NACDL

Federal criminal sentences should be “sufficient, but not greater than necessary.”¹ They should fit the crime, provide for “adequate deterrence,” “protect the public,” and promote rehabilitation.² Since the Supreme Court decisions in Booker and Kimbrough,³ federal courts again have great discretion, within certain limits, to decide appropriate federal sentences. Congress, however, has taken pains to limit that discretion with regard to child pornography offenses, and the federal courts, in a series of judicial decisions across the country, including recent Second and Third Circuit decisions, are firmly rebelling.⁴ The questions arise: Are the courts right? Has Congress gone too far in its desire to punish this undesirable type of criminal conduct?

A History of Escalating Penalties

In 2009, the U.S. Sentencing Commission released a report that surveyed the history of child pornography sentencing, revealing a pattern of direct congressional action that has increased penalties severely over