Federal Judges Are Increasingly Rebelling Against 'Overly Severe' Penalties for Nonviolent Sex Offenders

People convicted of possessing child pornography receive long sentences, but new data suggest they are rarely arrested for contact offenses after their release.

Two recent reports from the U.S. Sentencing Commission (USSC) shed light on the legal treatment of sex offenders and further undermine the prevailing assumption that all members of that broad class pose similar threats to public safety. That assumption, which underlies both harsh punishments and indiscriminate registration requirements, is demonstrably wrong.

In fiscal year 2019, according to a USSC report released this week, the average federal prison sentence for child pornography production offenses was nearly 23 years, reflecting the gravity of such crimes, which entail direct involvement in sexual abuse. By comparison, the USSC reported in June that the average sentence that year for nonproduction child pornography offenses, which involve possessing, receiving, or sharing images, was about eight and a half years.

The fact that sentences for production offenses were more severe makes sense, but that does not mean the sentences for nonproduction offenses were just or reasonable. These crimes do not involve contact with children and may consist of nothing more than looking at pictures, which in the context of online sharing counts as both receiving and possessing child pornography.

The USSC found that the average sentence recommended by federal guidelines for nonproduction offenses rose from 98 months (about eight years) in fiscal year 2005 to 136 months (more than 11 years) in fiscal year 2019. During the same period, the actual sentences imposed by judges "increased more gradually," from 91 months (about seven and a half years) to 103 months (about eight and a half years). The difference between those two trends reflects the extent to which judges are disregarding the guidelines based on their conclusion that the recommended penalties are excessive.

In fiscal year 2019, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in fiscal year 2005. "There
had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases," the USSC notes, "which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe."

The responsibility for that "overly severe" sentencing scheme lies with Congress, which always seems to err on the side of increased punishment. In 2003, the USSC notes, "Congress directly amended the guidelines to add new sentencing enhancements and created new statutory mandatory minimum penalties." As a result, "the underlying conduct triggering such enhancements and penalties increasingly applied to more offenders."

Judges have no choice but to impose mandatory minimum sentences required by statute. But in the 2005 case United States v. Booker, the Supreme Court ruled on Sixth Amendment grounds that federal sentencing guidelines, previously treated as mandatory, are merely advisory. That decision freed federal judges to impose sentences below the guideline range when they thought justice required it.

Because judges disagree about when that is appropriate, the upshot has been wide variation in the sentences imposed on similarly situated defendants. In fiscal year 2019, for example, "the sentences for 119 similarly situated [child pornography] possession offenders ranged from probation to 228 months," even though "these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category." The commission also found wide sentence variation in 52 similar cases involving receipt of child pornography (37 months to 180 months) and in 190 similar cases involving distribution (less than a month to 240 months).

The USSC has been criticizing the current sentencing scheme for years, and it reiterates those points in its June report. It notes that the current guidelines, which are "constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress," include "a series of enhancements that have not kept pace with technological advancements." Those enhancements "cover conduct that has become so ubiquitous that they now apply in the vast majority of cases." In fiscal year 2019, for example, "over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim."

Thanks largely to congressional intervention, someone who views, possesses, or shares child pornography can be sent to federal prison for two decades, while someone else who does the same thing might receive probation or a sentence of less than a year. That situation is hard to reconcile with anyone's idea of justice.

People who think the problem is that some offenders are getting off too lightly tend to believe that anyone who looks at child pornography is inclined to abuse children, so it is best to lock them up for as long as possible. But the USSC's recidivism data suggest that belief is mistaken.

The commission tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a "non-contact sex offense" (which would include possession of child pornography). But just 1.3 percent had been arrested for a "contact sex offense." Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.

Other studies likewise indicate, contrary to popular wisdom, that recidivism is not especially common among sex offenders, even when they have committed predatory crimes. A 2003 Bureau of Justice Statistics (BJS) study tracked 9,691 male sex offenders in 15 states who were released from prison in 1994, all of whom had been convicted of rape or sexual assault. It found that 5.3 percent were arrested for a new sex offense within three years.

Another study published the same year, based on a sample of 146,918 Illinois sex offenders who were originally arrested in 1990, generated similar results. Those arrestees included anyone who was required to register as a sex offender, so their crimes did not necessarily involve contact with a victim. Overall, 4.8 percent were arrested for a new sex offense within three years. The rate rose to 6.5 percent after five years. A 2013 study of New Jersey sex offenders found that less than 5 percent were convicted of a new sex offense during follow-up periods that averaged 6.5 years.

By comparison, a 2018 BJS study found that the recidivism rate for state prisoners who were released in 2005 after serving time for various kinds of crimes—meaning the rate at which they were arrested for new offenses of the same type—was about 40 percent after three years and 49 percent after five years. Among violent offenders, the rates were 24.5 percent and 34 percent, respectively. For property offenders, they were about 45 percent and 55 percent, respectively.

A 2004 analysis looked at 4,724 sex offenders from 10 previous studies, all of whom had committed rape or incest. The five-year recidivism rate was 14 percent, rising to 20 percent after 10 years and 24 percent after 15 years.

The longest follow-up period in the BJS study of state prisoners was nine years, at which point 58 percent had been arrested for a new crime of the same type. The nine-year rate was about 43 percent for violent offenders and 64 percent for property offenders.

"As expected," the authors of the 2004 sex offender study reported, "those who have remained offence free in the community were at reduced risk for subsequent sexual recidivism. Whereas the average 10 year recidivism rate from time of release was 20%, the 10 year recidivism declined to 12% after five years offence-free and to 9% after 10 years offence-free." They also found that "offenders older than age 50 at release reoffend[ed] at half the rate" of younger offenders.

The researchers noted that their results "challenge some commonly held beliefs about sexual recidivism and have implications for policies designed to manage the risk posed by convicted sexual offenders." Such findings are clearly relevant, for example, in assessing the merits of state laws that require sex offenders to register for periods ranging from 10 years to life.

The premise of those publicly accessible databases—which invite ostracism, harassment, and violence while undermining rehabilitation by making it difficult to find housing and employment—is that all of these people pose a continuing threat. The evidence shows that assumption is faulty even when limited to people who have committed predatory crimes. It is especially erroneous when applied to nonviolent sex offenders.