United States v. Collins, Nos. 15-3263, 15-3309 (6th Cir. June 29, 2016).
Those who receive and distribute child porn face extraordinarily long sentences in federal court. The political incentives for long sentences seem clear: nobody in Congress wants to look soft on the issue. These incentives produce a system where, in some circumstances, a child rapist will get a shorter sentence than someone who possesses child pornography. But do Americans themselves really favor our current system? Or to put the question more precisely, even if Americans favor long sentences in the abstract, do they favor them in concrete cases?
Judge James Gwin of the Northern District of Ohio wanted to answer this question. After a jury found the defendant here guilty of receiving and distributing child pornography, Judge Gwin polled the jurors to ask them what they thought an appropriate sentence was. (Note that the jurors were polled after they had already come back with a conviction.) Jurors’ proposed sentences ranged from zero to five years in prison, with a mean of fourteen months and a median of eight months. All but one juror recommended a sentence less than half the five-year mandatory minimum. And all the jurors recommended sentences far below the sentencing guideline range, which was 22 years to 27 years in prison.
Relying on the jurors’ reactions as one factor in his decision, Judge Gwin sentenced the defendant to the mandatory minimum of five years. The Sixth Circuit upholds this decision on appeal. Nothing in the Sentencing Reform Act—the Act that created the sentencing guidelines and the modern federal sentencing regime—prohibits a district judge from considering jurors’ input. That input also bears directly on how the community views the gravity of the defendant’s crime—and that view is one of the things that Congress directed the Sentencing Commission to consider in crafting sentencing guidelines. Now that the sentencing guidelines aren’t mandatory, a district judge can consider the community view if he thinks the sentencing guidelines don’t accurately reflect it.