Child pornography offenders appear to have been given very light sentences by Judge Ketanji Brown Jackson, who has been nominated by President Joe Biden to the U.S. Supreme Court to replace retiring Justice Stephen Breyer. For her part, Judge Jackson argues that the sentences, which were significantly lower than recommended by federal guidelines and even lower than what the prosecutors asked for, were appropriate and within the scope of her judicial authority.
During Senate Judiciary Committee hearings on Tuesday and Wednesday, Judge Brown Jackson was asked to explain her lenient rulings as a district court judge.
Ahead of Brown Jackson’s confirmation hearing, Senator Josh Hawley (R-Mo.) listed seven cases in which the judge showed herself too soft on the offenders, per the senator.
Here are the cases mentioned by Hawley in his Tweeter thread and then during his opening remarks of the hearings:
1. United States v. Hawkins: In this case, Jackson sentenced the defendant to three months for distribution and possession of child pornography. The prosecutor asked for 24 months.
2. United States v. Chazin: Jackson sentenced the defendant, who possessed 48 files of child pornography, to 28 months in prison. The prosecutor asked for 78-97 months.
3. United States v. Cooper: Jackson sentenced the defendant, who distributed dozens of images of child pornography, to 60 months in prison. The prosecutor asked for 72 months.
4. United States v. Downs: Jackson sentenced the defendant, who had 33 “graphic images and videos” of child sexual assault, to 60 months in prison. The prosecutor asked for 70 months.
5. United States v. Stewart: Jackson sentenced the defendant to 57 months in prison. The prosecutor asked for 97 months.
6. United States v. Sears: Jackson sentenced the defendant to 71 months in prison. The prosecutor asked for 97.
7. United States v. Savage: Jackson sentenced a defendant who had six thumb drives of child pornography and traveled across state lines to have sex with a child to 37 months in prison. The prosecutor asked for 49 months.
Those were the cases where Judge Brown had discretion in imposing sentences.
All of the cases were heard in Washington, D.C., where the prosecutors “are far more liberal than many prosecutors in this country,” noted Senator Ted Cruz (R-Texas) on Tuesday.
“Every single case, 100 percent of them, when prosecutors came before you with child pornography cases, you sentenced the defenders to substantially below — not just the guidelines, which are way higher — but what the prosecutor asked for on average in these cases, 47.2 percent less,” said the senator.
The U.S. Federal Sentencing Guidelines are rules published by the U.S. Sentencing Commission setting forth a uniform policy for sentencing individuals and organizations convicted of felonies and serious misdemeanors. In the aforementioned cases heard by Jackson, the recommended sentences varied from 48-57 to 151-188 months.
Cruz went on to ask if the judge believed that “the voice of the children is heard when 100 percent of the time [her] sentencing those who are in possession of child pornography to far below what the prosecutors are asking for?”
Jackson said that she did believe so, and defended her record by shifting blame to the U.S. Congress. She said, “Your chart does not include all of the factors that Congress has told the judges to consider, including the probation officer’s recommendation.” Cruz interjected by reminding Jackson that the Sentencing Committee does not give probation officers any recommendations on how to handle such cases.
The judge ignored the remark and went on to appeal to the senators’ emotions by explaining how sensitive the cases concerning child pornography were to her.
“I take these cases very seriously as a mother, as someone who, as a judge, has to review the actual evidence … and based on Congress’s requirement, take into account not only the sentencing guidelines, not only recommendations of the parties, but also things like the stories of the victims … the nature and the circumstances of the offense, and the history and characteristics of the defendant.” She stressed, “Congress tells the judges what they are supposed to look at.”
“In all of the cases, I did my duty to hold the defendant accountable in the light of the evidence and the information that was presented to me,” she concluded.
It remained unclear why a “mother and a judge,” looking at the “actual evidence,” i.e., pictures and videos of children being sexually abused, would impose a far lighter sentence than asked for by the liberal prosecutors.
The judge also referred to the role of the internet and the advent of online pornography in her milder sentencing. Because of that, the sheer volume of child sex-abuse images and their availability is so extensive that sentences based on the number of images a defendant possessed would have been too great, Jackson implied.
“The guideline was based originally on a statutory scheme and directives, specific directives by Congress, at a time in which more serious child-pornography offenders were based on the volume, on the number of photographs that they received in the mail. And that made total sense before, when we didn’t have the internet, when we didn’t have distribution,” Jackson said.
She continued, “But the way that the guidelines are now structured is leading to extreme disparities in the system because it’s so easy for people to get volumes of this material now, by computers.” Therefore, the commission and the courts should be “adjusting” their sentences based on the “changing circumstances,” the SCOTUS nominee said.
One could intuitively assume that the availability of internet underage porn should make the punishment of those who produce, distribute, and “simply” watch it harsher, not softer, since the number of parties involved grows exponentially. And so does the number of abused children.
In his opening remarks, Senator Hawley noted this disturbing trend. He said, “The amount of child pornography in circulation has exploded in recent years.” Citing a New York Times report from 2019, the senator continued, “Last year [2018], tech companies reported over 45 million online photos and videos of children being sexually abused, more than double what they found in the previous year…. Twenty years ago, these online images were a problem. Ten years ago, they were an epidemic. Now, the crisis is at a breaking point.”
As reported by the Washington Examiner, Jackson once served on the U.S. Sentencing Commission, where she advocated the abolition of mandatory minimum sentences for those caught with child pornography. She had also supported freeing such convicts from the obligation to register as sex offenders once out of prison.
Per the outlet,
This is disturbing because, dating back to the 1980s, research has consistently pointed to a correlation between the use of child pornography and child molestation. According to the Mayo Clinic, as many as 80% of those who view child pornography have also molested a child in real life.
“Fact-checkers” at major news outlets (see here and here) defended Jackson’s conduct, saying it was “within the mainstream of federal judges” and slammed Hawley for “misrepresenting” Jackson’s record.
White House Press Secretary Jen Psaki defended her boss’s pick, stating that “disingenuous attacks” on Jackson’s record were launched by a group of “far-right” Republican senators out of desperation.
