for sexual abuse offenders.

Similarly, the impact of a guideline/statutory sentence difference on the magnitude of departures is also greater in child pornography cases compared with sexual abuse cases. For example, compared with cases in which there are no differences between the guideline and statutory minimum sentence, a 36-month difference between the guideline and statutory sentence would, on average, result in a 4.4% increase in the magnitude of the departure for child pornography cases and a 2.5% increase for sexual abuse offenders, relative to the guideline minimum sentences. In other words, discrepancy between the guidelines and statutory sentences has a greater impact on both the likelihood and magnitude of downward departures for child pornography cases versus sexual abuse cases.

Discussion

Judges face the difficult challenge of making sentencing decisions that demonstrate respect for the rule of law and achieve justice, while at the same time needing to respond to society’s demand for harsh punishment for criminals to preserve and maintain the legitimacy of the courts through public support. Child pornography and sexual abuse cases are among those offenses that demonstrate this paradox, because sex crimes are strongly condemned by society, yet many judges view current sentencing guidelines as poorly suited to distinguishing varying levels of harm, culpability, and risk. Thus, in 2004, the last full year before United States v. Booker made the federal guidelines effectively advisory, the rate of sentences in child pornography offenses that were within the guideline range was 83.2%; by 2011, the rate of within-guideline sentences had fallen to 32.7% (USSC, 2012). These statistics provide evidence that a significant number of judges view the child pornography guidelines as ill-suited for determining proper sentences.

The purpose of our study was to examine the factors associated with downward departures from the federal sentencing guidelines in child pornography and sexual abuse cases in an effort to gain a better understanding of the high rates of guideline departures in child pornography cases. Our primary focus was to analyze the effect of differences between statutory sentencing ranges and guideline-recommended sentencing ranges. Based on the fact that sexual offender cases garner overwhelming interest from the public, the fact that child pornography cases are among those with the highest downward departure rate in federal courts, and the discrepancy between penalties outlined in statutes and the guidelines resulting from increasingly punitive guideline revisions, this research explored two hypotheses. First, we hypothesized that, in both types of sex offenses (child pornography and sexual abuse), greater differences between the guideline-recommended sentence and the sentence outlined in the applicable statute will result in an increased likelihood of downward departures and, in those cases in which a downward departure sentence is imposed, departures of greater magnitude. Underlying this hypothesis is the assertion that judicial decisions result from a complex interplay of legal and democratic forces (Richardson & Vines, 1970). In other words, while judges are strongly inclined to abide by values such as reasoning, precedent, and restraint, judicial decisions reflect, to some extent, popular democratic values. We speculated that the increased likelihood of downward departure in child pornography and sexual abuse cases result from judges’ attempt to resolve the conflicting cues from the legal subculture in the form of discrepancy between the guideline-recommended sentences and those outlined in the relevant statutes.

We also posited that conflicting cues from the democratic subculture influence judicial decisions. The public’s disdain for any child-related sexual offense, coupled with the belief that child pornographers will physically abuse children, pressures the courts to adhere to highly punitive guidelines for child pornography cases. However, we speculated that it is easier for judges to untangle the complex overlap and interplay of democratic and legal subcultural forces in sexual abuse cases when compared with child pornography cases because judges’ emphasis on the principles of proportionality allows them to distinguish the harms and risk caused by cases involving contact sexual abuse. The harm and risk posed by child pornography offenses that do not involve physical contact are more nebulous and, arguably, less than those involving contact sexual abuse. This argument framed our hypothesis that the likelihood of downward departures and their magnitude should be greater in child pornography cases.

The findings presented here generally support our hypotheses. When examining both types of sex offense cases (sexual abuse and child pornography), we provide evidence showing that as the recommended guideline sentence increases in severity above the statutorily recommended sentence, the odds of downward departures increase. The magnitude of downward departures in these cases is also greater when there is an increased divergence between the guidelines and statutes. We argue that, because the guideline-recommended sentence and statutorily recommended sentence can both be viewed as cues from the legal subculture, judges are viewing discrepancies between these cues as evidence of a lack of clarity and consistency from the legal subculture, resulting in a synthesis of these cues in an effort to achieve justice in their sentencing decisions. Likewise, the nature of the sexual offense, coupled with differences between the guideline-recommended sentence and statutory sentence, appears to influence judges’ assessment of the focal concerns of sentencing. Judges appear to view child pornography offenders as less culpable and dangerous than offenders whose behavior involved physical sexual contact, resulting in an increased likelihood of a downward departure. When this perceived lower level of culpability and risk is juxtaposed with incongruence between the guidelines and statutes, a concern regarding proportionality and fairness appears to influence adherence to the guidelines’ recommendations. This synthesis results in an increased likelihood of downward departure as the severity of the guideline-recommended sentence diverges from the sentence that is outlined in the statute, an effect that is more pronounced in child pornography cases.

Furthermore, the effect of a greater divergence between the guideline-recommended sentence and statutory sentence is greater in child pornography cases compared with sexual abuse cases, possibly due to judges’ concern about the appropriateness of child pornography guidelines with regard to assessments of culpability and dangerousness. In other words, recent testimony (Rodgers, 2012) demonstrates that at least some federal district court judges perceive the child pornography guidelines as disproportionately severe, which may result in them being more affected by differences between the guidelines and statutes in child pornography cases compared with sexual abuse cases, for which the guidelines are deemed more appropriately tailored. This argument is consistent with prior scholarship that discusses the clash between formal and substantive rationality in sentencing (Savelsberg, 1992; Ulmer & Kramer, 1996) and supports the notion of judges serving as insulation between punitive sentiments and the outcomes of policies influenced by those sentiments (Zimring, 1996).

More than a decade ago, Engen and Gainey (2000) argued that the guideline-recommended sentence should be considered as the starting point from which judges make sentencing decisions. The results presented in the current study suggest that, perhaps, the calculus may be more nuanced, at least in some types of cases and in jurisdictions (e.g., federal) in which guidelines are deemed advisory. By incorporating a variable that measures divergence between the guideline-recommended sentence and the statutory sentence, we have demonstrated that judges may be considering how the guidelines relate to other aspects of the law. This consideration appears to have a greater impact on cases in which judges question the appropriateness of the guidelines, such as child pornography cases.

The analysis presented here provides an assessment of the factors that influence sentencing decisions for an understudied set of offense types. Sex offender sentencing, particularly in cases of child pornography, represents a unique challenge for judges given the strong public sentiment surrounding the sexual victimization of children. Recent enhancements to the child pornography sentencing guidelines undoubtedly reflect the public’s perception of the potential risk posed by those who view, possess, or receive pornographic images of children, yet this increased punitiveness within the guidelines affects judges’ assessments of proportionality in punishment and assessments of harm. The conflict that these developments have created for federal judges is well documented (USSC, 2012). The current study attempts to contribute to a greater understanding of how judges attempt to resolve this conflict.

The USSC (2012) recently recommended that the child pornography sentencing guidelines be “revised to account for recent technological changes in offense conduct and social science research about offenders’ behaviors and histories . . . ” and to better account for “ . . . variations in offenders’ culpability and sexual dangerousness” (p. xvii). The findings presented here reinforce this recommendation. The evidence from this analysis suggests that the reforms should reflect not only changing technology and new knowledge about offenders, but also that the guidelines should better align to sentences outlined in the relevant statutes to reduce the conflicting sentencing cues judges receive. Judges must synthesize a complex array of often competing cues from the legal and democratic subcultures when making sentencing decisions. Balancing the demands of popular punitive sentiment with notions of fairness, proportionality, and harm is difficult enough if the law is clear. When the signals from the legal subculture are muddied, as often is the case in child pornography cases, the challenge is even greater.

The findings presented here regarding several of the control variables also lend support to both the legal/democratic subculture and the focal concerns perspectives. Judges appear to be utilizing cues from both subcultures when making assessments of blameworthiness, dangerousness, and practical constraints. For example, it is reasonable to argue that judges perceive offenders who have multiple convictions as more culpable and offenders who have been detained prior to the conviction as more dangerous. In addition, judges might perceive offenders who have pleaded guilty as less culpable based on the belief that offenders who seek trial lack remorse for their crime (Spohn & Hemmens, 2011). The evidence that offenders with dependents are less likely to receive downward departures, while differing from prior research examining other offense types, is consistent with the notion that judges are seeking to protect the “community” by sentencing those with dependents (e.g., potential sex offense victims) more severely. Finally, the results showing that older and White offenders are less likely to receive downward departures are consistent with stereotypical assessments of sex offenders as older White men being the most likely sex offenders.

There are a few limitations of the current study that should be considered. First, the analysis focuses only on judge-initiated departures due to the emphasis on judicial decision making in the theoretical foundation of the study and recent judicial testimony regarding sentencing in child pornography cases. Therefore, we have not considered what could be influential relationships between prosecutorial discretion and sentencing outcomes. For example, the behaviors of child pornography possession and receipt are virtually identical and prosecutors can use their discretion when determining which offense to charge, which could have an impact on sentencing options. This limitation is inherent in any sentencing study in which the ability to examine prosecutorial charging decisions is absent. Using the adjusted guideline-range minimum sentence in the calculation of the primary independent variable of interest, however, we have captured all applications of mandatory minimum and other sentencing enhancements that prosecutors often control.

We were also unable to control for secondary offenses in the current study. It is possible that the existence of additional sex offenses beyond the primary offense may have influenced sentencing decisions. Similarly, the criminal history variable does not provide the opportunity to control for type of prior offenses. Previous research has shown that prior offense type impacts sentencing outcomes (Crow, 2008; Vigorita, 2001). Finally, there were a number of cases prior to 2010 for which a reliable indicator of whether the primary offense involved child pornography was not available. These cases were not included in the analysis presented here. It is possible that the inclusion of these cases could have influenced the results.

Despite these limitations, the current study provides an important contribution to the literature on both judicial decision making and sex offender sentencing policy. It also provides evidence of the complexities of synthesizing cues from the legal and democratic subcultures. Future research should consider additional, perhaps mixed-methods approaches to more thoroughly assess judges’ sentiments regarding the child pornography guidelines and how they influence decisions. For example, surveys of and in-depth interviews with judges may shed additional light on how democratic and legal subcultural cues affect their decisions. In addition, examining prior judicial decision points, such as the charging decisions of prosecutors, will further elucidate the impact of guidelines on sentencing outcomes. Analyzing the impact of jurisdiction may also enhance our understanding of the intricacies of sexual offense sentencing. Finally, future research should consider examining the impact of guideline/statutory discrepancy for additional crime types and child pornography sentencing in different jurisdictions.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

Matthew S. Crow, PhD, is associate professor and chair in the Department of Criminal Justice at the University of West Florida. His research on sentencing, conservation policing, and police use of force has been published in Journal of Criminal Justice, Criminal Justice Review, Deviant Behavior, American Journal of Criminal Justice, and Police Quarterly. He is co-editor, with John Smykla, of Offender Reentry: Rethinking Criminology and Criminal Justice, published by Jones & Bartlett.

Paula S. Lannes is a doctoral student in the Department of Criminology at Indiana University of Pennsylvania. She earned her bachelor’s and master’s degrees in criminal justice at the University of West Florida. Her current research interests include the Criminal Court System, Criminal Sentencing, Comparative Criminal Justice Systems, and Legitimacy of Criminal Justice Institutions.

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