MANDATORY MINIMUM PENALTIES FOR SEX OFFENSES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM UNITED STATES SENTENCING COMMISSION JANUARY 2019 MANDATORY MINIMUM PENALTIES FOR SEX OFFENSES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM WILLIAM H. PRYOR JR. Acting Chair RACHEL E. BARKOW Commissioner CHARLES R. BREYER Commissioner DANNY C. REEVES Commissioner PATRICIA K. CUSHWA Ex Officio DAVID RYBICKI Ex Officio KENNETH P. COHEN Staff Director January 2019 TABLE OF CONTENTS 1 SECTION ONE: INTRODUCTION 3 SECTION TWO: KEY FINDINGS 7 SECTION THREE: SEX OFFENSE MANDATORY MINIMUMS 8 Statutory Mandatory Minimum Provisions Applicable to Federal Sex Offenders 8 Sexual Abuse Offenses 10 Child Pornography Offenses 11 Statutory and Guideline Relief Provisions 13 SECTION FOUR: DATA ANALYSIS 14 The Commission’s Updated Study of Sex Offense Mandatory Minimum Penalties 16 Recent Trends in Mandatory Minimum Penalties 16 Overall Prevalence of Sex Offenses Carrying Mandatory Minimum Penalties 16 Sexual Abuse Offenses 16 Prevalence of Sexual Abuse Offenses 21 Offender Demographics 21 Race, Gender, and Citizenship 22 Age 23 Criminal History 23 Plea and Trial Rates 24 Relief from Mandatory Minimum Penalties 24 Demographics 26 Sentencing of Sexual Abuse Offenders 26 Average Sentence Length 28 Sentences Relative to the Guideline Range 31 Sexual Abuse Offenders in the Federal Prison Population 32 Child Pornography Offenses 32 Prevalence of Child Pornography Offenses 38 Offender Demographics 38 Race, Gender, and Citizenship 40 Age 41 Criminal History 41 Plea and Trial Rates 42 Relief from Mandatory Minimum Penalties 44 Sentencing of Child Pornography Offenders 44 Average Sentence Length 49 Sentences Relative to the Guideline Range 52 Child Pornography Offenders in the Federal Prison Population 55 SECTION FIVE: CONCLUSION 57 ENDNOTES 67 APPENDIX A: SEXUAL ABUSE OFFENSES 71 APPENDIX B: CHILD PORNOGRAPHY OFFENSES United States Sentencing Commission MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) VI United States Sentencing Commission MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) 1Introduction United States Sentencing Commission MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) Introduction This publication is the sixth and final in the Using fiscal year 2016 data, this publication Commission’s series on mandatory minimum includes analyses of the two types of federal sex penalties. In 2017, the Commission published offenses carrying mandatory minimum penalties, its Overview of Mandatory Minimum Penalties sexual abuse offenses and child pornography in the Federal Criminal Justice System (2017 offenses, as well their impact on the Federal Overview Publication)1 and subsequently issued Bureau of Prisons (BOP) population. In addition to four publications providing detailed analyses of analyzing child pornography offenses generally, this the application of mandatory minimum penalties publication analyzes child pornography offenses by to specific offense types—drugs in October 2017; offense type, exploring differences in frequency, firearms in March 2018; the use of recidivist offender characteristics, and sentencing outcomes enhancements for drug traffickers under 21 for distribution, receipt, and possession offenses. U.S.C. § 851 in July 2018; and identity theft in Where appropriate, the publication highlights September 2018.2 These publications build on changes and trends since the Commission’s 2011 the Commission’s 2011 Report to the Congress: Mandatory Minimum Report. Mandatory Minimum Penalties in the Federal Criminal Justice System (2011 Mandatory Minimum Report),3 which provided detailed historical analyses of the evolution of federal mandatory minimum penalties, scientific literature on the topic, and extensive analysis of the Commission’s own data, public comment, and expert testimony. These publications highlight recent trends in the charging of offenses carrying mandatory minimum penalties and provide updated sentencing data demonstrating the impact of those penalties. This publication focuses on the application of mandatory minimum penalties specific to federal sex offenses. Federal sex offenses are divided into two types: (1) sexual abuse offenses (also called “contact”) offenses, i.e., those offenses involving actual or attempted sexual contact with the victim regardless of the victim’s age; and (2) child pornography offenses (other than an offense related to the production of pornography depicting an actual child, which is deemed a “contact” offense).4 With respect to child pornography offenses, this publication expands on the 2011 Mandatory Minimum Report to provide a detailed individual analysis for each of the most common child pornography offenses—distribution, receipt, and possession. 2 United States Sentencing Commission MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) Key 2 Findings United States Sentencing Commission MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) Key Findings Building directly on its previous reports and the As part of this analysis, the Commission makes analyses set forth in the 2017 Overview Publication, the following key findings: this publication examines the use and impact of mandatory minimum penalties for sex offenses. Key Findings 1. Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties. • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016. • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016. 2. Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty. • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016. • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016. • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016. 4 United States Sentencing Commission Section Two: MANDATORY MINIMUM PENALTIES FOR FEDERAL SEX OFFENSES (2019) SUMMARY OF KEY FINDINGS Key Findings 3. Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties. • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty. • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%). In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively. • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%). • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50. 4. Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty. • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months). • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum