Judges Find Federal Child Porn Sentences Are Much Longer Than Jurors Consider Just

In one case, the term sought by prosecutors was 17 times longer than the jury recommended.

It is not hard to see how we ended up with absurdly long sentences for possession of child pornography. No legislator wants to seem soft on people who like to look at this awful stuff (who are commonly equated with child molesters even if they have never laid a hand on a single kid), and there does not seem to be any political downside to demanding ever harsher punishments for them. The assumption seems to be that, as far as the public is concerned, there is no such thing as an excessively severe penalty for child pornography offenses, even when they do not involved production or profit.

A federal judge in Cleveland recently put that assumption to the test by polling jurors on the appropriate sentence for a man they had convicted of receiving, possessing, and distributing child pornography. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), or the term indicated by federal sentencing guidelines (27 years).

As Eli Hager notes in a piece published by The Marshall Project, it is highly unusual for a judge to consult jurors about sentencing, which outside of death penalty cases is generally considered beyond their purview. But U.S. District Judge James Gwin, an advocate of this approach, was curious to see whether the sentences allowed by law reflect the community's sense of just punishment. The defendant, Ryan Collins, was convicted last October after police found more than 1,500 child porn images on his computer. He was charged with distribution because he also had peer-to-peer file sharing software. Last week, taking a cue from the jury, Gwin sentenced Collins to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair.

Although notionally a cross-section of the community, the 12 jurors in Collins' case may not be a representative sample of the general public. But this is not the only federal jury that has implicitly questioned the sentences that members of Congress and the U.S. Sentencing Commission (which has to incorporate statutory minimums into its guidelines) have decided are appropriate in cases like this. Mark W. Bennett, a federal judge in Iowa, told Hager:

Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence, every time—even here, in one of the most conservative parts of Iowa, where we haven't had a "not guilty" verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence.

That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that's baloney.

Current sentences do not reflect public opinion so much as the opinion of mindlessly tough-on-crime legislators like Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who still thinks federal sentences for child pornography offenses are too lenient.

Reason TV's interview with Bill Keller, The Marshall Project's editor in chief: