Federal Judge Rips Sentencing Guidelines for Child Porn Cases

The defendant in the case was facing a guideline sentencing range of 78-97 months for possessing images of child pornography on his computer. Judge Weinstein, who is now well-known for his vocal disapproval of the child pornography guidelines, sentenced the defendant to probation and issued a 98-page order providing his reasons for doing so.

He noted from the outset that the guidelines are patently unreasonable as they fail to “distinguish among child pornography offenders with differing levels of culpability and danger to the community.” Weinstein said “the applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants’ families and the community, and the needless destruction of defendants’ lives.” He concluded that for this defendant, who merely possessed the images, a sentence of probation which will include lifetime sex offender registration “hit the right balance between deterrence and rehabilitation.”

This is not the first time that Judge Weinstein has been in the news for deviating from the federal child pornography guidelines. In 2011 and 2013, his sentences were reversed three times for his refusal to adhere to the statute’s mandatory minimum 5-year sentence for distribution offenses. It should be noted that most of these “distribution” cases arise from individuals possessing child pornography through peer-to-peer file sharing networks, where intentional distribution of the files rarely occurs. Judge Weinstein remarked that in the spectrum of offenders, there were “possession-only child pornography users” who should be distinguished from the producers and large-scale distributors of it.

He stated that he is not alone in his disapproval of the guidelines, and that the Department of Justice and judges across the country have been urging the Sentencing Commission for years to amend the guidelines. He even cited a Second Circuit decision which warned that the child pornography guidelines may possibly lead to unreasonable sentences unless used with “great care.” He concluded that the mainstream disapproval of these guidelines provides further support for his ability to deviate from them and impose a sentence that reflects his views of the goals of sentencing as well as the particular facts and circumstances of the case.

Hopefully, Judge Weinstein’s order will be a wake-up call for the Sentencing Commission to finally address these unreasonably harsh guidelines and their failure to distinguish the mere possession cases from the more egregious child pornography offenses.