“As I’ve said over and over, part of my concern with Judge Jackson is that she has not followed the prosecutors’ sentences.”
Judges take into consideration a range of factors at sentencing, including the sentencing guidelines, recommendations from the government and defense, and the probation office’s report and recommendations — not to mention the defendant’s age and circumstances, the nature of the crime and harm to the victims. In many cases, Jackson imposed a sentence above the probation office request.
During the hearings, Hawley said that Jackson not only failed to follow the guidelines, but also recommendations from prosecutors. “You chose to depart both from the federal guidelines and also from the government’s, the prosecutor’s recommendation,” he told Jackson. As we noted, that’s just one factor a judge is supposed to consider. “Sentencing is a discretionary act of a judge,” Jackson responded. “But it’s not a numbers game. It’s not.”
(Mea culpa: Originally we wrote that he appeared to shift the goalposts during the hearing. After this article was published, Hawley’s staff pointed out he made this point regarding prosecutor recommendations on several occasions before the hearings started, so his goal posts remained the same.)
When Jackson was elevated to the appeals court last year, her record on child pornography cases was not an issue. We decided to examine how some district judges who were nominated to the appeals level under President Donald Trump handled sentencing in child pornography cases — and whether they followed the prosecution’s recommendations.
This is an incomplete list as it’s difficult to collect this material, even through Lexis. Access to records in these cases varies by federal district, with many cases sealed. North Dakota does not put many under seal, which is why it is easier to find cases there. Some courts include transcripts of the sentencing hearing while others do not. But there are at least 18 instances when six GOP judges elevated to the appeals court did not follow the prosecutor’s recommendations.
We shared the broad outlines of the research with Hawley’s staff. Abigail Marone, a spokesperson for Hawley, was not impressed. “Judge Jackson sentenced below federal guidelines and prosecutor recommendations in 100 percent of the child pornography cases where she had discretion,” she said in a statement. “She is the one up for Supreme Court, no other judge — but we look forward to reading another Narrative Check full of White House talking points attempting to justify Judge Jackson’s leniency toward these criminals.”
Amul Thapar (federal judge in the Eastern District of Kentucky, confirmed to the 6th Circuit in 2017). Thapar had appeared on Trump’s shortlist of potential Supreme Court nominees, earning an interview with the president.
In 2013, in United States v. Sherman, Thapar sentenced Corrine Sherman to 360 months for production of child pornography, possessing child porn and conspiracy, when his guidelines were life and the government recommended 1,080 months. Sherman — along with her husband, who died of a heart attack while in custody — were charged with enticing minors to engage in sexually explicit conduct for videos and photos.
During the sentencing, according to a court transcript, Thapar mused about the efficacy of such long sentence, given the cost to the taxpayer and also the fact that Sherman, a 33-year-old Canadian, would probably be deported as soon as the sentence was completed. He sought to find a sentence that would at minimum protect her young children until they were adults — and make sure she could no longer have children.
“A hundred years would be a great deterrent, I think,” he said. “Not convinced, because we keep giving these healthy sentences which are deserved but aren’t accomplishing as much deterrence as we want. It’s kind of like the drug fight. At some point, we’re banging our head against the wall and we’ve got to figure something out.”
He added: “But at some point, enough is enough. And to me, saying, okay, give her a hundred years, you're asking the American taxpayers to pick up that bill. There's much more heinous criminals in the world. I'm not saying child pornography isn't heinous, but much more that we want to house because if we release them, they go back into our society and prey on our people.”
Thapar concluded: “In the end, I think the 30-year sentence accurately reflects all the statutory purposes of sentencing. Now the question is, is this a variance below the guidelines, and I think it is. And I guess I have to justify it. I think I have justified it sufficiently.”
Andrew Brasher (judge in the Middle District of Alabama, confirmed to the 11th Circuit in 2020, with Hawley in support).
In 2019, in United States v. White, Judge Brasher sentenced a 69-year-old defendant for receipt and possession of child pornography to 84 months when his guidelines were 151-188 months and the government recommended 170 months.
Joseph Bianco (judge in the Eastern District of New York, confirmed to the 2nd Circuit in 2019, also with Hawley in support).
In United States v. Bowen, Judge Bianco in 2013 sentenced a defendant for distribution of child pornography to 60 months when his guidelines were 151 to 188 months. The government recommended “something more” than 60 months, arguing that the defendant traded child pornography, not just downloaded it. But Bowen did not buy the argument.
“Essentially every mitigating factor that you would normally think of in this case — in a case, the Defendant has. And the Guidelines here are just way disproportionate under the facts of this case, and I don’t view them as particularly helpful in this case,” Bianco said, according to a sentencing transcript. “I believe the Probation Department got it right in terms of the statutory mandatory minimum being sufficient, but not greater than necessary to achieve the factors of sentencing.”
In United States v. Newton, Bianco in 2018 sentenced a defendant, a registered sex offender who was already on probation, for transportation of child pornography to 228 months when his guidelines were 262 to 327 months and the government recommended a sentence of at least 240 months. During the sentencing hearing, Bianco told the defendant, “It’s very important that I emphasize to you that these guidelines are not mandatory. They are only advisory, and therefore I am not required to sentence you in whatever the applicable range may turn out to be.”
In United States v. Zanco, Bianco in 2020 sentenced a defendant, a former high school teacher, for transportation of child pornography to 60 months when his guidelines were 97 to 121 months and the government recommended a sentence from 97 to 121 months.
Richard Sullivan (judge in the Southern District of New York, confirmed to the 2nd Circuit in 2018).
In United States v. Sherlock, Sullivan in 2019 sentenced a 28-year-old defendant for possession of child pornography to 18 months when his guidelines were 63-78 months and the government recommended a sentence from 63 to 78 months. During the sentencing hearing, Sullivan indicated that he needed to weigh a number of factors, including the fact that the defendant was on autism spectrum and that he had previously been arrested for possessing child pornography.
“So, I would say this: Ordinarily, if I had a person charged with this crime, who admitted this crime, who had done it before, and previously been prosecuted and given a noncustodial sentence, I would say ordinarily these guidelines would not offend me,” Sullivan said. “Some judges have real problems with the guidelines in this space, and that is empirically true. It is a fact that judges depart from these guidelines at a higher rate than other guidelines, no question about it, and there's been a lot of discussion about whether they are pegged too high.”
Sullivan ultimately decided that “a sentence of 18 months is appropriate” though in 2020 he denied a request for compassionate release because of the coronavirus pandemic. “The Court concludes that its reasons for imposing a sentence of 18 months’ imprisonment are just as applicable today as they were in 2019 (Sentencing Tr. at 44-50), and that a reduction in sentence is therefore inappropriate,” he wrote.
In United States v. Jin, Sullivan in 2012 sentenced a defendant for possession of child pornography to probation (no prison sentence) when his guidelines were 57-71 months and the government also recommended a sentence of 57-71 months.
Amy St. Eve (judge in the Northern District of Illinois, confirmed to the 7th Circuit in 2018).
In United States v. Conrad, Eve in 2010 sentenced a defendant for possession, transportation, advertising and distribution of child pornography to 198 months when her guidelines were 360 months to life and the government recommended 360 months.
In United States v. Bagnuolo, Eve in 2016 sentenced a defendant for possession and transportation of child pornography to 108 months when her guidelines were 151-188 months; the government also recommended a sentence of 151-188 months.
Ralph Erickson (U.S. district judge in North Dakota, confirmed to the 8th Circuit in 2017).
In United States v. Belanger, Erickson in 2009 sentenced a defendant for possession and receipt of child pornography to 84 months when his guidelines were 97-121 months and the government recommended a sentence of 97 months.
In United States v. Miller, Erickson in 2015 sentenced a defendant for possession and transportation of child pornography to 96 months when his guidelines were 151-118 months and the government recommended a sentence of 151 months.
In United States v. Wirz, Erickson in 2015 sentenced a defendant for transportation and possession of child pornography to 90 months when his guidelines were 121-151 months and the government recommended a sentence of 121 months.
In United States v. Reed, Erickson in 2015 sentenced a defendant for possession, receipt and distribution of child pornography to 192 months when his guidelines were 235-293 months and the government recommended a sentence of 204 months.
In United States v. Eslinger, Erickson in 2015 sentenced a defendant for possession, receipt and distribution of child pornography to 192 months when his guidelines were 235-293 months and the government recommended a sentence of 235 months.
In United States v. Cude, Erickson in 2015 sentenced a defendant for transportation and possession of child pornography to 210 months when his guidelines were 235-293 months and the government recommended a sentence of 235 months.
In United States v. Beattie, Erickson in 2016 sentenced a defendant for possession of child pornography to 144 months when his guidelines were 210-262 months and the government recommended a sentence of 210 months.
In United States v. Meagher, Erickson in 2016 sentenced a defendant for possession and receipt of child pornography to 120 months when his guidelines were 151-188 months and the government recommended a sentence of 151 months.
In United States v. Lindseth, Erickson in 2017 sentenced a defendant for possession and receipt of child pornography to 123 months when his guidelines were 188-235 months and the government recommended a sentence of 151 months.
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