‘Questioning your discretion and judgement:’ Hawley goes after Ketanji Brown Jackson
Missouri Sen. Josh Hawley continued his effort to cast Judge Ketanji Brown Jackson as lenient in her sentencing of child pornography offenders during her U.S. Supreme Court confirmation hearing Tuesday, questioning her decision-making in a specific case for nearly 30 minutes.
In the second day of her four-day confirmation hearing, Hawley focused on a 2013 case — the United States v. Hawkins. It involved an 18-year-old boy who uploaded child pornography to YouTube and possessed child pornography that involved children as young as 8 years old. His collection included hours of images of children performing sex acts.
While prosecutors recommended Hawkins receive two years in prison, Jackson sentenced him to three months, with other probationary measures.
“I am questioning your discretion and your judgment… that’s exactly what I’m doing,” Hawley said. “I’m questioning how you used your discretion in these cases.”
Hawley repeatedly said he was trying to understand how she made her decision and some of her comments in explaining it. Jackson said she did not remember all of the details of the case, but did call it “unusual.”
Jackson said she takes a number of factors into consideration when considering a sentence, including the federal guidelines, requests from prosecution and the defense, the background of the person who is convicted, probation recommendations, the circumstances of the offense and the stories of victims.
She said her sentencing practices are in line with other judges across the country.
“You are questioning whether or not I take them seriously, or whether I have some reason to handle them in a different way than my peers or in a different way than other cases and I assure you that I do not,” Jackson said. “If you were to look at the greater body of, not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do.”
Hawley ignited a debate about child pornography offenses last week when he put out an 18-tweet thread accusing Jackson of being soft on sexual offenses. Democrats pushed back, calling Hawley’s accusations a smear. On Tuesday, White House Deputy Press Secretary Andrew Bates accused Hawley of playing to Q-Anon conspiracy theorists who believe in the existence of a Democratic cabal of Satan worshipers and pedophiles.
In the hearings, most of the Democratic pushback focused on data showing it is a standard judicial practice to sentence child pornography defendants who do not actually produce images to sentences shorter than the government recommendations.
Jackson served on the U.S. Sentencing Commission when it issued a report recommending Congress update the federal guidelines. Advances in technology showed that the guidelines, based on the volume of pornography in someone’s possession, were not an accurate measure for determining the severity of their crime, the commission said.
In response to Hawley, Illinois Sen. Dick Durbin, the Judiciary Committee chair, cited Sarah Pitlyk, a Hawley-approved judge for the Eastern District of Missouri who sentenced a child pornography offender to half of the time indicated by the federal guidelines. Hawley said Pitlyk’s sentence matched the request from prosecutors. He said his issue with Jackson is that she has sentenced offenders to less time than requested by the government.
Durbin, a Democrat, said the fact that judges are sentencing people so far below the guidelines is an indictment of Congress’ inability to update their statute.
“We have created a situation because of our inattention and unwillingness to tackle an extremely controversial area in Congress and left it to the judges,” Durbin said. “And I think we have to accept some responsibility for that, Senator.”
Durbin had already tried to deflate Hawley’s line of questioning before it was his turn to speak. He was the first senator to question Jackson and used some of his time to allow Jackson to respond directly to Hawley’s tweets.
Jackson said each time she is sentencing someone convicted of possessing or distributing child pornography, she makes it a point to highlight the victims. She mentioned adults who can’t have normal relationships and those who go into prostitution or fall into drug use. She mentioned someone who wrote to her saying she can no longer leave her house because she thinks everyone she meets will have seen her pictures on the internet.
“I tell that story to every child porn defendant as a part of my sentencings so that they understand what they have done,” Jackson said. “I say to them that there is only a market for this kind of material because there are lookers, that you are contributing to child sex abuse. Then I impose a significant sentence and all of the additional restraints that are available in the law.”
Durbin also gave Jackson time to talk about flaws in the sentencing guidelines. She said the statute was written before the internet made it easy to download and share images, so the severity of a child pornography offense was determined by the volume of pictures received by mail. She said judges are taking into account the changes in technology and adjusting their sentences accordingly.
Only around 30 percent of non-production child pornography sentences — meaning that the offender did not create the images — are within the federal guidelines, according to a report in 2021 by the U.S. Sentencing Commission.
Later, Texas Sen. Ted Cruz laid out Hawley’s argument nearly step by step, bringing up a paper she wrote in law school where she analyzed whether people should have to register as sex offenders after serving time. It was a question she asked during a U.S. Sentencing Commission hearing and in several of the sentences she issued in child pornography cases.
Cruz asked whether she believed the voices of children were heard when she issued sentences that were shorter than the prosecution’s request.
“I take these cases very seriously as a mother, as someone who as a judge had to review the actual evidence in these cases,” Jackson said.
This story was originally published March 22, 2022 at 7:17 PM.