Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders

63 Fla. L. Rev. 1515 (2011)| | | |
Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey as a “victim” and granted him a downward departure, sentencing him to 12.5 years below the minimum of the range set by the Federal Sentencing Guidelines.

This Note argues that when courts depart from the sentences recommended by the Guidelines for child pornography offenses by improperly weighing the § 3553(a) factors, courts create grossly unjust sentencing disparities for similarly situated defendants, fail to sufficiently prevent recidivism, and underestimate the importance of retribution and deterrence for child pornography offenses. Part I follows the history of the Guidelines before and after the Supreme Court’s decision in Booker. Part II provides an example of a district court improperly balancing the § 3553(a) factors and the U.S. Court of Appeals for the Eleventh Circuit demonstrating the appropriate method of appellate review. Part III discusses the purposes of punishment in the child pornography context, explores the empirical psychological research (including the controversial Butner Study) that validates the severity of the Guidelines, and demonstrates courts’ misplaced reliance on pedophilia as a mitigating factor in sentencing. Finally, Part IV critiques common remedies for these sentencing problems caused by inadvertent judicial activism and offers three novel solutions for child pornography sentencing.

“‘There can be no keener revelation of a society’s soul than the way in which it treats its children.’ Given the current statistics surrounding child pornography, we are living in a country that is losing its soul.”

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