Federal Judges Are Increasingly Rebelling Against ‘Overly Severe’ Penalties for Nonviolent Sex Offenders –

The U.S. has released two recent reports. The U.S. Sentences Commission (USSC), released two recent reports that shed light on legal treatment for sex offenders. They also undermined the assumption that everyone in that large class poses a similar threat to public safety. The assumption that all members of a broad class pose similar threats to public safety is wrong and underpins both harsh penalties as well as inflexible registration requirements is clearly false.

A USSC report this week revealed that the federal average sentence for child-pornography production offenses in 2019 was close to 23 years. This reflects the severity of the crimes which can lead directly to sexual abuse. In comparison, in June, the USSC reported that the average prison sentence for child pornography offences that involve receiving, possessing or sharing images was eight and a quarter years.

While it is understandable that production offenses received harsher sentences, that doesn’t mean that nonproduction offenses were less serious. These offenses do not involve any contact with children. They may be as simple as looking at photos, which is considered both possessing and receiving child pornography in online sharing.

USSC reported that in fiscal years 2005 and 2019, the average sentence for nonproduction offenses was 98 months. This is an increase of about 8 years. It rose to 136 month (more then 11 years). The actual sentences that judges imposed during the same time period “increased gradually,” going from 91 (about seven years and a quarter years) to 101 (about eight years and a third years). This is a reflection of the degree to which judges ignore the guidelines. They have concluded that excessive penalties are unacceptable.

Fiscal year 2019 saw 59 percent of non-production offenders receive sentences that were below the guidelines range. This compares to just 16 percent for fiscal year 2005. “There
There had been an increase in sentences that were imposed in cases involving non-production child pornography, which was consistent with the USSC’s observations.[s]Courts are increasingly recognizing that the sentence for these offenders is too harsh.

Congress bears the responsibility for this “overly strict” sentencing scheme, as it tends to favour increased punishment. According to the USSC, Congress modified the guidelines directly in 2003 to create new mandatory minimum penalties and add sentencing enhancements. In consequence, the “underlying conduct that triggers such enhancements or penalties increased in severity” and was increasingly used to penalize more offenders.

The judges are compelled to enforce mandatory sentences as required by law. In the 2005 case however, United States v. BookerThe Supreme Court decided that the federal sentencing guidelines were not mandatory and was therefore merely advisory. Federal judges were able to sentence below the range of guideline sentences when justice requires it.

Judges disagree on the appropriate time, resulting in wide variations in sentences being imposed upon defendants who are similarly situated. The fiscal year 2019 example shows that sentences for “119 similar situated” were varied. [child pornography]Possession offenders were sentenced to probation or 228 month, even though the 119 offenders involved in the case had the exact same guideline calculations due to the use of similar offense categories and criminal history. A wide range of sentence variations was also observed in 52 other cases that involved child pornography receipt (37-180 months to 228 months) as well in 190 similar cases that involve distribution (less then a month up to 240 months).

Since years, the USSC has been critical of the sentencing system. It reiterated those criticisms in its June report. According to the USSC, current guidelines which “are constrained by statutory minimum penalties, congressional directives and direct guideline amends by Congress” include “a variety of enhancements that are not keeping pace with technological advances.” These enhancements cover conduct that is so widespread that they are now applicable in almost all cases. For instance, fiscal 2019 saw “over 95% of all non-production child pornography offenders” receive enhancements regarding the use of a computer or the age of their victim.

Because of congressional intervention, anyone who views, owns or shares child pornography could be sent to federal jail for up to 20 years. A person who did the exact same thing may receive probation or a term less than one year. It is difficult for anyone to understand this situation.

People who believe the problem is because some offenders get off too easily tend to think that any person who sees child pornography will be inclined to abuse children. It is better to keep them locked up as long as they can. However, the USSC’s data on recidivism suggests that this belief is incorrect.

It tracked the release from prison of 1,093 child pornography offenders in non-production. It found that 3.3 percent of those arrested were for “non-contact sexual offenses” three years later. This would have included possession child pornography. Only 1.3 percent were arrested for “contact sex offences.” These findings suggest that this group of sex offenders, even if they were not reported crimes, is much less risky than most people think.

Contrary to common belief, other studies also show that recidivism does not occur in sex offenders. According to a 2003 Bureau of Justice Statistics’ (BJS), the study tracked 9691 male sex offenders who had been released from jail in 1995. They were all convicted of sexual assault or rape. The study found that only 5.3 percent of those arrested were convicted for a second sex offense in the next three years.

Similar results were also found in a second, similar study that was published the following year. It used a random sample of 146.918 Illinois sex offender who had been arrested back in 1990. These arrestees were anyone required to register as an sex offender. Therefore, their crimes didn’t necessarily include contact with victims. In total, only 4.8 percent of those arrested were convicted for a new sexual offense in the last three years. After five years, the rate increased to 6.5%. In 2013, a study on New Jersey sex offenders revealed that less than 5% were convicted in a follow-up period of an average of 6.5 years.

By comparison, a 2018 BJS study found that the recidivism rate for state prisoners released in 2005— meaning the rate at which they were arrested for new crimes of the same type—was about 40 percent after three years and 49 percent after five years. The rates for violent offenders were 24.5 percent (and 34%), respectively. They were approximately 21 percent to 29 percent for property offenders.

In 2004, a study examined 4,724 male sex offenders in 10 studies. None of these offenders had ever committed rape, or incest. After five years, the recidivism rate rose to 14 percent. It then rose to 20 percent for 10 years and 25 percent for 15 years.

Nine years was the longest period of follow-up in the BJS state prisoner study. At that point, 58 percent of those arrested were convicted of a similar crime. About 43 percent of violent offenders were arrested, and 40 percent of property offenders.

The 2004 study on sex offenders concluded that those who had not been convicted in their community for at least five years were less likely to be retrenched. The 10 year average recidivism rate was 20% at the time of release. However, it dropped to 10% after 5 years and to 9% after 10. It was also revealed that prisoners older than 50 years of age at release are more likely to commit a recidivism offense.[ed]”At half the rate” than younger offenders.

Their findings “challenge certain commonly held beliefs about sexual reclusivism” and could have consequences for policies that manage the danger posed to sexual offenders. These findings can be used to evaluate the validity of laws that mandate sex offenders register for periods of 15 to 20 years.

The premise of those publicly accessible databases—which invite ostracism, harassment, and violence while undermining rehabilitation by making it difficult to find housing and employment—is that all of these people pose a continuing threat. Even if it is limited to predatory criminals, the evidence clearly shows this assumption is flawed. This is particularly true for nonviolent sexual offenders.