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Josh Hawley’s latest attack on Ketanji Brown Jackson is genuinely nauseating

Hawley’s going to a place that decent people have the good sense not to go.

Sen. Josh Hawley asks a follow-up question to US Attorney General Merrick Garland as he testifies before a Senate Judiciary Committee hearing on October 27, 2021.
Tom Brenner-Pool/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On Wednesday evening, Sen. Josh Hawley (R-MO) leveled a false and astonishing charge against Supreme Court nominee Ketanji Brown Jackson. Judge Jackson, Hawley untruthfully claimed, spent the last quarter decade advocating for — and later using her position as a judge to protect — child pornographers.

Hawley’s broad allegation is false. His most substantive claim against Jackson is that as a judge she frequently did not follow the federal sentencing guidelines when sentencing child pornography offenders. But, as Ohio State law professor and sentencing policy expert Douglas Berman writes, “the federal sentencing guidelines for” child pornography offenders “are widely recognized as dysfunctional and unduly severe.”

It’s also a stunningly inflammatory charge, reminiscent of conspiracy theories such as QAnon or Pizzagate, which posit that prominent liberals are part of a vast ring of pedophiles. Similarly incendiary claims have inspired violence in the past, such as when a man with an assault rifle opened fire in a DC pizza restaurant in 2016. The man was apparently motivated by his unfounded belief that Hillary Clinton and her former campaign chair John Podesta ran a child sexual abuse ring in the basement of this pizzeria.

Hawley sits on the Senate Judiciary Committee, which will hold a confirmation hearing on Jackson’s nomination next week. If his public statements this week are any indication, it’s likely that Hawley will spend his portion of this hearing berating Jackson with allegations that she is somehow an ally of sex offenders. It is most likely inevitable, in other words, that Hawley’s attacks on Jackson will reach a wide audience.

Jackson, it is worth noting, is one of the most scrutinized individuals in the entire legal profession. Even before President Joe Biden nominated her to the Supreme Court, she faced three Senate confirmation hearings — once when she was named to the US Sentencing Commission, a second time after she was nominated to a trial judgeship, and a third time when she was nominated to her current job as a federal appellate judge. Her Supreme Court nomination was endorsed by the Fraternal Order of Police and by the International Association of Chiefs of Police.

Hawley, in other words, appears to believe that Jackson’s record was probed by the Senate on three separate occasions, by the nation’s largest police union, and by an organization representing over 30,000 police leaders. And yet, somehow, none of them noticed that she’s been an open advocate for child pornographers for more than a quarter-century.

I would hope that no one would take seriously such an implausible allegation, especially when it comes from a man who is best known for raising his fist in solidarity with protesters shortly before many of them attacked the United States Capitol. But, because Hawley’s presence on the Judiciary Committee ensures that he can loudly broadcast these allegations next week, it’s worth a detailed rebuttal.

Hawley’s attack on Jackson has three parts — none of them are honest

The senator’s misleading accusations can be broken down into three parts. First, he claims that a scholarly article that Jackson wrote while she was still a law student “questioned making convicts register as sex offenders.” In reality, the article examines a constitutional question that was unresolved in 1996, when Jackson published it: under what circumstances are laws that apply retroactively to convicted sex offenders permissible under the Constitution.

As a law student, Jackson concluded that certain constitutional protections, such as the rule that criminal sanctions may not be applied retroactively, do not apply to some laws regulating sex offenders, but do apply to others. It was a nuanced constitutional argument and several judges cited her piece favorably in the years after it was published.

Seven years after Jackson published her piece, the Supreme Court laid out a framework in Smith v. Doe (2003) which guides when restrictions on sex offenders, such as a requirement that they register with local authorities, can be applied retroactively.

Student law review articles (known as “notes” in legal academic parlance) are often a great opportunity for law students to gain experience producing legal scholarship, but they are typically ignored by lawyers and judges. Jackson’s note was an exception. In the interregnum between when the piece was published, and when the Supreme Court handed down Smith, four different judicial opinions cited Jackson’s note, including a unanimous opinion by the Supreme Court of Wyoming.

Presumably, the highest court in one of the nation’s reddest states did not rely on Jackson’s note because Wyoming’s justices believed that she was advocating for child pornographers.

The second prong of Hawley’s attack on Jackson is less of a factual allegation and more of an expression of incredulity. He criticized Jackson because, as a member of the Sentencing Commission, she once probed whether some child pornography offenses should be considered “less-serious” than others.

Of course, the very purpose of sentencing law and policy is to help judges distinguish among individuals who, on paper, have committed similar crimes, but who may be more or less deserving of severe punishment. Most people would agree that a person who shoplifts for the thrill of it has committed a more serious offense than someone who steals bread to feed their starving child. A person who kills for pleasure is more deserving of society’s harshest punishments than someone who, after a night of heavy drinking, gets in a fight and kills their opponent.

But, just in case it is not obvious that yes, some sex offenses are more severe than others, let’s examine two cases heard by Judge Jackson which drive this point home.

The facts of United States v. Sears are extremely disturbing. According to prosecutors, Jeremy Sears offered to send nude pictures of his 10-year-old daughter to an undercover FBI agent. He also shared more than 100 child pornographic videos with this agent, many of which depicted children being vaginally or anally raped by adults. A psychological examination of Sears determined that he “displayed a strong pedophilic interest” and was in a “high-risk category” for recidivism.

Judge Jackson sentenced Sears to nearly six years in prison, plus an additional 120 months of supervised release.

The facts of United States v. Hawkins involve a much younger offender. Wesley Hawkins was 18 years old and still in high school when he shared about two dozen child sexual abuse images and videos with an undercover detective. When law enforcement arrived at his home with a search warrant, he admitted to viewing child pornography and, according to prosecutors, “timely notified the authorities of his intention to enter a guilty plea.”

A psychological evaluation of Hawkins determined that “there is no indication that he is sexually interested in prepubescent children,” and that “his interest in watching teens engaged in homosexual activity was a way for him to explore his curiosity about homosexual activity and connect with his emotional peers.” Jackson sentenced Hawkins to 3 months in prison plus an additional 73 months of supervised release.

No one should minimize Mr. Hawkins’s crime. There is no such thing as a victimless child pornography crime, because anyone who views or shares such pornography helps create a market for content involving children being sexually assaulted. But I would think it obvious that someone who offers to create and distribute pornographic images of his prepubescent daughter is a more serious offender than Hawkins.

The third prong of Hawley’s attack on Jackson appears to be literally true, but only because Hawley uses very precise wording — he claims that Jackson “deviated from the federal sentencing guidelines in favor of child porn offenders” in seven cases where she sentenced child pornographic offenders.

While Jackson did, indeed, sentence these seven offenders to less time in prison than these sentencing guidelines recommend, Hawley’s allegation leaves out some important context. The guidelines’ approach to most child pornography offenders is widely viewed as too draconian by a bipartisan array of judges, policymakers, and even some prosecutors.

According to a 2021 report by the US Sentencing Commission, “the majority (59.0%) of nonproduction child pornography offenders received a variance below the guideline range” when they were sentenced (“nonproduction” refers to offenders who view or distribute child pornography, but do not produce new images or videos). And, when judges do depart downward from the guidelines, they typically impose sentences that are more than 50 months lower than the minimum sentence recommended by the guidelines.

Indeed, guidelines sentences are so harsh that even many prosecutors advise judges not to follow them. As Berman, the sentencing law professor, notes in his own examination of nine child pornography cases heard by Judge Jackson, “in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum.”

How sentencing actually works in federal child pornography cases

The federal sentencing guidelines can be found in a lengthy manual that’s drafted by the Sentencing Commission and reviewed by Congress. The heart of these guidelines is a grid that recommends a sentencing range to judges based on the severity of the defendant’s offense, and the defendant’s past criminal history.

A truncated snapshot of the table at the heart of the federal sentencing guidlines.
US Sentencing Commission

To determine the appropriate guidelines sentence, a judge must first determine what the “base offense level” is for the crime a defendant was convicted of committing — for child pornography offenses, the base level is either 18 or 22. This number will then increase or decrease if the offender meets certain criteria — if a child pornography offender possessed more than 600 images, for example, the offense level is increased by 5.

Calculating the proper guidelines sentence, however, is rarely the end of the sentencing process. In United States v. Booker (2005), the Supreme Court held that the guidelines are merely “advisory,” so judges now have fairly broad discretion to hand down sentences outside of the range recommended by the guidelines.

In a 2012 report, moreover, the Sentencing Commission warned that “most stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded.” This report, which was released while Jackson was still a member of the commission, was unanimous. It was joined by all of the commission’s Democratic and Republican members — including Dabney Friedrich, whom former President Donald Trump later appointed to the federal bench.

As the 2012 report noted, judges typically did not rely on the guidelines when sentencing child pornography offenders. In 2011, they handed down sentences below the range recommended by the guidelines nearly two-thirds (62.8 percent) of the time.

The report also offered several reasons why most judges believed that the guidelines governing child pornography offenses are too harsh. When the guidelines were drafted, for example, offenses involving the use of a computer were considered particularly severe, and the guidelines call for a 2 level enhancement with such offenses. By 2010, however, over 96 percent of child pornography offenders used a computer — so the guidelines effectively increased the recommended sentence for virtually all offenders.

Additionally, the report noted that “recent social science research — by both the Commission and outside researchers — has provided new insights about child pornography offenders and offense characteristics that are relevant to sentencing policy.” This research made it easier to identify which offenders were likely to reoffend, and which offenders may benefit from “psycho-sexual treatment of offenders’ clinical sexual disorders.”

Judges, in other words, now have enough information to hand down harsher sentences to offenders who are more likely to recidivate, and lighter sentences coupled with mandatory treatment for offenders who could benefit from that treatment.

There’s another reason why judges frequently depart from the sentencing range recommended by the guidelines: The guidelines can be a blunt instrument, applying similar sentencing ranges to vastly different offenders.

Consider, once again, the Sears and Hawkins cases. Although Sears’s offense was far more severe than Hawkins’s, under the guidelines, both men committed a crime with an offense level of 30. Had they been sentenced under the guidelines, both would have received a sentence of 97 to 121 months.

But not even the Justice Department thought that such a result would be just. In the Sears case, prosecutors recommended a sentence of 97 months (he received 71). In the Hawkins case, prosecutors recommended a sentence of just 24 months (he received 3).

So, while Hawley is technically telling the truth when he says that Jackson “deviated from the federal sentencing guidelines” when sentencing child pornography offenders, so do most federal judges. The consensus view within the judiciary and among sentencing policymakers is that the guidelines sentences for most child pornography offenders are too high, and judges routinely hand down lighter sentences for these offenders than the guidelines recommend.

An honest look at Jackson’s record reveals that, as a law student, she wrote a nuanced analysis of a difficult constitutional question that vexed many judges — and that several judges relied upon in their own opinions. It reveals that, like any sentencing policymaker, Jackson had to draw distinctions among offenders who had all committed grave crimes. And it reveals that, as a judge, her sentencing practices were in line with those of other judges.

But Hawley’s attack on Jackson is not honest.

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