Academic journal article The Journal of Gender, Race and Justice

Reinvigorated Judicial Discretion after Booker: Burden or Boon to Sexual Exploitation Offenders?

Academic journal article The Journal of Gender, Race and Justice

Reinvigorated Judicial Discretion after Booker: Burden or Boon to Sexual Exploitation Offenders?

Article excerpt


"Sex offenses are in our time the new witchcraft. We're as hysterical about these crimes as were the good people of Salem over witches. And our means of addressing the hysteria is about as effective."1

In Dateline's recent investigative series To Catch a Predator, reporter Chris Hansen introduced the piece by referencing the "epidemic of sexual predators in our country."2 Unfortunately, statistics appear to support this strong characterization. Each year, the child pornography industry generates $4.9 billion worldwide.3 One in seven youths receive a sexual solicitation while online.4 There are more than 100,000 websites that offer illegal child pornography,5 and every day Gnutella,6 a file-sharing network, receives 116,000 requests for "child pornography."7 In Dateline's investigation, the news outlet caught eighty-eight men, including a rabbi and a federal agent from the Department of Homeland security, in a period of only nine days.8

Most Americans likely recognize the alleged "epidemic" of child pornography,9 perhaps due in large part to media coverage of the issue such as the aforementioned investigative series To Catch a Predator. In response to the problem of child pornography and Americans' rightful outcry against the abhorrent offense, legislators have sought harsher penalties for child pornography offenses by increasing the range of jail time possible for the offenses in the U.S. Sentencing Guidelines (hereinafter Sentencing Guidelines or Guidelines).10 These detailed and highly complex federal Guidelines are what judges consult when sentencing a convicted offender, although how closely judges must adhere to the Guidelines has varied over time.

In 2005, the U.S. Supreme Court decided in United States v. Booker that the Sentencing Guidelines were no longer mandatory but merely advisory.11 That decision effectively restored to judges a measure of discretion to make sentencing decisions,12 and in the years following the Booker decision, sentences nationwide have generally increased.13 In keeping with that national trend, the average length of sentences for sexual exploitation offenses has also increased.14 While some may use the timing of the Booker decision and these subsequent sentencing increases to identify the judiciary as the cause for the increases, this Note will conclude differently.15

The Sentencing Guidelines were initially put in place to address a very real sentencing disparity between judges in the United States, and over time the Guidelines were mostly successful in achieving that goal by reducing judicial discretion.16 However, American society has changed since that time. Thus, this Note will argue that the increased judicial discretion Booker provides is essential to ensure fairness in sentencing for child pornography offenders by serving as a counterweight to social and legislative zeal to simply lock offenders up indefinitely.

In reaching that conclusion this Note will begin with an examination of the history of judicial discretion in sentencing, how the Sentencing Guidelines work, the ill effects of child pornography, and post-Booker sentencing statistics. It will then proceed to analyze three potential causes for the increase in sentences: post-Booker reinvigoration of judicial discretion; inherent flaws in the U.S. Sentencing Commission's original sentence formulations (hereinafter U.S. Sentencing Commission or Sentencing Commission); and social pressure on legislators to increase sentences, including that from news outlets such as Dateline. This analysis will determine that social pressure caused legislators to increase sentences. This Note will then describe how judicial discretion serves as a necessary check on legislative zeal by virtue of judicial appointment and tenure and through the judiciary's greater experience with unique sentencing factors.


To understand how judicial discretion has influenced sentencing in America, it is important to examine its long history, beginning with the broad discretion of indeterminate sentencing,17 and examining the restrictions of legislative acts and case law upon that discretion until Booker. …

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