By Katie Yoder
Washington D.C., Mar 22, 2022 / 12:57 pm
Supreme Court nominee Ketanji Brown Jackson began the second day of her confirmation hearings by responding to claims that she was lenient in her sentencing of child porn offenders.
“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” she began Tuesday, responding to accusations made by Republican Senator Josh Hawley of Missouri.
The confirmation hearings, led by the Senate Judiciary Committee, started Monday with senators delivering their opening statements. Senators began questioning Jackson, the federal judge nominated by President Joe Biden to replace retiring Justice Stephen G. Breyer, on Tuesday in 30-minute blocks.
Democratic Senator Dick Durbin of Illinois asked Jackson to respond to Hawley, who has questioned her sentencing record in child pornography cases. These cases, Durbin clarified, “do not involve the production of pornographic material,” meaning that they concern the consumers, rather than the creators, of child pornography.
Hawley, Durbin said, has accused Jackson on Twitter of a “pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and a policymaker.”
The Missouri senator first shared his accusations in a Twitter thread on March 16, and repeated his claims during his opening statements Monday. He named seven cases — United States v. Hawkins, United States v. Stewart, United States v. Cooper, United States v. Chazin, United States v. Downs, United States v. Sears, United States v. Savage — where, he said, Jackson “deviated from the federal sentencing guidelines in favor of child porn offenders.”
For each case, Hawley said that Jackson sentenced defendants for less time than the guidelines recommended.
Jackson addressed Hawley’s claims after Durbin asked about the impact of the accusations on her “personally.”
“These are some of the most difficult cases that a judge has to deal with, because we’re talking about pictures of sex abuse of children, we’re talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases,” she said.
She pointed to Congress’ responsibility.
“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime.”
Instead, she continued, “the statute says calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment.’”
Jackson appeared to cite the “parsimony” clause of 18 U.S.C. § 3553, or the “Sentencing Reform Act of 1984,” where Congress established a new federal sentencing system based on sentencing guidelines, according to the U.S. Sentencing Commission where Jackson once served.
The U.S. Sentencing Commission, which establishes sentencing policies and practices for federal courts and advises Congress, wrote at least one report while Jackson was there on the operation of a guideline where more serious offenders were identified based on the volume, or number of photographs, in their possession, Jackson said. While that guideline once made sense, it no longer does because of the creation and expansion of the internet — or, Jackson claimed, it is “not doing the work of differentiating who is a more serious offender in the way that it used to.”
Courts are adjusting sentences to account for this, she stressed.
Jackson’s priority, in these cases, she said, is “to make sure that the children’s perspective, the children’s voices, are represented in my sentencings.”
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“For every defendant who comes before me and who suggests, as they often do, that they’re just a looker, that these crimes don’t really matter, they’ve collected these things on the internet and it’s fine, I tell them about the victim statements that have come in, to me, as a judge,” she said.
Those include statements form former child sex abuse victims who say they will never be able to have normal adult relationships as well as victims who turned to prostitution and drugs to suppress the pain from their past.
“The one that was the most telling to me, that I describe at almost every one of these sentencings when I look in the eyes of a defendant who is weeping because I’m giving him a significant sentence, what I say to him is, ‘Do you know that there is someone who has written to me and who has told me that she has developed agoraphobia — she cannot leave her house — because she thinks that everyone she meets will have seen her, will have seen her pictures on the internet, they are out there forever, at the most vulnerable time of her life, and so she’s paralyzed,” Jackson said.
Jackson said she shares these stories with every child porn defendant “so that they understand what they have done.”
“I say to them that there’s only a market for this kind of material because there are lookers,” she added. “That you are contributing to child sex abuse and that I impose a significant sentence and all of the additional restraints that are available in the law.”
In addition to prison, she said, “These people are looking at 20, 30, 40 years of supervision.”
“They can’t use their computers in a normal way for decades,” she stressed. “I am imposing all of those constraints because I understand how significant, how damaging, how horrible, this crime is.”
On Monday, Hawley said of Jackson, “What concerns me … is that in every case, in each of these seven, Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”
Durbin pointed out that several news outlets have defended Jackson against Hawley, including ABC News, CNN, and The Washington Post. He appeared to cite Andrew McCarthy, a former federal prosecutor, who took issue with Hawley’s choice of language and called the senator’s claims “meritless to the point of demagoguery” in a piece at National Review.
“Judge Jackson’s views on this matter are not only mainstream; they are correct in my view,” McCarthy wrote. “Contrary to Hawley’s suggestion, however, she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”
Jackson made a similar argument Tuesday. “There are judges who are varying because our ultimate charge from this body is to sentence in a way that is ‘sufficient but not greater than necessary to promote the purposes of punishment,’” she said.
“As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”
