In 2000, the FBI searched the home of Aaron Thompson. Over 10,000 images of child pornography were found on his computer's hard drive along with evidence that he distributed over 47,000 images of child pornography that year. Thompson was subsequently arrested. According to the United States Sentencing Guidelines, he should have been sentenced to 87-108 months in prison for possession and distribution of child pornography. A plea agreement was reached with both parties agreeing to an 87-month sentence.
However, the district judge sentenced Thompson to only 44 months in prison. Among his justifications for this significant departure from the guidelines, the judge stated that this large supply of child pornography diverted Thompson's proclivity for sexually abusing minors. But Thompson was charged with possession and distribution of child pornography and not with attempted sexual abuse! Furthermore, this reasoning ignores the fact that the children--whose images are captured for pornographic purposes--are brutally victimized by such exploitation. Fortunately, the Court of Appeals reversed and remanded the case for resentencing. (1) In her concurring opinion, Judge Berzon noted that downward sentencing departures in child pornography cases have become "so frequent as to indicate a pattern that may merit consideration by the Sentencing Guidelines." (2)
Cases in which judges depart down from the United States Sentencing Guidelines for Sexual Exploitation Crimes, such as sexual abuse, child pornography, and kidnapping, have risen steadily over the past five years. Indeed, downward departure rates for all federal crimes have steadily risen since 1997, thus undermining sentencing reform efforts.
A Congressional response was prompted in Spring 2003. In the recently enacted Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (the "PROTECT Act"), Congress overwhelmingly supported my amendment, commonly referred to as the "Feeney Amendment," to limit these downward departures. (3) This essay reviews the development of the United States Sentencing Guidelines and the formation of the United States Sentencing Commission, and indicates how the Feeney Amendment restores uniformity and fairness in federal sentencing.
I Seeds for Reform: Unfettered Judicial Discretion in Sentencing
Alarmed by the unfettered sentencing discretion given to district judges and widely divergent sentences rendered for similar crimes, Congress passed the Sentencing Reform Act of 1984. (4) This act established the United States Sentencing Commission and authorized the adoption of United States Sentencing Guidelines to structure sentencing decisions. Thus, nationally uniform sentencing practices were achieved.
For over a century prior to these reforms, the federal government had punished criminals through indeterminate sentencing supplemented by parole. Congress had passed statutes prescribing a wide range of penalties for a crime. The district judge held almost unfettered discretion to impose a sentence within that range, and his decision was not subject to appellate review. (5) Certain prisoners were paroled before fully serving the sentence imposed.
This system was based largely on a rehabilitative model of punishment. A judge set the maximum term of imprisonment and the parole commission determined the offender's release date based on the rate of "rehabilitation." (6) The operating assumption was that both the judge and parole commission could ascertain when a prisoner was deemed "rehabilitated." Under this system, the judge and parole commission had broad and unchecked discretion in sentencing, and wide-ranging discrepancies in sentences resulted throughout the nation. Similar criminals with similar histories committing similar crimes received wildly variant sentences. A criminal would receive leniency in one jurisdiction while another was sentenced to the maximum in another jurisdiction or even before the same judge. …