Losing Our Soul: Judicial Discretion in Sentencing Child Pornography Offenders
Date
2011
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Publisher
Florida Law Review
Abstract
Child pornography offenders capitalize on the vulnerability of children
and find pleasure in their victims’ humiliation. In United States v. Irey, the
defendant sadistically raped, sodomized, and tortured more than fifty
prepubescent girls and then broadcast this abuse across the Internet; yet the
court characterized Irey as a “victim” and granted him a downward
departure, sentencing him to 12.5 years below the minimum of the range
set by the Federal Sentencing Guidelines.
This Note argues that when courts depart from the sentences
recommended by the Guidelines for child pornography offenses by
improperly weighing the § 3553(a) factors, courts create grossly unjust
sentencing disparities for similarly situated defendants, fail to sufficiently
prevent recidivism, and underestimate the importance of retribution and
deterrence for child pornography offenses. Part I follows the history of the
Guidelines before and after the Supreme Court’s decision in Booker. Part II
provides an example of a district court improperly balancing the § 3553(a)
factors and the U.S. Court of Appeals for the Eleventh Circuit
demonstrating the appropriate method of appellate review. Part III
discusses the purposes of punishment in the child pornography context,
explores the empirical psychological research (including the controversial
Butner Study) that validates the severity of the Guidelines, and
demonstrates courts’ misplaced reliance on pedophilia as a mitigating
factor in sentencing. Finally, Part IV critiques common remedies for these
sentencing problems caused by inadvertent judicial activism and offers
three novel solutions for child pornography sentencing.
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Keywords
child sexual abuse material, offenders, sentencing
Citation
Kimball, K. A. (2011). Losing our soul: Judicial discretion in sentencing child pornography offenders. Fla. L. Rev., 63, 1515.