Recent Reports from US Sentencing Commission Show Federal Judges Increasingly Reject Harsh Penalties for Nonviolent Sex Offenders

The Federal Docket

October 19, 2021

As reflected in a recent article on, two reports issued by the U.S. Sentencing Commission this year reflect that a growing number of federal judges are declining to adopt harsh sentencing policies under the Guidelines for sentencing certain nonviolent sex offenders, mostly those who possess child pornography, and are increasingly sentencing these offenders to prison terms well below the recommended sentencing range under the Guidelines.

In one report, Federal Sentencing of Child Pornography: Non-Production Offenses, the Sentencing Commission reviewed the sentences imposed in non-production child pornography cases in fiscal year 2019 and broader sentencing trends in such cases. The Commission described how several enhancements under USSG 2G2.2, the Guideline for sentencing non-production child pornography cases, have become redundant and duplicative with the advent of technology and peer-to-peer networks. Now, most of the enhancements under 2G2.2 apply in the majority of run-of-the-mill cases, and the Guidelines are no longer useful in distinguishing aggravating cases from mitigating ones. As a result, the Commission notes statistics showing that a significant majority of sentences imposed in non-production child pornography cases are well-below the Guidelines range. The Commission has recommended that Congress lower the penalties for defendants charged with simple possession, and it has recommended new ways for judges to distinguish between more severe and less severe cases based on the nature of a defendant’s CP collection, their participation in online communities involving CP, and whether a defendant has a history of prior or contemporaneous aggravated sexual conduct.

The Sentencing Commission also released a report on Production Offenses. The Commission found that a majority of production defendants were convicted under a statute carrying at least a 15-year mandatory minimum sentence, and that the average sentence was 23 years, but even most child pornography production offenders received a variance below their applicable Guideline range (57.2% of cases). The Commission also noted that certain offenders received higher sentences based on factors like the age of their victims, their familial relationship with their victims, and the unique characteristics of their victims.

The article on also includes several important statistics regarding the low recidivism rate among nonviolent sex offenders, especially those convicted of possessing child pornography. The statistics in the reports cited above reflect that non-production child pornography offenders have an exceedingly low risk of re-offending, finding that less than 5% are re-arrested for sex offenses after their release. The article also cites several studies, including by the Bureau of Justice Statistics, further establishing that non-violent sex offenders generally have lower rates of recidivism than offenders convicted of other, non-sexual crimes.

Click here to read the article on, which includes links to the studies and reports mentioned above.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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