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SENTENCING DISPARITY: USE OF TRANSCRIPT ANALYSIS AS A METHOD
TO DETERMINE SALIENT FACTORS IN FEDERAL CHILD PORNOGRAPHY
SENTENCING PROCEEDINGS
By
Jonathan L. Sitek, M.J.A.
A doctoral thesis
Presented to the Graduate Faculty of the Doctor of Law and Policy Program
at Northeastern University
In partial fulfillment of the requirements for the degree of
Doctor of Law and Policy
Under the supervision of Dr. Golnoosh Hakimdavar
College of Professional Studies Northeastern University Boston, Massachusetts
June 11, 2021
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DEDICATION
This paper is dedicated to my family, friends, and coworkers, for their encouragement and support throughout my entire educational experience. Additionally, this is dedicated to all the men and women of the criminal justice system, who do their level best day after day to ensure every person has access to equal justice under the law.
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ACKNOWLEDGEMENTS
I would like to thank my committee members—Dr. Hakimdavar and Dr. Crow, for their support, guidance, commentary, and editorial ability. And all the professors at the DLP, whose experiential teaching styles were invaluable in connecting concepts and theory to real-world implementation.
I would like to acknowledge Paul Collette, MA, CAC, LADC, for his constant guidance, encouragement, assistance, and inspiration during the difficult times. Additional thanks to
Jennifer Amato, Brian Topor, Michael Rafferty, and Jesse Gomes, who checked in to make sure
I was okay. Thanks to January Welks for being as excited about my doctorate as I was. I would also like to thank Greg Campos and Dr. Amisha Parekh de Campos for their candid discussions at the start of, and throughout, my journey.
Thanks to Cohort 13, for tolerating my feeble attempts at humor. Special thanks to
Barbara, for allowing me to grunt, groan, huff, puff, and vent when needed. To Greg Estevez for his constant check-ins, debriefs, and general life observations. Never has there been a finer salesman for grounded theory. To Bruce Walker, for understanding that imitation is truly intended to be the sincerest form of flattery—you were tracking just fine. And to Scott
Allendevaux, for having the best home office of us all, and being willing to fight nice over
Zoom. Your intelligence, humor, and generosity are second to none, sir.
Thanks to Ann, Eric, and Julianna, for understanding my absence over these years and checking in as part of your bedtime routines.
Finally, I would like to thank JLA, CWM, VLB, and TSW for their letters of recommendation and their encouragement when I began this journey.
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ABSTRACT
This study uses qualitative transcript analysis to determine whether transcript analysis is a viable method to study the issue of sentencing disparity. Child pornography sentencing hearings were chosen due to the high rate of departures from the U.S. Sentencing Guidelines scheme. The intent was to determine whether common causes of disparity identified in the existing literature would be detectable via coding and analysis. A blended theoretical framework was used in an effort to capture as many factors as possible. The results indicated that transcript analysis could detect factors influencing disparity, with limitations. The results also highlighted the salient factors in the proceedings. In robust sentence explanations, judges laid out explicitly their reasoning. Other judges mainly relied on the papers filed in the case and did not elaborate on their reasoning. Additionally, transcript analysis could not detect many demographic characteristics of the sentencing judges. Further, factors such as a defendant’s religion, political affiliation, or ethnicity were not detectable unless a party discussed those factors in open court.
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TABLE OF CONTENTS
Chpater 1: Introduction ...... 10
Background and Context...... 10
Law and Policy Review...... 13
Problem Statement………………………………………………………………………...... 19
Purpose of the Study…………………………………………………………………………19
Research Question...... ………………...20
Theoretical Framework…………...... ……………………………………….………20
Definitions…………………………………………………………………………………...25
Assumptions…………………………………………………………………………………27
Scope and Delimitations……………………………………………………………………..27
Limitations…………………………………………………………………………………...27
Significance………………………………………………………………………………….28
Summary……………………………………………………………………………………..29
Chapter 2: Literature Review ...... 30
Literature Search Strategy...... 30
Literature Review Related to Key Concepts ...... 31
Summary……………………………………………………………………………………..42
Chapter 3: Research Methodology ...... 44
Research Design and Rationale ...... 44
Method...... 47
Positionality Statement………………………………………………………………………49
Participant Selection...... ………………………………..50
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Access to Data and Data Collection ……………………………………………………51
Data Analysis Plan...... 51
Trusthworthiness...... 55
Ethical Procedures...... 56
Summary...... 58
Chapter 4: Results ...... 60
Description of the Data ...... 60
Description of the Data Analysis Process ...... 61
Description of the Findings...... 64
Chapter 4 Summary...... 74
Chapter 5: Recommendations and Conclusions ...... 77
Summary of the Research Results ...... 77
Discussion of the Research Results ...... 81
In relation to the theoretical framework / conceptual framework...... 83
Conclusion...... 87
References ...... 91
Appendix A...... 105
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LIST OF TABLES
Table 1. Top Five Initial Nodes in Frequency ...... 62
Table 2. Second Round Coding: Major Themes and Sub-themes ...... 63
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LIST OF FIGURES
Figure 1. Themes and Sub-ordinate Themes ...... 73
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LIST OF ACRONYMS
USC United States Code: The codified laws of the U.S., cited by title and chapter
USSC United States Sentencing Commission: Agency responsible for promulgating the
Sentencing Guidelines
USSG United States Sentencing Guidelines: Compilation of recommended
imprisonment ranges, in months, for use by federal judges
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Chapter 1: Introduction
The concept of the judicial system in the United States evokes a sense of fair administration of justice through fair and uniform punishment. One would expect that the penalties imposed on similarly-situated offenders should be relatively the same. Historically, this has not been the case, and disparities in sentences imposed on offenders have occurred. The issue of sentencing disparity has prompted a large number of studies by legal scholars, social scientists, and criminal justice professionals (see, e.g., Anderson et al., 1999; Frankel, 1972;
Hartley & Tillyer, 2019; Kim et al., 2009; Logue, 2009; Saccomano, 2019; Spohn, 2005;
Steffensmeier & Britt, 2001; Ulmer, 2011).
The ability for a criminal defendant to be treated in a manner consistent with other criminal defendants, to be sentenced similarly for similar conduct, and to be judged by a judicial official whose analysis of the case will lead to a sentence consistent with other judges who have analyzed similar cases, is essential to establishing a respect and appreciation for the criminal court system. Criminal sentences often include periods of incarceration—a removal from society and confinement to a correctional prison system—which directly conflicts with Americans’ right to the “liberty” highlighted in the Declaration of Independence. Regardless of the reason a sentence of incarceration is imposed (safety of the community, punishment, rehabilitation), the power of judges to do so is significant. The dissonance between the belief that our justice system should treat everyone equally under law (Frankel, 1991), and the identified disparities in sentencing compels analysis, research, and assessment of potential policy “fixes.”
Background
Researchers have examined sentencing disparity from several perspectives. For example,
Steffensmeier and Britt (2001) found that black and white judges sentence differently.
Steffensmeier and Herbert (1999) found that the judge’s gender can impact the sentence imposed
11 on the defendant. Anderson and Spohn (2010) found that the offender’s characteristics (e.g., employment status, gender) influenced the sentence imposed. Doerner and Demuth (2010) studied the effects of race, gender, and age on sentencing outcomes. Ulmer’s (2012) research showed that the sentence imposed upon a defendant can be influenced by the judicial district in which the defendant is sentenced. Wu and Spohn (2010) examined inter-district sentencing outcomes to determine whether sentencing disparity between districts existed, and whether characteristics contributing to disparity could be identified. Their research found that the sentencing guidelines were the strongest influencer of sentences imposed, with the gender of the offender being the only offender characteristic identified as influencing the sentence within all three districts studied.
Despite the number of studies conducted examining sentencing disparity from various perspectives, the number of studies examining disparity in the sentencing of sex offenders, particularly those convicted of possession of child pornography, are limited. Crow and Lannes
(2015) explored sentencing departures from the child pornography sentencing guidelines.
Judicial decision-making in sexual assault cases was explored by Lewis et al. (2014), and judges’ knowledge about sexual offenders was explored by Bumby and Maddox (1999).
The term “sex offender” is used to identify those who have committed a wide variety of offenses, including, for example, rape; sexual assault; possession of child pornography; production of child pornography; distribution of child pornography; kidnapping for a sexual purpose; interstate travel for the purposes of engaging in a sexual act with a minor; and similar offenses. This research study will be limited to cases involving possession of child pornography.
Offenders who possess child pornography being sentenced in the federal courts receive disparate sentences in terms of the length of their custodial (prison) sentence and the length of their
12 subsequent term of supervised release. Crow and Lannes (2015) explored this disparity in relation to public democratic pressures to harshly penalize offenders, and judges’ beliefs in the appropriateness of federal sentencing schemes. Child pornographers have also become the focus of other studies, and the development of a risk predictability tool (Eke et al., 2010; Seto et al.,
2015).
This study sought to examine whether transcript analysis would inductively reveal factors that are being considered by judges in child pornography cases that are leading to sentencing disparities. Importantly, the focus of this research shifted from primarily trying to identify factors leading to disparity, to a methodological examination to determine whether transcript analysis is an effective way to study the issue. The shift was prompted by several factors, including the lack of significant studies in the sentencing disparity literature using transcript analysis. This research involves multiple child pornography sentencing proceedings and aims to determine whether themes can be detected that would identify factors influencing judges’ decision-making, while also determining whether transcript analysis is an effective method to examine the issue. Chapter One of this paper presents the research issue, its legal and policy context, and the theoretical framework employed. Chapter Two presents the empirical literature informing a direction for this research, highlighting relevant existing scholarship. Chapter Three presents the research methods, Chapter Four presents the results of the study, and Chapter Five presents the conclusions and recommendations.
Law and Policy Review
Child pornography cases garner significant media attention during the several phases of the case, including arrest, plea, trial, sentencing, and post-conviction supervision. The case of teenage possessor of child pornography Corey Reingold in New York gained media attention
13 when the federal judge imposed a low sentence (30 months’ incarceration) and was forced to increase the sentence when the appellate court instructed him to (Klasfeld, 2013). Although not a child pornography case, the judge in the Brock Turner case was recalled by California voters after imposing what the public perceived to be a light sentence for sexual assault (Flynn, 2018).
As a result of the attention paid to sex offenses committed against children, legislation imposing stricter sentences have been enacted, sex offender registries have been created, and notification laws have been created (Crow & Lannes, 2015). Cochran et al. (2020) recently examined sentences imposed in Florida state courts and found that, although all crimes experienced a punitive increase, there appeared to be focused attention on sex offenses by the public, which contributed to the increase in punitive sanctions. This research study will not specifically be examining the influence of media or other public pressure on sentencing judges, but codes will be used to help identify themes regarding media influence for possible subsequent research.
Selected Laws and Policies
Federal Sentencing Law- Factors for Judges to Consider
The primary statute governing federal sentencing processes is codified at 18 U.S.C. §
3553(a). This federal statute requires judges to consider, among other factors, the federal sentencing guidelines promulgated by the United States Sentencing Commission, “the nature and circumstances of the offense and the history and characteristics of the defendant,” and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (18 U.S.C. § 3553(a)). The directive for judges to consider unwarranted sentence disparities supports the research question and the aim of this study. Judges are required by law to avoid unwarranted sentence disparity; yet much disparity has been identified and studied (Anderson et al., 1999; Crow & Lannes, 2015; Steffensmeier & Britt,
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2001; Steffensmeier & Hebert, 1999). Further, if the guidance on sentences for defendants “with similar records who have been found guilty of similar conduct” (18 U.S.C. § 3553(a)(6)) is a factor in the sentencing judge’s analysis, where does an analysis of the “history and characteristics of the defendant” (18 U.S.C. § 3553(a)(1)) fit in? This conflicting instruction to federal judges could be at least in part responsible for the imposition of disparate sentences. In child pornography cases, however, because of the visceral associations made by judges and the public between child pornography and its perceived threat to child safety (Crow & Lannes,
2015), this individualized assessment may be resulting in exaggerated assessments of public risk.
Individualized sentences are an essential component of criminal sentencing (Frankel,
1991) and require judges to make an individual assessment of the circumstances of each case, and each defendant. For any federal defendant, a sentencing judge may consider all the factors and determine that certain circumstances mitigate a harsh sentence, while another judge may believe personal circumstances demand a harsh sentence. These individualized sentences are not, however, supposed to be excessively disparate in nature, as noted in 18 U.S.C. § 3553.
The U.S. Sentencing Guidelines- Advisory Sentencing Schemes
The sentencing statute (18 U.S.C. § 3553) also requires judges to consider the federal sentencing guidelines, which are promulgated by the U.S. Sentencing Commission. Although determined by the Supreme Court in United States v. Booker (2005) to be advisory, the guidelines must be properly calculated and consider by the sentencing judge as to the kinds of sentences available and the incarceration range established by the guidelines when fashioning a sentence (18 U.S.C. § 3553(a)(4)). Although the guidelines are not formally enacted laws, any of the annually proposed changes to the guidelines become effective unless Congress objects to the amendments. They have the effect of formal law in that, although advisory, they serve as a
15 starting point for judges to base their sentences on, and therefore have a significant impact on criminal justice policy in U.S. federal courts. The United States Sentencing Commission is required to issue guidelines for judges to consider. The guidelines scheme involves calculation of a sentencing range based on the offense committed and criminal history of the defendant. The child pornography guidelines are found at U.S.S.G. §2G2.2. This guideline instructs the court
(through the probation officer calculating the guidelines) to assess an offense level of 18 for certain child pornography possession offenses. Then, additional levels are added based on specific offense characteristics such as the number of images possessed, whether the defendant received anything of value in exchange for the images, if the images were redistributed to a minor, whether the images portrayed sadistic material or violence, etc. The final total offense level, combined with a “score” associated with the defendant’s criminal history, results in a recommended sentencing range for the judge to consider.
PROTECT Act of 2003- Non-empirical Increase in Child Pornography Guidelines
The guidelines dealing with child pornography sentencing were dramatically increased with passage of the PROTECT Act of 2003, which codified mandatory minimum sentences for certain offenses. Crow and Lannes (2015) discuss the multiple revisions the child pornography guidelines have been subject to since their revision in 1987, which has resulted in “increasingly punitive penalties for offenses related to child pornography” (p. 576). Crow and Lannes (2015) identified that after passage of the PROTECT Act, and subsequent to United States v. Booker, in
2011, “the average rate of a judge-initiated downward departure [from the guidelines range] for all types of cases was 17.4%, whereas 44.8% of child pornography cases were sentenced below the guidelines range” (p. 577). The PROTECT Act and its sentencing schemes, including mandatory minimum sentences, was not subject to empirical review, and adjustments to the
16 sentencing guidelines were made despite Sentencing Commission’s objection to enact guidelines that have not endured empirical scrutiny. And, because the guidelines are no longer binding on the sentencing judge, the issue becomes the individual judge’s determination as to whether the recommended guidelines are appropriate. That is, if one sentencing judge analyzes the case and determines that the sentencing range is too high and thus departs downward, another judge may not reach the same conclusion—greatly increasing the disparity in sentences.
Second Circuit Court of Appeals Caselaw- Binding on Judges in the Second Circuit
The issue of sentencing disparity itself is a broad one, and the extent to which judges must attempt to avoid it is somewhat limited. Courts have viewed sentencing disparity to be measured on a large scale; that is, nationally. The U.S. Court of Appeals for the Second Circuit has determined, “section 3553(a)(6) requires a district court to consider nationwide sentence disparities, but [it] does not require a district court to consider disparities between co-defendants”
(United States v. Frias, 2008). In this case, Mr. Frias and a codefendant were convicted of conspiracy to commit murder. Mr. Frias received a life sentence, and his codefendant received a
25-year sentence. Mr. Frias appealed, and, even though the court found the two were not similarly-situated defendants, the court concluded that the federal sentencing statute requiring judges to avoid unwarranted disparity only required a national perspective, not a case-by-case
(even among codefendants) view. Essentially, even if two defendants appeared before the same judge, having similar criminal records, and having committed similar offenses, there would be no violation if they were sentenced to drastically different punishments. This circuit-specific caselaw muddies the waters with regard to sentencing disparity, and this research study aimed to detect judges struggling to refrain from imposing a disparate sentence.
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In the court districts within the Second U.S. Circuit Court of Appeals’ jurisdiction
(Connecticut, Vermont, and New York), sentencing policy for child pornography cases includes the Circuit’s ruling in United States v. Dorvee (2010) in which the Circuit Court found that
“District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under §2G2.2 — ones that can range from non-custodial sentences to the statutory maximum — bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”
Essentially, the court appears to be encouraging judges to use caution when considering child pornography guidelines. The Circuit Court noted the child pornography sentencing guidelines produce such high sentencing ranges, if a defendant were to actually engage in committing sexual misconduct with a minor, the sentencing range in that case might well be lower than in a possession of child pornography case. In Mr. Dorvee’s case, the sentencing range of 262 to 327 months’ incarceration was capped at 240 months because of a statutory maximum. The sentencing judge imposed a 240-month sentence, which was overturned for being procedurally and substantively unreasonable. Mr. Dorvee was convicted of distribution of child pornography, and the sentencing judge repeatedly referred to the potential danger to the community he posed to justify a high sentence. The Circuit Court, however, also emphasized that the child pornography guidelines (after the PROTECT Act increased them) were arrived at through congressional action, not empirical data as most other guidelines were, thus causing them to be excessive.
Although not binding on courts within the Second Circuit, a recent Tenth Circuit court case admonishes judges to consider all the sentencing factors identified in 18 U.S.C. § 3553 without relying too heavily on just one. In United States v. Cookson (2019), the court found that
18 a sentence of five years’ probation was not reasonable for a child pornography offender whose advisory guideline range was 97 to 121 months’ incarceration, and remanded the case for the sentencing judge to impose a harsher sentence.
Supreme Court Caselaw Affecting Sentencing
Although sentencing judges must always adhere to the requirements of 18 U.S.C. § 3553 when fashioning an appropriate sentence, the Supreme Court deemed the sentencing guidelines to be advisory, rather than mandatory in U.S. v. Booker (2005). However, the court has also determined that sentencing judges are free to adopt their own sentencing formulas if they disagree with the sentencing guidelines or policy. In Kimbrough v. United States (2007), and the subsequent Spears v. United States (2009), the court allowed judges to reject guidelines treatment of certain offenses based on policy disagreements and national sentencing data. In these cases, the primary issue was the disparate treatment of powder cocaine and crack cocaine.
Sentencing judges opted to ignore the 100:1 ratio in crack cocaine cases and formulate their own method of sentencing crack cocaine offenders. The Supreme Court agreed that the guidelines could be rejected.
In Nelson v. United States (2009), the court advised sentencing judges that not only were the sentencing guidelines not mandatory, but they should not even be presumed to be reasonable.
In effect, sentencing judges are faced with the possibility that even if they calculate a proper advisory sentencing range, they are not to presume that a sentence within that range is a reasonable one to impose.
The laws and policies affecting sentencing in child pornography cases require judges to consider factors that are at times in conflict. Further, through case law, judges have been instructed to “use caution” when applying recommended sentencing guidelines to a sentence.
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This research study analyzed transcripts in sentencings in an effort to determine whether judges
(or other court participants) expressed reliance on, or dismissal of, certain policies when crafting their sentences, which could be good indicators of causes of disparity.
Problem Statement
The existence of disparities in sentences imposed on defendants who have committed the same or similar offenses is antithetical to the concept of fairness in sentencing. Offenders who possess child pornography being sentenced in the federal courts receive disparate sentences in terms of the length of their custodial (prison) sentence, and the length of their subsequent term of supervised release. Sentencing guidelines were devised to reduce disparity, but, “child pornography cases have the highest rate of guideline departure in the federal court system”
(Crow & Lannes, 2015). Further, as referenced in Chapter Two, significant scholarship into the issue of sentencing disparity has been, and continues to be, conducted (see, e.g., Anderson et al.,
1999; Frankel, 1972; Hartley & Tillyer, 2019; Kim et al., 2009; Logue, 2009; Saccomano, 2019;
Spohn, 2005; Steffensmeier & Britt, 2001; Ulmer, 2011).
Few studies have addressed the issue via transcript analysis. This study, therefore, fills a gap in the research, and will provide insight as to whether transcript analysis is a viable method to study the issue further.
Purpose of the Study
The purpose of this exploratory qualitative study is to determine whether there are factors present in child pornography sentencings in federal courts that can be identified via transcript analysis, which are contributing to sentencing disparity in those types of cases. For this study, sentencing disparity is generally defined as a difference of more than 12 months’ incarceration or
12 months’ supervised release. This study will also determine whether transcript analysis is an
20 effective method by which to identify potential causes of sentencing disparity (generally). By coding the transcripts to determine whether transcript analysis is a viable method to study the issue, the salient sentencing factors, at least in the cases within the sample, were also identified.
Research Question
The research question for this study is: are there factors present in child pornography sentencings in federal district courts that can be identified via transcript analysis that are contributing to sentencing disparities in child pornography cases. The study aims to address the research gap by examining whether transcript analysis is a viable method to determine how judges arrive at their sentences in child pornography cases.
Conceptual Framework
Settling on a conceptual framework that accounts for the actions of the different parties involved in sentencing proceedings, and their impact on judges’ decision-making was difficult, not due to a lack of theories to select from; rather, because the examination of judicial decision- making encompasses multiple different academic disciplines. Psychological, sociological, criminological, and legal theories may all have been appropriate. Initially, the power analysis by
Michel Foucault seemed appropriate, as Foucault’s theories cross multiple disciplines fluidly, as fittingly explained in Discipline and Punish (1975). Further, Foucault defined the meaning of terms in a nebulous way, such that the meanings were deployed tactically, and “specific to a particular text and/or time period” (O’Malley & Valverde, 2014). This blending of multiple social sciences and definitions is attractive because this research is attempting to construct meaning from the data as the research progresses. Foucault’s emphasis on power falls short, however, because it may not be the power asserted by judges that is influencing disparity.
Alternately, a review of classical punishment theory, particularly Bentham and Beccaria’s focus
21 on the importance of certainty in punishment, and the deterrent effect generated by that certainly, formed the basis for the importance of conducting this research study (Bentham, 1830; Draper,
2012).
The federal sentencing statute at 18 U.S.C. § 3553 requires judges to consider, among other factors, the need for the sentence imposed to promote respect for the law (18 U.S.C. §
3553(a)(2)(A)) and afford adequate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)(B)).
These two factors, or goals of sentencing, tie in strongly with Jeremy Bentham’s theory of utilitarianism. Utilitarianism primarily views human acts in terms of their consequences, and posits that we should live by trying to achieve the greatest pleasure (or happiness) for the greatest numbers. In Bentham’s The Rationale of Punishment (1830), he explains the difference between an offender committing an offense, and the infliction of the punishment,
An offence produces an evil both of the first and second order; it causes suffering in an
individual which he was unable to avoid, and it spreads an alarm more or less general. A
punishment produces an evil of the first order, and a good of the second order. It inflicts
suffering upon an individual who has incurred it voluntarily, and in its secondary effects
it produces only good, it intimidates the ill-disposed, it re-assures the innocent, and
becomes the safeguard of society (pp. 17-18).
The secondary effects Bentham wrote of—the intimidation of the ill-disposed and the reassurance of the innocent—are analogous to judges’ mandate to impose a sentence that promotes respect for the law, and affords deterrence for criminal offenses. Bentham further wrote,
Pain and pleasure are the great springs of human action. When a man perceives or
supposes pain to be the consequence of an act, he is acted upon in such a manner as
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tends, with a certain force, to withdraw him, as it were, from the commission of that act.
If the apparent magnitude, or rather value of that pain be greater than the apparent
magnitude or value of the pleasure or good he expects to be the consequence of the act,
he will absolutely be prevented from performing it. The mischief which would have
ensured from the act, if performed, will also buy that means be prevented (Bentham,
1830, pp. 19-20).
Bentham is speaking to a general deterrent effect. An analysis performed by a potential perpetrator as to whether the expected punishment outweighs the pleasure he will receive from committing the offense itself. This study approaches the issue of sentencing disparity from
Bentham’s framework. That is, sentences in criminal cases should be imposed similarly upon similarly-situated defendants. The benefit is that clear sentencing expectations will allow for an effective analysis by potential offenders, and result in a general deterrent effect. Reducing sentencing disparity will fulfill a primary purpose of criminal punishment within Bentham’s utilitarian framework while also ensuring judges are fulfilling their legal mandate pursuant to 18
U.S.C. § 3553.
Bentham’s interest in deterrence was influenced by Cesare Beccaria (Draper, 2012).
Beccaria’s On Crime and Punishments, as translated, highlights the importance Beccaria’s theories of punishment placed on deterrence, “One of the greatest curbs on crimes is not the cruelty of the punishment, but their infallibility” (p. 58). Beccaria explains that the certainty of the punishment will make a stronger impression than a harsher punishment that is less certain to come.
The reason studies of sentencing disparity are important is highlighted by Bentham’s work in punishment and the need for deterrence, supplemented by Beccaria’s theories of swift
23 and certain punishment. It is specifically the utilitarian theory of the need for deterrence that, to an extent, provided the impetus for this research. But this research will utilize only the idea of deterrence through consistency, as utilitarianism as an approach toward criminal justice generally is no longer used. Today’s judges are attuned to, even required to consider under 18 U.S.C. §
3553, a defendant’s personal history and characteristics. In other words, an individualized sentence.
Having established through a utilitarianism framework an impetus for this study, frameworks for judicial decision-making and sentencing theory were examined. Selecting a framework at all, though an important piece to any research study, was especially difficult given the desire to conduct an exploration in the Straussian Grounded Theory vein. In other words, this research is specifically designed to begin with no preconceived notions of factors influencing judicial sentencing disparity in child pornography cases. By pre-selecting a theoretical framework within which to conduct the research, there could be unconscious bias to operate within that framework (and thereby skew results), and the desired iterative exploration could be compromised.
The literature review (see Chapter Two) exposed three primary themes prevalent in previous sentencing disparity scholarship: judges characteristics (demographics, perceptions); offender characteristics (demographics, employment, drug use, etc.); and legal and other characteristics (court culture, sentencing guidelines, legal posturing). In order to evaluate whether the themes identified in the transcript analysis can be associated with the prior scholarship results, or whether new factors emerged, this study will use a blended framework, borrowing primarily from several established theories of sentencing disparity.
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Theorists have struggled with fitting sentencing disparities within a uniform theoretical framework. The multi-factional and intra-disciplinary discussions surrounding sentencing disparities standout in the review of the work of scholars and theoreticians of this topic.
Psychologist Fritz Heider and his followers’ attribution theory, in the context of this study, basically attempts to explain judicial decisions as a product of how the judges forecast and make sense of an offender’s behavior (Hawkins, 1981). Albonetti (1991) examined causal attribution theory in the sentencing process by theorizing that judges develop “patterned responses” that are developed from the judges’ assessment how likely the offender is to recidivate. Albonetti (1991, p. 247) concluded that her theoretical integration was supported by her findings on the effects of
“prior record, defendant's race, use of a weapon, pretrial release, and the interaction between defendant's race and bail outcome on sentence severity.”
Steffensmeier et al. (1998) developed the focal concerns theoretical perspective, which expands on Albonetti’s work and explains that judges use three primary concerns in their decision-making: blameworthiness, community protection, and practical considerations.
Steffensmeier et al. (1998) posit that judges reduce their uncertainty in sentencing by relying on their observations as to how responsible an offender is in the commission of the offense; how best to protect the community via incapacitation and deterrent effect; and practical considerations such as disruption to the offender’s family, health of the offender, penal institution logistics, etc.
Criticisms of this theory include Steffensmeier et al.’s lack of clear guidance as to what metrics indicate the focal concerns—thereby leading to a lack of testability.
Richardson and Vines (1970) posited a legal and democratic subculture theory wherein the interaction of formal legal rules and processes overlaps with democratic values and creates a tension in judicial decisions. Legal subculture may include, among other considerations: judicial
25 reasoning, rules, guidelines. Democratic concerns may include factors such as party affiliation, court culture, public opinion, and other extra-legal factors.
Savelsberg (1992) discussed the sentencing guidelines, in particular, as a way to bring rationality back into the law. Savelsberg’s (1992) theory combines rational and substantive law such that when judges decide based on formal rules, laws, and sentencing guidelines, it represents predictability and consistency. Substantive law includes decisions focused on criteria such as individual characteristics and social factors. These sentences are more individualized based on the offender and the social (democratic) factors.
No one framework will suffice for this research. Therefore, the framework will be blended to borrow concepts from all of them, with a primary focus on Savelsberg’s (1992) and
Richardson and Vines’ (1970) theories.
Definitions
Key terminology used within the study will include terms commonly used during the federal sentencing process. Although most terms are used and understood by the general public, the following terms are defined for clarity:
Child Pornography- Images or videos of children under the age of 18 that show, as a
focus, the genitalia, to include the breasts of female pre-teen and teenage females. The
images or videos may also depict sexually explicit acts.
Formal Law- A law enacted by the legislature and signed by the President. A law
currently found within the United States Criminal Code. Distinguished from U.S.
Sentencing Guidelines, which are advisory only, but which judges are required to
consider.
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Judicial Officer- This term refers to any official empowered to impose a criminal sentence upon a defendant. Judge, Magistrate, Magistrate Judge have all been used in different jurisdictions.
Offender- An offender is a defendant who has been convicted of an offense. However, the two terms may be used interchangeably throughout this study.
Possession of child pornography- As used in this study, possession of child pornography refers to the act of possessing child pornography. It does not include production, manufacture, distribution, or other child-pornography related offenses—it is an offense where the defendant only possessed the pornography.
Sentencing Guidelines- Recommendations of the U.S. Sentencing Commission as to what sentence an offender with a certain criminal history (arrest/conviction record) should receive.
Sex Offender- A person who has been convicted of committing any illegal sexual act, including possessing child pornography. This “catch all” term includes rapists, persons crossing state lines to engage in sexual acts with a minor, and persons who create images or videos that are illegal due to their sexual content.
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Assumptions
The primary assumption for this qualitative document analysis is that the documents are accurate. Specifically, it is assumed that the transcripts being analyzed are verbatim records of the courtroom interactions.
Scope and Delimitations
This study was delimited to child pornography sentencings within the federal district courts of the Second Circuit. This delimiter ensures that the controlling case law for all cases selected would be the same. A district court not within the Second Circuit (a Massachusetts court, for example) would not be bound by the same case law as the courts within (Connecticut,
New York, and Vermont). Cases were chosen randomly from all child pornography sentencings within the Second Circuit from 2017 to 2020. This delimiter provides a reasonable assurance that controlling caselaw is still valid, as selecting earlier cases may have included case law that had since been overturned.
Limitations
The original concept for this study was to combine courtroom observations with sentence transcripts in order to associate non-verbal cues with spoken words to identify themes in the proceedings that might be contributing to sentencing disparity. However, due to the COVID-19 pandemic, in-person observations are not possible. The study was transformed into a document analysis, which limits the ability to form a holistic picture of courtroom proceedings, and therefore limits potential data from which to identify themes.
Another limitation to this study is the way judges verbalize their reasons for imposing a sentence. While some judges are verbose and detailed in their explanation, others are concise and speak with brevity. Therefore, the depth and breadth of the information contained within
28 each judge’s soliloquy varied, and is a limiting factor for the amount of useable data available from each case.
This research is limited to the courts of the Second Circuit, which are operating under
Circuit case law and legal factors. Results obtained from this study may not be reflective of results that might be obtained from courts in other circuits. Further the Second Circuit is located within the Northeastern United States (Connecticut, New York, Vermont). Courts outside of this geographical area of the country may experience different regional cultures, and the results contained herein may not be reflective of similar research in other regions.
Significance
The stakeholders in these policies include judges, attorneys, defendants, and the public.
Judges are bound to uphold the law and consider all the sentencing factors—including recommended guidelines ranges. Attorneys prosecute and defend the alleged perpetrators, and work to convince the sentencing judge of what an appropriate sentence is. The defendant is entitled to know the penalties of their offense, and should be sentenced in a fair manner consistent with the law. And the public relies on these policies to have a positive impact on public order and safety.
The combination of sentencing laws, advisory sentencing guidelines, public perceptions and policy relating to child pornography, generous allowances for disparity under stare decisis, and unknown factors appear to be impacting sentencing decisions in federal child pornography cases. The dichotomy between a desire for equal sentencing for equal crimes, addressed in 18 U.S.C. § 3553(a)(6), and the desire to have judges use discretion for particular circumstances, addressed in 18 U.S.C. § 3553(a)(1), may be responsible for creating an unsettling justice system wherein the kind of sentence a defendant gets “depends on where one is
29 sentenced” (Hartley & Tillyer, 2019, p. 47). However, it may even be dependent upon which judge is imposing the sentence—which is why in-depth case analysis of similar cases by multiple judges in a selected district is important. Moreover, judges’ sentencing processes may be influenced by their own political, philosophical, and moral views.
Summary
Analysis of the policies related to sentencing proceedings reveals that the federal sentencing rules, governed by 18 U.S.C § 3553, require federal judges to consider a variety of factors—one of which is the need to avoid unwarranted sentencing disparities. Clearly, based on the breadth of research into sentencing disparity and judicial decision-making, unwarranted sentencing disparities continue to exist. Sentencing judges are also required to follow the recommended sentencing guidelines, and existing case law, both of which may be a source of disparity as identified by existing research. The Second Circuit’s opinion in U.S. v. Dorvee essentially advises federal judges to use caution when assuming the child pornography guidelines are reasonable. Further, research into sentencing disparities in child pornography cases is limited, even though, as Crow and Lannes (2015) point out, several factors appear to be influencing judges in these types of cases, causing disparity in sentencing. Most research has focused on one aspect of disparity—case characteristics, defendant characteristics, or judges’ characteristics, although other research had encompassed more than one. This study seeks to identify whether themes from any perspective simultaneously can be identified in child pornography sentencing proceedings. That is, the study will be conducted without a view as to where the sentencing influences might be coming from. The identified themes can then be compared to factors identified as influencing disparity in previous studies to support the existing research, or identify areas where further research is needed.
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Chapter 2: Literature Review
Unwarranted disparities in criminal sentences undermine public confidence in the judicial system. And, as posited by Bentham and Beccaria, they diminish any deterrent effect due to the uncertainty of the expected punishment. The purpose of this exploratory qualitative study is to determine whether there are factors present in child pornography sentencings in federal courts that can be identified via document analysis, which are contributing to sentencing disparity in those types of cases.
Existing scholarship in the field of sentencing disparity has examined factors influencing decision-making. In their article examining empirical research on judges, Rachlinski and
Wistrich (2017) highlight that,
a wide range of experimental and field studies reveal that several extralegal factors
influence judicial decision making. Demographic characteristics of judges and litigants
affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases,
making them vulnerable to the use of mental shortcuts that can lead to mistakes.
Furthermore, judges sometimes rely on facts outside the record and rule more favorably
toward litigants who are more sympathetic or with whom they share demographic
characteristics (p. 203).
Literature Search Strategy
Searches for relevant literature used multiple search terms, including “sentencing disparity,” “judicial decision-making,” and “sex offender sentencing,” due to the interconnectedness of each term to this research study. Results come primarily from the judicial decision-making and sentencing disparity themes, with significantly fewer results found by searching for sex offender sentencing. Primary databases used include Northeastern University’s
OneSearch portal and Google Scholar search engine. Both systems use keyword searches to
31 match the requested content to academic journals, articles, books, and other literature found in many academic storage repositories (e.g., JStor, HeinOnline, SAGE Publications) and a significant number of independent academic journals and publications. The concept of sentencing disparity primarily gained attention after the publication of Judge Marvin Frankel’s
1972 book Criminal Sentences: Law Without Order. This publication, and Judge Frankel’s exploration of the impact of judicial discretion on criminal sentences, made a convincing argument for the formulation of a sentencing commission and sentencing guidelines that limit a judge’s discretion so that judges can impose sentences m0re uniformly.
Literature Review Related to Key Concepts
Due to an identified gap in the literature, the review of the literature has focused on what previous studies have found in regard to sentencing disparity generally, and on confirming a foundational basis for this study. Although studies and articles have been identified related to federal sentencing in particular (Albonetti, 2014; Crow & Lannes, 2015; Doerner & Demuth,
2010; Payne, 1997; Scott, 2010; Ulmer, et al., 2011; Wu & Spohn, 2010; Yang, 2015), most studies of sentencing disparity are related to state-level courts. Few studies and articles have used a qualitative analysis of transcripts and existing records to perform content analysis and extract themes in order to focus on aspects of judicial decision-making (Garton, 2010; Lewis et al., 2014; MacMartin & Wood, 2005; Wright, 1995). Garton (2010) also combined content analysis of in-person observations with transcript analysis, which was an intended method of this study.
Scholarship in sentencing disparity is closely tied to the study of judicial decision- making. Studies and articles have examined decision making and judicial discretion (Albonetti,
1991; Bandy, 1991; Ebbesen & Konecni, 1985; Robinson & Spellman, 2005), psychology and
32 the judge’s mind (Guthrie et al., 2007; Guthrie et al., 2001; Hartz, 2014; Rachlinski et al., 2006;
Schauer, 2007), and the judicial “hunch” (Berger, 2013; Day, 1988; Hutcheson, Jr., 1998;
Modak-Truran, 2001).
The literature in the area of sentencing disparity has primarily focused on the following themes: the judge and the judicial decision-making process (see e.g.: Bumby & Maddox, 1999;
Cross, 2003; Glynn & Sen, 2015; Steffensmeier & Britt, 2001); legal factors (including the sentencing guidelines) and the offense for which a defendant is being sentenced (Crow & Gertz,
2008; Crow & Lannes, 2015; Edwards et al., 2019; Fischman & Schanzenbach, 2012; Light,
2014); the defendant, and how certain characteristics of the defendant might contribute to disparity (Bushway & Piehl, 2001; Everett & Wojtkiewicz, 2002; McCormick et al., 1998; Shute et al., 2013; Shields & Cochran, 2019; vanWingerden et al., 2016; Wright, 1995); or a combination of factors. In the following review, many studies fall into more than one research theme. Inter-district federal sentencing has been studied, but intra-district research is very limited. The research in the area of sentencing disparity, although robust, is at times contradictory, and does not lead to a concrete conclusion as to what causes sentencing disparity in criminal cases generally. Research into sex offender sentencing disparity, particularly into child pornography sentencings, is very limited. This study fills a gap in the literature in the area of qualitative studies of child pornography sentencing disparity. A review of the existing literature with judicial decision-making as a framework will inform the method used to answer the question, are there factors present in child pornography sentencings in federal courts that can be identified via transcript analysis, that are contributing to sentencing disparity in those cases?
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Impact of Judges’ Characteristics and Sex Offense Perceptions on Disparity
One area of research into sentencing disparity has focused on the characteristics of the judges involved in the process. Research into the effect of demographic and other characteristics of judges has included attempts to evaluate the impact of the judges’ gender, race, political affiliation, and other factors. Additionally, judges’ cognitive processes and psychology have also been studied.
Demographics
Steffensmeier and Herbert (1999) attempted to determine if the gender of a judge made a difference in the sentencing of criminal defendants by analyzing sentence similarities, criteria used when fashioning a sentence, and weight given to case characteristics. They used data from
Pennsylvania courts from 1991-1993, and conducted correlation analysis finding that a judge’s gender correlated weakly with sentencing outcomes, that female judges were more likely to incarcerate defendants, and female judges were more likely to sentence those incarcerated to slightly longer sentences. They also found that offender characteristics (race, age, sex) have small-to-moderate effects on the sentence, and that the judge’s background and career prior to judgeship had negligible effects. However, in both models, female judges are harsher in their decisions. Steffensmeier and Herbert’s (1999) findings are informative in that when attempting to discover themes in this qualitative study, a basic understanding of the impact of certain offender characteristics on male vs. female judges may help identify specific areas of focus.
Steffensmeier and Britt (2001) used a similar method to analyze sentencing outcomes from Pennsylvania 1991-1994 and archival data on judge characteristics in order to determine whether the race of a judge impacted sentencing decisions. Their results showed that, although black judges were more likely to sentence defendants (black and white) to prison, both black and
34 white judges tended to consider case and offender information similarly. Steffensmeier and Britt
(2001) found that there were small effects due to the race of the judge, but also similarities in sentencing practices between black and white judges. The Second Circuit has black and white judges, and Steffensmeier and Britt’s (2001) research provides an understanding of the empirical analysis of sentencing decisions of the Pennsylvania judges, which may inform the analysis of this case study.
In a study of judicial empathy, Glynn and Sen (2015) examined whether the decisions of
U.S. Courts of Appeals judges were influenced by their having daughters. Their results indicate that judges with daughters tend to exhibit empathy and vote along a feminist ideology. This research provides information on a previously unexplored area of judicial decision-making, and may provide avenues of further exploration during this study’s content analysis and thematic development.
Jurors, like judges, make findings of guilt or acquit criminal defendants. Although jurors do not sentence sex offenders, Pettalia et al.’s (2017) study of the influence of a mock juror’s sex on child abuse cases provides important background information as to how the sex of factfinders may influence their decision-making in cases involving children. Their results, gathered via survey, found that female jurors were significantly more likely to make findings of guile and to recommend longer sentences. These findings, combined with existing literature relating to the impact of a judge’s sex on sentencing, provide a significant area of focus for this study and subsequent content analysis.
It is possible, if not likely, that this study will identify consistent themes in the sentencing process. Cross (2003) empirically tested four theories of judicial decision-making (legal, political, strategic, and litigant-driven) and found that the legal model primarily explained
35 judicial decision-making, with the others having little-to-no significance. Cross (2003) acknowledged that quantitative measurement was not a perfect way to measure, and that specific studies at a more micro level may provide clearer results. Thus, Cross’ work provides insight into at least four common judicial decision-making principles, which may be useful in attempting to correlate certain codes and themes into the identified principles.
Psychological Perceptions
Lewis, et al., (2014) coded 129 trial transcripts from the County Court of Victoria,
Australia (from 1998-2009) wherein the defendant had been found guilty of child sexual abuse.
Thematic analysis of “credibility discrediting incidents” (arguments intended to discredit victims), such as “victim is lying,” “abuse was not possible,” and “victim’s memory of the abuse,” among others, was conducted. Results showed that longer sentences were associated with defendants who committed multiple offenses, or committed them against younger children.
Acknowledging the U.S. and Victoria, Australia court systems are different, this study is informative in that the coding used to analyze transcripts may be applied to the present study.
Focusing still on the judges’ impact on sentencing disparity, MacMartin and Wood
(2005) examined the judicial opinions issued in 74 Canadian decisions (1993-1997) involving sexual abuse of children. MacMartin and Wood (2005) used discursive social psychology to determine whether sentencing judges were attributing sexual abuse motives to power and violence, or sexual motivation. They found that judges most frequently attributed the offenses to sex-based motivations, highlighting the defendant’s sexual gratification, sexual attraction to their victims, and sexual impulses. Judges also used these explanations for the sexual abuse as both a mitigating factor and aggravating factor when determining the length of the sentence. This analysis of judicial decision-making based on perceived motivations of sexual offenders provides
36 insight as to the importance of understanding thoroughly judges’ perception of the offense in question, and will be informative as to how to gauge judges’ perceptions in a qualitative case study. Bumby and Maddox’s (1999) study into judges’ knowledge about sex offenders and perceptions of sentencing issues involved 42 Midwestern trial judges in attendance at a two-day seminar about sexual assault criminal trials. The judges completed a sex offender survey for judges which measured their attitudes and opinions. Of note is the acknowledgment of the difficulty judges had with sentencing sex offenders while trying to balance retributive and rehabilitative efforts (Bumby & Maddox, 1999).
Guthrie, et al., (2001) used a psychological perspective in their research testing five cognitive illusions and whether or not 167 federal magistrate judges’ decision-making processes were impacted. They concluded, after using scenario questionnaires, that all five illusions had a significant impact on judicial decision-making (Guthrie et al., 2001). They note that their findings may not apply in a courtroom, where more detailed and complicated records are available.
Perhaps the most informative to this study is Garton’s (2010) dissertation study of juvenile court judges and her efforts to determine how and why judges detain certain juvenile offenders. Her research used an explanation building approach “because a coherent theory of the factors influencing juvenile court judges’ decision making does not exist” (Garton, 2010, p. 100).
Garton (2010) interviewed 16 judges, in person, and four telephonically. She transcribed the interviews, coded via content analysis, and recorded nonverbal reactions during the interviews.
Her analysis concluded that the case history and type of offense were influential in the judges’ decisions (Garton, 2010).
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Conclusion (Judges’ Characteristics)
Research focused on identifying sources of sentencing disparity caused by judges’ characteristics, including demographics, perceptions of the case, and psychological influences have found that there are factors attributable to the judges that are impacting sentencing disparity. Qualitative analyses and quantitative regression and correlation models have provided different methods of examining the issue of disparity focused on the judge imposing the sentence.
Legal Factors Affecting Disparity
Sentencing disparity may be caused by legal factors—or factors other than characteristics particular to the judge, defendant, or other people in the courtroom. Legal factors include, for example, sentencing guidelines, district procedures, and statutory guidance. A recent study into the effects of voluntary and presumptive sentencing guidelines was conducted by Edwards, et al.,
(2019). They analyzed over 220,000 sentences issued by 355 different judges in Alabama between 2002 and 2015, and compared sentences issued when guidelines were imposed presumptively, and when they were imposed voluntarily. Although the results showed judges’ sentences adjusted when guidelines were presumptive, the results also indicated that the most extreme (most lenient and most firm) did not change their sentencing behaviors when the guidelines were voluntary. The data reflected that the judges in the middle of the spectrum significantly reduced their sentence lengths after voluntary guidelines (Edwards, et al., 2019).
Because federal child pornography sentencing guidelines are voluntary, this study highlights the importance of determining where on the sentencing spectrum the observed judges fall.
Insight on federal judge decision-making is offered by Meade and Burrow (2015), who analyzed 330 federal district and appellate court cases from 2000 to 2007 involving prisoner
38 religious freedom claims. The authors attempted to determine the dynamics of decision making in these cases by coding each case with variables, and, after statistical analysis, determined that the law and legal rules appeared to be the primary factor in predicting whether a case would be decided in favor of the prisoner or not. Other factors (extra-legal) such as the religion of the inmate were not significant (Meade & Burrow, 2015). Interestingly, the authors noted that female judges were more likely to decide the requests in favor of the prisoners when they used judges’ characteristics as a variable.
Crow and Lannes (2015) analyzed the granting of downward departures from the sentencing guidelines by using data from the United States Sentencing Commission and coding the case records of approximately 8,000 sex offender and child pornography sentencings in federal court. Their findings reveal, in part, that older offenders are less likely to receive a downward departure, while Hispanics, “other” races, college-educated offenders, and non- citizens were more likely to receive them. Their research also highlights the inconsistent sentencing results in child pornography cases, and presents the authors’ opinions as to possible reasons for some of the results. For example, offenders with dependents were less likely to receive a downward departure, which contrasts with prior research in this area. The authors posit that judges are trying to protect the community by punishing offenders with dependents more severely, because their dependents could be perceived as potential victims (Crow & Lannes,
2015). Wu and Spohn (2010) also analyzed federal court decision-making in their analysis of three U.S. District Courts in Minnesota, Nebraska, and Southern Iowa from 1998 to 2000. Their research involved determining whether inter-district sentencing disparity was present and whether the factors involved in disparity were different among the three districts. The authors analyzed over 2,400 cases where a prison sentence was imposed. This comprehensive analysis
39 included regression modeling, controlling for offender characteristics, and controlling for case characteristics. Results show that sentences in Southern Iowa were significantly longer than in the other two districts, although the recommended guidelines sentencing was the strongest predictor of sentencing length in all three courts. Only one characteristic of the offender was shown to have a statistically significant impact on sentence length in all three courts—the gender of the offender, with females receiving significantly lower sentences than males. Other offender characteristics, such as race or citizenship, did not play a significant role in sentence length (Wu
& Spohn, 2010).
In a South Carolina state court study, the effects of the Sex Offender Notification requirements on judicial decision-making were studied by Letourneau et al. (2010). The findings here indicate that after enactment of the registration and notification requirements, plea bargains reducing charges from sex offenses to non-sex offenses increased. The authors posit that the perception of the harshness of the policies contributed to defendants refusing to plead to sex offenses, or judges being less willing to find them guilty of sex offenses. This research is informative to this study in that themes may develop in content analysis that suggest the judge’s perception of the harshness of the punishment may be impacting the sentence he or she imposes.
The effects of the sentencing guidelines, intended to reduce disparity, have been examined as a factor in judicial decision-making, particularly on inter-judge decisions. Results of these studies have found that the sentencing guidelines did, in fact, reduce sentencing disparities, by comparing pre-guideline sentences and post guideline sentences (Anderson et al.,
1999; Hofer et al., 1999). Though dated, Farabee’s (1998) study of disparate sentencing guideline departures in Massachusetts and Connecticut federal courts provides historical perspective as to judges’ sentencing disparity within Connecticut, which is one of the target
40 locales of this study. Farabee’s (1998) study found that Connecticut judges were more likely to depart from the sentencing guidelines, and that Connecticut judges, at that time, had clearly established themselves as an independent bench. Although studies of the guideline effects are not directly on point with this research, the findings are informative in that sentencing guidelines for child pornography cases have effectively been too harsh within the Second Circuit, and may no longer be operating as a mitigator to disparity within the circuit.
Conclusion (Legal Factors)
Research examining the legal factors influencing sentencing disparity has found that inter-district disparity in and of itself contributes to the overall issue in that which district a defendant is sentenced in can influence the length of the sentence. Legal factors (the law and rules of the court) influence the sentences imposed, with Crow and Lannes (2015) finding that sentencing guidelines and inconsistent application of departures in child pornography cases significantly contribute to disparity in these cases.
Offender Characteristics and Impact on Disparity
Another theme of sentencing disparity research takes an offender-based approach. Rather than analyzing demographic and other characteristics of judges, these studies attempt to evaluate the effect of offender characteristics on sentence length in order address disparity. Research sub- themes have included the offender’s demographics, relationship to their victim, general
“character,” and employment status. In a two-part experiment Kapardis and Farrington (1981), after developing a sentencing severity scale, the authors had 168 magistrates conduct sentencings in simulated cases. Their research attempted to test the influence of ten offender characteristics on sentencing. Results showed that sentences were more severe when defendants were male, high social status, had a serious criminal record, and conducted serious offenses. Other
41 characteristics, such as age, race, plea of guilty or trial, and breach-of-trust did not affect sentence severity (Kapardis & Farrington, 1981).
McCormick, et al., (1998) analyzed 204 clinical files of convicted rapists and divided them into three groups: stranger rapists, acquaintance rapists, and partner rapists. Per their predictions, the authors found that offender characteristics (including their criminal history) and demographics were not predictors of sentence length. However, the excessiveness of force used during the offense, and the relationship of the victim to the offender did predict sentence length.
The study provides useful insight for this research. The relationship of the child pornography victim to the defendant may have an effect on the sentence length, which would not be observable in a case study analysis.
Wright’s (1995) dissertation work quantitatively and qualitatively analyzed 103 child sexual abuse cases in the Ontario Court of Appeal from May 1990 to June 1993. Wright (1995) transcribed the judicial opinions and conducted content analysis to extract themes. Her analysis of type of abuse, age of the child, age of the offender, and sex of the victims found that none of the factors tested were statistically significant in predicting the sentence imposed. Her finding that relationship of victim to offender did not predict sentence length contrasts with McCormick et al. (1998), but McCormick et al. were analyzing convicted rapist sentences and not specifically child sexual abuse. Wright’s (1995) qualitative analysis found that judges tended to emphasize an offender’s character and work record over the offense conduct and harm to victims. Wright’s (1995) identification of themes via content analysis is instructive, and her results indicating judges’ emphasis on mitigating factors in sentencing orders is applicable in this study.
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van Wingerden, et al., (2016) attempted to refine a model for explaining sentencing disparities. They explored prior research on sentencing disparity, and found, contrary to some of the findings noted above, that generally, offender age, sex, and race are significant determinants of sentences (van Wingerden et al., 2016). Their study involved Dutch data on presentence reports to determine whether employment, family circumstances, and drug use impacted the length of a criminal sentence. Results found that personal characteristics were only an inconsistent influence over sentencing outcomes (Wingerden et al., 2016).
Conclusion (Offender Characteristics)
Research focused on the defendant’s characteristics has inconsistent results. Although some studies have found that the age, race, and sex of the defendant are not significant influencers of a sentence, at least one study (involving Dutch data) has found that those demographic factors are significant determinants of sentences (Wingerden et al., 2016). In this case study, defendant characteristics will be documented in each case, and particular attention will be paid to the coding of transcripts to determine if any themes involving defendant characteristics can be identified.
Literature Review Conclusion
The sentencing disparity literature falls into many themes, but tends to focus primarily on impacts by offenders, legal factors, or judges’ characteristics. Quantitative analyses attempting to predict sentence lengths and judges’ actions by measuring the influence of certain characteristics are far more numerous than qualitative analyses attempting to identify themes in sentencings. Few case studies have been found that have been conducted with document analysis. This study fills this gap in the literature, and will attempt to determine if there are factors present in a child pornography sentencing that can be identified as having an impact on
43 sentencing disparity in these types of cases. This study will explore whether characteristics of the sentencing judge, the defendant, or the case are referenced by any of the participants involved in the sentencing proceeding. Thematic analysis will be dynamic in that the study will adjust to themes identified during the case studies.
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Chapter 3: Methodology
The purpose of this study is to determine whether there are factors present in a child pornography sentencing proceeding that are contributing to sentencing disparity in these cases, that are detectable via transcript analysis. Due to the sparsity of literature using transcript analysis to determine root causes of disparity, this study aims to determine whether document analysis (specifically, sentencing transcripts) is an effective method to research the issue. This chapter will describe the design and rationale of the study, the methodology used, the data collection process, analysis plan, and threats to the validity of the study.
Research Design and Rationale
The selection of the research approach is based on the ability of the approach to properly answer the research question, the researcher’s philosophical assumptions, the research design, and the research methods (Cresswell & Cresswell, 2018). Prior research into sentencing disparity has focused on empirical analysis to determine whether certain identified variables, such as judges’ demographics, offender’s demographics, or a combination of variables, including legal factors, are influencing sentences imposed in criminal cases. (Crow & Lannes, 2015;
Meade & Burrow, 2015; Steffensmeier & Britt, 2001; Steffensmeier & Herbert, 1999).
In this study, the aim is to answer the research question (are there factors present in child pornography sentencings in federal court, that can be identified via transcript analysis, that are contributing to sentencing disparity in those cases?) without theorizing what might be contributing to sentencing disparity. A qualitative research approach is used when attempting to identify general themes, and explore and understand the meaning of an issue. A quantitative approach generally tests objective theories by statistical analysis of the relationship between variables. And a mixed method approach generally collects both qualitative and quantitative
45 data, which might yield insights into the research that would not otherwise be obtainable by limiting the study to either qualitative or quantitative (Cresswell & Creswell, 2018).
Qualitative data “help researchers get beyond initial conceptions and generate new understandings” (Miles et al., 2020, p. 3), therefore, this research will employ a qualitative research approach. The exploratory study will use transcript analysis to determine whether causes of sentencing disparity can be detected through coding of the sentencing proceeding.
This approach is appropriate to answer the research question because the approach does not focus the data on characteristics of the participants. Whereas previous research has attempted to explain disparity by studying the characteristics of judges, of defendants, of lawyers, and of the law itself, the proposed approach will allow the research question to be answered without skewing based on preconceived ideas.
A constructivist worldview guided the research as the theory was inductively developed during the study. This approach differs significantly from a quantitative analysis of sentencing outcomes and comparison to different pre-identified variables to determine if any variables have an effect on the outcome. Rather, this study enabled the researcher to contributed to the literature on causes of disparity based on the data being generated and the emergence of themes.
This study was guided by Straussian grounded theory (Strauss & Corbin, 1990).
The lack of theory going into the study is supported by Straussian grounded theory, but the study is not entirely a blank slate, as would be in classical grounded theory. Rather, the Straussian framework allowed for the researcher to guide the study, based on the researcher’s experiences, and to interpret the data so as to further the research. Additionally, because this study essentially involved the analysis of language (primarily of judges, but also of lawyers and other courtroom
46 participants) as an explanation for behavior of action, critical discourse analysis served as a guide. Mullet (2018, p. 122), lays out seven steps of a qualitative discourse analysis approach: select the discourse; locate and prepare data sources; explore the background of each text; code texts and identify overarching themes; analyze the external relations in the texts; analyze the internal relations in the texts; interpret the data. Tomasi and Cabral (2017) used discourse analysis as a framework, although deeply entwined with linguistic analysis, to examine judicial decisions in Brazil. Richard and Nwizug (2017) used critical discourse to examine the power interactions in Nigerian courtrooms. Thus, by analyzing transcripts of sentencing proceedings, the critical discourse approach informed coding and analysis decisions.
In additional to specific frameworks and worldviews suited for social sciences research, this study may also well fit into, or at least compare and contrast with, certain legal frameworks.
As noted, empirical studies have attempted to measure the influence of certain demographic factors, political influences, and other non-legal factors on judicial sentencing disparity. Legal theories, however, assign the legal process to how judges judge. Drobak and North (2008) posit that the most commonly accepted model of judicial decision-making is the rational doctrinal model because judges spell out their analysis clearly and bring them to logical conclusions.
Legal realists typically attribute the biggest factor in judicial decision-making to the judges’ preferences. After Drobak and North (2008) described the current state of legal theory in judicial decision-making, including the strengths and weaknesses of rational choice in the legal system, and legal realism, they state the following:
Consequently, those working with the law must continue to concentrate on the visible
part of judging. We know that the effects of belief systems and other non-doctrinal
47
factors play a role in all judicial systems, albeit to varying degrees, so legal scholars will
continue to study and speculate about these hidden factors (p. 151).
It is this confusion, or lack of understanding of the factors that cannot be empirically measured and studied and their influence on judicial decision-making that are at the heart of the proposed study. Through qualitative analysis, themes may emerge that can contribute not only to the social sciences research, but to the legal research as well.
Method
This study was initially intended to combine courtroom observations with analysis of the transcripts for the sessions observed in order to determine whether non-verbal cues from courtroom participants, and their words, could be indicators of causes of sentencing disparity.
However, due to COVID-19 concerns, in-person observation is not possible. The study has since evolved to a document analysis of sentencing transcripts to see if causes of disparity can be detected. This is now a methodological study aimed at determining whether transcript analysis is a viable method to research sentencing disparity, and make recommendations as to whether further investigation into transcript analysis as a method is warranted. Thus, qualitative analysis is appropriate, as transcript analysis is conducted primarily via a qualitative approach. Bowen
(2009) defines document analysis as “a systemic procedure for reviewing or evaluating documents—both printed and electronic (computer-based and Internet-transmitted) material” (p.
27). And, although initially courtroom observations were considered as part of the study, Bowen
(2009) points out several advantages of document analysis, including, that they are an “efficient method” requiring “data selection, instead of data collection” (p. 31). And, because the documents are public record, an advantage of using them is their “availability” (p. 31). Bowen
(2009) also points out that documents are cost-effective, stable, exact, and lack reactivity—
48 which is important when trying to mitigate reflexivity in the research. However, as noted, this study no longer involves observation, and documents may provide “insufficient detail” to answer a research question (Bowen, 2009, p. 32). This, in fact, is an aim of this research study—to determine whether transcript analysis is a viable means of studying sentencing disparity, or if transcripts will not contain enough data to provide for fruitful investigation of the issue.
Document analysis is often used in combination with other qualitative research methods
as a means of triangulation—‘the combination of methodologies in the study of the same
phenomenon’ (Denzin, 1970, p. 291). The qualitative researcher is expected to draw upon
multiple (at least two) sources of evidence; that is, to seek convergence and corroboration
through the use of different data sources and methods (Bowen, 2009, p. 28).
This study, however, being methodological in nature (that is, testing whether a particular method is appropriate for conducting in a specific issue), will not have alternate sources of evidence, or other data sources. Rather, the themes identified are compared with a variety of factors influencing disparity known to exist via the qualitative literature (e.g., race, age, sex) as identified in the literature review themes to determine whether the transcript analysis was able to detect them. Bowen (2009, p. 29) goes on to state, “understandably, documents maybe the only necessary data source for studies designed within an interpretive paradigm...”
Bowen (2009) identifies five specific uses of documents in research: providing data on the context within which participants operate; suggesting additional questions to be asked or additional situations to be observed; supplementary research data; tracking change and development; and verify findings and corroborate evidence from other sources. As applicable to the current study, documents (transcripts) are being used to provide data on events that can no
49 longer be observed (sentencings), and verify findings and corroborate evidence from other sources (prior scholarship).
Positionality Statement
I work in the federal court system, and am actively involved in the sentencing process.
Through my personal experiences, I have seen significant disparity among judges in the sentencing of child pornography offenders. Disparity is apparent in two of the primary components of a federal criminal sentence: the length of incarceration and the number of years of supervised release. Supervised release is a post-incarceration period of supervision by a federal probation officer. The purpose of supervised release is primarily reintegrative, not punitive. Similarly-situated defendants may receive widely disparate sentences from different judges. In one example, a defendant received a three-month term of incarceration and five years’ supervised release, while a similarly-situated defendant received a thirty-six-month term of imprisonment and ten years’ supervised release. As a member of the judicial system, I would have access to judges and courtroom participants in order to conduct interviews and surveys.
Although this research stems from my employment and personal observations, the issue of sentencing disparity has been studied in enough volume to suggest that my personal observations are not at odds with identification of sentencing disparity as a fertile area for exploration. My personal biases in the research are mitigated by my experiences. That is, having participated in multiple sentencing proceedings of sex offenders, and having supervised them on their terms of supervised release, I am able to quell any visceral response the general public might have when dealing with this type of offender (Crow & Lannes, 2015). The research approach helped mitigate any personal biases in detecting any potential causes of disparity, in
50 that the proposal specifically does not identify a hypothesis. Inductive research enabled the data to lead the results, which helped remove researcher bias.
Employment concerns were no small factor in deciding to subtly shift from trying to analyze sentencing proceedings and determine potential causes of disparity to trying to determine whether transcript analysis can be a viable method for detecting causes of disparity. In other words, I am now trying to investigate why transcript analysis does not appear more often in the child pornography sentencing literature. This shift was essential to avoid looking as though I am
“calling out” judges for imposing disparate sentences. After all, the issue of sentencing disparity has generated volumes of research, some contradictory. It would be difficult if this study were examining sources of disparity to not appear as though I was critiquing the judges—at least there could be that appearance. And, as an employee of the courts, I would not want to damage any working relationships with the court because of those appearances.
Participant Selection (Qualitative)
This study involves transcript analysis, therefore, existing secondary data are used. The court transcripts were selected based on the results of inquries with the United States Attorneys’
Press Office for the federal judicial districts within the Second Circuit (Northern, Western,
Eastern, and Southern Districts of New York, District of Vermont, and District of Connecticut).
The names of defendants for child pornography offenses sentenced between 2017 and 2020 were requested. These criteria primarily 1) time-limited the study so that any impacts of case law changes were reduced; and 2) kept cases within the Second Circuit, so that circuit-specific caselaw was the same for all cases selected. The first twenty responses were selected and transcripts were requested from the Court Reporters’ offices. Twenty cases were selected in an effort to reach a saturation point, enabling a conclusion to be drawn as to whether trancript
51 analysis is a viable method to analyze sentencing disparity, transcript analysis is not a viable method to conduct the analysis, or whether this study is incolclusive as to that question. This study is meant to be a gateway analysis of the question, having identified little-to-no existing scholarship into the question of transcript analysis being used to identify causes of disparity in child pornography cases. The pre-defined geographic area (i.e. the Second Circuit) additionally serves to limit the costs of obtaining transcripts nationally. Further, as this is not a sponsored study, obtaining more than 20 transcripts for analysis would be cost prohibitive.
Access to Data and Data Collection
Upon receipt of IRB approval, the transcripts for analysis were identified by inquiries to the United States Attorney’s Offices for the districts within the Second Circuit. Each office has a press officer, and an online database of their press releases. Searches for child pornography sentencings within the time frame revealed defendants’ names. Using the Public Access to Court
Electronic Records (PACER) system, the docket numbers were located, and requests were tendered for the transcripts of the sentencing hearing. Hardcopy transcripts were converted to
.pdf format for uploading into NVivo; electronically mailed transcripts were saved on an encrypted drive. Identifying information, including any names in the transcript (judge, defendant, attorneys, etc.), docket numbers, or any other information that could identify the case in question was redacted. Although these are publicly-available records, the confidentiality of the parties was protected due to the sensitive nature of legal proceedings.
Data Analysis Plan
The data analysis was informed by Miles’ et al. (2020) discussion of three analysis streams—data condensation, data display, and conclusion drawing/verification, and the iterative nature of qualitative studies. The study attempts to achieve saturation, and thereby adequacy, by
52 examining 20 transcripts of sentencing proceedings and associated documents (Creswell, 1998;
Morse, 1994). Although the study does not use a strictly grounded theory approach, the guidance offered by Corbin and Strauss (1990) informs the analysis in that data collection and analysis are inter-related, coding is used to develop concepts, concepts are used to develop broad categories, particular attention is paid to patterns and variations (and possible explanations for each), and theoretical memos as to emerging concepts, categories, and themes are used to revise any theories developed as the analysis progressed. A line-by-line coding was performed, followed by theme development subsequent to focused coding. NVivo software was used to record, store, and analyze the data, and the software assisted with content analysis. Content analysis, defined in quantitative terms by Berelson in 1954, has been defined by Krippendorff (2019) as, “a research technique for making replicable and valid inferences from texts (or other meaningful matter) to the contexts of their use” (p. 24). Krippendorff (2019) also described content analysis as a research technique that “provides new insights, increases a researcher understanding of particular phenomena, or informs practical actions” (p. 24). Bowen (2009) defines content analysis as “the process of organizing information into categories related to the central question of the research” (p. 32). The content analysis consists of both manifest content analysis (the actual words) and latent analysis (underlying meaning of the words. A second coder was used to ensure any bias by the primary researcher is mitigated, and that the coding/theme analysis is potentially replicable. The coding process is informed by Tesch’s (1990) eight steps in the coding process. Each transcript was read carefully, with basic ideas of potential themes being identified. Then transcripts were chosen for further scrutiny, with an eye toward determining what the transcript is generally about. Next, similar topics were clustered to see if they fit together. The topics, or themes, were given a unique code. Associated topics or themes were
53 combined to show concepts and potential interrelationships. The codes were finalized (and entered into the software). Data fitting each code was assigned within the NVivo software.
Specific coding frameworks involved concept coding (attempting to assign macrolevels of meaning to the data), emotion coding (coding for emotions experienced by the participants), and values coding (participants values, attitudes, and beliefs) (Miles et al., 2020). Bowen (2009), citing Fereday & Muir-Cochrane (2006), notes that “thematic analysis is a form of pattern recognition within the data, with emerging themes becoming the categories for analysis” (p. 32).
The study interpreted themes in order to identify verbal, emotional, or other factors that are influencing judges’ sentencing decisions. In order to show whether transcript analysis was a viable method to determine judge’s sentencing factors, the study utilized a standard coding scheme (Tesch, 1990), and combined different coding frameworks (Miles et al., 2020).
The NVivo software assisted in visualization of themes and determined how often the themes appear. Once themes were developed from transcripts and observations, the data were combined to determine whether dominant themes could be correlated with a particular sentencing outcome. That is, did certain themes tend to indicate a lengthy period of incarceration followed by a lengthy term of supervised release? Or, conversely, were there themes that tend to result in a shorter sentence and period of supervision.
The data were analyzed with two goals in mind: 1) to determine if transcript analysis could detect any themes verbalized by judges or other participants during child pornography sentencing hearings that would indicate whether the defendant would receive a high or low sentence (relative to other sentences of similar type); and 2) whether a transcript analysis could support or refute prior scholarship in the field of general sentencing disparity (i.e. the themes identified in the literature review). As such, the analysis was a blend of several techniques,
54 including successive approximation, where general themes developed into concrete ideas applicable to generalizations, and the illustrative method, where the identified literature themes serve as “empty boxes” and the study attempted to fill those boxes with data obtained from the themes (Neuman, 2011, p. 489).
Throughout the study, beginning with the data collection, data notes and analytic memos were produced, reviewed, filed, and stored. Analytic memos were produced for each theme identified, and reviewed throughout the study in order to link the data to theoretical ideas
(Neuman, 2011).
The interpretation of the data resulted in production of a summary of all findings, comparison of those findings to the existing literature, discussion of a personal view of the findings, and statement of the limitations and future research possible because of the findings
(Creswell & Creswell, 2018). The interrelationship of identified themes was analyzed to determine what impact, if any, themes operating in concert affected the judicial decision. Any themes extracted are beneficial in supporting or refuting results found in existing literature.
Step-by-Step Data Analysis
Step 1: Collect data by obtaining transcripts and other court documents.
Step 2: Ensure data is in .pdf format and is readable by NVio software. Use OCR
(optical character recognition) software to convert any non-compatible files. Use .pdf to redact identifying information in the .pdf file.
Step 3: Load all data into NVivo software into assigned files (by case), using numerical code to identify cases.
Step 4: Clean data by running integrity check within NVivo to ensure all data has been properly converted to read-able format.
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Step 5: Begin coding process with first read of transcripts and initial coding process to identify general themes.
Step 6: Repeat reading of transcripts and look for them development, including concepts, emotions, and values coding.
Step 7: Use NVivo software to assist in determining theme frequency and interrelationships.
Step 8: Determine whether identified themes support or refute themes identified in the literature review.
Step 9: Determine how to most effectively display the data (charts, graphs, matrices, etc.) in order to answer the research question and fulfill the aims of the study.
Trustworthiness
The transcripts for analysis will be purposively selected by attempting, through public case records, to assemble a group for comparison that is as similarly-situated as possible.
Similarly-situated refers to case law (all within the Second Circuit), age (within the time-bounds of the study), and charges (at least one charge must be for possession of child pornography).
Although initially, the study was going to involve cases with only a charge of possession of child pornography, the population was broadened to include cases in which there may be other charges. This change is designed to address the possibility that additional charges are a significant factor in the sentence imposed, and excluded cases with other charges would remove that as an analytical possibility. The results of the research will not be generalized to the general population; rather, as a qualitative study, the results identified themes that may likely be applicable only in similar sentencing situations. A second coder was used to ensure that any researcher bias in coding was mitigated. Coding rules were recorded so that the second coder or
56 subsequent researchers may identify how themes were identified. A research diary was kept in order to document interpretations developed throughout the course of the research. All data obtained was digitized and stored on an encrypted and password protected drive. No identifying information was used.
Limitations to the research have already occurred. Due to the COVID-19 pandemic, the study format has been altered. The original proposal involved combining sentencing transcript analysis with in-person courtroom observations in order to combine observation notes with the transcripts. An analysis of non-verbal courtroom interactions might have provided further data from which to draw conclusions about factors that could be identified via qualitative research influencing judges’ decision-making in child pornography cases.
Transcript analysis relies on accurate transcripts, so any errors made by the court reporters that cannot be detected became part of the analysis. “Documents should not be treated as necessarily precise, accurate, or complete recordings of events that have occurred” (Bowen,
2009, p. 33). Any themes identified or conclusions made as a result of the study are limited to federal judges involved in sentencing child pornography offenders. The results may not be translatable to other types of criminal sentencing. Qualitative research is generally limited to identifying themes that may be transferrable to similar contexts. Qualitative research is generally not meant to be predictive, so this study and its results are limited in applicability only to similar contexts. It does, however, provide useful insight to potential future research studies.
Ethical Procedures
The research method was content analysis of sentencing transcripts, and therefore does not involve human subjects and the attendant ethical considerations. That does not, however, mean there are not threats to conducting the research responsibly. The primary concern was
57 researcher bias being transmitted through the coding and analysis of the sentencing transcripts.
The researcher’s exposure to the sentencing process and employment in the federal courts could have influenced how themes were developed. The researcher may also have substituted existing courtroom process knowledge for data developed by the analysis, and assumed certain conclusions based on knowledge gained through judicial interactions. A second coder independently coding the transcripts should have effectively mitigated bias, as the second coder was not be employed in the legal field. The second coder was able to identify areas where the conclusions were not justified by the data, but rather appeared to be made with the researcher’s personal knowledge instead.
Objectivity was another area of concern. The researcher’s employment at the federal courts, and relationship with judges (who conduct sentencings in the types of cases being examined) could have influenced the interpretation of the data. For example, if the research had been able to identify themes informative as to why judges’ sentences are disparate, it could have been viewed as a negative assessment of judges’ ability to independently do their jobs. In other words, the researcher had to forego concerns about potential employment repercussions and report the data objectively, without taking a position. Moreover, judicial employees must avoid any appearances of favoring either the defense or prosecution. The researcher had to be careful to objectively report the data and draw conclusions without appearing to take a defendant- friendly or prosecutor-friendly stance. Finally, organizational pressures might have been brought to bear if judges or other judiciary members wished to influence the outcome of the research.
However, objectivity without influence should have mitigated any threats (Warwick IER, 2014).
The research also attempted to determine whether transcript analysis is an appropriate method to determine what factors are influencing sentencing disparity in child
58 pornography cases. Fabrication could have been a threat to responsible research if data were invented and inserted into the research record in order to conclusively answer the inquiry.
Similarly, if data were changed or omitted in order to skew the results, falsification could threaten the integrity of the research (Ingham, 2003). All transcripts have been preserved so that subsequent researchers can attempt to replicate the study.
Confidentiality is crucial. Although all transcripts have been obtained through the publicly-accessible federal records system, any identifying information was masked in order to provide confidentiality to the parties in the cases. This confidentiality should also mitigate any threats to objectivity, since any judges who read the study will not know if the study involves them or their colleagues. Here, the confidentiality provides “cover” to the researcher as no judge is being identified and “called out” for their methods. Data were stored encrypted and password protected. All documents were scanned and stored digitally on the encrypted drives. Hard-copies were stored under lock and key, and shredded (cross-cut) at the conclusion of the research.
Ethics in research involves far more than simply human subjects consideration. As described, a myriad of threats to the responsible conduct of research exists in content analysis research. The mitigation strategies in place should have alleviated ethical concerns and rendered a study that has been carried out responsibly.
Summary
This research investigates whether transcript analysis is an effective method to study sentencing disparity. Analyzing transcripts uses content analysis, coding, and theme development to determine if the courtroom interactions as recorded reveal clues as to factors influencing the sentences imposed in child pornography cases, and the disparities in those sentences. The literature and existing scholarship on transcript analysis in these cases is
59 minimal, and this study may help with understanding why. The qualitative methodology allows for inductive analysis and grounded theory approaches in that no preconceived ideas of factors influences disparity were used prior to the content analysis. Due to the researcher’s familiarity with the sentencing process, coding was reviewed by an independent coder not associated with, or familiar with (beyond a layman’s understanding) the criminal justice system, sentencing process, sentencing guidelines, or child pornography cases. The data collection and storage protocols in place guard the confidentiality of the study and security of the research materials. In sum, the study was designed to answer the research question while maintaining validity and adhering to ethical standards expected in scholarly research.
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Chapter 4: Results
This qualitative study was designed to supplement the existing scholarship in the area of sentencing disparity. Existing literature indicates that child pornography cases produce the most departures from the United States Sentencing Commission Guidelines (Crow & Lannes, 2015).
The scholarship into sentencing disparity generally (that is, not specific to child pornography cases) thus far included many quantitative studies (see, e.g., Cross, 2003; Edwards et al., 2009;
Steffensmeir & Britt, 2001; Steffensmeir & Herbert, 1999; Wu & Spohn, 2010). Qualitative studies included, among others, those using interviews (Garton, 2010), those using surveys
(Bumby & Maddox, 1999; Pettalia et al., 2017), and those using coding of the transcripts (Lewis et al., 2014; MacMartin & Wood, 2005). Studies involving coding of transcripts, or content analysis, were conducted in an effort to confirm a predetermined hypothesis of what was causing disparity. This study sought to determine whether factors influencing disparity could be detected inductively, in order to answer the research question: are there factors present in federal child pornography sentencings influencing sentencing disparity, that can be detected through transcript analysis? This chapter begins with an explanation of the documents analyzed, then proceeds into a discussion of the codes used and themes identified.
Source Materials
The documents used in this study were obtained through the Public Access to Court
Electronic Records (PACER) system of the United States Courts. After determining though the press release sections of the U.S. Attorney’s Offices’ websites for the districts within the federal
Second Circuit (District of Vermont, District of Connecticut, District of Northern New York,
District of Southern New York, District of Eastern New York, District of Western New York) the names of defendants convicted of child pornography possession between 2016 and 2020, the defendant’s name was entered into PACER to locate the court docket associated with the
61 defendant. In many cases, a transcript of the sentencing hearing was readily available in .pdf format on the docket, and merely required the payment of the document fee and direct download.
In other cases, the transcript had to be ordered through the Court Reporter’s office. A mix of cases was obtained, with at least one case from each of the districts within the circuit. All identifying information was redacted, including court location, docket number, and names of any party involved (judge, lawyer, defendant, etc.). All were loaded into NVivo 12 software for analysis. Selected cases each included, at minimum, a charge of Possession of Child
Pornography, in violation of 18 U.S.C. § 2252, or 18 U.S.C. § 2252A. Cases containing other charges were not excluded, because the existence of additional charges might in itself be detected as a reason for a particular sentence.
Initial Coding
The initial manual coding utilized descriptive coding for “identifications of the topic,”
(Tesch, 1990, in Saldaña, 2016, p. 102), and resulted in identification of 19 nodes (Table 1).
During manual coding, phrases, sentences, and paragraphs relating to a node were highlighted and assigned to the node. For example, if any party (judge, prosecutor, defense lawyer, defendant) made reference to the sentencing guidelines as a factor for imposing a particular sentence, then the phrase would be assigned to the “Guidelines” node. If any party spoke about remorse or associated words (“sorry,” “can’t undue the hurt”), then the phrase was assigned to the “remorse” node. The portions of the hearing analyzed and coded included any statements or remarks made by the defendant, defense attorney, and prosecutor. The judge’s monologue explaining the sentence and the reasons for it was also coded. It is important to note that mere mention of a characteristic as a rote description was not coded. The characteristic must have been highlighted to tie into the reason the characteristic impacted a reason for the sentence. For
62 example, a judge giving a summation of a defendant and saying, “we have a 23-year-old male, working full time, and attending school” would not be coded for age, work, or school. However, a judge saying, “we have a young man who is only 23 years old, still navigating the early stages of life, not yet fully developed...” or, for example, “the defendant is 23 years old, and any sentence I impose will result in him still being released early enough to have a successful life” was coded because the mention of age was specifically tied into the reasoning.
The data set included varying levels of robustness. In some cases, the parties relied very heavily on written submissions (sentencing memoranda and briefs), and spoke little except to rely on their written submissions. In other cases, the parties delivered a robust argument for a high or low sentence. Judges either verbalized enough information to meet the requirement that they state their reasons on the record, or transitioned to soliloquy, explaining their thoughts in near-granular detail.
Table 1
Top Five Initial Nodes in Frequency
Node Name References
Description of the offense 88 Mental health treatment, sex offender treatment, risk of reoffending 85 Remorse 33 Guidelines 29 Pretrial rehabilitation/performance on bail 21
Second Round Coding
After the initial coding, a pattern coding method was used to group the initial nodes “into a smaller number of categories, themes, or concepts” (Saldaña, 2016, p. 236). Miles et al.(2014) have identified that pattern coding is appropriate for “the search for rules, causes, and
63 explanations in the data” (cited in Saldaña, 2016, p. 236). Second round coding resulted in the identification of three major themes and their corresponding sub-themes. Multiple nodes that were initially identified were determined to be significantly related such that they were combined into one theme. Other nodes were left as subordinate themes beneath a major theme. The themes were developed based upon the coding found in the transcripts. However, the thematic topics were chosen to account for Albonetti’s (1991) causal attribution theory, Steffensmeier’s
(1998) focal concerns theory, and Savelsberg’s (1992) and Richardson and Vine’s (1970) democratic subcultures theories.
Table 2
Second Round Coding, Major Themes and Sub-themes
Major themes and sub-themes
Defendant Characteristics Acceptance of responsibility & remorse Age, Education, Employment, Family Mental health/sex offender treatment, sex addiction issues, risk of reoffending Pre-sentence rehabilitation, pre-trial release compliance Prior criminal history
Offense Characteristics Scope/seriousness of offense, impact of the offense Specific aggravating factors (not including physical contact) Physical contact
Legal Factors Deterrence (specific to the defendant, and general) Guidelines Mandatory minimum sentence required
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Theme 1: Defendant Characteristics
The major theme of defendant characteristics captures attributes about a defendant that were identified as being important to the sentencing process, or the particular sentence imposed in the case. These characteristics include demographic information (if mentioned), employment status, family and marital status, family support systems in place, prior criminal record, and acceptance of responsibility/remorse. Items within this theme are strictly descriptions of the defendant—not the offense in question, any victims, or legal factors involved in the case.
Subordinate Theme 1: Acceptance of Responsibility and Remorse. This sub-theme highlights whether the defendant accepted responsibility or showed remorse for the offense in question. For example, in transcript 092659, the defendant, speaking to the judge, says,
Your Honor, I wish I had some elaborate excuse for my behavior, but the truth is I'm
100% responsible. I broke the law, legally and morally, ethically, you name it. I fully
acknowledge to possessing child pornography.
And from transcript 401774, the defendant, speaking to the judge, says, “And I would like to apologize with all my heart for the things that I've done and to who I have affected negatively.”
Subordinate Theme 2: Age, Education, Employment, and Family. This theme is intended to capture demographic and descriptive information if it appeared to play a role in the judge’s decision, or in the attorneys’ decision to bring it to the judge’s attention. This does not include the part of a sentencing hearing where a judge may run through a description of the defendant by summarizing the presentence investigation report. Rather, this sub-theme identifies the information if it was verbalized to bring attention to the information itself. For example, a defense attorney in transcript 8625914 highlighted his client’s age to argue for a lesser sentence:
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And studies have shown -- I have probably made the argument before this Court before --
that the cerebral cortex, the part of the brain that is responsible for decision making isn't
fully formed, especially in males, until the age of 25. Of course, that doesn't begin to
excuse any kind of conduct, but I think it does demonstrate that by the time he gets
released from prison, he's literally going to be a different person.
And in transcript 8592113, the sentencing judge referenced the defendant’s family as a mitigating factor, “you obviously have a lot of family support and I think that goes a long way at reducing any risk to the community from future conduct.”
Subordinate Theme 3: Mental Health Treatment, Sex Offender Treatment, Sex
Addiction Issues, Risk of Offending. This sub-theme captures whether a defendant has been engaged in treatment, has been diagnosed with an addiction or other mental health issues, and the effect of such issues and treatment on the risk of reoffending. Risk of reoffending was placed within the Defendant Characteristics major theme rather than the Legal Factors theme because, even though the risk of recidivism and deterrence are related, the transcripts revealed that they are addressed separately. Because risk is tied directly to the defendant, it was placed under the
Defendant Characteristics theme. For example, in transcript 8592113, the sentencing judge remarked that based on his treatment, the defendant, “shows some significant insight into the issues and shows that this is something that he takes quite seriously and has benefitted significantly from.” In transcript 8625914, the sentencing judge references disclosures made by a defendant during sex offender therapy,
But the information that the government's alluded to and that the Court is aware of that's
in the report came from him directly. And I feel that that is very, very important,
particularly in the event that mental health treatment is necessary. I do not like to hold
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that information against an individual. I feel it's more helpful, for purposes of
rehabilitation and treatment, and will go a long way in helping him deal with these
demons that he has to deal with, which I think is very, very unfortunate. And the fact that
he did that, I feel that a sentence a little below the guideline range is a fair and reasonable
sentence
Subordinate Theme 4: Pre-sentence rehabilitation, pre-trial release compliance.
This sub-theme captured references to a defendant’s efforts at becoming a productive member of society if released on a bond. This theme does not incorporate references to treatment, testing, therapy, or risk, as those are captured in the previous sub-theme. For example, in transcript
092659, the sentencing judge is describing the efforts the defendant has made to earn his GED, become a recovery coach, and otherwise better himself, “I think both Probation and your attorney have characterized your conduct as exceptional, and I would have to agree with that.”
And, from transcript 02442, “You did an exemplary job while you were on pretrial release, it demonstrated something to this court about your willingness to address your issues, and that is important.”
Subordinate Theme 5: Prior Criminal History. Although a sentencing court must account for the prior criminal record of a defendant, which is captured within the sentencing guidelines, this theme developed as it became clear in many cases a defendant’s lack of prior record, or existing record, was highlighted to the court as a sentencing argument, or articulated as a specific factor contributing to a particular sentence. For example, in transcript 8625914, the defense lawyer is highlighting the following, “criminal history is absolutely zero. He's a criminal history category I. He's never been convicted or even charged with anything in his entire life.”
And, as in transcript 05965a, the judge states, “There's a prior conviction in the state for which
67 you got a term of probation, but that makes your returning to it, your second offense, this offense, it makes you more culpable by virtue of the fact that you've already had your wakeup call. You went through the system, you went through court proceedings, you were sentenced by a judge, you knew all of that, and that should have had an impact, and it didn't. And it makes you more culpable.”
A defendant’s criminal history of course is relevant to a judge’s sentencing decision. In this study, a defendant’s prior sexual offense, as highlighted in the above quote, was not segregated from discussions of prior general offenses. This is a possibly area for further research, as will be discussed in Chapter Five. However, this research did not set out to answer the question of associations or impact on sentencing disparity—rather, the research was meant to determine if potential causes of disparity could be detected through transcript analysis. Because the transcript analysis detected a judge’s focus on a prior sexual offense as part of the judge’s sentence justification, the answer is “yes.” But because the strength of any influence of a prior sexual offense is beyond the scope of the research, such examples were combined with any prior offenses (if mentioned as part of the reason for a sentence), and included in Subordinate Theme
5: Prior Criminal History.
Theme 2: Offense Characteristics
This theme developed as it became clear descriptions of the offense were being highlighted by all parties during the hearing. The three primary subordinate themes include descriptions of the offense itself, highlights of the impact, scope, and seriousness of the offense, specific aggravating or mitigating factors of the offense, and whether an allegation of physical contact of a minor was part of the offense or some prior offense.
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Subordinate Theme 6: Scope/Seriousness of the Offense, Impact of the Offense. This sub-theme contains phrases used to describe the offense on its own, describe it relative to other offenses, and describe the impact the offense has had on the victims or community. For example, in transcript 401774, the judge, when telling the defendant why a certain sentence was being imposed, described the conduct as “vile pornographic images,” “vile and disgusting,”
“Unacceptable in every, every aspect of life, what you did,” and,
Not only are you asking for disgusting, pornographic images, but you are consistently
asking your victims to show you their faces, as well as their genitalia, and you're
constantly asking these children to place items into their vaginal area. And that's
consistent throughout.
In transcript 092659, the sentencing judge says this,
What people are really viewing is children being sexually abused for their own sexual
gratification. I know you appreciate that, but not everybody does. And the reason why we
have this offense, child pornography, to begin with is because there's a market for it.
In transcript 8625914, the judge says,
I don't think there's any cases that a judge has for sentencing that are more difficult than
cases involving child pornography.
And in describing the impact the offense will have on the defendant, the defense lawyer points out to the judge, in transcript 8592113,
He is probably a sex offender for the rest of his life. As you know, level one is currently
20 years. A lot of these cases are scored as level two simply because of the number of
images they consider individual victims. So to carry that burden for his entire life is very
significant.
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Subordinate Theme 7: Specific Aggravating Factors. This theme developed as phrases and descriptions of the offense were used that highlighted specifically why a particular case was perceived to be especially egregious. For example, this statement from transcript
401774,
Of note, in an apparent attempt to obtain sympathy from the minors to produce and send
him pornographic images of themselves, the defendant told many of the minors that he
was suffering from cancer and was undergoing surgery to remove cancerous tumors.
Also, he utilized these false assertions to induce minors to produce pornographic images
and videos of themselves.
Subordinate Theme 8: Physical Contact. This theme developed as it was discovered that lawyers were highlighting whether or not a defendant had physical contact with a minor as either a mitigating or aggravating factor. For example, in transcript 06546, the “physical contact” descriptor is used as a mitigating factor,
...that this individual has never had hands-on contact or has had any contact over the
Internet with minors -- we believe that to be true and have no reason to disbelieve that.
Contrasted with transcript 8625914, where “physical contact” is highlighted as an aggravating factor,
this is not a run-of-the-mill ordinary possession of child pornography case. The
defendant's history and characteristics reveal that he has sexual attraction to minors and
that he engaged in sexual contact with minors on numerous occasions throughout his life.
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Theme 3: Legal Factors
This theme developed as the transcripts revealed the parties were highlighting issues related to deterrence, guidelines, mandatory minimum sentences, and other legal factors in the proceedings.
Subordinate Theme 9: Deterrence. The concept of deterrence was sometimes combined with assessment of the defendant’s risk to commit a similar offense. However, deterrence was divisible enough from those cases, that when combined with deterrence as a standalone topic, it was appropriate to create it as its own sub-theme. In transcript 092659, the judge, considering a request for a non-incarcerative sentence, spells out why incarceration is necessary,
And the reason why I think that, there has to be some period of incarceration not just for
you, but for others to know there's penalties for this and this conduct. Maybe we can stop
it if people realize you can't just say you're sorry and walk away and even take actions to
prevent that in the future. There's some penalty for this.
Similarly, in transcript 8592113, the judge states,
...one that deters you and others from engaging in this activity in the future. I think to
impose a sentence that does not include some period of incarceration would not be
appropriate or send the right message to individuals. So I'm not going to impose a non-
incarceration sentence.
And in transcript 8625914, the defense lawyer highlights the deterrent effect the entire process should have on his client,
Judge, the second reason is the microscope. And he's going to be on supervised release
for a long period of time. He's going to be in jail, detention, prison, most likely for a long
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period of time, so he will be under a microscope for the remainder of his life. And
studies have shown that that microscope, the certainty of being caught, is actually a better
deterrent than any kind of prison time. So, certainly [xx] now knows there is absolutely
zero chance that if he ever re-offends in any kind of fashion, he's going to be going back
to jail for an extremely long time.
Subordinate Theme 10: Guidelines. This theme developed primarily as the parties referenced the sentencing guidelines as being inappropriate in the cases. This sub-theme does not capture the mandatory discussion of the guidelines calculation required by 18 U.S.C. § 3553; rather, it captures specific references to the guidelines as a justification for a particular sentence.
For example, in transcript 926511, the judge states that the guideline range is too high,
I do believe that a guideline sentence under either the level 30 or even under level 26 is
far beyond what is necessary in this particular case. Therefore, the Court feels a
downward adjustment is appropriate.
And in transcript 8592114, the judge similarly states,
Bottom line is although the guidelines would call for a sentence between 97 and 121
months, I believe that that is far beyond what needs to occur in this particular case.
In transcript 04324, the sentencing judge states, “At the same time, the guidelines sentence is way too long. I think because it is the result of politicians picking numbers out of thin air rather than the procedure that the Sentencing Commission follows.” However, in transcript 02442, that sentencing judge advised, “I will note that because of the nature of this type of crime, this court has rarely varied from recommended Guideline ranges.”
Subordinate Theme 11: Mandatory Minimum Sentence. This theme developed as the parties highlighted whether the case had a mandatory minimum sentence attached. Identifying this
72 theme is important because judges lose significant discretion in sentencing when a mandatory minimum sentence attaches. Identifying these cases directly impacts the analysis of the disparity if the judges’ options are limited.
However, in this example, the sentencing judge made clear the mandatory minimum sentence was not constraining the sentence,
The minimum sentence here is 120 months. I don't think that is sufficient to meet the
criteria for sentencing, which includes considering the seriousness of the offense here,
which is outrageous continuous conduct; your history and character; a sentence that's
necessary to deter you and others from engaging in this type of activity in the future, but
not something that's greater than necessary to accomplish the purpose of sentencing.
Theme Statistics
Figure 1 shows a summary of the references made to the themes and primary sub-themes identified. NVivo software was used to tally the results for each theme and sub-theme. Only the manually coded phrases were tabulated. Extraneous information and dicta within the sentencing transcripts were excluded from the coding process and NVivo analysis.
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Figure 1
Themes and Sub-ordinate Themes
74
Results Summary
The use of a blended theoretical framework based on multiple theories of sentencing disparity allowed for coding of many factors. Albonetti’s (1991) causal attribution framework allowed for coding of information related to a defendant’s prior record, bail outcomes and use of a weapon. In this study, a defendant’s having physical contact with a victim (charged as a separate offense or not) was coded due to the increased seriousness of the offense versus those where physical contact is not made. Steffensmeier et al.’s (1998) focal concerns theory informed the coding related to blameworthiness of the defendant, community protection (in this study,
“deterrence”), disruptions to the defendant’s family should incarceration be ordered, and the defendant’s health issues. And Savelsberg’s (1992) framework allowed for coding of sentencing guidelines issues in addition to the defendant’s characteristics. As highlighted within the literature review, and having conducted the study within the blended theory framework incorporating several approaches to sentencing disparity research, it is apparent that themes developed inductively tend to fall into the themes identified by prior literature as influencing sentencing disparity. Therefore, the research question is answered affirmatively. That is, there are factors present in a child pornography sentencing that contribute to disparity that are detectable via transcript analysis. Notably, however, there were no transcripts in which factors relating to a judge’s characteristics were detected. At no point in any of the sentencing interactions analyzed were references made to a judge’s sex (other than a “yes ma’am, yes sir” response), judge’s race, or other characteristics.
The Law and Policy Review in Chapter One discussed the tension between the sentencing statute at 18 U.S.C. § 3553, which mandates judges to consider the sentencing
75 guidelines, and the several court cases directing that the sentencing guidelines should not be presumed to be reasonable. Additionally, the Second Circuit case of United States v. Dorvee
(2010) instructs sentencing judges within the Second Circuit that the guidelines related to possession of child pornography should be applied carefully because they might overstate the seriousness of the offense. Dorvee, the child pornography guideline, and its issues were referenced at least 29 times in 15 of 16 transcripts. Mandatory minimum sentences for some of the offenses appeared to run counter to the sentence the judge wanted to impose. As the judge in transcript 06546 stated, “it doesn’t matter what I think, this is a case of mandatory minimums...”
The results showed, in some cases, the sentencing judge weighing the factors required under 18
U.S.C. § 3553 and the sentencing guidelines, and trying to find a balance between sentencing based on the offense(s) and sentencing based on the individual. For example, in transcript
13314, the judge tells a defendant,
And you got yourself in a situation that ended up constituting a felony crime, and you're
in Federal Court being sentenced for it. I think there is an argument that certainly could
be made that to serve all of the purposes of sentencing set forth in the Sentencing Reform
Act that you should serve some time in prison. I also think arguments could be made that,
you know, in the end, is that going to do more harm than good. And where I come out,
I'm not going to send you to prison. I'm going to put you on a lengthy supervised release
term.
Whereas in transcript 54309, that judge felt is necessary to highlight the need for punishment explicitly, “It needs no explanation to understand the significant and lasting harm that child pornography has caused the victims in this case as well as other cases. The conduct displayed in the images and videos on the defendant's computer is deserving of punishment as those who
76 promote or market such images or videos or those who view them.” The two approaches highlighted in these results will be interpreted in the next chapter, but certainly policy concerns arise—or at least indicators of the potential for significant sentencing disparities—when different sentencing judges are focused on different purposes of a criminal sentence.
77
Chapter 5: Recommendations and Conclusions
Summary of Study
Prior research into the issue of sentencing disparity is robust, but the primary focus of existing research involved quantitative studies and use of preconceived themes and codes. A gap in inductive theme development was apparent. Although transcript analysis appeared in the literature on judicial decision-making, the relative lack of reliance of transcript analysis in disparity research justified an examination into the viability of using transcript analysis to detect causes of disparity. This study has shown that transcript analysis has the potential to effectively detect potential causes of sentencing disparity.
This study was originally intended to combine in-person courtroom observations with analysis of the transcript of the proceeding in order to determine if certain words, phrases, or concepts could be detected as having caused a reaction from the judge, and thus be identified as a potential source of sentencing disparity. The intention was that such a study could determine whether keywords, concepts, or legal approaches were influencing judges significantly enough that strategies could be proposed to mitigate their impact and lessen sentencing disparity. Child pornography cases were chosen because of the researcher’s experiences with child pornography sentencing proceedings, and because, as highlighted by Crow and Lannes (2015), child pornography cases have the highest rate of departures from the recommended sentencing guidelines of all federal criminal cases.
Unfortunately, the COVID-19 pandemic prevented any in-person observations or courtroom interactions. The study developed into a content analysis of sentencing transcripts in order to determine whether causes of sentencing disparity could be detected by inductive analysis. This study, therefore, became a methodological study to determine whether transcript analysis could be used in sentencing disparity research. “Any study that describes or analyzes
78 methods (design, conduct, analysis or reporting) in published (or unpublished) literature is a methodological study” (Mbuagbaw et al., 2020). This research examines the transcript analysis approach to studying the issue, and therefore meets a purpose of methodological studies—that is, to “analyze methods in primary or secondary studies” (Mbuagbaw et al., 2020).
The purpose of this exploratory qualitative study was to determine whether there are factors present in child pornography sentencings in federal courts that can be identified via transcript content analysis, which are contributing to sentencing disparity in those types of cases.
By engaging in the research, this study also determined whether transcript analysis is an effective method by which to identify potential causes of sentencing disparity (generally). The following research question developed: are there factors present in child pornography sentencings in federal district courts that can be identified via transcript analysis that are contributing to sentencing disparities in those cases?
The literature review found that most of the existing research tended to fall within three primary themes addressing factors influencing disparate sentences: judges’ characteristics; legal factors; and offender characteristics. Judge’s characteristics included the demographics of the judges and their perceptions of the case before them. Existing literature has found that sentencing disparity can be impacted by factors attributable to the sentencing judge, such as the judge’s race
(Steffensmeier & Britt, 2001); the judge’s gender (Steffensmeier & Herbert, 1999); and whether the judge has daughters (Glynn & Sen, 2015). Further, Lewis et al. (2014) determined that judges tend to sentence defendants with multiple offenses, or crimes against young children more harshly. Legal factors included the sentencing guidelines, statutory factors (including whether a mandatory minimum sentence is required), and court procedures. Existing literature in the area of legal factors has shown that inter-district disparity in and of itself contributes to the overall
79 issue in that which district a defendant is sentenced in can influence the length of the sentence.
Edwards et al., (2019) found that sentencing guidelines (state) changing from presumptive to voluntary tended to moderate judges’ sentences, except in the most extreme sentencers. Legal factors (the law and rules of the court) influence the sentences imposed, with Crow and Lannes
(2015) finding that sentencing guidelines and inconsistent application of departures in child pornography cases significantly contribute to disparity in these cases.
Offender characteristics primarily included demographics of the offender. The literature in this category found some conflicting information. For example, McCormick, et al., (1998) found that offender characteristics (including their criminal history) and demographics were not predictors of sentence length. Wright’s (1995) dissertation work quantitatively and qualitatively analyzed child sexual abuse cases. Wright (1995) transcribed the judicial opinions and conducted content analysis to extract themes. Her analysis of type of abuse, age of the child, age of the offender, and sex of the victims found that none of the factors tested were statistically significant in predicting the sentence imposed. Wright’s (1995) analysis found that judges tended to emphasize an offender’s character and work record over the offense conduct and harm to victims. However, van Wingerden, et al., (2016) explored prior research on sentencing disparity, and found, contrary to some of the findings noted above, that generally, offender age, sex, and race are significant determinants of sentences. Of course, not every study noted fell within only one theme. Most of the prior research used a quantitative analysis to determine whether there was a statistically significant difference attributable to the factors being studied.
Cross (2003) empirically tested four theories of judicial decision-making (legal, political, strategic, and litigant-driven) and found that the legal model primarily explained judicial decision-making, with the others having little-to-no significance. However, Cross (2003)
80 acknowledged that quantitative measurement was not a perfect way to measure, and that specific studies at a more micro level may provide clearer results.
Summary of Law and Policy Considerations
The law and policy review revealed that the federal sentencing rules, governed by 18
U.S.C § 3553(a), require federal judges to consider a variety of factors—one of which is the need to avoid unwarranted sentencing disparities. Another factor, the recommended sentencing guidelines, must be considered by the sentencing judge, but the judge is not required to adhere to them. And the Second Circuit’s caselaw in United States v. Dorvee specifically instructs judges to use caution when considering the recommended guidelines in child pornography cases.
Essentially, the sentencing statute, recommended guidelines, and caselaw have created a sentencing scheme wherein judges have significant discretion to weigh whatever factors the statute allows as they see fit. Although the law requires judges to avoid unwarranted sentencing disparities, there is no consistency defining what constitutes “unwarranted” disparity. And, although the law requires judges to consider the sentencing guidelines, caselaw (at least within the Second Circuit) instructs judges to use caution when considering the guidelines in child pornography cases. Supreme Court precedent further dictates that, although the guidelines must be considered, they should not be presumed to be reasonable.
Methodology and Method
Sentencing transcripts from within the Second Circuit were obtained after identifying any cases wherein the defendant was charged with Possession of Child Pornography. This study used 16 transcripts obtained directly from the docket or ordered from the Court Reporter. This study did not exclude cases containing other charges, nor was there an attempt to select cases as similarly-situated as possible. This is because the existence of additional charges may in itself
81 explain what appears to be disparity. Further, because the intent of the study is not to measure the strength of causes of disparity or identify associations among factors, rather, the intent was to detect possible causes of disparity, the cases need not have been perfectly similarly situated.
An initial round of manual coding identified nodes to be created within the NVivo software. Transcripts were coded, with words and phrases appearing to be a focus of a sentencing argument (by the lawyers or defendant) or sentence justification/explanation (by the judge) entered into the nodes. The codes were developed inductively, with no a priori codes being developed or used. That is, on a line-by-line basis, a code was generated to fit the word/phrase identified as being important to the sentencing proceeding. Descriptive codes were then reviewed to determine whether they fit in similar categories, after which themes and sub- themes were developed.
The theoretical framework, which is a blend of multiple frameworks, was instructive to the types of codes created. Steffensmeier et al.’s (1998) focal concerns theory informed the coding related to blameworthiness of the defendant, community protection (in this study,
“deterrence”), disruptions to the defendant’s family should incarceration be ordered, and the defendant’s health issues. And Savelsberg’s (1992) framework allowed for coding of sentencing guidelines issues in addition to the defendant’s characteristics. With the theoretical framework defining the general parameters, the codes and themes that developed during the analysis were compared to those identified in the literature review.
Summary of Results
The themes developed from transcript analysis (offender characteristics, offense characteristics, legal factors) generally trended in line with those identified in the literature review (judges’ characteristics, offender characteristics, legal factors). The “offense
82 characteristics” theme developed during transcript analysis was developed as its own theme, rather than as a sub-theme of “legal factors” because the analysis suggested that the discussion of the offense itself was often a significant component of the sentencing hearing. Notably, “judges’ characteristics—demographics” did not develop as a theme during the transcript analysis. On consideration, it makes sense that characteristics of judges would not develop as a theme, because many of the judges’ characteristics would not be discussed during a hearing. For example, although Steffensmeier and Britt (2001) found that judges’ ethnicities influenced how they sentence, transcript analysis would not be able to detect the ethnicity of the judge. It would be unusual for any party to refer to a judge in such a way as to identify their ethnicity.
Therefore, transcript analysis is not able to detect this case of disparity. Further, although
Steffensmeier and Herbert (1999) found that judges gender appeared to impact sentencing disparity, a judge’s gender would not be detected in a transcript analysis. Certainly, if the judge’s name appears on the transcript, or if a party refers to the judge as “ma’am” or “sir,” the judge’s gender would be detected, but it would not be evident except in those circumstances.
Research such as the work of Glynn and Sen (2015), which found that judges with daughters tended to decide along a feminist ideology, would not be confirmed via transcript analysis, as a judge’s child status would not normally arise as part of a sentencing hearing.
Information concerning the religion, ethnicity, political affiliation, and similar characteristics of the defendant or judge may not be detectable via transcript analysis. Those characteristics would have to be specifically mentioned as part of the argument by the lawyers, or the reason for the sentence as verbalized by the judge. However, the limitations of transcript analysis to detect causes of sentencing disparity along themes identified in the literature review appear to be primarily associated with judges’ demographics. Other factors identified as
83
“judges’ characteristics” in the literature review are detectable, as the results indicate. For example, Lewis et al. (2014), found that longer sentences were associated with defendants who committed multiple offenses. In this study, the “description of the offense” theme captured discussions related to the offense as a whole (not only the Possession of Child Pornography charge), and therefore captured a party’s emphasis on any other offenses that were committed.
The “criminal history” theme captured a defendant’s prior criminal background, and the extent to which a judge accounted for it in the sentence imposed. Also assigned to the “judges’ characteristics” theme in the literature review, MacMartin and Wood’s (2005) use of discursive psychology to determine motives in sex abuse cases, found that judges used defendant motives as both a mitigating and aggravating factor. This could be detected via transcript analysis, and in this study, any such statements would have been coded and assigned to the “description of the offense” theme. Bumby and Maddox’s (1999) work identified that judges have difficulty balancing the retributive and rehabilitative effects of sentencing. Comments related to this type of research were detected in this study, and assigned to the “legal factors” theme, as a required consideration under the sentencing statute at 18 U.S.C. 3553.
Discussion of Results and Theoretical Framework
Not surprisingly, the results support the theories used as the theoretical framework for this study. By utilizing the multiple theories as the framework, any factor believed to be used as a factor in sentencing could be coded with little-to-no limitation. Heider’s Attribution Theory, as refined by Albonetti (1991), posited that judges primarily attempt to forecast and make sense of an offender’s behavior, performance during pretrial release, prior record, and their likelihood to recidivate. The following, assigned to the “risk” node, highlights this judge’s thought process, supporting Albonetti’s (1991) theory:
84
The counselor here, somebody who is well-respected, and assesses you as a low-risk
offender... I was a County Court judge for 12 years, that's what I did was I assessed
individuals for their risk to the community on different levels. Based upon what you've
done, you have certainly minimized that risk; you haven't eliminated it, but you
minimized that living. That's all going to be important to the Court's decision. . . I think
your risk is low in this case, and that gives this Court a lot of comfort (transcript
092659).
And from transcript 8592113:
Quite frankly, I don't understand why people would view these and get any gratification,
but I think you understand you've got an issue or problem and to your credit you're
dealing with that and you need to continue to do that. That's going to be the most critical
part of any sentence the Court imposes.
And from transcript 002440:
You did an exemplary job while you were on pretrial release, it demonstrated something
to this court about your willingness to address your issues, and that is important.
But many judges did not focus specifically on the factors identified by Attribution Theory. And, although some factors might be closely related, this study used the Focal Concerns Theory to code for other perceptions of sentencing judges. Steffensmeier et al.’s (1998) Focal Concerns
Theory, focusing on the judges’ perceptions of a defendant’s blameworthiness, practical considerations, and community protection via incapacitation and deterrence, was also supported by the themes that developed and the specific language detected within the transcripts. For example, from transcript 05935:
85
Finally, the most important factor in sentencing this defendant is the need to protect the
public from the defendant. While I appreciate the expert's opinion that there is
somewhere between a low risk and a moderate risk that you will be a recidivist, the harm
that will follow if you do not is substantial; and, therefore, that factor weighs heavily in
the determination of an appropriate sentence.
And suggesting a focus on the blameworthiness of the defendant despite mental health concerns, and community protection and deterrence, from transcript 05975:
But I do think the fact that there is a prior conviction here does speak to the need for
some deterrence, specific deterrence. And Dr. [xxxxx] statements, I think, confirm that
for me, suggest that some period of incarceration is appropriate, to send that message.
And the other factor that I think really does stand out for me is just punishment. There is
a risk of that, but it's hard to assess what that is. I do think that this is a serious crime, and
even with all the challenges, with all the diagnoses, and empirically recognized issues
that Mr. [xxxxxx] has cognitively, and socially and emotionally, nonetheless, I do think
that there needs to be some punishment here.
Additionally, the judge in transcript 000400 lays out several aggravating factors supporting the reason for the sentence:
In terms of aggravating circumstances, number one, the number of images is large. It's
reflected in the guidelines, but it is a very large number of images and they also involve
really offensive material. Sadistic, you know, infants to six years old, et cetera,
approximately, and these are just outrageous images. Second, this is aggravating because
of the contact with the child. This is a child of the girlfriend of the defendant in which
86
he rubbed her vagina. You have the combination of both the possession of images, but
together with actual physical contact and that makes this I think extraordinarily serious.
As noted previously, the existence of mandatory minimum sentences has been shown to frustrate a sentencing judge, which fits in to the tension created by the rules and processes and democratic considerations in Richarson and Vines (1970) theory. And frustration with the sentencing guidelines, and the Second Circuit’s caution when considering them, supports Savelsberg’s
(1992) theory that the guidelines, ostensibly meant to mitigate sentencing disparity, face significant hurdles to effective implementation. In transcript 0859218:
These guidelines have been constantly under revision and review and attack because
some don't make sense anymore, particularly the use of a computer, two-point
enhancement for that. I don't think you can do anything today without a computer.
Everything is a computer: The phone, iPads, almost anything people utilize are
computers. So I'm not sure that is one that should be given much, if any, weight. I have to
apply it because it is a guideline that exists at this time.
And in 140585:
Three, the need to avoid unwarranted sentence disparities. I think I have been consistent
in this Court in sentencing child pornography offenders to below guideline sentences.
The guidelines no longer seem to be accurate or are, what would be the right word,
reliable in this particular area.
These theories were blended as the framework for this study. It is important to show that the literature in sentencing disparity is robust, and the theories developed from the literature are varied. This study has shown that transcript analysis, as a method, can detect the factors
87 influencing disparity, as posited in these theories, with some limitation, as will be demonstrated in the conclusion.
Conclusions
The findings in this study reveal that transcript analysis can be used to detect factors that influence sentencing disparity, with limitations. This research illuminated that transcript analysis can detect themes that are already known to have an impact on sentencing disparity. However, because of the inductive nature of the coding and theme development process, it is possible that transcript analysis might be used in the future to attempt to determine causes of disparity in limited settings. For example, if a researcher wanted to determine why different judges appear to be disparate in their sentencing, transcript analysis might highlight what each judge is focused on. The themes would likely be detectable and would offer clues as to how important the judges view the factors in their process.
Transcript analysis was able to detect the issues highlighted during child pornography sentencing proceedings. The themes developed generally tracked with the existing literature on the subject, and with the theoretical framework developed by using existing theories of sentencing disparity. The study also showed that law and policy concerns continue to exist, as judges experience the tension between the sentencing statute requiring an individual assessment of the defendant, and the need to avoid unwarranted disparities in sentencing. Further, the
Circuit-specific case law (U.S. v. Dorvee) advising judges to use caution when considering the child pornography guidelines was detected as a consideration (and sentencing argument) from the prosecutor, defense counsel, and judge.
Although this study did not by its nature produce suggestions for policy revisions, it does lend itself to suggestions for future research in the area of sentencing disparity. Future
88 researchers may wish to conduct a study matching the original aim of this research—combining transcript analysis with in-person observations to track non-verbal reactions from the judges in order to determine what effect certain phrases, words, concepts, or themes might have on the judge’s reasoning. Garton’s (2010) dissertation work would likely be helpful in this area.
Results from a study of this nature might detect emotional triggers during sentencing proceedings (that judges might not even be aware of), and could lead to the development of mitigation strategies so that sentences are less disparate.
Future researchers might consider analyzing sentencing transcripts using word counts to create comparisons between themes in an effort to determine which themes were dominant, as measured by word count, (and ostensibly more impactful) in the sentence determination.
Transcript analysis could be performed using more robust coding, to include emotion coding, in an effort to examine themes through an emotions lens. This could result in identification of themes and concepts that are important to the parties, or impactful to the sentencing judge. The research not include in-person observations, so would rely only on language. Existing literature on discursive psychology would be important to review for a study of this nature.
Transcript analysis could be combined with a quantitative study to support the conclusions of the quantitative study. Although transcript analysis would not be useful in studies involving racial or ethnic disparity, it could be useful when examining disparity associated with other defendant characteristics. For example, future researchers might wish to try to determine why downward departures are granted less frequently in cases where the defendant has dependents (Crow & Lannes, 2015) by coding the sentencing transcripts with a focus on codes related to the defendant’s dependent status. Or, researchers might wish to try to determine why
89 females received lower sentences than males (Wu & Spohn, 2010) by analyzing the sentencing transcripts and coding for information directly related to the defendant’s gender or traditionally gender-specific roles. For example, transcript analysis could detect whether judges are considering (or at least verbalizing) a defendant’s role as a mother, housekeeper, or caretaker as part of the analysis. Using an inductive coding method, the analysis could very well identify other reasons for the quantitative findings. In short, combining transcript analysis with quantitative studies could help researchers determine the “why,” or provide a strong pathway to future analysis.
Future researchers might wish to engage in a similar study on a much larger scale, and without limiting the types of cases studied. This study was limited to the 16 available sentencing transcripts obtained during a condensed research program. Additionally, studies in other federal circuits, with their own specific case law, could lead to different results.
Other researchers might wish to operate within a much narrower theoretical framework, and code only for concepts identified within that narrow framework. Results for those studies could differ from the current study in that a less robust coding procedure might not produce the same types of themes.
This study has shown transcript analysis can be a viable method to detect themes associated with sentencing disparity. Sentencing disparity is a continuously and robustly researched topic. The federal sentencing statute, sentencing guidelines, Supreme Court caselaw, and Second Circuit caselaw all impact how judges are supposed to impose sentences.
Unfortunately, the imposition of criminal sentences is inconsistent and disparate. Child pornography sentences have been the most disparate, which was the impetus for using those cases for this study. Disparity in sentencing does not imply judges are not trying their level best
90 to impose the sentences they believe are just and appropriate. However, mitigation strategies enacted thus far (statutes requiring judges to avoid unwarranted disparity, and sentencing guidelines) are thwarted by conflicting caselaw and policy. Further research in this area is needed to detect causes of disparity so that mitigation strategies can be developed and implemented. Consistency in sentencing is important to reinforcing public confidence in our criminal justice sentence.
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Appendix A