Abstract

Many proponents of the Federal Sentencing Guidelines envisioned a system in which a politically insulated agency would craft guidelines based on empirical study. This vision of the now-advisory Guidelines survives in Supreme Court opinions that appear to accept that the work of the U.S. Sentencing Commission, the agency tasked with formulating the Guidelines, is driven largely by empirical analysis. This vision has created uncertainty, however, about how much deference courts should show particular Guidelines-such as Section 2G2.2, the Guideline applicable to possession of child pornography- that do not reflect empirical study by the Commission, but that have instead been shaped by aggressive congressional intervention in the Commission's policymaking process. This Note suggests an approach under which the level of judicial deference owed to a congressionally amended Guideline depends on the extent to which that Guideline reflects the institutional strengths or weaknesses of Congress. Applying this approach to Section 2G2.2, the Note argues that district courts should be willing to impose below-Guidelines sentences for possession of child pornography when they conclude that the applicable Guideline is too harsh. Although the child pornography Guideline warrants some deference as a product of democratic processes, the exercise of independent judgment by district courts can impose a useful check on institutional pathologies that afflict congressional sentencing policy.

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