Frank A. Rubino, ESQ.

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Federal Sentencing in the News, Part 4: Child Protection Act 2012

This is the fourth and final post in a series on different concerns about federal sentencing. Previous posts looked at the potential for judges to impose unfairly high sentences on celebrity defendants and the fact that some judges ignore prosecutors' plea deals, perhaps to send a message.


All of these concerns surround an important aspect of federal criminal cases: judges have an enormous amount of discretion to choose whatever sentence they think is appropriate.

One final area of concern involves potential disconnects between legislators and the common sense needs of society and the justice system. In recent weeks, Congress overwhelmingly passed a bill aimed at eradicating the tragic child abuse that results from child pornography markets. While this bill serves an important need and will protect many children in Miami and around the country, it also worries some judges and criminal defense experts.

Child pornography has been an area of internet crime and federal authorities prosecute it aggressively. The new Child Protection Act of 2012 equips authorities with even more tools. The law also sets an even larger maximum penalty for some crimes, raising the cap on sentences to 20 years for receipt or possession of child pornography.

Despite the importance of child protection laws like this, these harsh sentences are attracting criticism. Many federal judges already believed that the law recommended unfair penalties for these crimes - a number of judges even ignored the Sentencing Guidelines by imposing what they considered to be more reasonable punishments.

This discussion illustrates a big source of tension. When it comes to crimes like child pornography or sexual assault, legislators can appeal to constituencies by creating aggressive and potentially extreme statutes. This does not mean that judges necessarily have to follow their guidelines.

For better or worse, judges have a lot of power to do what they consider to be just in every individual case. Anyone who faces a serious criminal prosecution should consult with an experienced federal defense attorney about these issues.

Source: Texas Tribune, "Abbott backs law increasing child porn penalties," Maurice Chammah, Dec. 8, 2012

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