During Tuesday's confirmation hearing, Missouri Republican Sen. Josh Hawley zeroed in on a child pornography case where Supreme Court nominee Judge Ketanji Brown Jackson gave an 18-year-old convicted of possessing illicit videos and images on his laptop only three months in prison.
Hawley called attention to statements Jackson made in U.S. v. Hawkins, a 2013 case in which Jackson made sympathetic comments toward the defendant and his family. The government had requested that the defendant be sentenced to 24 months in prison, but Jackson gave the offender a three-month sentence. Federal guidelines recommend at least a 10-year sentence for the crimes the defendant committed.
Reading from court transcripts, Hawley noted that Jackson had told the defendant she did not believe he was a pedophile. She also made statements expressing her opinion that sentencing guidelines "are in many ways outdated" because they "no longer adequately distinguish more serious child pornography offenders from the less serious child pornography offenders."
In portions of the transcript Hawley posted to Twitter, Jackson told the defendant it would not be "appropriate" to increase his sentence "on the basis of your use of a computer or the number of images or prepubescent victims as the Guidelines require because these circumstances exist in many cases, if not most, and don't signal an especially heinous or egregious child pornography offense."
Hawley said he was "troubled" by these comments.
"I'm having a hard time wrapping my head around it," he told Jackson. "We're talking about 8-year-olds, and 9-year-olds, 11-year-olds, and 12-year-olds. He's got images of these the government said added up to over 600 images, gobs of video footage of these children … What word would you use if it's not heinous or egregious, how would you describe it?"
"It is heinous, it is egregious," Jackson said, noting that while Hawley did not describe in detail the images collected, she had seen them while reviewing evidence for the case.
"What a judge has to do is determine how to sentence defendants proportionately, consistent with the elements that the statutes include with the requirements that Congress has set forward. Unwarranted sentencing disparities is something that the Sentencing Commission has been focused on for a long time in regard to child pornography offenses," Jackson said.
She pointed out that in this case, the government had not followed the sentencing recommendations either, telling Hawley, "The government in this case and in others has asked for a sentence that is substantially less than the guideline penalty."
Following up, Hawley asked about statements Jackson made that appear to mitigate what the defendant had done, including that his collection of child porn was "not as large as it seems" and that "this seems to be a case where you were fascinated by sexual images involving what were essentially your peers."
"Judge, he was 18. These kids are eight. I don't see in what sense they're peers," Hawley said.
Jackson said that she did not have the records of the case in front of her and could not recall the exact details that led her to make those statements. But she did say that, "Congress has given the judges not only the discretion to make the decision, but required judges to do so on an individualized bases, taking into account not only the guidelines but also various factors including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, and the harm to the victims. All of these factors are taken into account."
She defended her record, and said that any examination of the "greater body" of her sentences would show she attempted to do "what it is that judges do," which is "to do justice individually in each case."
In another noteworthy exchange, Hawley asked about an apology Jackson offered to the defendant during the case.
"I just have to tell you, I can't quite figure this out," Hawley said. "You said to him, ‘This is a truly difficult situation. I appreciate that your family’s in the audience. I feel so sorry for them, and for you and for the anguish this has caused all of you. I feel terrible about the collateral consequences of this conviction.’ And then you go on to say ‘sex offenders are truly shunned in our society.’
"I’m just trying to figure out, judge, is he the victim here? Or are the victims the victims?" the senator asked.
“Senator, I— again, I don’t have the entire record,” Jackson answered. “I remember in that particular case, I considered it to be unusual, in part for the reasons that I described. I remember in that case that defense counsel was arguing for probation, in part, because he argued, that here we had a very young man, just graduated from high school, he presented all of his diplomas and certificates and the things that he had done.”
She said that the argument the defense presented convinced her that the circumstances in which the defendant got into child pornography were different from other cases she had seen. Jackson said she had a responsibility as a judge to consider these factors and "disparities" in handing down her sentence, and that the "unusual" circumstances of the case suggested the guidelines were inappropriate.
“I sent this 18-year-old to 3 months in federal prison under circumstances that were presented in this case because I wanted him to understand that what he had done was harmful, that what he had done was unlawful, that what he had done violated the law and needed to be punished not only by prison but also by all the other things that the law requires of a judge who is sentencing in this area,” Jackson said.