Lessons from Two Failures: Sentencing for Cocaine and Child Pornography under the Federal Sentencing Guidelines in the United States

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I

INTRODUCTION

The Federal Sentencing Guidelines adopted in the United States in 1987 and rendered advisory by the Supreme Court's decision in 2005 in United States v. Booker (1) have been the subject of a wide variety of criticisms over the past twenty-five years. But no specific aspects of the Guidelines have been more controversial than the treatment of offenders who possess or distribute cocaine and the treatment of offenders who download or transmit child pornography. The cocaine Guidelines have been controversial in part because of their harshness (resulting from Guidelines ranges scaled around separately enacted mandatory minimum penalties), but mostly because of the infamous "100-to-1" crack-powder disparity, in which crack cocaine triggered weight-based penalties that required 100 times as much powder cocaine to trigger, resulting in substantial racial disparities in cocaine sentencing. The child pornography Guidelines have been controversial because of the steep escalation of applicable penalties over a relatively brief period of time through direct intervention by Congress, coupled with the failure of the Guidelines to distinguish adequately between the most culpable offenders (that is, commercial producers and distributors of child pornography, or those who actually sexually entice or assault children) and less culpable offenders (that is, downloaders and file sharers who have no history of sexual activity with children). In each of these two contexts, the relevant Guidelines have drawn fire from a variety of critics who have spanned the bench, the bar, the academy, the U.S. Sentencing Commission itself, and even the political sphere. Despite the frequent and vociferous criticisms aimed at them, the cocaine and child pornography Guidelines have proven remarkably resistant to change. The stark disparity between the treatment of crack and powder cocaine under the Guidelines was eventually ameliorated (though not eliminated) by formal revisions from both the Sentencing Commission and Congress, but only after a long and tortuous process. The child pornography Guidelines have not been formally revised, though some federal courts recently have taken unprecedented steps to reject them pursuant to their post-Booker license to treat the Guidelines as advisory rather than mandatory.

It is worth examining in some detail the histories of these two much-maligned aspects of the Guidelines in order to understand how the features that have invited so much criticism came into being, why they were so controversial, why they proved so resistant to change, and how (some) change nonetheless occurred. This account may prove helpful to countries like Israel as they consider establishing their own regimes of guided sentencing--even if only as a negative model or cautionary tale. In order to make the tale worth the telling, however, I will try to tease apart which strands of the story reflect distinctive aspects of American politics, law, or institutional structures, on the one hand, and which reflect challenges inherent in the project of guiding sentencing discretion, on the other. Moreover, I will try not only to criticize and draw negative lessons from these accounts of controversy, but also to propose some positive lessons for the general structure of guidelines regimes.

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TWO FAILURES

The cocaine and child pornography Guidelines could be deemed "failures" based solely on the unprecedented amount and degree of criticism that they have received. However, this criticism is better viewed as a symptom of deeper failures. These aspects of the Guidelines have drawn such intense criticism because they represent failures on both an internal and a normative level. On a level internal to the Guidelines themselves, the cocaine and child pornography Guidelines have failed to promote the sentencing goals set forth in the Guidelines and codified by Congress in Section 3553 of the federal criminal code. …