This Comment argues that Congress should amend the child pornography statutes in order to prevent noncustodial sentences and to make some of the otherwise discretionary enhancements within the Guidelines mandatory. Part II of this Comment discusses the legislative history of the once-mandatory Guidelines and presents an overview of the sentencing structure for those found guilty of a child pornography offense in violation of 18 U.S.C. §§ 2252 or 2252A. Part II also briefly discusses the Supreme Court's holding in United States v. Booker, which rendered the Guidelines advisory. Part III illustrates how some district court judges exercised their newfound discretion--the so-called reluctant rebellion--by giving defendants noncustodial sentences and sentences far below the Guidelines, and it discusses the somewhat unsuccessful attempt by appellate courts to draw the line under the abuse of discretion standard the Supreme Court adopted in Gall v. United States. Part IV analyzes the enumerated factors in 18 U.S.C. § 3553(a), which district courts must consider, and the appellate review process in light of the Supreme Court’s mandate that substantial deference be given to the district court's sentencing determination. It also evaluates the justifications judges provide when giving non-Guidelines and noncustodial sentences. Finally, Part V recommends a two-phase plan to amend the child pornography statutes in order to avoid unwarranted sentencing disparities and ensure congressional intent is carried out.
Holly H. Krohel,
Dangerous Discretion: Protecting Children by Amending the Federal Child Pornography Statutes To Enforce Sentencing Enhancements and Prevent Noncustodial Sentences,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol48/iss2/4