Sent to Prison under the Federal Sentencing Guidelines

1.4 million.

This is roughly the number of people who have stood before judges and had sentences imposed on them under the “federal sentencing guidelines,” which the U.S. Sentencing Commission established in 1989.

The guidelines, in the words of the Commission, are “intended to promote fairness through the establishment of sanctions proportionate to the severity of the crime and the avoidance of unwarranted disparity by setting similar penalties for similarly situated offenders.”

In other words, the guidelines are supposed to help make prison sentences fair (stuffing prisons overfull with nonviolent drug offenders comes to mind). And they’re supposed to ensure that two people convicted of similar crimes under similar circumstances don’t get vastly different sentences for no good reason.

But that’s not what is happening.

From 1983 to 2009, the rate of guilty pleas-to take one apparent example of a lack of fairness-has gone from 83% to 96% (according to the U.S. Sentencing Commission). It would seem as though something was strong-arming these people into giving up their right to a trial.

What might that be?

The Hangman Threatens 10 Years for Possession of Child Porn

Nothing is scarier than the noose or the proverbial axe hanging over your head. And the axe is what federal prosecutors wield. Federal prosecutors play the role of jury and executioner, essentially, hanging extraordinarily harsh sentences over the heads of people accused of federal crimes.

Take sentencing for child pornography offenses.

The potential punishment for child pornography is extremely harsh. As Felisa Cardona ( wrote for the Denver Post back in late 2009, “A first-time offender with no criminal history can be sentenced to 10 years in federal prison.”

We’re not even talking about people alleged to have committed the more serious child pornography offenses like sharing and distribution. We’re talking about mere possession, with no evidence that the person posed an actual risk of harm to a child.

We’re All Social Misfits

Cardona quotes federal judge Robin Cauthron: “It is too often the case that a defendant appears to be a social misfit looking at dirty pictures in the privacy of his own home without any real prospect of touching or otherwise acting out as to any person. As foul as child pornography is, I am unpersuaded by the suggestion that a direct link has been proven between viewing child porn and molesting children.”

And, if it’s true that millions of Americans view the “dirty pictures” of legal adult pornography behind closed doors in the privacy of their bedrooms, aren’t we all, in that sense, social misfits?

Social misfits or not, the hangman and his threats should be no part of a fair criminal justice system that should be doing a better job of fitting the punishment to the crime.