After President Joe Biden nominated Ketanji Brown Jackson for the Supreme Court, Reason's Damon Root noted that she "has shown admirable judgment in criminal justice cases." One especially telling example is Jackson's handling of people charged with possessing or sharing child pornography, who face absurdly long sentences under federal law even when they have never committed any offenses involving contact with a victim.
Questioning those sentences is politically perilous, since people tend to erroneously assume that anyone who looks at such pictures is a current or future child molester. Yet as a judge on the U.S. District Court for the District of Columbia, Jackson frequently imposed sentences below the range recommended by federal guidelines. Sen. Josh Hawley (R–Mo.), a former Missouri attorney general, thinks those decisions reveal an "alarming pattern" of "sentencing leniency for sex criminals," whom he equates with "child predators."
Hawley has no idea what he is talking about. His mindlessly punitive attitude elides crucial distinctions and ignores the fact that many federal judges agree with Jackson that the recommended sentences for possessing child pornography are frequently excessive.
Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was a member of the U.S. Sentencing Commission (USSC) from 2009 to 2014. During that time, Jackson recognized that people caught with child pornography do not necessarily pose a threat to public safety. Hawley cites a hearing at which Jackson said she had mistakenly "assumed that child pornography offenders are pedophiles" and was "trying to understand this category of nonpedophiles who obtain child pornography."
While Hawley implies that Jackson's interest in this subject is clearly crazy, it is consistent with research that underlines the importance of a distinction that Hawley ignores in his haste to score cheap political points. As Karl Hanson, a senior research scientist at Public Safety Canada and a leading expert on sex offenders, told me more than a decade ago, "there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending."
Recidivism research supports that observation. A 2021 USSC study, for example, tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a "non-contact sex offense" (which would include possession of child pornography). Just 1.3 percent had been arrested for a "contact sex offense." Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.
Hawley is completely uninterested in such findings. He even faults Jackson for referring to "less-serious child pornography offender[s]," a complaint that bizarrely implies there are no differences among such defendants that might be relevant to the punishment they receive. As far as lawmakers like Hawley are concerned, there is no such thing as an excessively severe sentence for possessing child pornography.
In 2003, the USSC notes, "Congress directly amended the guidelines to add new sentencing enhancements and created new statutory mandatory minimum penalties." As a result, "the underlying conduct triggering such enhancements and penalties increasingly applied to more offenders."
Judges have no choice but to impose mandatory minimum sentences required by statute. But in the 2005 case United States v. Booker, the Supreme Court ruled on Sixth Amendment grounds that federal sentencing guidelines, previously treated as mandatory, are merely advisory. That decision freed federal judges to impose sentences below the guideline range when they thought justice required it.
Jackson was hardly unusual in taking advantage of that discretion. In fiscal year 2019, the USSC found, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in FY 2005. "There had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases," the USSC notes, "which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe."
In other words, the downward departures that Hawley presents as aberrant, marking Jackson as especially soft on "sex criminals," are actually typical. It is not hard to see why.
The USSC notes that the current guidelines, which are "constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress," include "a series of enhancements that have not kept pace with technological advancements." Those enhancements "cover conduct that has become so ubiquitous that they now apply in the vast majority of cases." In FY 2019, for example, "over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim."
Thanks largely to congressional intervention, someone who views, possesses, or shares child pornography can be sent to federal prison for two decades, while someone else who does the same thing might receive probation or a sentence of less than a year. That situation is hard to reconcile with anyone's idea of justice.
Hawley's case against Jackson is based entirely on the unquestioned assumption that the current sentencing scheme is just and that any downward deviations from it must be inappropriately lenient. He cites one defendant, for example, who "had more than 600 images and videos and posted many on a public blog." The guidelines recommended a sentence of 151 to 188 months, but "Judge Jackson settled on 60 months, the lowest possible sentence allowed by law."
While a sentence of 12 to 15 years might be appropriate (or even too lenient) for someone who sexually abuses a child, Hawley thinks it's obviously just for a defendant whose crimes consisted of nothing more than collecting and sharing images of such abuse. He likewise thinks it's obvious that a five-year sentence for such conduct is akin to a slap on the wrist. Many people, including many federal judges, disagree.
Hawley's sense of justice does not even comport with the views of average citizens who serve on federal juries. In a 2014 case involving a defendant who was caught with 1,500 child porn images on his computer, for example, James Gwin, a federal judge in Cleveland, asked the jurors what they thought an appropriate sentence would be. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).
Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. No doubt Hawley would consider five years insufficient in that case as well. But he does not bother to defend that position, except by lazily and ignorantly classifying all such defendants as "sex criminals" who are "preying on children."
As a federal judge in Iowa, Mark W. Bennett likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. "Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence," Bennett told The Marshall Project's Eli Hager in 2015, "every time—even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that's baloney."
Maybe all those jurors are out of their minds. Maybe they, unlike Hawley, are unfazed by child molestation and inclined to treat "sex criminals" leniently. Or maybe they recognize important distinctions that Hawley either does not understand or is determined to obscure.
"Protecting the most vulnerable shouldn't be up for debate," Hawley says. "Sending child predators to jail shouldn't be controversial." But the issue is not whether "child predators" should go to jail. It is whether defendants who are not "child predators" should be imprisoned for, say, 14 months (as the jurors in the Ohio case recommended), five years (the mandatory minimum in that case), or, as Hawley presumably would prefer, the 27 years recommended by federal sentencing guidelines.
Hawley takes the same knee-jerk approach to other public policies dealing with sex offenders. He thinks it is scandalous that Jackson has questioned the justification for publicly accessible sex offender registries and indefinite civil commitment of sex offenders after they have completed their prison terms. Yet there are very good reasons to question both of those policies.
Hawley is also offended that Jackson "suggested public policy is driven by a 'climate of fear, hatred & revenge' against sex offenders." But she is right about that, as Hawley's emotion-based positions illustrate.
Hawley's complete lack of seriousness on this subject is compounded by the partisan vacuity of his attack on Jackson. He suggests that her decisions in cases involving sex offenders reveal a soft spot for "child predators." He surely would not apply the same standard to Republican nominees such as Justice Neil Gorsuch, who as a 10th Circuit judge wrote a decision that upheld the Fourth Amendment rights of a child porn defendant, or Justice Amy Coney Barrett, who as a 7th Circuit judge sided with a man who was convicted of failing to register as a sex offender even though that requirement had expired.
Reasonable people may disagree about such matters. But Hawley is plainly not a reasonable person.