ReformSexOffenderLaws.org: Throwing Away the Key

Throwing Away the Key

Detailed comments for Note I-14: “Many convicted of sex offenses receive very long sentences in the first place -- often unrelated to the seriousness of their crime and sometimes even longer than those guilty of manslaughter.”

Since the late 1900s, America has become an increasingly punitive society that sees fit to lock up its people — now almost one percent of us. Sex offenders are the latest category of villains for whom no sentence seems too harsh. The US federal sentencing guidelines make it official that photographing a 17-year-old boy with an erection earns a penalty about twice as severe as attempting to kill a child — and about four times as severe as beating a child up so badly that he or she accidentally dies.

The Data

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. In 2007, we have 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.”

Most of this incarceration frenzy has focused on drug offenders. But increasingly, sex offenses have become the popular “card” for politicians and government agencies to play in demonstrating the good works they do for the betterment of society — most of it focused on “protecting children.” The results have been some startlingly harsh sentences:

Life in prison for a sting. Roland Guerra got into a torrid online affair with a Memphis policeman, who was pretending to be a 13-year-old girl. The officer played along as Guerra dug himself deeper and deeper into trouble, sending “her” pornography and arranging to meet with “her” for sex. No coercion or persuasion was alleged, nor was there ever any actual child involved. A year later, Guerra, who had never been in any kind of trouble with the law before, was sentenced to life in prison.
Life in prison for sucking toes. Trenton Veches had an unsavory hobby — he liked to suck boys' toes. He managed to do it to at least 20 boys between the ages of six and ten at the recreation facility where he worked, apparently without any complaints from the boys. But when a co-worker saw it going on one day, he was arrested, convicted, and handed a life sentence.
200 years for porn possession. Morton Berger was more discrete about his hobby, using his computer to look privately at a few dozen pictures that he'd downloaded of children engaged in sex acts. He was given consecutive sentences of ten years for each of 20 of those pictures — 200 years in prison all together — without ever having touched a child.

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.”

And that's not true just in Arizona, as we see in the next section.

The Law

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 offenses one can be guilty of. And it's instructive to see how these sentencing rules treat people who abuse children.

The following table shows the sentencing guidelines for physical assault. In such crimes, there is no distinction for the age of the victim, so physical child abuse is treated essentially the same as getting in a fist-fight with a friend. The penalty depends largely on the amount of damage caused. So, attack a kid with a baseball bat and break his arm, you're looking at 2½ to three years. Break his ribs and puncture a lung, you might get close to four — if he survives. If the child 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, 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.

US Federal Sentencing Guidelines
for Physical Assault (on a Child or Adult)

Severity Guideline Sentence
(no criminal record) Reference

No weapon or injury 0 - 6 mo §2A2.3(a)(2)

With deadly weapon 15 - 21 mo §2A2.2(a)

Bruises 24 - 30 mo §2A2.2(b)(3)(A)

Broken arm 30 - 37 mo §2A2.2(b)(3)(B)

Punctured lung 37 - 46 mo §2A2.2(b)(3)(C)

Resulting in death (accidental) 27 - 33 mo §2A1.4(a)(2)(A) (Reckless manslaughter)

With intent to kill 6 - 7 yr §2A2.1(a)(2) (Attempted murder)

Resulting in death (intentional) 20 - 24 yr §2A1.2(a) (Murder, not premeditated)

Source: Guidelines Manual, United States Sentencing Commission, 2007 edition, §2A2, Assault, §2A1, Homicide, 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.

This table gives the recommended sentence for a single count of one crime. In any real case, there may be multiple counts of related offenses, and the resulting penalties can thus be higher. The point here is what the government recommends as a penalty for any one particular assault.

Now let's compare these penalties to the recommended sentences for doing something sexual with a child. Here it gets more complicated. Now the age of the child makes a difference. Furthermore, federal law makes it easier for the government to prosecute making pictures of sexual activity with children than the actual activity itself. So we find that most such cases brought in federal courts are for pornography. What matters less this time is whether the child had any objections to what was going on — or even asked for it. So if your ten-year-old son (or brother or nephew or neighbor) is proud of his erection and asks you to take a picture of it, agreeing to do so could cost you over 16 years in prison.

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)

Oral sex

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, United States Sentencing Commission, 2007 edition, §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.

The next step up in seriousness is for the picture to show any kind of sexual activity. The kind of activity makes no difference; anything from solitary masturbation to anal intercourse is all treated the same. At least thirteen years if it's a 16- or 17-year old, twenty years or more if the child is eleven or younger. Notice we're talking about one or two decades of prison here and that's without any kind of force or coercion involved. If there was, that bumps up the sentences another level, but it doesn't matter if the force was real or make-believe for the camera. So if you're a high-school drama teacher and you hold the camera while your students reenact the famous rape scene from Clockwork Orange, your sentence could not be any worse if you actually murdered one of your students in cold blood.

So the lightest sentence for making a picture of a child being sexual 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.

Severity Table

For more background on this issue, Relative Severity of Federal Offenses 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 page has the expertise to provide an answer or helpful comments.

Question: How is one to think about the federal sentencing guidelines when they are overriden 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 offenses 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, 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 minumums 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.