The legal term for fairness in sentencing is proportionality. It is a complex issue that is frequently addressed by courts at all levels and all jurisdictions. Often stated in the lay notion that punishment ought to fit the crime, the concept is enshrined in the historical proscription against cruel and unusual punishment in the English Bill of Rights (1689), the United States Constitution (8th amendment, 1787), and similar wording in the United Nations Universal Declaration of Human Rights (1948).
|Source: US Bureau of Justice Statistics|
America has become an increasingly punitive society that seems to believe that the solution to our problems is to lock someone up or kill them. As a result of get tough on crime rhetoric and legislation since the 1970s and 80s, the US has started out the 21st century as the world's most imprisoned nation. As of 2007, we had well over 2 million people in jails and prisons across the country, almost one percent of our population, as well as 5 million more on probation, parole, and other forms of judicial supervision.
The largest category of these incarcerations is for drug crimes. But a growing proportion today is sex crimes, especially possession of child pornography. Many legal scholars and professionals are concerned that the sentences handed down are often out of proportion to the severity of the crimes, as in the following examples:
- Life in prison for a sting. Roland Guerra got into detailed sexual conversations with a Memphis policeman, who was pretending to be a 13-year-old girl. While no coercion or persuasion was alleged, he sent her pornography and arranged to meet with her for sex. Although there was never any actual child involved, Guerra was sentenced to life in prison.
- Life in prison for sucking toes. Trenton Veches was found to have sucked the toes of at least 20 boys between the ages of six and ten at the recreation facility where he worked. There were apparently no complaints from the boys, but when a co-worker saw it happening, he was arrested, convicted, and handed a life sentence.
- 200 years for porn possession. Morton Berger used his computer to look privately at a few dozen pictures that he had downloaded of children engaged in sex acts. Without ever actually touching a child, he was given consecutive sentences of ten years for each of 20 of those pictures 200 years in prison all together.
The Arizona Supreme Court upheld Berger's sentence in a four-to-one decision. The dissenting judge pointed out that that he could serve less time for a crime spree that included second degree murder.
The US federal courts have a mechanism for assuring proportionality in sentencing. Judges are required to pay close attention to a comprehensive set of rules, called sentencing guidelines, when imposing sentences for any conviction. The 677-page rule book covers every possible federal crime and every conceivable variation of how they might be carried out. It's a wonderful mechanism by which the public can gauge how seriously our government treats all the crimes one can be guilty of. And it's instructive to see how these sentencing rules treat people who hurt or have sexual contact with children.Physical Assault
For physical assault, there is no distinction for the age of the victim, so physically attacking a child is treated essentially the same as getting in a fight with an adult. The penalty depends largely on the amount of damage caused. So, if you attack a child or adult with a baseball bat and break his or her arm, you're looking at 2½ to three years. Break the ribs and puncture a lung, you might get close to four if the victim survives. If the person dies and it was an accident, that's manslaughter and your sentence peaks at just short of three years. If you really intended to kill the child or adult, that's when the punishment starts to get serious: six to seven years if you don't succeed, or 20 to 24 years if you do.
These sentencing rules for physical assault are shown in the following table.
|US Federal Sentencing Guidelines |
for Physical Assault (on a Child or Adult)
(no criminal record)
|No weapon or injury||4-8||0 - 6 mo||§2A2.3(a)(2)|
|With deadly weapon||14||15 - 21 mo||§2A2.2(a)|
|Bruises||17||24 - 30 mo||§2A2.2(b)(3)(A)|
|Resulting in death (accidental)||18||27 - 33 mo||§2A1.4(a)(2)(A) (Reckless manslaughter)|
|Broken arm||19||30 - 37 mo||§2A2.2(b)(3)(B)|
|Punctured lung||21||37 - 46 mo||§2A2.2(b)(3)(C)|
|With intent to kill||27||6 - 7 yr||§2A2.1(a)(2) (Attempted murder)|
|Resulting in death (intentional)||38||20 - 24 yr||§2A1.2(a) (Murder, not premeditated)|
|Lev is the offense level assigned in the Guidelines.
Source: Guidelines Manual (1°), United States Sentencing Commission, September 18, 2007, §2A1, Homicide, §2A2, Assault, and §5A, Sentencing Table
The age of the victim is not a factor in sentencing for physical assault. See other explanatory notes in the sentencing comparison table.
These rules indicate the guideline sentence for a single count of one crime. In any real case, there may be multiple counts of related crimes, and the resulting penalties can thus be higher. The purpose of this table and those below is to show the federal governments mandated penalty for each of a set of particular individual crimes.Sex with a Juvenile
Now let's compare these penalties to the sentences for doing something sexual with a juvenile without the use of force. Here there are numerous distinctions. The least severe penalty is about a year in prison for abusive sexual contact, which means touching the genitals of someone aged 16 or over without penetration and without using one's mouth. Next is statutory rape, which is a consensual sexual act with a person under 16 who is more than four years younger than the defendant. The sentence for this goes up to almost three years, with an additional six to eight months if a computer was used to set it up, or attempt to.
The next level of severity comes from the provision of the PROTECT Act of 2003. The sentence is five to seven years for crossing a state line to engage in a sex act with someone under 18, or doing so outside the country. This applies even if the act is legal according to the age of sexual consent in the destination location and in the defendant's home state. The travel or foreign location invokes the federal age of consent of 18.
Finally, any sexual act with a child under twelve years old gets a sentence of 20 to 24 years. It does not matter what type of activity is involved, so that fondling is treated the same as vaginal or anal intercourse. This applies to either commission of a sex act or crossing a state line with the intent to commit one.
These sentencing rules for consensual sexual activity with a juvenile are shown in the following table.
|US Federal Sentencing Guidelines |
for Consensual Sexual Activity with a Juvenile
(no criminal record)
|Genital touching of 16- or 17-year-old||12||10 - 16 mo||§2A3.4(a)(3) and |
18 U.S.C. § 2244, 2246
|Sex act (or attempt) with under-16, over four years younger||18||27 - 33 mo||§2A3.2(a), (b)(3) and |
18 U.S.C. § 2243(a)
| arranged using computer||20||33 - 41 mo|
|Cross state line for sex with under-18||26||5 - 7 yr||§2G1.3(a)(4), (b)(4) and |
18 U.S.C. § 2423(b), (c)
|Sex overseas with under-18|
|Actual or intended sexual act with under-12||38||20 - 24 yr||§2A3.1(a)(1) and |
18 U.S.C. § 2241(c)
|Lev is the offense level assigned in the Guidelines.
Source: Guidelines Manual (1°), United States Sentencing Commission, September 18, 2007, §2A3, Criminal Sexual Abuse and §5A, Sentencing Table
Components: Base offense level for 18 U.S.C. § 2241(c): 38, for overseas or travel for sex: 24 + 2 for sex act, for statutory rape of under-16: 18, for abusive sexual contact: 12. See other explanatory notes in the sentencing comparison table.
Note that the sentence for fondling an eleven-year-old is the same as for killing him or her. The sentence for having sex with a 17-year-old overseas is roughly the same as that for attempted murder.Child Pornography
Finally, we consider the sentences that are applied to cases of making child pornography. Child pornography is defined in federal law roughly as any picture with genital nudity of a person under 18 that shows or produces sexual desire or behavior. There are three tiers of crime involving this: production, distribution, and possession. Here we look at the federal penalties for the most serious of the three, the original production of such an image or movie.
One thing that is very significant about child pornography is that making it is almost always a federal crime. Physical assault and sexual activity with a juvenile are usually prosecuted in state courts, but since film and digital media are always made using materials shipped in interstate commerce, any photographic production of child pornography automatically comes under federal jurisdiction. This makes the sentences discussed here at least potentially relevant in most such cases.
The severity of federal penalties for making child pornography depends on two factors, the age of the child(ren) in it and what is shown in the picture(s). Making a picture of a naked 17-year-old boy with an erection gets the least severe punishment possible, ten to 13 years in prison. Note that it does not matter if the person taking the picture is the boy's girlfriend, or even if it is the boy himself. It also does not matter if the picture is taken in a state where the boy is above the age of sexual consent. Erotic photography has a federal age of consent of 18. The sentence increases to up to 16 years if the boy is 15, and to up to 20 years if he is eleven. The sentences at each of these age levels become more severe if the picture shows any sort of sexual activity. The sort of activity makes no difference. Anything from solitary masturbation to vaginal or anal intercourse is treated the same in the guidelines.
There is a further increase in severity if the picture shows any violence. It does not matter if the violence is real or acted out. A group of high school students making a movie of a rape scene in which one of the girls breasts is exposed would be subject to 20 to 24 years in prison if they are prosecuted in federal court for it. This is the same sentence the students would face if they murdered one of their teachers in cold blood.
These sentencing rules for making child pornography are shown in the following table.
|US Federal Sentencing Guidelines |
for Making Child Pornography
|Severity||Guideline Sentence (no criminal record)||Reference|
|Age 16, 17||Age 12 to 15||Age under 12|
|Show erection||10 - 13 yr||13 - 16 yr||16 - 20 yr||§2G2.1(b)(1)|
|Masturbation||13 - 16 yr||16 - 20 yr||20 - 24 yr||§2G2.1(b)(2)(A)|
(Show sex act)
|Child penetrate adult|
|Consensual penetration of child|
|Rape of child (scripted or actual)||20 - 24 yr||24 - 30 yr||30 yr - Life||§2G2.1(b)(2)(A), (b)(4)|
(Show sex act, violence)
|Sexual murder (scripted or actual)|
|Source: Guidelines Manual (1°), United States Sentencing Commission, September 18, 2007, §2G2, Sexual Exploitation of a Minor, and §5A, Sentencing Table
Components: Base offense level for making child porn: 32, + 2 for child under 16, + 4 for child under 12, + 2 for sex act, + 4 for violence. See other explanatory notes in the sentencing comparison table.
Under these guidelines, which federal judges are required to follow, the sentence for making an erotic picture of an adolescent starts out at roughly double the penalty for attempting to murder one. It's also about four times the penalty for reckless manslaughter, or beating the child up so badly that he or she accidentally dies.
For more details, the background report, Relative Severity of Federal Crimes, provides a side-by-side comparison of US federal sentencing guidelines for a selection of crimes. That table shows that:
- Any actual or intended sex act with a child under 12, with consent, is an offense level 38, equivalent for sentencing purposes to murder, kidnapping for ransom, or selling 30 tons of marijuana.
- Taking a picture of a 16- or 17-year-old boy with an erection is an offense level 32, equivalent for sentencing purposes to kidnapping or to selling a ton of marijuana, and five levels worse than attempted murder.
- Possessing any child pornography is an offense level 18, equivalent for sentencing purposes to reckless manslaughter, which means killing someone accidentally, and one level worse than injuring someone with a deadly weapon.
Question of Law
The author is not an attorney and poses the following question in case a reader of this report has the expertise to provide an answer or helpful comments.
Question: How is one to think about the federal sentencing guidelines when they are overridden by mandatory minimum terms of imprisonment established by certain laws?
For example, §202 of the Adam Walsh Act of 2006 (coded as 18 USC 3559(f)) sets mandatory minimum terms for violence against someone under 18: thirty years for murder, 25 years for kidnapping or maiming, and ten years for serious bodily injury or use of a dangerous weapon. These considerably exceed the sentences for such crimes in the Physical Assault table above. But they do not cover the range of possibilities that the sentencing guidelines do. Some results of this are:
- Under the guidelines alone, the minimum sentence is two years for causing a minor injury to three years for a serious one. But combining the guidelines and Walsh when the victim is under 18, the minimum jumps from two years for a minor injury to ten years for a serious one.
- If someone tries to kill a child by throwing him or her off a bridge into a river and the child escapes serious injury, that is attempted murder without a dangerous weapon, which is not covered by the Walsh minimums. Under the sentencing guidelines, the minimum sentence would be six years. But if a dangerous weapon was used, even if there was also no injury to the child and even if there was no intent to kill, the Walsh minimums would require a minimum sentence of ten years.
- While the sentencing guidelines provide elaborate distinctions for sexual activities with three different age groups of juveniles, the Walsh minimums provide the same treatment for physical violence against anyone from infancy to 17 years old.
- Combining the sentencing guidelines and the Walsh minimums establishes a large jump in the severity of punishment across an arbitrary line of the victim's age. The minimum sentence for seriously injuring a 17-year-old is ten years. But if the victim is past his or her 18th birthday, it drops to only three years.
Page posted on January 10, 2008, updated January 16, 2008, September 22, 2008, major revision on January 28, 2009.
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