Monday, February 16, 2015

Notable Concurrence and Dissent in Recent Child Pornography Decision

The child pornography Guideline is arguably the most controversial Guideline, which is a significant achievement considering that the Guidelines Manual is 587 pages long. The Sentencing Commission has criticized it, and district courts vary downward in child pornography cases two thirds of the time (page 8; Table 3). But it is always nice to have a soundbite or two from a court of appeals (or an appeals court judge).
Enter the Sixth Circuit's decision in United States v. Walters.
Of particular note is Judge White's concurrence and, even better, Judge Merritt's dissent.
Neither is lengthy, but both are worth the read. Judge White's one-page concurrence reminds us that the Sentencing Commission itself considers many child pornography sentences excessive. Judge Merritt goes further and concludes that the 151-month term of imprisonment imposed in this case was substantively unreasonable. Actually, he cites the Eighth Amendment at the end of his dissent. If you have a child pornography case, use this concurrence and dissent, and never settle for a Guidelines range sentence. 

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