This Symposium Essay explores and analyzes the Sixth Circuit’s approach to
child pornography sentencing. It critiques the Sixth Circuit’s decision to apply
heightened scrutiny to below-Guideline sentences for child pornography
possession. In addition to presenting a critique of the Sixth Circuit’s cases, the
Essay also provides guidance for defense attorneys seeking a below-Guidelines
sentence. It notes that there are particular strategies those attorneys should follow
in order to secure not only a more lenient sentence from a district court judge, but
also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.
During the course of this discussion, the Essay identifies and criticizes three
significant features of the Sixth Circuit’s cases in this area. First, it notes that the
Sixth Circuit is the only circuit to have adopted heightened appellate review of
below-Guideline sentences for child pornography possession. Second, it explains
that the Sixth Circuit appears to be developing a common law of sentencing in
child pornography cases; such a common law is contrary to the language and the
logic of the Supreme Court’s Sixth Amendment sentencing cases. Finally, it
explains that the Sixth circuit has failed to give appropriate deference to district
court decisions to sentence below the Guidelines based on facts and circumstances
of particular cases.
PDF:
Child Pornography Sentencing in the Sixth Circuit
Carissa Byrne Hessick; Professor of Law and Associate Dean for Faculty Research & Development, S.J. Quinney College of Law, University of Utah. J.D., Yale Law School. B.A., Columbia University. The ideas in this Essay were first presented at the Honorable James J. Gilvary Symposium on Law, Religion, and Social Justice at the University of Dayton School of
Law. I am grateful to the organizers of that symposium―Professor James Durham, Professor Susan Elliott, and Steven Justice―for inviting me to participate and for their gracious hospitality. Many thanks to Nick Wilde and Charlotte Kiefer for their research assistance.