Child Porn Penalties and Jury Nullification

The New York Times is running an article about U.S. District Judge Jack B. Weinstein and his plan to inform juries about certain statutory mandatory minimum sentencing requirements imposed by Congress. Weinstein believes that long sentences for simply possessing child porn are improper. 

He is right that individuals possessing child porn face serious time. The advisory Sentencing Guideline used for possession is 2G2.2. Here is how the sentence for the typical child porn possession case is calculated:

18 Base offense level

2 pics of a prepubescent minor

4 some pics featuring bondage

2 distribution (e-mailing a photo to a friend)

2 use of computer

5 over 600 images

33 Total

-3 for pleading guilty (acceptance of responsibility)

30 Final Calculation

Assuming no prior convictions on his rap sheet, the defendant faces 87-108 months in jail. 

One can see why Judge Weinstein has some concern about sentencing men with no criminal history to seven or eight years in federal prison for simply possessing child porn. 

Jury nullification, though virtually unknown today, has a long history in the United States. In colonial days, juries were especially sacrosanct bodies and could not be overridden by a judge even if the judge believed the jury’s decision was against the greater weight of the evidence. Juries in pre-revolutionary America possessed virtually unlimited power to determine both law and fact. Judges were often relegated to deciding pretrial motions and other ministerial matters. In the words of Thomas Jefferson, written shortly after penning the Declaration of Independence, judges should be “a mere machine” when performing their duties. In Georgia, for example, the juries of the county superior courts decided issues of law and fact, turning to judges only when they desired advice. Decisions of the superior courts could be appealed to special juries, not a supreme court. By placing such power in juries, the community could control the content of substantive law. A legislature could pass a statute and a judge could instruct on the common law, but juries possessed the power to veto both.

Perhaps juries should enjoy renewed power in modern America and not just in child pornography cases.