Pursuant to the Sentencing Reform Act of 1984, Congress established the U.S. Sentencing Commission to formulate an empirical set of federal sentencing Guidelines. With the U.S. Sentencing Guidelines, Congress intended to further the basic purposes of criminal punishment—deterrence, incapacitation, just punishment, and rehabilitation. Nevertheless, the Guidelines were instantaneously met with disapproval. Asserting that the mandatory Guidelines violated the Constitution, scholars and judges argued that the Commission usurped Congress’s role by prescribing punishments that were essentially binding law. In 2005, the Supreme Court held that the Guidelines were discretionary in United States v. Booker.
While this decision resolved many of the issues associated with the Guidelines, it arguably made matters worse with respect to the child pornography non-production Guidelines. The child pornography non-production Guidelines have been widely criticized for lacking a connection to community values, leaving little room for rehabilitation, and being excessively harsh. Thus, district courts often elect to deviate from the problematic Guidelines in an attempt to impose a fair sentence. However, because district courts are free to deviate from the Guidelines at the discretion of the judge, the sentencing system has become inconsistent and unpredictable. In addition, courts often impose punishment for morally repugnant crimes that is too lenient. As a result, the child pornography non-production Guidelines do not further the basic theories of criminal punishment in the United States—retributivism and utilitarianism. In order to prevent the sexual exploitation of children and restore consistency in federal sentencing law, the Guidelines system must be systematically reformed.
Punishment Without Purpose: The Retributive and Utilitarian Failures of the Child Pornography Non-Production Sentencing Guidelines,
65 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol65/iss2/8