Challenging Federal Sentencing Guidelines for Child Pornography Cases

In a recent order filed on August 13th, 2021 by Eastern North Carolina U.S District Court, Superior Judge W. Earl Britt stated his policy disagreements with the relevant sentencing guidelines for a child pornography case, USA v. Jones, favoring a shorter sentence than what the guidelines provide. This order may set a precedent for future challenges and possibly changes to sentencing guidelines as courts begin to better understand how child pornographic material is disseminated, what kind of people child pornography offenders may be, and the potential harm they may or may not pose.

In this article we will provide a background on sentencing guidelines and discuss the relevant case, the judge’s opinion, and why this matters.

person browsing web for child pornography, which can be tracked by photoDNA

What are Sentencing Guidelines?

Sentencing Guidelines are a set of standards that have been put in place to establish consistent sentencing practices within a particular jurisdiction, in this case, federal courts. In short, their main purpose is to prevent unjust situations where people face astoundingly different degrees of punishment for the same crime solely based on the court room they were tried in. The guidelines are meant to be based in empirical data and expertise on a variety of topics, such as harm posed by a particular crime or how one crime can differ in severity to another. As these are guidelines, the courts still have some leeway in departing from what they recommend based on any additional factors, including policy disagreements. The main exception to this is that they cannot order a sentence below mandatory minimum sentencing, if such exists for that crime, established by congress or state legislature.

Essentially, guidelines serve as a starting point or initial benchmark, but courts often do not look at them as the only thing for consideration. There have been many cases where courts have departed from guidelines recommendations, and USA v. Jones is one such case where the judge ordered such downward departure.

USA v. Jones — a Summary

In May 2019, a criminal investigation revealed that Matthew James Jones, at the time a 55 year old man living in Jacksonville, North Carolina, had downloaded child pornography on his personal computer. In July of that year, agents executed a search warrant at his residence and seized a tablet, SD card, cell phone, and laptop. They found that the used his laptop to receive and possess thousands of images and videos of child pornography, including ones with minors under age 12 and some content considered to involve sadistic conduct. He was then charged with one count of violating 18 USC 2252(a)(2), which states:

Any person who—
knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if—
 (A)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
 (B)such visual depiction is of such conduct;

In February 2021, Jones entered a written guilty plea agreement and agreed to make restitution to any victim. Prior to his sentencing, a probation officer calculated his advisory sentencing range as follows:

Child Porn Sentencing Guidelines for Jones

The sentencing guidelines impose an offense level from 1 to 43 for each crime. Crimes have a base offense level, and points can be added or detracted based on a variety of factors that may be specific to the particular crime or more general. In the case of Jones, his child pornography charge carried 22 base points, and the following added or subtracted points:

  • For depicted minors being under 12 years of age: + 2 points
  • For portrayals of sadistic or masochistic conduct and violence: + 4 points
  • For use of a computer: + 2 points
  • For possession of over 600 images: +5 points
  • For accepted of responsibility: – 3 points

This meant that Jones was facing a total of 32 points, reflecting an extremely serious crime. With no prior criminal record, the guidelines advisory range was 121 to 151 months imprisonment, though the mandatory minimum is 5 years prison and 5 years supervised release. Jones’ attorney requested a “downward departure/variance”, which is when a judge imposes a sentence lower than the minimum suggested by sentencing guidelines. Judge W. Earl Britt granted Jones the downward departure, imposing instead the mandatory minimum sentence, based on reasoning as follows.

Why Jones was Granted Downward Depature

In Judge Britt’s order, he cited numerous past cases and issues that influenced his reasoning to offer Jones a downward departure from sentencing guidelines. Before addressing the case in specific terms, his order first justifies court action to depart from sentencing guidelines, citing cases where guidelines failed to reflect empirical evidence and national expertise. One such example he used was USA v. Kimbrough, where sentencing guidelines for crack cocaine were challenged for being significantly more severe than for powder cocaine that did not reflect the relative danger between the drugs. Beyond this, Britt offered reasoning on the basis of the limited danger Jones himself posed, and how Child Pornography sentencing guidelines have developed in ways that he believes does not adequately differentiate the different ways this crime is committed.

Jones' Likelihood to Re-offend

A key issue judges should consider for sentencing is recidivism, or likelihood for a person to re-offend when their freedom is returned. In the case of Jones, Britt cited the following factors as to why he may not be as great a concern for repossessing child pornography:

  • Jones was married for 31 years and had one child with his wife who lives outside home.
  • There have been no reported cases of accusations of violence, sexual or otherwise, against Jones, and he has no prior criminal record.
  • He has not been diagnosed with a relevant medical condition, and a psychological evaluation showed that he is unlikely to have an antisocial personality disorder.
  • Lack of substance abuse issues.
  • He showed an internal motivation to manage porn use, and willingness to undergo treatment to mitigate risk.

With the above considered, it would seem more productive and just to limit imprisonment in favor of longer term supervised release to make sure he effectively curbs his interest in child pornography while still being part of his community.

Issues with Child Pornography Sentencing

Judge Britt shared his opinion on various issues with child pornography sentencing that he believes do not reflect the nature of the crime, people who perpetrate it, and more. He mainly cites a 2012 review by the sentencing commission on how child pornography guidelines work for “non-production” offenses, or offenses where the defendant is merely a consumer of child porn but does not create such material. The goal for these guidelines were to punish creating child porn significantly more than just possession, but the review showed that the guidelines failed to do so, for several reasons:

  • Guideline enhancement for computer use, which were listed for Jones, were supposed to target mass-distribution of child porn via the internet. In reality, over 95% of non-production and non-trafficking offenders receive this enhancement, as computers are the main method for obtaining child pornography.
  • The concept of “receipt” and “possession” for child pornography are effectively the same, though receiving child porn is punished much more heavily than possession. This allows courts to pick the word of choice based on their interest in favor or against the defendant.
  • Data shows that many courts routinely applied downward variance in response to the high guideline ranges for non-production offenders. Less than 30% of such offenders received guidelines sentencing in 2019.

Essentially, according to judge Britt, the guidelines do not adequately reflect the offense culpability in non-production child pornography cases. Judge Britt still noted that non-production crimes are very serious, as they contribute to the manufacturing of child pornography, but they should not effectively be treated as the same crime simply because of how the guidelines are structured.

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