Disproportionate sentencing for possession of child pornography

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In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court's recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences. Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.

source: Article 'Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?' by Jesse P. Basbaum; Available at SSRN: ssrn.com/abstract=1457197; papers.ssrn.com/sol3/papers.cfm?abstract_id=1457197#; Hastings Law Journal, Vol. 61, May 2010; 18 August 2009