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National

New US Sentencing Commission Report: Mandatory Minimums for Federal Sex Offenses

[ussc.gov – 1/1/19]

Summary

(Published January 2019) This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission’s series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%). In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

Read more

 

Join the discussion

  1. Laura

    My thoughts on this topic is this……The 2.5 years I was in our Orange County court, with my loved one who was facing charges that were all non-violent offenses, is that during this time I listened, watched and realized that many other crimes which were without a doubt on the violent end of our legal spectrum such as involuntary manslaughter, crimes using deadly force etc. received around 5+ years incarceration but for all those I had the privilege to personally here regarding charges of non-violent sex offenses such as viewing CP, sexting etc. those human beings ended up receiving 10+ years of incarceration. And them and their families were left feeling lucky they did not receive 28+ or Life they were initially threaten to receive by the DAs if they went to trial . To this day I’m utterly speechless from what I witnessed in Orange County to what is called our Justice System.

    • Will Allen

      Sorry to hear of your troubles.

      Unfortunately, the criminal regimes all throughout the U.S. lost their moral high road when it comes to $EX long, long ago. To the point that they deserve nothing but contempt and disrespect. Today, a person will get much longer prison times for looking at a bad picture than they will if they take a shovel and try to smash a child’s face in. That is proof that the people who support the $EX witch hunt have lost their tiny, tiny little minds. Further, a picture is only illegal if it involves $EX. All’s good if the child is just murdered.

      Obviously $EX offenses are wrong and terrible. I’d like to try to be serious about helping to prevent them BUT it is clear that the criminal regimes, obviously including the U.S. federal government, are not serious about it. They prefer pandering, grandstanding, and theater instead of actual work, facts, and reality. So we have to go all the way over to the other side of crazy just to slightly counteract their crazy. I feel like they should be thwarted and resisted in every possible way. Because they aren’t moral, good, or trying to do anything good. Same thing with the #metoo movement. America needs a #fmetoo counter-movement.

      “If you see something, say something.” Yeah, right. That’s hilarious. As long as the $EX Offender Registries exist, I won’t be worrying about that.

      • Ron

        It is spelled sex, not $ex.

        • Will Allen

          Very insightful comment.

          But there are some good reasons to spell it “$EX”:

          1. Screaming it gives it the level of hysteria that is appropriate for the witch hunt.

          2. $ signifies the money that really drives it all.

          3. There are a decent number of forums that actually will put any comment/post containing the word “sex” into moderation. Shocking and hard to believe, I know, but quite true.

          4. Branding.

          The “$EX offender” witch hunt is based on lies and propaganda. Consistent counter-branding is important. The thing that the sheep see and remember the most is what will be the truth. Once the sheep think something is what most people believe and the most PC thing, the flock will adopt it.

    • Tim

      Labeling violent of those not is useful purposefully done to cast the broadest net. Once labeled the individual becomes politically marked and discarded through felonization. The disenfranchisement is amplified via the databases. So the people are convinced through propaganda that viewing images is abhorrent and illegal when the assault of same goes on still. Truly compulsively violent men are released deployable those no danger to the immediate other remains locked. Our Fed will release a thousand gangbangers with serious gun offenses before child molesters. Then complain their children are being shot on their sidewalk or front porch. Just stupid.

    • Eric

      @ Laura…I went to my sentencing for a single count of CP possession. The man sentenced before was in there for armed kidnapping. He took an elderly man across the border to hold for ransom, but then he got scared and took the man back and released him. The judge was impressed with his change of heart and the fact he took him back and released him. The man was sentenced to five years. I thought, “Wow, this judge is great. I’ll get probation.” I got six years.

  2. FinallyOffTheReg

    I read the full report with a fine-tooth-comb. What was missing in entirety was the data related to “Term of Supervised Release”. There was no data regarding that. Very troublesome since Federal SR is “part of the sentence” and there are WILD disparities in those lengths of SR by offender, by district and given by the sentencing Judge. Congress adopted the policy of a minimum of 5 years, and if the offense is a “Sex Offense” a term of LIFE is “recommended”. Very very troublesome that the USSC opted to leave off this very important data in term of how many were give the Lifetime SR versus not and what those other lengths were as an aggregate, etc.

  3. Tuna

    The receipt vs possession distinction is quite odd, but then again the devil is in the details.

    One can’t possess AFAIK, without receipt.

    One thing I am aware of, the crime of receipt appears to have been put in pre-internet to address the use of the mail, when CP existed in physical form, ie, things like videotape or physical disk.

    Possession was legal federally for a number of years until I believe the early 90’s. Then it was dropped down to “not more than 3 items”, and then finally criminalized altogether.

    Also, receipt vs possession serves also as a prosecutorial device to get someone to plea down to possession instead of receipt.

    • AJ

      @Tuna:
      Possession is much easier to prove than receipt. Possession relies on facts in the present, receipt in the past and/or present (depending on whether the transaction was observed or recorded in some manner).

      Suppose I stash a kilo of coke in your car. The Thin Blue Liars then pull you over and find you with it. They have you dead to rights on possession, especially with the ever-present attaching phrase of “knew or reasonably should have known.” However they may not be able to prove beyond a reasonable doubt as to how it came into your possession, i.e. receipt.

      In short, proof of receipt automatically also means proof of possession, whereas proof of possession doesn’t automatically mean proof of receipt.

      • Notorious D.I.K. / Kennerly

        AJ, yes, law enforcement can work less and eat more doughnuts. Speaking of “thin blue liars” [should be “thick” blue liars] have you ever seen the Erroll Morris documentary “Thin Blue Line?”

        • AJ

          @Notorious D.I.K. / Kennerly:
          “have you ever seen the Erroll Morris documentary ‘Thin Blue Line?’”
          —–
          Yes, and it’s the source of my term. I at one time would refer to them as Thin Blue Liners, but then, realizing their propensity for avoiding the truth in the pursuit of “justice,” settled on Thin Blue Liars.

          I’ve also seen the, “Thin Red Line,” which I found slightly hard to follow at times but still thoroughly enjoyed. If you want a movie that’s tough to figure out what’s what the first time you see it, try “Primer.” As a critic said when it came out, “if you claim to understand this movie the first time you watch it, you’re either a liar or a savant.” I’ve seen it maybe six times and still get confused about parts of it.

      • FinallyOffTheReg

        @AJ

        AJ very well put. I like how you illustrated the basic tenet of “Known or Knowingly” which attaches to a “Mens Rea” which forms the basis for a prosecution.

  4. FinallyOffTheReg

    Also, what stands out to me as the gravitas of the report is the following:

    “CP offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of CP offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a CP offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.”

    Those numbers are incredible. I broke my calculator trying to do the “percentage” increase from 118 to 6303.

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