Judges testifying before the U.S. Sentencing Commission in Chicago told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Sept. 9 that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

“This is an area that requires the commission’s close consideration and possible corrective action,” Rosen told the panel, adding, “I know it’s an awkward area for all of us.”

In response, Commissioner Beryl Howell said that the issue “is on our priority list for the coming year.” The commission will study what kinds of refinements might be made after reviewing the departures from the sentencing guidelines that judges have made in these cases, she said. Howell also noted that Congress has weighed in heavily in this area over the years.

The commission is holding a series of regional hearings in conjunction with the 25th anniversary of the Sentencing Reform Act, which established the commission, to get feedback from judges, prosecutors, probation officers, public-interest lawyers, public defenders and others on federal sentencing practices. The Chicago hearing is the commission’s fourth, after forums in Atlanta, Stanford, Calif., and New York. Additional hearings will take place in Denver next month; Austin, Texas, in November; and Phoenix in January.

Much of the discussion is centering on the impact of the 2005 Supreme Court decision in United States v. Booker, which made the federal sentencing guidelines advisory as opposed to mandatory.

“I’m of the view that in many instances the sentences are simply too long,” Judge Carr said, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.

Judge Rosen emphasized that he doesn’t condone possession of child pornography or understand it, but focused on the unfairness of treating one person sitting in his basement receiving videos over the Internet the same as a commercial purveyor of child pornography. In some cases, a person who has watched one video gets a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said. The average sentence for possession of child pornography in his district more than doubled, from about 50 months to 109 months, between 2002 and 2007, he said.

Factors that the judges must take into consideration in these cases, such as using a computer or engaging in file-sharing over the Internet, are inappropriately ratcheting up sentences, Rosen said. He suggested that the commission might want to take into account the volume of material in a case while making allowances for technology that may dramatically increase that volume.

7th Circuit Chief Judge Frank Easterbrook, who testified with a separate group of appellate judges, agreed that the child pornography possession area might be ripe for review. He said it gives him pause when he sifts through a stack of sentences that includes a bank robber getting a 10-month sentence and a person convicted of downloading child pornography receiving a 480-month sentence.

“One wonders if we aren’t facing some unreasonable and unjustifiable disparities,” Easterbrook told the panel.

U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify tomorrow that there “seems to be a striking dissonance” between judges and prosecutors in sentencing for child pornography and exploitation cases, according to his prepared remarks.

“Without taking an advocate’s view on why it is so, it is plain as day there is a deep disconnect,” he said in the remarks, which were distributed early by the sentencing panel. “I respectfully suggest that this is an area of sentencing that warrants further study and further education of all involved.”

The Booker decision has “aggravated the situation concerning child pornography,” Fitzgerald said in his prepared remarks. While mandatory minimum sentences in that area “are certainly strict,” prosecutors may be reluctant to seek lower sentences when they expect, based on past experience, that judges will reduce whatever sentences they recommend, he said.

Lynne Marek can be contacted at lynne.marek@incisivemedia.com.