Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason. Drug policy is defined by severe and disproportionate penalties owing to a retributive, factually flawed, and hurried congressional process. These central characteristics apply to the child pornography context as well. Though drug sentencing is problematic enough, child pornography sentencing is arguably worse. The U.S. Sentencing Commission has disavowed the child pornography sentencing guidelines and invited judges to vary from them. Judges have done just that, varying in sixty-three percent of all cases, more than any other offense type.
In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion which varies under Kimbrough v. United States. We also suggest how improvement to the uniquely distressed area of child pornography policy can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.
Following the confirmation hearing of Justice Ketanji Brown Jackson, child pornography law became part of the national conversation at policy and public levels. We aim to seize on this newfound interest and ensure that both this area of law and criminal justice reform more generally are enriched and enhanced.
Introduction
The movement for criminal justice reform has spanned almost the entire spectrum of criminal law and policy. It has covered policing (e.g., no-knock warrants,1 discriminatory conduct,2 and qualified immunity3); prosecutorial discretion;4 minimal mens rea requirements;5 court innovations (e.g., problem-solving courts6 and juveniles tried and held as adults7); sentencing for specific offense types (e.g., drug offenses8 and violent offenses9); sentencing mandates (e.g., mandatory minimums10 and recidivist enhancements11); modes and nature of punishment (e.g., solitary confinement,12 capital punishment,13 and conditions of confinement14); and the pardon power.15
A primary focus of criminal justice reform is the “War on Drugs,” during which a nation drunk on retributive impulses and dismissive social attitudes destroyed individuals and communities, primarily people of color, by way of draconian policies and penalties.16 Consider the story of Tony Gregg, highlighted by former Fourth Circuit Judge Andre M. Davis. As Judge Davis recounts, Mr. Gregg was a drug user and FBI informant who, “[t]o support his drug use . . . resorted to selling crack cocaine—not kilos, but several grams at a time.”17 For having three convictions of felony drug offenses, Mr. Gregg was sentenced to life in prison.18 The sentence was statutorily mandated, meaning there was nothing that either the district court or the federal appeals court (upon which Judge Davis served) could do to impose a more responsible and measured sentence.19
Mr. Gregg’s case is representative of the deep flaws in drug sentencing. For starters, defendants convicted of drug offenses are categorically marginalized and dehumanized.20 This “othering” facilitates an indifference to the defendants’ futures, and fuels retributive punishments.21 The punishments themselves are excessive, thereby contributing to mass incarceration; are mandatory, obliterating sentencing discretion and blocking individualized sentencing determinations; are disproportionate, failing to calibrate sentences according to different levels of culpability; and are durable, persisting despite widespread understanding that the penalty levels are irrational and severe.22 Nonetheless, the punishments are justified, at least in part, due to an assumed or presumed link between drugs and violence.23 And the harsh penalties for drug offenses were enacted through a rushed, atypical process in Congress.24 It is because of these problems, and their impact on individuals and communities, that drug crimes lie at the heart of the movement for criminal justice reform.25
The need for reform in the drug context is clear. Less obvious, however, is the fact that the defining attributes of prevailing drug policy—severe, disproportionate, and long-lasting penalties owing to a retributive, factually flawed, and hurried congressional process—apply to the child pornography context as well. Despite these commonalities, child pornography is avoided in conversations on criminal justice reform. This indifference may be due to the disturbing nature of the offenses and the general public hostility toward those who commit these offenses.26
But walking away from these defendants and this area of criminal justice would be a mistake. It is precisely because these offenses give rise to strong emotions that they represent the truest test of our commitment to the values that are the principled source of broader criminal justice reform. Moreover, solutions to the structural and substantive problems with child pornography offenses may apply to criminal justice reform generally. Criminal justice, therefore, will not be complete or correct unless it extends to and draws from the child pornography context.
In this Article, we identify the common issues with drug and child pornography sentencing and sketch the doctrinal implications of this shared foundation. The substantive similarities between drug and child pornography offenses are sufficient, we argue, such that there is a sound basis for criminal justice reform to extend from drug crimes to child pornography crimes.27
The child pornography sentencing context is even more broken than the drug sentencing context. The U.S. Sentencing Commission has disavowed the child pornography sentencing guidelines and invited courts to vary in their approaches.28 District courts had done just that in 2018, deviating from these guidelines in nearly sixty-three percent of all child pornography cases, well above any other offense type.29 For their part, circuit courts are mired in splits regarding the discretion that district courts possess in child pornography sentencing and how subsequent substantive reasonableness review should be performed.30 In 2020, the Sixth Circuit held that a noncustodial sentence for a child pornography offense is per se unreasonable, effectively and remarkably introducing a judicial mandatory minimum in child pornography cases.31 Whereas retributive attitudes toward drug offenses have softened, the same cannot be said for child pornography offenses. As the Second Circuit recently noted, child pornography sentencing has become “barbaric without being all that unusual.”32 Accordingly, the child pornography context warrants attention not just because of problems that also exist within the drug context, but also because of additional and alarming problems that are unique to child pornography cases.33 Thus, we also suggest how improvements to this uniquely distressed area of law can inform criminal justice reform more generally.
This Article unfolds as follows. Part I defines child pornography, capturing the range of federal child pornography crimes34—which span from sex trafficking to the exchange of nude images via text messaging—and tracing the development of child pornography sentencing in the federal system.
Part II addresses the common non-empirical origins of drug and child pornography sentencing. The Supreme Court, in Kimbrough v. United States, determined that, because the drug guidelines are the product of congressional judgment and not the Commission’s independent expertise, district court judges may vary from the drug guidelines for policy reasons without inviting “closer review” on appeal.35 Six federal appeals courts are evenly split as to whether Kimbrough applies to the child pornography guidelines. We argue that, as with the drug guidelines, the child pornography guidelines owe their existence to congressional whim, and not Commission expertise, and thus district courts should have full discretion to vary from them under Kimbrough.
While Part II discusses the congressional source of drug and child pornography sentences, Part III focuses on the structure and severity of those sentences. As with drug offenses, child pornography sentences are dictated by mandatory minimums and statutory directives. These statutory commands skew child pornography sentencing decisions by limiting judicial discretion, lumping together offenders with different levels of culpability, and establishing excessively high baselines for penalty determinations. The impact of these commands on child pornography sentencing reinforces and provides further support for calls that all mandatory minimums, regardless of offense type, are eliminated.
Part IV relates to time. Senseless drug laws remain on the books, including the 18:1 crack-cocaine disparity, notwithstanding the broad consensus that the law lacks any principled basis. Similarly, for almost a decade now, Congress has not responded to the Commission’s repeated attempts to moderate child pornography sentencing or address the unprecedented variance rates. As such, the issues with child pornography sentencing persist. We posit that this situation—congressional imposition of severe sentences followed by a long-term withdrawal from the area—supports the imposition of sunset provisions on statutory penalty commands, which would force Congress to revisit and recalibrate penalty levels after a certain time period.
Part V then addresses appellate review. It probes a deep circuit split on whether, under the substantive reasonableness review authorized by Gall v. United States,36 an appeals court may reweigh a district court’s 18 U.S.C. § 3553(a) analysis, an issue that has arisen in drug, child pornography, and other criminal cases. We contend that reweighing amounts to impermissible de novo review. This Part then points out a remarkable and regressive development: the imposition of mandatory minimums by courts—not Congress. The Sixth Circuit has rejected noncustodial sentences in child pornography cases as per se unreasonable,37 effectively introducing a judicial mandatory minimum. Such categorical rules produce the same harms as mandatory minimums generally.38
I. An Overview of Child Pornography Sentencing
This Part addresses the basics of sentencing in the child pornography context. First, it defines the different types of child pornography offenses and provides examples of each. Second, it summarizes the penalty structure that applies to these offenses, tracing the development of that structure over time. That history consists of Congress adding additional crimes as it learns about child pornography and increasing penalties. Indeed, Congress has stiffened penalties numerous times, despite protests from sentencing experts that heightening penalties are not proportionate or principled.
A. Defining Child Pornography Offenses
Congress, in 18 U.S.C. §§ 2251, 2252, and 2252A, prohibited the knowing receipt, possession, distribution, solicitation, and production of child pornography.39 This Section breaks down the mens rea, conduct, content, and jurisdictional aspects of these crimes.
As to scienter, the Supreme Court has clarified that the knowledge requirement of § 2552 applies to the nature of the content—specifically, “knowing[]” that the material contains child pornography—and not the verbs—such as knowingly distributing.40 Accordingly, an individual who mails pornographic videos to another person without knowledge that the videos depict minors has not knowingly distributed child pornography.41
Because the level of scienter is knowledge and not intent, an individual need not desire to commit the act because the material depicts an underage individual; the individual need only know that the material depicts an underage person. This information is particularly important in the context of minors taking and transmitting sexually explicit materials of themselves to other minors, a common practice42 that some may consider benign and outside of what should be criminalized.43 But such conduct nonetheless falls within the definition of child pornography, because the individual will know that they are underage and that the material is of a sexual nature.44 Indeed, an underage individual who has explicit images of themselves on their own cell phone technically may be charged with possession of child pornography.45 To provide another example of how possession is strictly construed, consider an attorney who represents an individual charged with a child pornography offense and who seeks to review the relevant evidence, including the images or videos in question. Typically, the defendant’s attorney and experts in these circumstances need to view the digital contraband in a secure government office on a secure laptop. This process is followed because if an attorney or expert were sent the evidence and subsequently viewed it, they too technically would have received and possessed child pornography in violation of federal law.46
As to the substantive offenses, questions have arisen as to the differences between the offenses. On the surface, receipt and possession of child pornography may seem to capture the same conduct. Judge Easterbrook recounted a district court’s determination that “persons who possess something must have received it, and those who receive something necessarily possess it.”47 But, as he noted, receipt and possession are distinct offenses. For example, “a person who seeks out only adult pornography, but without his knowledge is sent a mix of adult and child pornography,” has not received child pornography within the meaning of the statute.48 If the person then continues to retain the material, however, the individual will have knowingly possessed child pornography.49 With respect to what constitutes possession, control and access are the essential qualities.50 An easy, if not traditional, example of possession is storage of physical magazines or videotapes depicting child pornography.51
The Internet and mobile technology have transformed the amount of child pornography available—Kate Klonick reports that there are 720,000 known child pornography images online52—and how child pornography offenses are committed.53 An individual who saves child pornography on their hard drive, or knows that such material is automatically copied to a folder over which the individual has control, has possessed child pornography.54 If the individual views child pornography and the images are automatically copied to an unknown space within the computer over which the individual cannot access or control, the individual may not have possessed child pornography.55 While receipt and possession are distinct offenses, “possession is generally [considered] a lesser-included offense of receipt” because receipt necessarily entails current possession.56
Distribution covers the transmission or exchange of child pornography. It includes physical distribution—such as sending magazines or videotapes by mail57—as well as electronic forms of transmission—such as sending images or video files by email or posting such material to a website.58 Perhaps less obvious is that distribution may occur through the use of peer-to-peer networks (P2P), which enable users to access and download materials from each other’s computers.59 Therefore, if a user downloads child pornography from another user by way of this network, that initial user also has made that material available for others to download from their own folder.60 As Chief Judge Beryl Howell explained, these “file sharing programs make distribution a passive act, but no less subject to criminal liability.”61 “Many users of P2P programs do not fully realize that the simple act of selecting files or folders to share on [a P2P program] makes them a distributor of all those files,” she added.62 As this example of distribution makes plain, there need not be any commercial element to the transmission for the act to qualify as distribution within the meaning of federal law.
Distribution of child pornography requires the transmission of the offensive material to a third party. The Eleventh Circuit, for example, has ruled that an individual sending pornographic images from his own cellphone to his own email account and subsequently downloading those images onto his own computer does not constitute distribution of child pornography.63 By contrast, as in general criminal law, the solicitation of child pornography is a solitary crime that does not require the involvement of any third party. For example, an individual who sends a text message to a minor, asking the minor to take and send a nude picture of themselves, has solicited child pornography even if the minor does not comply or does not even read the message.64 The offense is complete once the individual has sought the qualifying material.
The production of child pornography entails the creation of qualifying material, defined as the “producing, directing, manufacturing, issuing, publishing, or advertising” of child pornography.65 For example, various circuit courts have upheld convictions for the production of child pornography when the defendant intentionally positioned cameras in bathrooms to expose a minor’s pubic area.66
With the mens rea and actions covered, the question becomes what constitutes child pornography. Under federal law, “child pornography” is the “visual depiction” (e.g., image or video) of “sexually explicit conduct” involving a minor.67 “[S]exually explicit conduct” includes, among other acts, “graphic sexual intercourse,” “masturbation,” or the “lascivious exhibition of the anus, genitals, or pubic area.”68 Amy Adler observes that, increasingly, what counts as sexually explicit conduct is determined not necessarily by what happened to the minor, but by what a viewer might find arousing.69 Accordingly, the minor need not be nude for the content to be considered sexually explicit.70 In 2002, the Supreme Court held that child pornography does not include completely generated images of individuals appearing to be minors, explaining that these images constitute protected speech and do not “implicate the interests of real children.”71 Following this decision, circuit courts have held that images of a minor and an adult that are doctored to appear to be a single person—such as the head of a minor on the body of an adult—fall outside of the Supreme Court’s purely generated exception to child pornography and are subject to criminal liability.72 It is also important to note that unlike obscenity, child pornography laws do not provide an exception for material that may have some artistic value.73
Finally, these offenses share a jurisdictional requirement that the offense involve interstate commerce, foreign commerce, or the mail.74 As noted above, almost all child pornography offenses take place over the Internet.75 As such, virtually all who commit the underlying substantive actions will also have satisfied the jurisdictional element and thus have committed a federal child pornography offense. The jurisdictional component is also important to point out for constitutional purposes. This requirement supports the determination that federal criminalization of child pornography is a valid exercise of Congress’s authority under the Commerce Clause.76
With the stringent nature of child pornography offenses, the question may become why an individual would engage in such behavior. The most apparent motivations are sexual in nature. Both a sexual interest in minors and sexual gratification as a result of that interest are common explanations for child pornography behavior.77 Despite societal beliefs and stereotypes, there are also nonsexual motivations for engaging in child pornography behavior. Apparently, some offenders collect child pornography because of compulsive collecting behavior,78 while others collect merely to belong to an online community.79
B. Punishing Child Pornography Offenses
1. Initial Congressional Action
Prior to 1977, child pornography was largely unregulated in the criminal context. Child pornography was prohibited indirectly, primarily through laws prohibiting obscenity.80 A Senate Report observed that these laws “deal[t] only with the sale, distribution and importation of obscene materials.”81 “No federal law,” it continued, “deals directly with the abuse of children that is inherent in the production of such materials.”82 As Amy Adler notes, 1977 marked a “turning point” in the legislative consideration of child pornography.83 Media coverage of child sex abuse and child pornography propelled Congress to act.84
The Protection of Children Against Sexual Exploitation Act of 1977 served as Congress’s response.85 The Act prohibited the knowing transportation or shipping, in interstate or foreign commerce, for purposes of sale or distribution for sale, any obscene visual or print medium, if “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct,” or the knowing receipt of such material.86 The Act further set the penalties at a maximum sentence of ten years imprisonment for first-time trafficking offenders and a range of two to fifteen years for repeat offenders.87 In specifying that the knowing transportation or shipping had to be done for sale or distribution for sale, the Act limited punishment to traffickers who committed such offenses for commercial purposes. The Act succeeded in curbing commercial child pornography activity.88 But noncommercial child pornography, left unregulated, continued to be consumed and traded.89
Under the Child Protection Act of 1984, Congress broadened the scope of the federal child pornography prohibition in several ways: it eliminated the requirement that the child pornography offense be committed for sale or distribution for sale, raised the qualifying age of a depicted minor from sixteen to eighteen years of age, and deleted the requirement that the material be obscene.90 In 1982, the Supreme Court paved the way for Congress to reach nonobscene material, upholding a state prohibition on the private possession of nonobscene child pornography.91 In the Child Abuse Victims’ Rights Act of 1986, Congress, following the Department of Justice’s (DOJ) calls for more stringent enforcement of child pornography offenses, increased mandatory minimum penalties for repeat offenders from two to five years.92
2. Initial Federal Sentencing Guidelines
In 1984, Congress, concerned about disparities in sentencing decisions, established the U.S. Sentencing Commission and charged this new judicial agency with the responsibility to develop federal sentencing guidelines.93 These guidelines would give each federal judge the same baseline, or a national norm, from which to begin the sentencing decision-making process.
While the Commission was set up as an independent agency, Congress, to a meaningful degree, retained control over the Commission. First, the statute establishing the Commission and corresponding legislative history detailed to the Commission how the guidelines were to be crafted.94 As the first chairman of the Commission observed, “[W]e were told to develop this new system of justice, yet the statute told us how to do it.”95 Second, the Senate has the power to confirm nominees to the Commission.96 In the past, the Senate has refused to confirm nominees to the Commission, thus “paralyzing” the Commission, as then-Chief Justice William H. Rehnquist observed.97 Third, the guidelines manual and any amendments thereto are not self-executing. Rather, Congress must approve the manual or any proposed amendments to it, thereby holding a veto power over the Commission’s work on the guidelines.98 This administrative and structural relationship is important to understand not only for historical purposes, but also for setting the stage for the back and forth between Congress and the Commission in the context of child pornography sentencing and establishing the power differential between Congress and the Commission: the latter is not absolutely independent, and in fact is dependent upon and subordinate to Congress.
The Commission fulfilled its charge and promulgated the first ever federal sentencing guidelines, the United States Sentencing Guidelines (USSG), in 1987.99 The USSG establishes baseline levels for a conviction, has additional penalty levels for aggravating and mitigating circumstances, and also contains categories to capture a defendant’s criminal history. The USSG contains several guidelines for child pornography offenses: USSG Section 2G2.1 applies to the production of child pornography, as codified at 8 U.S.C. § 1328 and 18 U.S.C. § 2251, and USSG Section 2G2.2 applies to the transportation, distribution, and receipt of child pornography, as codified at 18 U.S.C. § 2252.100 Under Section 2G2.1, the Commission set the base offense level at 25 (yielding a sentencing range of 57 to 71 months in prison, assuming that the defendant falls within the lowest criminal history category)101 and provided for a 2-level increase “[i]f the minor was under the age of twelve years” (raising the offense level to 27, or a range of 70 to 87 months).102 Under Section 2G2.2, the Commission set the base offense level at 13 (yielding a sentencing range of 12 to 18 months),103 provided for a 2-level increase “[i]f the material involved a minor under the age of twelve years” (raising the offense level to 15, or a range of 18 to 24 months),104 and at least a 5-level increase “[i]f the offense involved distribution” with a corresponding retail value (raising the offense level to no less than 18, or a range of at least 27 to 33 months).105
The Commission stressed that the initial guidelines were “evolutionary” in nature and would be revised over time.106 The child pornography guidelines themselves have been substantively amended nine times. Just one year after publishing the original guidelines, the Commission, in 1988, replaced “minor under the age of twelve years” with “prepubescent minor.”107 The Commission reasoned that the amendment would “provide an alternative measure to be used in determining whether the material involved an extremely young minor for cases in which the actual age of the minor is unknown.”108
3. Subsequent Congressional Action and Commission Responses
The same year, Congress, through the Child Protection and Obscenity Enforcement Act of 1988, specified that the use of a computer satisfied the “interstate or foreign commerce” requirement of existing child pornography prohibitions.109 In 1990, the Commission amended Section 2G2.1 by providing distinctions based on the victim’s age, raising the enhancement “[i]f the offense involved a minor under the age of twelve years” from a 2- to a 4-level increase, and adding a 2-level increase “if the offense involved a minor under the age of sixteen years.”110 Section 2G2.1 also created a 2-level enhancement for defendants who abused a position of trust,111 and added a special instruction to clarify calculations for multiple victims.112 That same year, the Commission reviewed sentencing data and proposed an increase in the base offense level under Section 2G2.2 for repeat offenders.113 The Commission proposed retaining a base offense level of 13 for simple receipt offenses.114 In addition, the Commission proposed a number of sentencing enhancements: a 4-level increase for offenses that depicted “sadistic or masochistic conduct or other depictions of violence,”115 a minimum base offense level of 21 “[i]f the defendant sexually abused a minor at any time prior to the commission of the offense,”116 a 4-level increase for offenses involving “a minor under the age of twelve years,”117 and a 2-level increase for offenses involving “a minor under the age of 16 years.”118 After receiving comments from both proponents and opponents of the amendments, the Commission only promulgated a 4-level increase “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.”119
Whereas Congress criminalized the commercial and noncommercial trafficking of child pornography, Congress, in 1990, greatly expanded the universe of child pornography crimes by prohibiting the mere possession of child pornography.120 In 1991, the Commission created a new guideline, Section 2G2.4, with a base offense level of 10 that specifically addressed the possession of child pornography.121 In addition, the Commission deleted the offense of receipt of child pornography from Section 2G2.2 and moved it to Section 2G2.4.122 In so doing, the Commission explicitly distinguished the receipt of child pornography from the trafficking of child pornography, and equated receipt with possession, noting that “receipt is a logical predicate to possession.”123
Less than a month later, Congress voiced concern with Section 2G2.4, particularly as it related to penalties for the possession of child pornography.124 Senator Jesse Helms proposed to amend all child pornography guidelines to increase base offense levels and make Section 2G2.4 applicable “only to offense conduct that involves the simple possession” of child pornography, thus returning the offense of receipt back to its original guideline, Section 2G2.2.125 The Commission pushed back, pointing out that returning receipt to Section 2G2.2 would “negate the Commission’s carefully structured efforts to treat similar conduct similarly” and “would require the Commission to rewrite the guidelines for these offenses in a manner that will reintroduce sentencing disparity among similar defendants . . . .”126
Despite the Commission’s protestations, Congress enacted directives requiring the Commission to increase base offense levels and amend “[g]uideline 2G2.4 to provide that such guideline shall apply only to offense conduct that involves the simple possession of materials . . . and guideline 2G2.2 to provide that such guideline shall apply to offense conduct that involves receipt or trafficking.”127 These directives reflected Congress’s belief that child pornography receipt cases should be treated similarly to the more serious trafficking cases and distinguished from the less serious possession cases.
In 1992, the Commission implemented Congress’s directives, returning receipt offenses to Section 2G2.2 and raising the base offense level of Section 2G2.2 from 13 to 15.128 A specific offense characteristic was also added to Section 2G2.2, providing for a 5-level increase “[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”129 USSG Section 2G2.4 was limited to possession offenses, but the Commission raised the associated base offense level from 10 to 13 (yielding a sentencing range of 12 to 18 months).130 The Commission also added a 2-level increase for offenses that “involved possessing ten or more books, magazines, periodicals, films, video tapes, or other items, containing a visual depiction involving the sexual exploitation of a minor.”131
Four years later, the Commission yet again acceded to congressional directives to further increase the penalties of child pornography offenses. In 1996, the Commission proposed amending USSG Sections 2G2.2 and 2G2.4 to provide alternative base offense levels that would increase penalties for child pornography offenses by a level of 2, 3, or 4.132 The Commission also proposed a 2- to 4-level increase for offenders who used computers in the commission of their crime.133 Ultimately, the base offense level of Section 2G2.2 went from 15 to 17,134 and the base offense level of Section 2G2.4 went from 13 to 15 (yielding a sentencing range of 18 to 24 months).135 Both guidelines added a new 2-level enhancement for the use of a computer.136 The Commission also informed Congress that it was considering consolidating Section 2G2.2 and Section 2G2.4 to once again unite the offenses of receipt and possession.137
In 2000, the Commission responded to Congress’s directive to amend the guidelines by implementing amendments to Section 2G2.2 that created varying enhancements for distribution offenses. The specific offense characteristics advised sentencing courts to “[a]pply the [g]reatest” increase level, ranging from a general 2-level increase for distribution to a 7-level increase for “[d]istribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct.”138
In 2003, Congress enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), which, among other things, increased mandatory minimum sentences for child pornography offenses and directly amended Sections 2G2.2 and 2G2.4 by adding a specific offense characteristic relating to the quantity of images.139 The Commission responded by providing, in both Sections, a 2-level increase “[i]f the offense involved . . . at least 10 images, but fewer than 150,” a 3-level increase “[i]f the offense involved . . . at least 150 images, but fewer than 300,” a 4-level increase “[i]f the offense involved . . . at least 300 images, but fewer than 600,” and a 5-level increase “[i]f the offense involved . . . 600 or more images.”140 The amendment also provided for a 4-level increase under Section 2G2.4 “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.”141
In 2004, the Commission amended the guidelines to comply with the remaining PROTECT Act directives. The Commission again proposed consolidating Sections 2G2.2 and 2G2.4 and received support from the DOJ in favor of this proposal.142 After carefully studying sentencing data, the Commission created two separate base offense levels under Section 2G2.2: for possession offenses, the base offense level started at 18,143 and for trafficking and distribution offenses, the base offense level started at 22 (yielding a sentencing range of 41 to 51 months).144 Section 2G2.2 was officially consolidated with Section 2G2.4.145
In 2008, Congress created a new child pornography offense, codified at 18 U.S.C. § 2252A(a)(7), which made it a federal crime to “knowingly produce[] with intent to distribute, or distribute[], by any means, including a computer, in or affecting interstate or foreign commerce, child pornography that is an adapted or modified depiction of an identifiable minor.”146 The Commission concluded that this new offense best fit within the distribution guideline at Section 2G2.2. In so doing, the Commission enumerated that offenders convicted under this statute would have a base offense level of 18 (yielding a sentencing range of 27 to 33 months).147
This Part offered a factual overview of child pornography sentencing, beginning with definitions and proceeding to a summary of the relevant statutes and guideline provisions applicable to child pornography offenses, sketching how these congressional directives and guidelines have evolved over time.
II. Restoring the Full Discretion of District Courts to Vary Under Kimbrough
This Part argues that a common feature of drug and child pornography guidelines—the fact that Congress has dictated both through the passage of numerous directives—can resolve a deep circuit split as to whether Kimbrough v. United States, which authorizes district court judges to vary from the drug sentencing guidelines, applies to child pornography sentencing as well.148 In particular, it suggests that, as judges may vary from the drug guidelines without inviting heightened review because these guidelines are the product of congressional action and not Commission expertise, judges similarly may vary from the child pornography guidelines.
A. Congress Is Responsible for the Drug and Child Pornography Guidelines
As noted above, in 1984, Congress sought to introduce greater uniformity into federal sentencing by establishing the Commission and charging this agency with developing national norms for federal sentencing decisions throughout the country.149 The original Commission encountered many difficult questions in formulating the initial guidelines manual, including how to set penalty levels. After drafts based on “just deserts” and “crime control” philosophies failed, the Commission adopted an empirical approach to quantifying the guidelines.150 In particular, the Commission studied approximately 10,000 sentences and effectively used past practice as the touchstone for identifying and quantifying penalty levels, enhancements, and reductions.151
There were several exceptions to the Commission’s empirical approach. The Commission based penalty levels for drug offenses, significant white-collar offenses, and violent offenses on mandatory minimums and congressional directives.152 In short, the guideline ranges for these three categories of offenses followed Congress—not the data.
The same conclusion—that relevant guidelines are a product of Congress and not the Commission’s independent expertise—is true of the child pornography guidelines. The Commission admitted as much in an exhaustive analysis of these very guidelines. The agency noted, “Congress has specifically expressed an intent to raise penalties associated with certain child pornography offenses several times through directives to the Commission and statutory changes aimed at increasing the guideline penalties and reducing the incidence of downward departures for such offenses.”153 The Commission added that it acceded to these congressional orders: “The Commission has sought to implement congressional intent in the area of child pornography offenses in a manner consistent with the SRA and subsequent legislation.”154 This is not to say that the Commission did not, in discharging this responsibility, study the matter in crafting the responsive guidelines. It is to say that the penalty levels were effectively dictated by Congress irrespective of any research from the Commission.155
B. Circuit Split: Kimbrough Applies to the Drug and Child Pornography Guidelines
In Kimbrough, the Supreme Court acknowledged that the Commission plays a unique role in the development of sentencing policy because the Commission, unlike Congress, “has the capacity . . . to ‘base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.’”156 Accordingly, the Court suggested that, in general, a district court’s policy disagreement with whether particular guidelines reflect the 18 U.S.C. § 3553(a) considerations may invite “closer review.”157
But the Court has also emphasized that such “closer review” would not be appropriate where the guidelines in question are not predicated on the Commission’s independent expertise,158 or where the Commission offers a “wholly unconvincing” policy for the relevant guideline.159 As the drug-trafficking guideline was a response to Congress, specifically the Anti-Drug Abuse Act of 1986, the Court in Kimbrough held that a variance due to a disagreement with the drug-trafficking guideline did not warrant “closer review.”160 An open question—one that has evenly divided six appellate courts—is whether Kimbrough applies to the child pornography guidelines. This conflict is widely recognized across the legal landscape, including by federal appellate and district courts,161 federal appellate and district judges,162 the Commission,163 the DOJ (in its own manual),164 and legal scholars.165
The Second, Third, and Ninth Circuits hold that the child pornography guidelines did not stem from the Commission’s independent expertise, and therefore, as in Kimbrough, a variance based on a policy disagreement with those guidelines does not merit “closer review.”166 By contrast, the Sixth Circuit contends that USSG Section 2G2.2 is the product of the Commission’s considered judgment, and therefore that any variance based on a disagreement with these guidelines must be subject to heightened scrutiny.167 Likewise, the Eleventh Circuit en banc has held that a variance to the guidelines for the production of child pornography necessitates the “closer review” contemplated in Kimbrough.168 For its part, the Fifth Circuit completely foreclosed a district court from varying due to a policy disagreement.169
This deep split matters in real terms: These opposing views as to the applicability of Kimbrough to child pornography sentencing guidelines produce sentencing disparities.170 Such disparities exist even as to noncustodial sentences.171 More generally, an orderly system of justice cannot exist in a state of uncertainty. Justice Sotomayor, when she was on the Second Circuit, acknowledged that the “contours” of closer review under Kimbrough “remain imprecise.”172
For several reasons, the Second, Third, and Ninth Circuits are on the right side of the debate. First, the plain language of Kimbrough expressly ties deference to the Commission by the agency’s exercise of its “characteristic institutional role.”173 The Court, in Spears v. United States, recognized the corresponding authority for district courts to vary on a categorical basis174—an authority that reflects the advisory nature of the guidelines.175 In addition, congressional amendments directed toward the Commission bind only the Commission, and not the courts.176 Moreover, as noted above, Congress effectively has dictated the contents of the child pornography guidelines, rejecting the Commission’s repeated efforts to set lower and more precise penalty levels, and substantively revising these guidelines nine times.177 Due to the relationship between Congress and the Commission, and between Congress and these specific guidelines, district courts should have complete authority, under Kimbrough, to vary from the child pornography sentencing guidelines for policy reasons without giving rise to “closer review” on appeal.178
III. Fixing Severe, Disproportionate, and Mandatory Penalty Levels
As Congress is effectively the author of child pornography sentencing policy, this Part discusses the content of Congress’s work, specifically highlighting the impact of the numerous mandatory minimums and statutory directives on fair and responsible sentencing: they have distorted the sentencing structure to the detriment of judicial discretion, individualized sentencing processes, and proportionate sentencing outcomes. As with the drug context, the solution should be to eliminate mandatory minimums and restore district court discretion to impose measured, individualized punishment consistent with the defendant’s actual role.
A. Severity
Congress entered the child pornography field relatively recently and, in rapid succession, introduced increasingly severe penalty schemes and attached them to an increasingly wide set of conduct.179 As Carol Steiker puts it, “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.”180 Lauren Ouziel similarly notes, “For more than three decades, Congress has steadily increased maximum penalties, added mandatory minimum penalties, and repeatedly directed the Sentencing Commission to impose harsher sentencing Guidelines penalties for child pornography offenses.”181
A measure of the severity of the child pornography sentences is their relationship to penalty levels for other “serious” crimes. Punishments for child pornography are more severe than for crimes that some may deem to be more serious. For example, the average sentencing for an individual convicted of possession of child pornography is greater than an individual convicted of manslaughter,182 which some may believe to carry greater harm and moral blameworthiness. The Second Circuit has taken notice of the comparative severity of the child pornography guidelines, observing that, if a child pornography defendant had “actually engaged in sexual conduct with a minor, his applicable Guidelines range could have been considerably lower” than for mere possession of child pornography.183
Consider the case of Andrew Demma, a former combat medic who served multiple tours of duty in Iraq, was exposed to pornography during his deployments, and witnessed an Iraqi child explode in front of him.184 He developed post-traumatic stress disorder (PTSD) and each psychologist who interviewed him testified that viewing child pornography upon returning home was caused, or at least exacerbated, by his PTSD.185 For possessing over six hundred images of child pornography, Mr. Demma was looking at six to over eight years in prison.186 Mr. Demma faced a higher sentencing exposure than would an individual who raped a minor,187 committed armed robbery of a bank,188 committed a violent offense with a weapon,189 or committed a violent offense that resulted in permanent bodily injury.190
The path to stiff sentences for child pornography crimes is the same as that for drug offenses. As with individuals who are convicted of drug offenses,191 those who commit child pornography offenses are categorically marginalized, reduced, and relegated to the lowest rung of society.192 This “othering” facilitates an indifference toward the offenders and fuels a retributive response to these offenders193—just as it does in the drug context.194 Michelle Alexander writes that individuals convicted of drug offenses are “put in a cage, labeled a felon, and then subjected to a lifetime of discrimination, scorn and social exclusion.”195 The same may be said of individuals convicted of child pornography offenses. Part of the justification for the heightened penalty scheme is the assumption that anyone who possesses child pornography is inclined to act on their sexual interests, triggering concerns about future dangerousness and therefore legitimizing longer sentences.196 A similar assumed connection exists as to drug offenders—those involved in the drug trade are assumed to be violent and thus deserving of a higher sentence.197 As with the development of the drug guidelines, Congress employed a hurried process to enact its directives, allowing for its decision-making to be governed by subjective determinations and not empirical information.198 The same punishment psychology, social attitudes, and empirical assumptions help explain both the “War on Drugs” and the sentencing of child pornography offenders.199
More broadly, a consequence of the retributive-based excessive sentences is that both drug penalties200 and child pornography penalties contribute to mass incarceration. James Forman, for example, writes that child pornography defendants are also targets of mass incarceration in light of the four-hundred percent increase in prosecutions and the severity of sentences.201 The severity of child pornography sentences is thus alarming in its own right, but also because of the role of child pornography sentences in the crisis of mass incarceration.
B. Disproportionality
The child pornography sentencing guidelines mandated by Congress fail to properly distinguish between offenses in this area, despite the Commission’s attempts to develop proportionate guidelines. The Commission itself made this point: “[S]entencing enhancements that originally were intended to provide additional proportional punishment for aggravating conduct now[, because of congressional intervention,] routinely apply to the vast majority of offenders.”202 The Commission continues:
[T]here is a growing belief . . . that the existing sentencing scheme in non-production cases no longer distinguishes adequately among offenders based on their degrees of culpability and dangerousness. . . .
The Commission believes that the current non-production guideline warrants revision in view of its outdated and disproportionate enhancements related to offenders’ collecting behavior . . . .203
The guidelines do not distinguish between defendants of different levels of culpability and dangerousness. For example, a defendant who commits a noncontact offense has higher sentencing exposure under the guidelines compared to a defendant who commits a contact offense,204 despite the fact that someone who engages in a contact offense undoubtedly has committed a more serious offense.205 To provide another example, the child pornography sentencing guidelines call for a sentencing enhancement if the defendant uses a computer.206 However, there is no correlation between sophisticated use of technology and dangerousness,207 and virtually every such crime will involve a computer.208 As one judge explained, “[E]nhancing for use of a computer is a little like penalizing speeding, but increasing that if you’re using a car.”209 Yet another example: the mandatory minimum sentences for receipt offenses is five years and there is no mandatory minimum for possession,210 even though possession and receipt generally occur together.211
Congress has vetoed the Commission’s attempts to set more measured and refined penalty levels for child pornography offenses. The Commission reported that members of Congress expressly rebuked the agency for establishing penalty levels that they believed were insufficiently severe; Congress reacted by negating the Commission’s amendments with superseding legislation.212 But it has been the Commission’s repeated, expert-based position that lower penalty levels are needed to satisfy the parsimony principle of 18 U.S.C. § 3553(a).213
An absence of proportionality is a fundamental problem with drug penalties. Significant drug penalties meant for those with greater roles are instead imposed on low-level distributors or couriers.214 In her excellent overview of the problems with the criminal justice system, Rachel Barkow highlights the overinclusiveness of major drug penalties, the mismatch between the intended target of the penalties and the recipients of those harsh sentences, and the reliance on quantity as a proxy for culpability. She notes that while the purpose of the drug guidelines was to target “kingpins—the masterminds who are really running these [drug] operations,” only about 10%–11% of federal drug defendants are high-level operators, with 40% being street-level dealers or couriers.215 The same is true of child pornography; penalties for child pornography offenses fail to measure culpability, with low-level defendants still receiving significant sentences.216 Moreover, as with low-level drug users, those who are most often prosecuted are those who possess, rather than produce, child pornography.217
C. Mandatory Minimum Sentences
Congressional action in this area has impeded individualized, responsible sentencing for child pornography offenses. As with mandatory minimums generally, the mandatory minimums enacted by Congress here unduly limit the opportunity for district judges to deliver individualized sentences,218 establish an artificially high baseline for sentencing decisions,219 and frustrate orderly guideline development.220 The Judicial Conference of the United States observed that the guidelines “often” call for disproportionate sentences, which in turn give rise to the “concern that the goals of fair administration of justice and respect for the law are not being met” in these cases, “undermine[] judicial confidence in the child pornography guidelines,” and “leave[] judges . . . frustrated by the inconsistency inherent in giving respectful consideration and weight to these guidelines calculations while also considering other pertinent factors [in] section 3553(a).”221 Indeed, as head of the Judicial Conference, then–Chief Justice Rehnquist informed the Senate Judiciary Committee that the congressional directives governing these guidelines distort the structure of federal sentencing; congressional amendments to these guidelines, he warned, “would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences.”222
As with mandatory minimums generally, the solution is to scrap mandatory minimum sentences in the child pornography context. Doing so would permit the Commission to craft measured guidelines in accordance with their expert judgment and without the anchoring effect of statutes, and would allow district court judges to have access to the full range of sentencing options (including little to no prison time) when devising an individualized sentence. More generally, doing so would restore proportionality to such sentencing determinations and reduce unwarranted disparities.223
As this Part suggests, child pornography sentencing is characterized by its severity, a failure to distinguish between different levels of culpability and conduct, and the absence of meaningful judicial discretion to impose an individualized, measured sentence. The way to fix these problems is for Congress to respect and adopt the guidelines changes proposed by the Commission and to rescind the applicable mandatory minimums.
IV. Forcing Congress to Correct Flawed Sentencing Systems
This Part addresses the fact that child pornography sentences are known to be flawed, and yet Congress has refused to go back to the drawing board and revise the penalty scheme. This problem—of Congress creating an unsound system and then fleeing the scene—exists in the drug context as well. We suggest that a proposal that has been floated in that context—that sunset provisions attach to criminal penalties, forcing Congress to return to the table—should apply to the child pornography setting as well.
As noted above, Congress has dictated the contents of the child pornography guidelines.224 The system that it has created is less than ideal, to put it charitably. Despite setting this system into motion and unleashing these harms on individual sentencing determinations and the structure of sentencing in the child pornography context, Congress has all but withdrawn from child pornography sentencing. As a former Sentencing Commission senior official notes, since 2012, “Congress has not given any indication that it intends either to amend the penal statutes governing child-pornography offenses or to give the Commission authority to amend the provisions” of the child pornography guidelines.225 It is the legal equivalent of setting a house ablaze and walking away.226
Yet, it is Congress that is in the best position to respond. For starters, the directives and mandatory minimums established by Congress can only be amended or rescinded by Congress.227 For its part, the Commission lacks the authority to change the congressional directives that supply the contents of the child pornography guidelines.228 Its authority is limited to developing guidelines within the detailed legislative lines drawn by Congress,229 and even then, the Commission can only propose guideline amendments that Congress can approve or reject.230 To the limited extent that the Commission could amend the guidelines, it has not been in a position to propose amendments because it has lacked a quorum since 2018 to pass and submit any amendments to Congress.231 Moreover, the Supreme Court repeatedly has declined to take up clear circuit splits involving the guidelines,232 seemingly deferring to its preference for the Commission to resolve any such conflicts.233
This situation—congressional imposition of severe sentences followed by a decade-plus withdrawal from the area—supports the imposition of sunset provisions on statutory penalty commands, which would force Congress to revisit and recalibrate penalty levels after a certain time period. These provisions would compel Congress to periodically justify current statutes or to amend existing statutes as appropriate. This process would ensure that the statutory regime is predicated on recent policy decisions and empirical information, in lieu of keeping severe sentences on cruise control. In practice, sunset provisions would mean, at a minimum, courts giving less deference to laws whose factual foundation has eroded,234 and legislators providing a temporal limitation on the criminal code.235
Scholars have explored and endorsed sunset provisions in federal statutes.236 Allison Orr Larsen writes that such temporal provisions are beneficial in that they compel “legislative reevaluation of policies,” “factual findings,” and “adjust[ments] to changing conditions.”237 She suggests that “Congress can and perhaps ought to be more attentive to the issue of staleness,”238 offering crack/cocaine disparities as an example of when Congress should have returned to the drawing board.239 While Congress has revisited this disparity, reducing it through the Fair Sentencing Act,240 for example, Congress is conspicuously quiet in the context of child pornography.241
V. Giving Uniform and Appropriate Meaning to Substantive Reasonableness Review Under Gall
This Part addresses appellate review in two respects. First, the circuit courts are deeply divided as to how to perform substantive reasonableness review under Gall v. United States.242 Second, the Sixth Circuit, in conducting such review for substantive reasonableness, took the remarkable step of declaring noncustodial sentences in child pornography cases per se unreasonable, thus effectively establishing a judicial mandatory minimum.243
A. Circuit Split: Reweighing the 18 U.S.C. § 3553(a) Factors Under Gall
In United States v. Booker,244 the Supreme Court issued one of the most significant and consequential decisions in modern criminal justice.245 The Court specifically changed the status of guidelines, which were designed to be binding, from mandatory to advisory.246 In doing so, the Court noted that the role of the federal appeals courts in federal sentencing is to check the “reasonableness” of sentences imposed.247 Two years later, in Gall, the Court explained that, in conducting this reasonableness review, the appellate court “must first ensure that the district court committed no significant procedural error” in determining the sentence, and “should then consider the substantive reasonableness of the sentence imposed.”248 The Court recently clarified that substantive reasonable review boils down to ensuring that, under an abuse of discretion standard, district courts impose a sentence that complies with the parsimony principle of 18 U.S.C. § 3553(a).249
The problem, however, is that there is little understanding as to what substantive reasonableness means. Judge Jeffrey Sutton admitted frankly that he is unsure how substantive reasonableness review is to be performed: “I must say I’m being close to a loss . . . in what I as a court of appeals judge should be doing when it comes to reviewing sentences for substantive reasonableness.”250 Indeed, reflecting this confusion, the circuit courts do not agree on how to deploy the abuse of discretion standard when conducting a substantive reasonableness review. As explained below, the Sixth and Eleventh Circuits recalibrate the weight by a district court to each § 3553(a) factor and effectively set aside a sentence as unreasonable on that basis. In contrast, the First, Second, and Tenth Circuits conclude that such factor-by-factor reweighing is forbidden, asking, instead, whether the sentence is reasonable overall.
The Sixth and Eleventh Circuits occupy one side of the split. In 2020, the Sixth Circuit reviewed the substantive reasonableness of a sentence of time served for possession of child pornography.251 The court defined a sentence as “substantively unreasonable . . . [if] the ‘sentence is too long . . . or too short.’”252 “This inquiry,” the Sixth Circuit continued, “requires us to determine whether ‘the court placed too much weight on some of the § 3553(a) factors and too little on others.’”253 The court relied on Gall for the proposition that it “may ‘consider the extent of the deviation’ in deciding whether the district court abused its discretion.”254 Applying this understanding of substantive reasonableness review, the Sixth Circuit faulted the district court for giving “an unreasonable amount of weight” to several factors, including the defendant’s mental health.255 At the same time, the Sixth Circuit claimed that the district court gave too little weight to other factors, including the seriousness of the offense.256 This factor-by-factor analysis doubled as the abuse of discretion analysis, as the court admitted: “Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining [the defendant’s] sentence.”257
The en banc Eleventh Circuit endorsed this factor-by-factor approach to substantive reasonableness review.258 In doing so, the full court responded to and rejected a dissenting colleague’s argument that such a deconstructive process was inconsistent with Gall.259 In determining that an evaluation of the weight assigned to each § 3553(a) factor follows—rather than flouts—Gall, the Eleventh Circuit interpreted Gall as deciding the reasonableness question “only after reviewing the weight the district court had assigned to various factors as well as its decision that the § 3553(a) factors, as a whole, justified the sentence.”260 The court referenced language from Gall in which the Supreme Court mentioned the “great weight” given to the defendant’s voluntary withdrawal from the conspiracy to distribute drugs and the “great weight” given to the defendant’s desire for rehabilitation.261 The Eleventh Circuit, not unlike the Sixth Circuit, concluded that the sentence imposed “discounted the value of general deterrence” and did not adequately promote retributive purposes.262
By contrast, the First, Second, and Tenth Circuits disagree with the Sixth and Eleventh Circuits’ interpretation of Gall and their resulting atomistic approach to substantive reasonableness review.263 For starters, the First Circuit has made clear that the weighing of the § 3553(a) factors rests with the sound discretion of the trial court, and that it is not within the purview of the appellate court to revisit or revise that weighing.264 The Second Circuit shares the same view.265 In addition, the Tenth Circuit has disclaimed any authority under Gall to “examine the weight a district court assigns to various § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo.”266 An appellate court’s disagreement with that weighing, the court added, “is simply not enough to support a holding that the district court abused its discretion.”267 Instead, the appellate court must “defer not only to a district court’s factual findings but also to its determinations of the weight to be afforded to such findings.”268
The Sixth and Eleventh Circuits’ deconstructed form of the abuse of discretion standard is incorrect for at least two independent reasons. First, it is predicated on a misreading of Gall. Consider that, in Gall, the appellate court reversed the district court’s sentence, in relevant part, because the district court assigned “too much weight to [Mr.] Gall’s withdrawal from the conspiracy.”269 However, the Supreme Court surmised that the appellate court had “clearly disagreed with the District Judge’s conclusion that consideration of the § 3553(a) factors justified a sentence of probation,” and the Court nonetheless precluded the appellate court from conducting de novo review of the district court’s balancing of the § 3553(a) factors.270 A reassessment of the weighing of the § 3553(a) factors is tantamount to the sort of de novo review that Gall forbids.271 Indeed, whereas Gall instructs appellate courts to keep the district court’s weights fixed and assess whether the factor “can bear the weight assigned to it,”272 the Sixth and Eleventh Circuits compare the district court’s values against the values it would have given.
With respect to the language from Gall regarding the “great weight” given to certain factors, the broader text reveals that the Court in Gall was describing the weight that the district court—not the appellate court—had allocated.273 In short, the Court in Gall seemed to be making a descriptive, rather than evaluative, reference to this weight. Accordingly, this language should not be used as a license to second-guess the relative weight assigned to the sentencing factors by the district court.274
Second, and relatedly, the Sixth and Eleventh Circuits have adopted a divide-and-conquer approach that is meaningfully different than one considering whether, on the whole, the district court abused its discretion. As the First Circuit explained: “[S]entencing decisions represent instances in which the whole sometimes can be greater than the sum of the constituent parts. So here: it is the complex of factors—their presence in combination—that verges on the unique. The factors themselves, if viewed in isolation, present a distorted picture.”275
With this perspective in mind, the Sixth and Eleventh Circuits’ approach necessarily will lead to different qualitative outcomes compared to one that truly considers whether, in view of the totality of the circumstances, the trial court abused its discretion. In sum, neither a proper interpretation of Gall nor practical considerations support the Sixth and Eleventh Circuits’ position.
The challenge is how to ensure that the substantive reasonableness review is deferential and yet still has some teeth. Then-Judge Brett Kavanaugh commented on the deferential nature of this review, stating that “the appellate role with respect to substantive review of sentences is going to be very, very limited.”276 At the same time, some judges have expressed concern that substantive reasonableness is an empty concept. The Eighth Circuit noted in concurrence, for example, that such review is “usually an exercise in futility.”277 The approach taken by the First, Second, and Tenth Circuits strikes that proper balance, by deploying a familiar and meaningful standard, focusing on the totality of the district court’s reasoning.278 It is this approach that other circuit courts should embrace. If the Supreme Court decides to take up this split one day, it too should side with and nationalize that approach.
B. Creating a Judicial Mandatory Minimum
Remarkably, a circuit court itself has imposed a mandatory minimum in the child pornography context. In 2017, a district court imposed a noncustodial sentence in a possession of child pornography case.279 Considering the individual circumstances of the case, the court “determine[d] that a custodial sentence as recommended by the guidelines ‘would not accomplish anything.’”280 The Sixth Circuit reversed, explaining in part that a noncustodial sentence would not be supported by deterrence considerations.281
The district court—of the view that the Sixth Circuit failed to defer to the particularized findings of the district court and substituted the individualized consideration of the § 3553(a) factors with its own independent weighing of these factors—reimposed a noncustodial sentence on remand.282 The district court itself expressly stated during the resentencing hearing that the Sixth Circuit is not to “second-guess a district court judge’s decision on sentencing,” but “that’s exactly what they did, is they second-guessed my decision on what the sentence should be based on their own evaluation of the factors.”283 The district court acknowledged the Sixth Circuit’s opinion that a custodial sentence would be supported by general deterrence, but the district court emphasized that it “does not make sense” to impose a custodial sentence to advance one isolated factor when “everything else about [the defendant] argues for something different.”284
In 2020, the Sixth Circuit vacated the sentence, holding candidly that a child pornography offense automatically triggers a significant custodial sentence: “sentences are substantively unreasonable in child pornography cases when they require little or no jail time.”285 Put differently, the court held that a noncustodial sentence for the possession of child pornography is per se unreasonable, irrespective of any individualized determinations made by the district court.
This categorical rule amounts to the introduction of new mandatory minimum sentences through judicial opinion. Indeed, the opinion categorically restricts the discretion of district courts to identify an appropriate sentence within the actual statutory minimums and maximums set by Congress, eliminates noncustodial sentencing options altogether and even in outlier cases, and increases sentencing disparities as to noncustodial sentences.286 This inflexible limit on judicial discretion also conflicts with Gall’s requirement that sentencing courts “make an individualized assessment based on the facts presented” and statutory factors,287 with Gall’s direction that circuit courts are to give due deference to the individualized decisions of sentencing courts,288 and with Kimbrough’s refusal to endorse a rule of per se unreasonableness in federal sentencing.289 It is the exact opposite of deference to preemptively and absolutely shorten the range of sentences otherwise available to a district court.
Consider an instructive case from the drug context, in which the defendant was sentenced by a district court judge to probation for distributing roughly a quarter of crack cocaine, though the sentencing guidelines called for a sentence of sixty-three to seventy-eight months in prison.290 The government appealed, arguing that the sentence was substantively unreasonable, and the Fourth Circuit agreed, holding that a noncustodial sentence was not per se unreasonable, but that the large variance in this particular case was not justified.291 The Supreme Court subsequently decided Gall, vacated the Fourth Circuit opinion, and sent the case back to the circuit court for reconsideration in light of Gall.292 On remand, the Fourth Circuit upheld the sentence of probation, explaining this time that the district court thoroughly discussed the § 3553(a) factors and was substantively reasonable under the deferential abuse of discretion standard dictated by Gall.293 The contrast between the Fourth Circuit’s pre-Gall ruling and the post-Gall ruling highlights the meaning of Gall. If the Fourth Circuit understood that noncustodial sentences in the drug context are not per se substantively unreasonable even before Gall, the Sixth Circuit’s requirement of custodial sentences in child pornography sentences seems that much more of a departure from Gall.
In short, appellate courts should not, under the guise of substantive reasonableness review, introduce mandatory minimum sentences in child pornography offenses. Nor should district courts, with the exception of those bound by the Sixth Circuit’s erroneous decision, feel compelled to impose a custodial sentence in these cases. If the Supreme Court were to revisit the meaning of substantive reasonableness review, it should clarify that the full scope of judicial discretion should be available to sentencing courts and that a categorical appellate restriction on sentencing discretion is inconsistent with the abuse of discretion standard and an individualized sentencing system.
Conclusion
This Article makes the case that the movement for criminal justice reform should include child pornography sentencing. The movement has extended to various areas of criminal law and to various actors within the criminal justice system. But child pornography warrants attention and reform too. Indeed, the systemic problems identified in this Article implicate the very values that supply the predicate for a just and orderly system of punishment. Moreover, some of the problems that have given rise to concerns with other areas of law, including severe and mandatory sentencing, exist in the child pornography space as well. The unsympathetic nature of child pornography defendants does not negate the existence of these shared issues.
Drug defendants were once viewed with revulsion, and that hostility remains as to defendants convicted of child pornography crimes. The draconian penalties applicable to child pornography crimes thus linger as well. As drug policy becomes more rational in principle and thus more measured in effect, so too should child pornography policies. Otherwise, the movement for criminal justice reform will be incomplete, limited by social attitudes and not fully commensurate with principle. We aim to ensure that policymakers, courts, and the public generally will not continue to make the same mistakes in the child pornography context that were committed and now condemned in the area of drug offenses.