Notes on US Sentencing Commission report on punishments for porn offenses, 2019

United States Sentencing Commission, Mandatory Minimum Penalties for Sex Offenses in the Federal Criminal Justice System Washington, D.C.: January 2019. Available at

After Congress established the United States Sentencing Commission to gather statistics and findings about the federal Bureau of Prisons (BOP), the Commission made a 2011 report Mandatory Minimum Penalties in the Federal Criminal Justice System. Five years later the Commission published 2016 Sourcebook of Federal Sentencing Statistics. In addition the Commission has released reports in 2017 on drug offenders, in 2018 on firearms offenders and on identity-theft offenders. This final report is released in 2019 on sex offenders.

Another citation is on p. 62 note 37 referencing U.S. Sentencing Commission Report to the Congress: Federal Child Pornography Offenses (2012), available at online.

p. 2 – Introduction “Federal sex offenses are divided into two types: (1) sex abuse offenses (also called “contact”) offenses, i.e., those offenses involving actual or attempted sexual contact with the victim”

[NOTE: Anyone below age 18 is legally defined as a “victim,” whether he or she engaged in sexual behavior willingly or not. United States law considers all persons below age 18 who engage in sexual conduct to be a “victim of child abuse.” The term “attempted sexual contact” allows the FBI or police departments to set up sting operations, in which an officer poses as someone below age 18 in order to entrap a person who may be considering a sex act with someone he thinks is below age 18. Hardly any other government in the world orders their law enforcement personnel to seek out and attempt to persuade otherwise law-abiding citizens to engage in sexual contact with someone they think is below age 18.]

p. 2 – The second type of federal sex crimes are “child pornography offenses (other than an offense related to the production of pornography depicting an actual child, which is deemed a “contact” offense.)”

[NOTE: “production” of pornography may involve nothing more than a person taking a picture of an unclothed person below age 18. This definition means that a person who takes a naked photograph is prosecuted as having “contact” with a minor, even if no physical contact actually occurred. The reality of life in the 21st century is that millions of people using email commonly exchange nude pictures of themselves with their friends. Thus, this definition of the law criminalizes a large proportion of the American population, especially young people who use digital communication as a central part of their lifestyle. Never has any law defined so many otherwise law-abiding Americans as criminals, except in the case of the 1920s Prohibition or the 1970s War on Drugs. This is why University of Michigan Professor David Halperin titled his book The War on Sex (Duke University Press, 2017). Of course, not everyone who engages in these behaviors is prosecuted and imprisoned. As during the 1920s Prohibition Era, and the decades of the drug wars, rich people usually manage to break laws without worrying that they will be arrested. Federal and state prosecutions relating to sex laws are enforced mostly on the poor and the middle class.]

p. 2 – “The most common child pornography offenses [are] distribution, receipt, and possession.”

p.4 – Key Findings: “Offenders convicted of a sex offense increased from 3.2% of all sentences (number = 2,317) of federal offenders in 2010, to 4.2% (number = 2,633) in 2016. The number of offenders convicted of sexual abuse [contact or attempted contact] increased from 639 offenders in 2010 to a high of 1,148 offenders in 2016. While also increasing over time since 2004, the number of child pornography convictions has remained relatively stable since 2011.”

p. 4 – However, the percentage of sex offenders who are convicted of an offense carrying a mandatory minimum penalty has increased from about one-third in 2004 to over half by 2016.

p. 5 –  “Sex offenders are demographically different than offenders convicted of other offenses…. Native American offenders comprised a larger percentage of sexual abuse offenders than any other offense… They constituted 11.7% of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders….”

[NOTE: Since Native Americans are only about 1% of the total U.S. population, these percentages of imprisoned people are quite high. The report does not mention it, but Native American cultures are notable for their easygoing attitude toward consensual sex among people of all ages, from childhood to old age. See Walter L. Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture, Boston: Beacon Press, 1986. For over a century, U.S. law enforcement has attempted to wipe out all aspects of indigenous cultures that do not accord with white mainstream attitudes. Extra enforcement of sex laws on American Indian reservations is consistent with this history.]

p. 5 – “White offenders constitute over 80% of offenders convicted of any child pornography…. In comparison, white offenders comprised 22% of all federal offenders.”

[NOTE: Most persons imprisoned in the United States are racial minorities, reflecting a high police presence as an occupation force in impoverished communities of color. While middle and upper class whites may engage in as much illegal drug use as poor people do, they tend not to be caught just because their community is not so heavily policed. Given this trend, it is remarkable that whites constitute such a high percentage of child pornography convictions. This may be because when police go onto the internet in search of people looking at pornography, they do not know the race of the person. They are therefore more likely to entrap the more typical citizen, who is white.]

p. 5 – “While the average age for sexual abuse [“contact”] offenders was the same as the average age of federal offenders overall (37), the average age for all child pornography offenders was 42, five years older.”

p. 5 –  Average sentences for offenders convicted of a sexual abuse offense was 86 months (over seven years), if they were convicted with a mandatory minimum penalty their average sentence was 252 months (twenty-one years), which is three times longer. The average sentence for a first-time offender for child pornography was 55 months (four and a half years), but if they were convicted with a mandatory minimum penalty their average sentence was 136 months (eleven and a third years).

p. 5 – The number of sex offenders in federal prisons has steadily increased from 1,259 in 2004, to a high of 8,508 in 2016.

p. 14 – Refers briefly to “the views expressed by federal judges at the time of the [2011] report that the mandatory minimum penalties for receipt and distribution of child pornography were too high.” There was much variation in sentencing because “it appeared that prosecutors were frequently using their discretion to avoid charging child pornography offenses carrying mandatory minimum penalties.”

p. 16 – From 1991 to 2013, an average of about 29% of all federal offenders received a mandatory minimum penalty. From 2013 to 2016 [due to the Obama Justice Department moves to reduce prison populations] this figure was reduced to 21.9% in 2016. p.16 In 2016, a total of 62,251 persons were sentenced to federal prisons, for all types of violations. Of that total, only 4.2% (n = 2,633) involved sex offenses. Of those, 56.4% were convicted of a pornography offense, while 40.6% (n = 1,148) were convicted of a sexual abuse [“contact”] offense. Three percent (n = 80) were convicted of both type of offenses.

p. 18 – However, although sex offenders were a small portion of all convictions, the number of persons imprisoned for sex abuse offenses climbed from 458 in 2004, to 1,148 in 2016. That constitutes a 40% increase. And the percentage of sexual abuse offenders who received a mandatory minimum penalty increased from 21% in 2004 to 62% in 2016. [Thus, the decrease in convictions for drug offenders that occurred in the Obama years did not carry over to those prosecuted for sex abuse offenses. On the contrary, prosecutions became more severe.]

p. 19 – In 2016, 51.4% of persons convicted of sexual abuse [“contact”] offenses were charged with production of child pornography

[NOTE: which could be something as simple as taking pictures of some unclothed person below age 18], followed by 27.6% of charges relating to child prostitution.]

[NOTE: Since the statistics are not broken down by age, these numbers could be involving teenagers from 15 to 18. It is not known how many of those persons were teenagers who were participating in sex work willingly.] In 2016, only 142 persons (13%) were sentenced under Criminal Sexual Abuse, which is the charge used when the offender used force and violence against a minor.]

[NOTE: This statistic shows that there is not a large number of persons being convicted for engaging in sexual violence against children. A much worse problem is that there are far larger numbers of children being subjected to physical violence and murder in the United States.]

p. 22 – In 2016, about 93% of sexual abuse offenders were United States citizens.

p. 23 – The majority of all sexual abuse offenders (64%) were first time offenders, which is a much higher rate than for other types of offenders. In 2016, sexual abuse offenders were over four times more likely to proceed to trial than all federal offenders. Sex abuse offenders went to trial in 12.7% of cases, compared to just 2.7% of all offenders.

p. 31 – Sexual abuse offenders accounted for a small (3.5%) but increasing portion of the federal prison population in 2016.

p. 32 – The number of sexual abuse offenders in federal prisons has increased from 1,640 prisoners in 2004, to 5,764 prisoners in 2016.

p. 32 – In 2016, the number of persons sentenced for child pornography is 1,565, which is 2.5% of all federal sentences that year.

p. 34 – The number of pornography cases increased from 583 in 2004 to a high point of 1,734 in 2012, but has stabilized since then, with a slight decrease to 1,565 offenders in 2016.

p. 38 – White offenders comprise over 80% of all persons sentenced on pornography charges in 2016.

p. 40 – In 2016 over 99.7% of all pornography offenders were male.

p. 65, note 70 – In sharp contrast, there were only five female child pornography offenders (0.3%) sentenced in 2016.

p. 40 – The average age of offenders on pornography charges was 42, which is five years older than other types of offenders in federal prisons. Less than 10% of pornography offenders were age 25 or younger, with the remainder fairly evenly distributed through age 40.

Half of all pornography offenders were over age 40, with 26.8% being older than 50. p.41 Over 78% of all offenders sentenced on pornography were first time offenders. This is a considerably higher percent than for all felons in federal prisons. In 2016 pornography offenders proceeded to trial 2.6% of the time, at a similar rate for all offenders. This is a sharp contrast to sex abuse “contact” offenders, who went to trial four times as often.

p. 44 –  Persons sentenced in 2016 for distribution of child pornography received an average sentence of 101 months (eight and a half years) while those who were convicted of possession received an average of 67 months (five and a half years). There was not much difference in length of sentence according to race.

p. 45 – The few women who were convicted of possession of pornography received sentences averaging 33 months, while men received 68 months, over 48% longer.

p. 52 – Child porn offenders in federal prisons in 2016 were 5.1% of the federal population. The number of child porn offenders in federal prisons has steadily increased from 1,259 in 2004, to a high of 8,508 in 2016.

[NOTE: by combining the totals of sex abuse and pornography offenders, in 2004 there were 2,899 sex offenders in federal prisons. That number has increased so that by 2016 there were a total of 14,272 sex offenders. In 2016 this number constituted 8.6% of all federal prisoners. This report does not break down the statistics according to the security level of the prison, but since the vast majority of persons convicted of sex offenses never engaged in any violent acts, most of them are assigned by the Bureau of Prisons to Low Security Federal Correctional Institutes (FCI). This means that among prisoners in FCI Low Security atmospheres. sex offenders constitute a significant minority.]


p. 56 – The Commission’s conclusion section is less than one page long and is extremely limited. There is only one brief statement complaining that “sentencing ranges may be excessively severe” and that some prison sentences are “applied inconsistently.” Other than that, there are no specific suggestions to Congress for changing sentencing of sex offenses. The limited nature of this report is reflected in the fact that there is not one reference to the large scholarly literature on these subjects, in either the text or the endnotes. There is no reference to legal codes or regulations in other nations. The only citations are to United States laws, regulations, and reports.


p. 59, note 13 – DEFINITIONS: 18 U.S.C. ss 2256(8) definition “any visual depiction” of anyone below age 18 engaging in “sexually explicit conduct, which includes sexual intercourse, oral and anal sex, masturbation, bestiality, and the lascivious exhibition of the genitals or pubic area.” 18 U.S.C. ss 2256(2). p. 60 note 15 Besides images of real persons, 18 U.S.C. ss 225A criminalizes the depiction of sexually explicit conduct of a computer-generated image indistinguishable from that of an actual minor.

[NOTE: This section may have the potential for a ruling of unconstitutionality by the courts, on the basis that it is a violation of freedom of the press, in the sense that the internet is today’s version of the press. Because such images are not of an actual person, there is no basis for declaring harm to a specific individual, and thus this law is nothing more than censorship. There is a need to do research on court rulings on the subject of artistic freedom.]

p.62 – note 44:  “Statutory penalties and relevant guidelines were significantly increased by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (“PROTECT”) Act of 2003, Pub. L. No. 108, 21, 117 Stat. 650 (2003)” which increased mandatory minimum penalties.