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Cardozo Law Review

Abstract

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason. Drug policy is defined by severe and disproportionate penalties owing to a retributive, factually flawed, and hurried congressional process. These central characteristics apply to the child pornography context as well. Though drug sentencing is problematic enough, child pornography sentencing is arguably worse. The U.S. Sentencing Commission has disavowed the child pornography sentencing guidelines and invited judges to vary from them. Judges have done just that, varying in sixty-three percent of all cases, more than any other offense type.

In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion which varies under Kimbrough v. United States. We also suggest how improvement to the uniquely distressed area of child pornography policy can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Following the confirmation hearing of Justice Ketanji Brown Jackson, child pornography law became part of the national conversation at policy and public levels. We aim to seize on this newfound interest and ensure that both this area of law and criminal justice reform more generally are enriched and enhanced.

Keywords

Criminal Law and Procedure, Legal Analysis and Writing, Politics (General), Sentencing and Punishment, Penology, Legal Profession, Legislation

Disciplines

Criminal Law | Criminal Procedure | Law | Law and Politics | Legal Profession | Legislation

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