New York Federal Criminal Practice Blog
June 22, 2008

Federal Defenders Publish Two Important Papers Deconstructing Career Offender and Child Pornography Guidelines

Inspired by the Supreme Court’s holding in Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), that a district judge may disregard a provision of the Sentencing Guidelines that is not the product of “empirical data and national experience,” the National Federal Defender Sentencing Resource Counsel has started a project called “Deconstructing the Guidelines,” which will publish papers critically examining individual guidelines to determine if they fail to reflect the exercise of the Sentencing Commission’s “characteristic institutional role.”  That role, as the Federal Defenders point out, includes two components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field.

Two papers in the project were published this month, one analyzing the child pornography guidelines (Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008) by Troy Stabenow) and one on the career offender guideline (Deconstructing the Career Offender Guideline (June 16, 2008), by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan).  Already, as Professor Berman notes in his Sentencing Law and Policy website, a district judge in Wisconsin has cited the paper on the child porn guidelines to support a substantial below-guidelines sentence in a child porn possession case (in fact a sentence of 72 months, instead of one within the applicable guideline range of 210-262).  Explaining his variance in United States v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008), Judge Lynn Adelman states:

As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 [the child pornography guideline] is not representative of the Commission’s typical role or of empirical study.  The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary.  Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. . . . To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices.  This guideline simply does not represent that role, as the Commission itself has acknowledged.

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