In the week since Biden Supreme Court nominee Judge Ketanji Brown Jackson was questioned about her pattern of reduced sentencing in grisly child pornography cases, two narratives have developed.
The first view holds that the question of sentencing, and the implication that Judge Jackson is soft on child pornography offenders, is “disingenuous,” “a smear,” and “meritless to the point of demagoguery.” According to this narrative, such claims distort the rate at which judges routinely depart from the sentencing guidelines and do not distinguish the harm between the production of child pornography and mere possession of it.
This view also seems to imply that most child pornography cases involve the unjust sentencing of 17-year-olds turning 18, when their otherwise mildly voyeuristic behavior suddenly turns criminal. It’s an argument that, bizarrely, also relies on the Washington Post’s vilification artist, Glenn Kessler, to justify a flippant dismissal of the concerns raised.
In a recent podcast, National Review’s Charlie Cooke claimed Republicans did not acquit themselves well for focusing on the topic. National Review’s editor, Rich Lowry, said the “child porn thing” was “demagogic,” and should not have even been raised. Columnist Brad Polumbo implied Republican senators asking detailed questions about Judge Jackson’s sentencing record were “grandstanding.”
A second narrative, however, acknowledges that reality is a bit more complicated than simply casting key Republican senators off as demagogues – particularly when it involves confirming a judge to a lifetime term on the Supreme Court, which, owing to Congress’s routine failure to legislate on any meaningful question, is now the arbiter of all our major cultural questions.
Moreover, a cursory examination of the sentencing record of Judge Ketanji Brown Jackson as it relates to child pornography reveals that these cases are not, in fact, simply about the perceived injustice of sentencing a just-turned-18-year-old to years in prison for a crime he wouldn’t be punished for at the age of 17.
Editor’s note: The following contains explicit descriptions of child pornography as described in court documents.
The facts in many of these cases are far more heinous, and brutal – even in the cases involving teenagers. In the now much-discussed 2013 case, United States v. Hawkins, Wesley Keith Hawkins was arrested for possession of child pornography and sentenced by Judge Jackson to just three months in prison despite the prosecution asking for two years. Here are the details of the case and sentencing, as described in court documents and summarized by Real Clear Investigations:
In 2013, Hawkins was busted posting videos on YouTube of ‘prepubescent boys engaged in sexual activity with each other, including oral and anal penetration,’ according to court documents. He told an undercover officer that he preferred children as young as 11 and sent him a video of a ‘prepubescent male masturbating.’ Investigators recovered 17 videos from his phone and laptop, which showed, among other things, ‘an approximately 11-year-old male being anally penetrated by an adult male.’
In her sentencing, Jackson ruled she didn’t think the volume and content of porn he had was particularly egregious and she gave Hawkins essentially a slap on the wrist — and then apologized to him for it.
‘This is a truly difficult situation,’ she told Hawkins at sentencing. ‘I appreciate that your family is in the audience. I feel so sorry for them and for you and for the anguish that this has caused all of you.’
Jackson then expressed sorrow over even the light sentence she handed down. “I feel terrible about the collateral consequences of this conviction,” she said, explaining that “sex offenders are truly shunned in our society, but I have no control over the collateral consequences.”
Hawkins later went on to re-offend, and Judge Jackson placed him in a halfway house for six months. But the Hawkins case is not the only case in question.
The other child pornography cases overseen by Jackson do not involve teenagers. They involve grown men actively seeking to groom children to have sexual intercourse, the distribution of sadomasochist pornography with depictions of young male children, and a case where a criminal distributed 102 child pornography videos and shared lewd photos of his 10-year-old daughter, among others.
In every single child pornography case handled by Judge Jackson, she went below the maximum recommendation, below the minimum recommendation, and below the prosecutor’s request.
The White House Obfuscation
Now there is another case to consider – the details of which the Biden White House apparently “overlooked” when sharing records with the Senate Judiciary Committee. The case, United States. v Cane, which Judge Jackson sentenced less than a year ago, involved more than 6,500 files depicting school-aged children engaged in sexual acts or other conduct with adult men and foreign objects. Notably, while the probation office recommended a sentence of 84 months, Jackson sentenced the man to 60 months in prison, the mandatory minimum.
Much has been made of the probation office’s pre-sentencing recommendations. Senate Democrats and the White House have claimed that, in dipping below the sentencing guidelines, Jackson was simply relying on advice from the probation office, which oversees offenders and makes recommendations to the judges for conditions of sentencing. But the Cane case, where Jackson disregarded the higher sentencing request from the probation office, appears to undermine that talking point.
Cane does more than simply highlight an inconvenient fact about Jackson’s sentencing record, however. It continues to expose the undercurrent surrounding this entire nomination process, which has been one of obfuscation. From beginning to end, there has been a concerted effort to stymie senators from engaging in the vetting process.
The White House continues to withhold 48,000 documents related to Judge Jackson’s tenure, including her time on the Sentencing Commission. And the Sentencing Commission refuses to turn over anything more than summary documents, citing “balance of power” issues in its role in the judiciary. (It should be noted that Judge Jackson could personally request that her archive be released. She has not done so.)
The pre-sentencing documents relied upon by the White House and Senate Democrats have not been turned over in full to the Senate Judiciary Committee. In their place, senators were presented with a single-page summary document, without underlying records. Sen. Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, claims that sharing the full records confidentially with the committee would put people at risk.
Committee Democrats like Sen. Cory Booker, D-NJ, who infamously released confidential documents to the public during the Brett Kavanaugh confirmation hearing and then embarrassingly called his stand his “I am Spartacus moment,” had the gall to lecture the committee about the unprecedented nature of sharing pre-sentencing documents in confidence.
But perhaps more broadly, the intentional obfuscation and the slow release of new documents and fact patterns, particularly as it relates to Judge Jackson’s sentencing history, validates every Republican senator who leaned into this line of questioning. Not only is showing up and asking specific and informed questions of nominees the job of senators but oftentimes their persistence is rewarded.
Thanks to the senators who engaged Judge Jackson with regard to her record and judicial philosophy, both the senators and the public know far more than they originally did, the White House narrative around this nomination has begun to crack, and critical concerns about the philosophy and discernment of Judge Jackson have been presented to the full Senate, who will ultimately be the final arbiter of confirmation.
None of this would have happened if Republican senators had simply taken on faith the notion that asking pointed questions, based on the facts presented in the nominee’s record, somehow constitutes a disingenuous smear.
Judge Jackson Remains Outside the Sentencing Averages
Within the legal community and beyond, there remains a robust debate about sentencing guidelines as they relate to pornography. But elements of both the right and left have used the presence of this debate not to recognize the validity of the other side, but to try and delegitimize both the questions and the questioners who have raised it – casting Sens. Ted Cruz, Josh Hawley, Mike Lee, Marsha Blackburn, and others as cynical, uniformed actors bent on burnishing their own credentials, rather than as sober-minded members of the committee constitutionally tasked with vetting judicial nominees for their temperament and judgment.
“All judges do this,” the refrain frequently goes. In some cases, this is true. As Judge Jackson noted in her confirmation hearing, the sentencing guidelines passed by Congress are out of date, and often don’t meaningfully distinguish between the production of child pornography and mere possession of it, and because of this, many judges and even prosecutors depart from the guidelines.
But Judge Jackson sets herself apart for the rate at which she has consistently departed from the guidelines, and the sympathy she has expressed for the defendants while doing so. According to data from the Sentencing Commission, cross-referenced with Judge Jackson’s sentencing in child pornography cases, on average she imposed sentences that were 57 percent less than the national average for possession of child pornography. For distribution, her average sentence was 47 percent less than the national average.
Judge Jackson isn’t the norm for two reasons: first, her sentencing history is well below the departure average for most judges, and second, “most judges” aren’t nominated to the country’s highest court, where they will set national policy and legal parameters for decades to come. Only Ketanji Brown Jackson is. And she will take the bench at a time there is an academic effort underway to seemingly normalize pedophilia, and when major American corporations, not to mention public schools, aggressively seek to sexualize young children.
When Child Pornography Mattered to the U.S. Senate
The Senate Judiciary Committee will vote to report on the nomination of Judge Jackson on Monday. Her nomination will then be considered by the full Senate shortly thereafter. Despite the information that continues to be disclosed about her record, it seems likely all Senate Democrats will vote in her favor – and Republican Sen. Susan Collins recently announced she will join them.
For Democrats, the vote represents an evolution as it relates to acceptable sentencing for crimes of child pornography. In 1996, Congress found that child pornography “played a central role in the exploitation and sexual abuse of children,” particularly as it “encourages the activities of child molesters and pedophiles.”
In 2003, Congress acted to pass the PROTECT Act, with the express purpose of giving prosecutors more robust tools to crack down on child pornography and sex crimes. The bill and its attendant conference report received unanimous support in the Senate.
The bill’s sponsor, Sen. Patrick Leahy, D-Vt., now a senior member of the Senate Judiciary Committee, spoke of the chamber’s agreement “that we should do all we can to protect our children from being victimized by child pornography,” and the need to “write a law that will both do that and produce convictions that will stick.”
Sen. Chuck Schumer, D-NY, an original sponsor of the bill and now the Democratic majority leader, likened the child pornography problem to “a worldwide war.” “We cannot and we will not permit child pornographers to hide behind the courts or modern technology,” he said. “We must send child pornographers the message that Congress will not tolerate child abuse or child pornography, today, tomorrow, or ever, no matter what the state of technology is.”
The question of taking the issue of child pornography and its harm to vulnerable victims seriously is once again before the Senate, this time in the form of a lifetime appointment to the Supreme Court. Judge Jackson’s approach to these issues will shape future jurisprudence for decades to come. And, now that Congress has shifted most of its lawmaking prerogatives to the judiciary, Judge Jackson’s legal philosophy will also have an outsized impact on shaping the culture as well.
This is why the pursuit of records, facts, and sentencing patterns is so vital – not just to the legal community, but to the country. Thank goodness for senators who investigate these issues fully, rather than choosing to dismiss them lightly.