Hawley hits back at Durbin, says Jackson’s record ‘concerning’
Sen. Josh Hawley, R-Mo., on Ketanji Brown Jackson’s confirmation hearing.
Last week, I pointed out on Twitter that Judge Ketanji Brown Jackson – up for confirmation to our nation’s highest court – has an alarming pattern of going soft on child pornography offenders. And she does.
As early as law school, Jackson was complaining of the "current climate of fear, hatred, and revenge associated with the release of convicted sex offenders." While serving on the Sentencing Commission, she supported eliminating the existing child pornography mandatory-minimum sentence. Those views carried over to Judge Jackson’s time on the bench. Over and over again, she handed down sentences well below the congressionally endorsed Sentencing Guidelines recommendations. Unfortunately, Jackson is not the first judge to do that. But she stands out because she also consistently sentenced child pornography offenders below even what liberal prosecutors in Washington, D.C., were seeking.
Sen. Josh Hawley meets Supreme Court nominee Judge Ketanji Brown Jackson, in his office at the Capitol on March 9, 2022. (Reuters/Evelyn Hockstein)
In one of the most egregious cases (United States v. Hawkins), involving an adult man who uploaded videos of underage children engaging in sexual behavior to YouTube, Judge Jackson sentenced the offender to just three months in prison, even though the Sentencing Guidelines recommended an 8- to 10-year sentence and the Obama administration sought a sentence of several years.
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In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting. This isn’t a one-off. It’s a pattern.
The responses from Democrats and their sycophants in the press, after I raised these concerns, have been very illuminating.
They seem to be coalescing around a disturbing line of response: everybody does it. That is to say, Jackson’s record of leniency doesn’t really matter, because other federal judges repeatedly deviate from the guidelines in child pornography cases, prosecutors and probation officers steeped in progressive ideology often request below-guidelines sentences, and a chorus of left-wing law professors, criminologists and psychologists all believe that we’re too tough on sex offenders.
In other words, if Judge Jackson’s record bothers you, you’re just too dumb. Better leave this stuff to the experts.
In our constitutional order, the "experts" don’t run the show. The people do.
That’s nonsense. First, Judge Jackson is even softer on child pornography offenders than the Obama and Biden administrations. And second, you don’t need a Ph.D. in criminology to recognize that someone who circulates dozens of videos of young girls being sexually assaulted by adult men and women, and sends around lewd images of his own daughter (United States v. Sears), should be punished to the fullest extent of the law.
We’ve been in this exact situation before.
In the early 2000s, when the Sentencing Guidelines were mandatory, judges regularly departed downward from the guidelines in child pornography cases for dubious reasons. In one particularly notorious case, United States v. Parish, a judge cut a child pornography defendant’s sentence in half on the theory that he would be "highly susceptible to abuse in prison." (The defendant was almost 6 feet tall and weighed nearly 200 pounds.) In the words of then-Sen. Orrin Hatch, R-Utah, "this is simply incredible and outrageous. Congress has to act, and it has to act now."
And Congress did. Congress passed the PROTECT Act of 2003, which cut back on judges’ ability to downwardly depart from guidelines-recommended sentences in sex offense cases. It also created a five-year mandatory minimum sentence, which Judge Jackson is on record trying to eliminate.
Sen. Hatch explained that the bill "would simply require judges to sentence these vicious defendants in accordance with the law and not seek new areas or new legal justifications for reducing sentences for these defendants without specific authorization from the U.S. Sentencing Commission." And the bill passed the Senate by an 84-0 vote– notably, with Sens. Dick Durbin, D-Ill., Dianne Feinstein, D-Calif., and Chuck Schumer, D-N.Y., as well as many other Democrats, all voting in favor.
That law didn’t sit well with lenient judges. And, after the Supreme Court found that the Sentencing Guidelines weren’t binding – cutting the PROTECT Act’s reforms off at the knees – the original problem recurred. As Judge Jackson’s record reflects, we’re back to the not-so-good old days of going easy on child porn offenders.
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We’ve seen the results of this lenient approach. In the late 2000s, the number of child pornography depictions online was just under a million. That was way too many. But now it’s worse. Last year, it was 85 million. The soft-on-crime attitude of the so-called "experts" has created an epidemic.
This trend, ultimately, is a betrayal of our democracy. When the question is put to them and their elected representatives, the American public speaks with one voice: child pornography offenders should be punished to the fullest extent of the law. In our constitutional order, the "experts" don’t run the show. The people do. And ordinary Americans are not interested in going soft on sex criminals.
That’s why downward deviation from the guidelines matters – because those deviations are fundamentally out of step with how Americans want to protect their kids from the worst of the worst. Frankly, I can’t say it any better than Sen. Hatch did in 2003, "This many departures happens to be very disturbing and astounding considering the magnitude of the suffering by our nation’s youth at the hands of pedophiles, molesters and pornographers."
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Once upon a time, Sens. Durbin, Feinstein, Schumer, and many other Senate Democrats agreed with him. I still do.
What changed?