Sen. Hee-Hawley has outdone himself this time. He’s attacking Supreme Court nominee Ketanji Brown Jackson with the entirely fabricated lie that she is “soft” on sex offenders, child pornographers in particular. See Glenn Kessler, Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders and Ruth Marcus, How low will the GOP go in taking on Ketanji Brown Jackson? Josh Hawley lets us know.
And here’s Ian Millhiser, Josh Hawley’s latest attack on Ketanji Brown Jackson is genuinely nauseating, at Vox.
The senator’s misleadingaccusations 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.
In other words, she wasn’t opposed to people having to register as sex offenders, she was asking a constitutional question. Jackson’s paper has been cited in real-world court cases. This includes a unanimous opinion by the Wyoming state supreme court.
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.
For example, one perpetrator in Jackson’s court was a teenager who shared some child porn with an undercover detective, but the psychologist who evaluated him decided the kid was just curious and not a pedophile. Jackson sentenced him to three months in prison and several months’ probation. But she sentenced an adult who was a sure-enough child pornographer to six years in prison.
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.”
Hawley sits on the Senate Judiciary Committee, so he’s going to be asking question during Jackson’s confirmation hearing. In the next few days we’ll see the entire right-wing media infrastructure label Jackson a friend to child pornographers.