In recent years criminal sentencing has become the subject of criminal justice reform. After decades of politicians from both sides of the political aisle embracing tough on crime agendas, which included high incarceration rates and lengthy prison sentences, Americans are demanding change. In 2015, a bipartisan group of senators introduced The Sentencing Reform and Corrections Act (SRCA), with the goal of reforming criminal sentencing by reducing prison sentences and mandatory minimums for certain drug related offenses. As SRCA makes clear, efforts to reform criminal sentencing have largely centered around reducing mandatory minimums for non-violent drug offenders. The public, and in turn their elected representatives, have not been nearly as eager to give other federal crimes, which also carry lengthy prison sentences, the same attention in the crusade to reform the criminal justice system. This discussion will focus on sentencing in federal sex trafficking cases and §2G1.3(b)(3), the sentencing enhancement that penalizes sex trafficking defendants for their use of technology.
Federal sex trafficking punishes sex trafficking of adults by force, fraud or coercion, and sex trafficking of minors by any means (18 U.S.C. § 1591). Sentencing for § 1591 varies depending on the age of the victim. If the offenses involved the use of force, fraud, coercion, or a minor under the age of fourteen years old, the mandatory minimum is fifteen years with up to life in prison available. If the offenses involved a minor between the ages of fourteen and eighteen years old then the mandatory minimum is ten years with up to life in prison available. After homicides, sex trafficking carries some of the highest federal sentencing ranges. And unlike drug related offenses, the criminal justice reform movement has not called for sentencing reform for sex trafficking cases.
The federal sentencing system is notoriously complicated. Sentencing for all federal criminal cases is calculated using a sentencing guideline, which federal judges must consider, but are not obligated to follow when imposing a sentence. The sentencing guideline reflects both the counts of conviction and the offender’s prior criminal history category. For sex trafficking cases, determining the age of the victim and calculating the applicable baseline is just the beginning. Once a baseline offense is calculated, sentencing enhancements are added to determine a defendant’s sentencing score. It should come as no surprise that the higher the score, the longer the sentence. In the sex trafficking context, there is one sentencing enhancement that stands out as particularly arbitrary and harsh. This enhancement is §2G1.3(b)(3), which penalizes sex trafficking defendants if the offense involved the use of a computer or interactive computer service.
Although there has been a national movement to reform criminal sentencing, §2G1.3(b)(3) has been left behind. Under §2G1.3(b)(3) if a sex trafficking offense involved the use of a computer or an interactive computer service (including a cellphone) to persuade, induce, entice, coerce, or facilitate the travel of the minor to engage in the prohibited sex act or to entice, encourage, offer, or solicit a person to engage in the prohibited sex act with the minor, a plus two enhancement will be applied so a defendant will receive a higher criminal offense level. The rate at which the §2G1.3(b)(3) enhancement is applied is staggering. In the 2006 fiscal year alone, the enhancement applied to ninety-five percent of offenders sentenced under §2G1.3 for sex trafficking. This should come as no surprise considering the use of an interactive computer service includes computers, cellphones, and smart tablets, which are all basic necessities that most people need to function in our modern society.
The enhancement for the use of a computer is a relic of the past. It’s hard to understand how any defendant is more dangerous simply because they used a computer, texted during the commission of a crime, or accessed the internet. Although many years ago the use of computers or cellphones may have made a particular defendant a greater threat to society the same is no longer true today. Nearly all sex trafficking defendants will have access to very basic technology, so a defendant’s ability to facilitate the commission of the offense using technology is not so unique that it is deserving of additional punishment. Because the enhancement is also applied in the vast majority of sex trafficking cases, it is creating a higher baseline offense for nearly all defendants, rather than serving as an enhancement that is selectively applied in light of the particular facts of a given case.
Although it may be politically and socially unpopular to advocate for lower sentencing for such a morally reprehensible offense, it is time that reformers take a look at §2G1.3(b)(3). We need to consider the message that our criminal justice system is sending when we put people away for longer periods of time because of their use of technology. When did we decide that technology is a bad thing? What purpose does a longer sentence that is imposed because of the use of technology serve? These are the questions that advocates of sentencing reform need to start asking.
* Sabrina Schulman is an Associate Editor on the Michigan Technology Law Review.