Josh Hawley's Attack on Ketanji Brown Jackson Illustrates the Emotionalism She Criticized

The senator argues that questioning sex offender policies "endangers our children."

In a 1996 Harvard Law Review article, Ketanji Brown Jackson, then a law school student, noted the "climate of fear, hatred, and revenge" in which policies dealing with sex offenders are formulated. Before Jackson's Supreme Court confirmation hearing began this week, Sen. Josh Hawley (R‒Mo.) objected to that observation, then proceeded to demonstrate its accuracy.

Hawley's misrepresentation of Jackson's record in this area was typical of the criticism leveled at Supreme Court nominees, which often involves inflammatory, acontextual citations of a candidate's statements and decisions. But it also illustrated the difficulty of having a rational conversation about the legal treatment of sex offenders, a broad and diverse category that extends far beyond the "child predators" on whom Hawley focused.

The senator claimed Jackson, as a federal judge, had shown an "alarming pattern" of "sentencing leniency for sex criminals" who are "preying on children." But the cases he cited actually involved defendants convicted of possessing or sharing child pornography rather than defendants convicted of sexually abusing children.

Hawley averred that Jackson favored "letting child porn offenders off the hook for their appalling crimes." Here, too, he obscured an important distinction: between people who produce child pornography, which necessarily entails abuse of children, and people who look at the resulting images.

Hawley also equated sentencing offenders of the latter type to, say, five years in prison rather than 15 with "letting [them] off the hook." And he ignored longstanding, widespread, bipartisan criticism of the penalties that federal sentencing guidelines recommend for nonproduction child pornography offenses, which many judges, prosecutors, and jurors view as excessive.

Federal law draws an outmoded distinction between receiving child pornography, which triggers a five-year mandatory minimum sentence, and possessing such material, which in the internet context is essentially the same crime. In possession cases, judges have more discretion, although the guidelines recommend penalties based on congressionally prescribed "enhancements" that cover nearly all defendants.

In a 2010 survey, the U.S. Sentencing Commission (USSC) found that a large majority of federal judges thought both kinds of sentences were too long. In FY 2019, the USSC reported, 59 percent of nonproduction offenders received sentences below the guideline range, indicating that "courts increasingly believed the sentencing scheme for such offenders was overly severe."

As evidence that Jackson was especially lenient, Hawley presented cases in which she had sentenced defendants caught with child pornography to terms below the guideline range. But as Douglas Berman, a sentencing expert at Moritz College of Law, pointed out, "Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream."

Andrew C. McCarthy, a former federal prosecutor who writes for National Review, described Hawley's characterization of Jackson's sentencing record and her criticism of the current sentencing scheme as "a smear" that was "meritless to the point of demagoguery." But such demagoguery is par for the course when it comes to policies aimed at sex offenders.

In addition to criticizing Jackson's "quite mainstream" views on child pornography penalties, Hawley cited her Harvard Law Review article, which argued that courts should deem sex offender laws "punitive" rather than "preventive" when "they operate to deprive sex criminals of a legal right in a manner that primarily has retributive or general-deterrent effects." That distinction is important because punitive laws are subject to additional constitutional constraints, including due process requirements and the bans on double jeopardy, ex post facto laws, and "cruel and unusual" punishment.

In 2016, for example, the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act was primarily punitive, meaning its requirements could not be imposed retroactively. The supreme courts of several states, including Alaska, New Hampshire, and Pennsylvania, have reached similar conclusions regarding sex offender registries.

According to Hawley, however, Jackson's discussion of this subject exemplified "a record that endangers our children." This is precisely the sort of emotionalism that Jackson rightly described as an obstacle to clear thinking on an issue that tends to generate more heat than light.

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