WASHINGTON — Republican lawmakers are misleadingly portraying Judge Ketanji Brown Jackson, President Biden’s Supreme Court pick, as uncommonly lenient on felons who possess images of child sexual abuse.
During Judge Jackson’s confirmation hearing on Monday, and in social media posts before the hearing, several senators homed in on her judicial record on the issue. In doing so, they omitted the context of her remarks and sentencing decisions.
Here’s a fact check.
What Was Said
— Senator Josh Hawley, Republican of Missouri, on Twitter last week
— Senator Marsha Blackburn, Republican of Tennessee, in the hearing on Monday
These claims are misleading. In a series of posts on Twitter, Mr. Hawley took Judge Jackson’s legal recommendations, remarks and sentencing decisions out of context. Ms. Blackburn’s statement is a further distortion of the judge’s views.
In one tweet, Mr. Hawley said that “Judge Jackson advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn” as a member of the United States Sentencing Commission, which advises Congress on federal sentencing guidelines.
This was an overly broad characterization of sentencing recommendations made by the commission. It also omits that the commission is bipartisan and issued the recommendations as a body.
The commission noted in a 2012 report to Congress that existing sentencing guidelines on crimes involving images of child sexual abuse “fail to differentiate among offenders in terms of their culpability” and result in penalty ranges that “are too severe for some offenders and too lenient for other offenders.”
Under existing guidelines, there is no mandatory minimum sentence for possession of such material, but receipt, transportation or distribution carries a five-year minimum. (Production carries a 15-year minimum.) The commission recommended that Congress align the penalties for possession and receipt, and unanimously recommended a mandatory sentence of less than five years for both crimes.
The recommendations were in line with a 2010 survey conducted by the commission, in which 71 percent of district judges polled said they believed the mandatory minimum sentence for receipt of images was too high.
Andrew C. McCarthy, a conservative writer and former federal prosecutor, characterized Mr. Hawley’s criticisms of Judge Jackson as a smear.
“It is not soft on porn to call for sensible line-drawing,” he wrote in a column for National Review. “Plenty of hard-nosed prosecutors and Republican-appointed judges have long believed that this mandatory minimum is too draconian.”
In fact, three Republican-appointed judges served on the commission with Judge Jackson when the recommendations were released: Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit, Judge Ricardo Hinojosa of the Southern District of Texas and Judge Dabney Friedrich, who was appointed to the District Court for the District of Columbia by President Donald J. Trump.
Judge Pryor told The New York Times that the panel’s recommendations were almost uniformly supported by its members.
“We worked by consensus, and that is the tradition of the sentencing commission,” he said. “Virtually all of our votes were unanimous and data-driven.”
(Mr. Hawley, in a statement released last week in response to a Washington Post fact-check, said that the other commissioners who made the sentencing recommendations “shouldn’t be on the Supreme Court either.”)
In his Twitter thread, Mr. Hawley also highlighted remarks Judge Jackson had made during a commission hearing about “less serious” offenders and those who collect material of child sexual abuse to “find status in their participation in the community.” These remarks, Mr. Hawley suggested, showcased her “troubling views.”
But these quotations came from follow-up questions Judge Jackson asked of expert witnesses, who had spoken of different motivations that collectors of child exploitation imagery might have.
One expert had distinguished between “less-serious offenders” and those who more actively share images, encourage consumption and mask their usage. Another had spoken in the hearing about “socially inadequate people” who collect such material to “gain some status from actually having certain images” and share them “within a community online.”
In her questions to the witnesses, Judge Jackson said she was “surprised at some testimony with respect to the motivations of offenders,” asking whether some “less-serious offenders” were more interested in the technological or social aspects, and about the size of each category of offenders.
Ms. Blackburn also took Judge Jackson’s comments out of context. In response to an expert’s testimony about the definition of a pedophile, Judge Jackson asked about the “category of nonpedophiles who obtain child pornography” and said that she had been mistaken to assume that those who possess such material are pedophiles. (The expert, Dr. Gene G. Abel, clarified that it is rare for someone who collects such images to not look at them, but that anyone who collects over six months meets the definition of a pedophile.)
Additionally, Mr. Hawley and Ms. Blackburn both highlighted Judge Jackson’s record for imposing lighter sentences than the federal guideline recommendation. But this is not out of the ordinary for judges. And of the nine cases the lawmakers cited, prosecutors also sought shorter sentences than were recommended in five, according to a review by Douglas A. Berman, a law professor at Ohio State University.
Moreover, as the Sentencing Commission noted in a 2021 report, just 30 percent of offenders who possess or share such material received a sentence within the guideline range in the 2019 fiscal year, and 59 percent received a sentence below the guideline range.
Mr. Berman wrote on his legal blog last week that federal sentencing guidelines for child sexual abuse imagery “are widely recognized as dysfunctional and unduly severe” and that “federal judges nationwide rarely follow them.”
“If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,” he wrote.
