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Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders

Supreme Court nominee Ketanji Brown Jackson meets with Sen. Josh Hawley (R-Mo.) this month. (Alex Brandon/AP)
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“I’ve been researching the record of Judge Ketanji Brown Jackson, reading her opinions, articles, interviews & speeches. I’ve noticed an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children. Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”

— Sen. Josh Hawley (R-Mo.), at the start of a long Twitter thread, March 16

“The possession and distribution of child pornography is an extremely serious crime because it involves trading depictions of the actual sexual assault of children, and the abuse that these child victims endure will remain available on the internet forever.”

— Judge Ketanji Brown Jackson, in a ruling denying compassionate release for medical reasons to Jeremy Sears, a convicted sex offender, June 16, 2020

Judge Ketanji Brown Jackson, President Biden’s nominee to the Supreme Court, begins her Senate confirmation hearings next week. As a prelude, Sen. Josh Hawley (R-Mo.) posted a 17-part Twitter thread alleging Jackson has a “pattern” of excusing heinous conduct. Hawley, a member of the Senate Judiciary Committee, signaled he planned to question Jackson closely on the issue.

But the picture that Hawley provides is a selective one that lacks significant context. He suggests that Jackson is out of the judicial mainstream with her sentencing of child-pornography defendants. But he ignores a long debate within the judicial community about whether mandatory minimums were too high. As a member of the U.S. Sentencing Commission, which is charged with reducing sentencing disparities, Jackson was intimately involved in that debate. Hawley selectively quotes from testimony, USSC materials and various court cases to make his case. Let’s take a tour through his technique.

Taking Jackson’s remarks out of context

Hawley mined USSC hearings for moments — shown in screenshots — when Jackson was repeating what witnesses said, suggesting these were her own opinions.

In one tweet, he asked: “Judge Jackson has said that some people who possess child porn ‘are in this for either the collection, or the people who are loners and find status in their participation in the community.’ What community would that be? The community of child exploiters?”

In reality, Jackson was just asking a follow-up question to a witness who had spoken of an online community: “I was just going to say as a follow-up to that, Ms. McCarthy, is it your experience that this category of nonsexually motivated child pornography offenders is very small? Because you had them broken out in your slide: the nonsexually motivated. And that I found just so interesting, because I assumed that everyone who was involved in this kind of activity was sexually motivated. So the people who are in this for either the collection, or the people who are loners and find status in their participation in the community, but would be categorized as nonsexually motivated, how many are we talking about?”

In another tweet, Hawley asserted: “Judge Jackson has opined there may be a type of ‘less-serious child pornography offender’ whose motivation is not sexual but 'is the challenge, or to use the technology.’ A ‘less-serious’ child porn offender?”

Here, she was asking a question in response to testimony that she found surprising: “I was surprised at some testimony with respect to the motivations of offenders, and that there are people who get involved with this kind of activity who may not be pedophiles who may not be necessarily interested really in the child pornography but have other motivations with respect to the use of the technology and the being in the group and, you know, there are lots of reasons perhaps why people might engage in this. And so I’m wondering whether you could say that there is a — that there could be a less-serious child pornography offender who is engaging in the type of conduct in the group experience level because their motivation is the challenge, or to use the technology? They’re very sophisticated technologically, but they aren’t necessarily that interested in the child pornography piece of it?”

(The witness answered that, over time, such people become more of a tribe and more-serious offenders.)

We posed questions to Hawley’s office, and he tweeted a response and issued a news release even before we had completed our fact check. He denied he had taken her comments out of context.

“Judge Jackson’s words are right there in print, and they speak for themselves,” he said. “When she does quote from or refer to previous testimony, she does so with approval and indicates the witness has changed her mind on child porn offenders.”

Mischaracterizing the USSC’s work

Hawley at one point writes: “As a member of the U.S. Sentencing Commission, Judge Jackson advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn.”

What’s missing here is that the USSC is bipartisan — no more than four members of the seven-member USSC can be from one party — and that the recommendations that Hawley criticizes were unanimous. One member who signed off on the report was Dabney L. Friedrich, later nominated in 2017 by President Donald Trump to be a federal district judge. Hawley was not in the Senate then, but every Republican supported her nomination.

Moreover, while the USSC recommended lowering the minimum in two types of child-porn offenses, it did not recommend eliminating the statutory mandatory minimum entirely.

“All child pornography offenses, including the simple possession of child pornography, are extremely serious because they both result in perpetual harm to victims and validate and normalize the sexual exploitation of children,” the report said. But it said the Justice Department, defense lawyers and judges had raised concerns about the existing set of sentencing guidelines.

“Many believe that it fails to adequately differentiate among offenders based on their culpability and sexual dangerousness, needs to be updated to reflect recent changes in typical offense conduct associated with the evolution of computer and Internet technologies, and is too severe for some offenders,” the report said. As a result, it said, prosecutors and courts were gaming the system, seeking ways to limit sentence exposure by, for instance, charging someone only with possession even if they had committed other related crimes. That’s because there was no mandatory minimum for possession and a five-year minimum for receipt, transportation and distribution.

A 2010 survey showed 71 percent of judges said the mandatory minimums for receipt of images were too high. Moreover, in 2010 only 40 percent of convicted offenders for non-production — people who use existing images but do not make them — received sentences that matched the guidelines.

As a result, the commission suggested changes in minimums for non-production offenses, but not for people who make child pornography. It also recommended equalizing the punishment for possession and for receipt, transportation and distribution.

“There is a spectrum of views on the Commission, however, as to whether these offenses [receipt and possession] should be subject to a statutory mandatory minimum penalty and, if so, what any mandatory minimum penalty should be,” the report said. “Nevertheless, the Commission unanimously believes that, if Congress chooses to align the penalties for possession with the penalties for receipt and maintain a statutory mandatory minimum penalty, that statutory minimum should be less than five years.”

In 2013, the Justice Department’s national coordinator for child exploitation prevention and interdiction — the department’s expert on child pornography — wrote to the USSC and said the report was “an important step” in overhauling the sentencing guidelines. While disagreeing with some of the report’s conclusions, especially on recidivism risk, the letter said the Justice Department “agrees with the Commission’s conclusion that advancements in technology and the evolution of the child pornography ‘market’ have led to a significantly changed landscape — one that is no longer adequately represented by the existing sentencing guidelines. … The current guidelines can at times under-represent and at times over-represent the seriousness of an offender’s conduct and the danger an offender poses.”

Nevertheless, Congress did not act on the recommendations. In 2021, the USSC issued another report recommending again that the changes be implemented.

In his news release, Hawley dismissed the idea that this was a bipartisan recommendation. “Judge Jackson recommended eliminating the 5-year mandatory minimum sentence for child porn,” he said. “It’s right there in the report. As for the other Commissioners who supported this bad recommendation, they probably shouldn’t be on the Supreme Court either.”

Twisting the judge’s record

In a long section of the Twitter thread, Hawley compared various sentences handed out by Jackson with the recommended guidelines. The 2021 USSC report noted that in 2019, only 30 percent of non-production child-porn offenders received a sentence within the guideline range. “The non-production child pornography guideline has been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year,” the report said.

So Jackson would not necessarily be out of line with other judges. “Less than 30% of all non-production cases get a Guidelines sentence because just about [every] federal judge realizes these Guidelines are too severe,” tweeted Rachel Barkow, a former member of the USSC. “So KBJ is doing what most of the federal bench does.”

Moreover, Hawley is not including what U.S. probation officers had recommended in these cases. In a pre-sentence report, a probation officer recommends sentencing options informed by the federal sentencing guidelines.

Here is an examination of each of Hawley’s claims about particular cases, with responses from a White House official.

Case in which Jackson met the guideline range

Hawley: “In United States v. Savage, the sex offender was convicted of travel with intent to engage in illicit sexual conduct, and also admitted to transporting child porn. The Guidelines recommended 46-57 months. Judge Jackson gave him 37.”

Response: These were not the guidelines for the defendant. They were 37 to 46 months, which means Jackson sentenced the defendant within the guideline range and above what probation recommended (36 months).

[Update: A GOP Judiciary Committee aide pointed to both the government’s sentencing memo and the plea agreement in the case, which say the guideline was 46-57 months. The White House official noted that page 2 of the plea agreement specifically said that the parties were going to reserve the right to litigate the applicability of an enhancement that would have resulted in these guidelines at the time of sentencing. Jackson ruled against the enhancement (related to use of a computer). That reduced the guideline to 37 – 46 months.]

Cases in which Jackson met or exceeded the probation recommendation

Hawley: “In United States v. Stewart, the criminal possessed thousands of images of child porn and also hoped to travel across state lines to abuse a 9-year-old girl. The Guidelines called for a sentence of 97-121 months. Judge Jackson sentenced the criminal to just 57 months.”

Response: Jackson issued a sentence above probation’s recommendation of 42 months.

Hawley: “In United States v. Cooper, in which the criminal had more than 600 images and videos and posted many on a public blog, the Guidelines called for a sentence of 151-188 months. Judge Jackson settled on 60 months, the lowest possible sentence allowed by law.”

Response: The government and probation both recommended sentences well below the guidelines in this case. The government recommended 72 months, probation recommended 60 months, and defense recommended 60 days. Jackson issued a sentence consistent with probation’s recommendation of 60 months.

Hawley: “In United States v. Chazin, the offender had 48 files of child porn, which he had accessed over a period of years. The Guidelines recommended 78-97 months. Judge Jackson gave him 28.”

Response: Jackson issued a sentence consistent with probation’s recommendation of 28 months.

Hawley: “In United States v. Downs, the perp posted multiple images to an anonymous instant messaging app, including an image of a child under the age of 5. The Guidelines recommended 70-87 months. Judge Jackson gave him the lowest sentence allowed by law, 60 months.”

Response: Jackson issued a sentence consistent with probation’s recommendation of 60 months.

Cases in which Jackson was below the probation recommendation

Hawley: “In the case of United States v. Hawkins, the sex offender had multiple images of child porn. He was over 18. The Sentencing Guidelines called for a sentence of up to 10 years. Judge Jackson sentenced the perpetrator to only 3 months in prison. Three months.”

Response: The government and probation both recommended sentences well below the guidelines in this case. The government recommended 24 months, probation recommended 18 months, and defense recommended one day.

Hawley: “In United States v. Sears, the sex offender distributed more than 102 child porn videos. He also sent lewd pictures of his own 10-year-old daughter. The Guidelines recommended 97-121 months in prison. Judge Jackson gave him 71 months.”

Response: The government and probation both recommended a sentence within the guidelines range (97 to 121 months). Her sentence was above what defense counsel requested.

In other words, only in two of the seven cases cited by Hawley did Jackson render a sentence that was below the probation office’s recommendation.

Moreover, as noted in the quote at the top of the fact check, Jackson later refused to grant Sears compassionate relief for medical reasons. “Sears also admitted to doing more than just possessing and distributing generic and graphic depictions of child molestation,” Jackson wrote in her opinion. “In addition, Sears also provided photos of his own prepubescent female relative to the undercover officer” and “sent similar photos of a friend’s prepubescent child.” Jackson said that “both children were clothed” in the photographs and that the government did not bring charges relating to these acts. “But as the Court previously explained, it is clear that these two young girls were victims insofar as Sears was an adult in their lives who intentionally sexualized them by recording them without their knowledge and sharing their images with predators,” Jackson wrote.

In his news release, Hawley said: “Forget the maximum guideline, Judge Jackson went below the maximum, the minimum, and below what the government requested in every single case for which we can find records, except two. In those two the law required her to impose the sentence the government recommended.”

The Pinocchio Test

We realize Twitter does not always allow for nuance, but Hawley is still leaving out significant context in his thread. He uses snippets of quotes, pretends a bipartisan recommendation is Jackson’s alone and then ignores a variety of factors — such as probation recommendations and out-of-date guidelines — that might result in lower sentences. In his zeal, he also ignores a long debate within the legal community about whether the current guidelines are appropriate.

Hawley earns Three Pinocchios.

Three Pinocchios

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