Josh Hawley grills Biden Supreme Court pick Ketanji Jackson on her lenient sentences for child porn purveyors

Senator Josh Hawley has brought to light cases in which Biden's Supreme Court nominee Judge Ketanji Brown Jackson did not adhere to federal sentencing guidelines for those convicted of child pornography. When he brought the cases up last week, he was slammed for doing so, and fact-checkers leapt into the fray to say that he was incorrect in his assessment, because there was a judicial consensus that the penalties for child pornographers were too harsh.

Hawley noted that the sheer number of child sex abuse images continues to rise exponentially, and he does not agree that the sentencing guidelines are too harsh. In fact, the prevalence of child sex abuse images, in Hawley's view, is not a reason to lessen the guidelines at all.

Part of the reasoning for this was that, prior to the prevalence of computerized and easily-available internet pornography, use of a computer to aid in creating or distributing child pornography was considered to be particularly heinous, but that after 2010, most cases of the distribution, collection, or manufacture of images of child sexual abuse were via computer. This meant that those child pornographers who used the computer to satisfy their aims were subject to harsher penalties than those who used analog means.

Vox wrote that, per a report, there were "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."

For Hawley, and many others, once the images of sex abuse exist, the crime has already been committed, and anyone holding those images is guilty in abetting the crime of child sex abuse.

Vox noted that, per the report cited, those who collect or disseminate child sex abuse images should be sentenced according to their likelihood of offending physically against children, without realizing that holding or sharing images of child sex abuse is in itself a violent offense against those children pictured.

Vox wrote that "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.'"

In his opening remarks during Jackson's confirmation hearing, Hawley brought up the cases that caused him concern regarding Jackson's commitment to holding accountable purveyors and collectors of child sex abuse images.

Hawley referenced the United States v. Hawkins. "This was a child pornography case," he said, "where the defendant distributed multiple images of child porn, possessed dozens more, including videos. The federal guidelines recommended a sentence of 97-121 months in prison. Prosecutors recommended 24 months in prison.

"Judge Jackson gave the defendant three months in prison," Hawley noted.

The United States v. Chasten was the next case on Hawley's list, in which the defendant held 48 files containing child sex abuse. Federal guidelines call for 78-97 months in prison, and the prosecuting attorney also recommended that. Jackson, Hawley said, sentenced the defendant to only 28 months.

In another case, the United States v. Cooper, the defendant "distributed dozens of images of child pornography, and possessed over 600," Hawley said. "Federal guidelines recommended 151-181 months in prison, that's a long time, the prosecutor recommended 72 months. Judge Jackson gave the defendant 60 months, which was the lowest sentence permitted by the law."

Hawley referenced the United States v. Down, "that's a case where the defendant distributed 33 graphic images and videos of child sexual assault to an anonymous messaging app, unfortunately a practice it's becoming more common." In this case, Hawley said, the federal guidelines asked for 70-87 months in prison. The prosecutor asked for 70 months, but "Jackson sentenced him to only 60."

The United States v. Stewart, wherein the defendant had "scores of images of children suffering," Hawley said, only earned a sentence of 57 months, compared to the 97-121 months that were recommended by guidelines. Another case, the United States v. Sears, saw the distribution of over 100 images of child sexual abuse, and for this Jackson gave a sentence of 71 months.

In the case of the United States v. Savage, the defendant not only possessed images of child sexual abuse, but engaged in the abuse themselves. Guidelines, in this case, recommended 46-57 months in prison, noting that Jackson only issued a sentence of 37 months in prison.

Hawley praised Jackson, and said that he wants to speak with her about these things, saying that the "American people deserve to hear her answers." But in so doing, he brought up the sheer number of child sexual abuse images that are found online, saying that "Just last week, the National Center for Missing and Exploited Children reported finding 85 million possible child pornography in 2021."

"I think it's difficult against this backdrop to argue that the sentencing guidelines are too harsh or outmoded," Hawley said, "or that we should be somehow treating child porn offenders more leniently than the guidelines recommend."