In 2010, former Attorney General Eric Holder established the Justice Department’s National Strategy for Child Exploitation Prevention and Interdiction to help crack down on child porn offenders, which he called a top priority. He put tough federal sex-crimes prosecutor Francey Hakes in charge of the initiative, and she oversaw all child exploitation efforts at the department, including the FBI and the U.S. Marshals.
That same year, President Barack Obama installed Ketanji Brown Jackson as vice chair of the U.S. Sentencing Commission, where she quietly worked to weaken sentencing guidelines for child porn offenders before giving such criminals light sentences while sentencing them as a federal judge years later.
During the Washington hearing, Hakes testified that the hardest thing she had to do while prosecuting such cases was view “images of infants and toddlers being abused in the vilest ways”—something she now says she doubts Jackson ever actually forced herself to do as a judge before handing down light sentences for criminals who trafficked in such unspeakable images.
She asserted that she didn’t think there was any reason to believe the current sentencing guidelines were “too harsh,” including prison enhancements based on the number of child porn images defendants possessed or distributed.
“We talk about ‘images,’” Hakes testified. “Well, we’re talking about numbers of victims.”
“We also believe the number of victims and character of images is a critical [aggravating] factor because of the harm that it causes, because of the market that it drives,” she said, as Jackson sat listening.
Hakes also urged the commission to toughen sentencing for defendants caught with images of sadomasochistic acts performed on “infants and toddlers.”
“In my own experience, the images of the infants and toddlers appear to me to be even more violent than those of the older children,” she said. “These children simply are defenseless. They cannot tell. They cannot cry out. They cannot say, ‘No.’ They cannot resist or fight.”
Hakes then suggested Jackson and her commission stiffen, not relax, “punishment [for] these very serious crimes.”
But Jackson harbored decidedly different views about the seriousness of child pornography, even though she had possibly never reviewed the horrific evidence in such cases. She would state in commission hearings that she did not “necessarily” view child porn offenders as pedophiles, contradicting experts, and suggested that federal sentencing guidelines mandating they be locked up for a minimum of five years “may be excessively severe”—a view that clearly was at odds even with the Obama Justice Department.
Jackson’s apparent empathy for such offenders carried over into her years on the federal bench. From 2013 to 2021, she under-sentenced defendants in every child porn case she could, even going below the prison terms recommended by her own staff in some cases. Hakes suggested she acted more as a defense attorney for the defendants than a judge.
“I think she probably feels the same way many on the left [and] defense side of things seem to,” Hakes said in an interview.
She said she was also swayed by the letters of support that friends and relatives sent to her court, which in some cases numbered in the dozens.
“Most of these offenders are affluent and often white, with no prior criminal history,” Hakes said. ”They mostly come into court with lots of family and community support, which most drug and violent offenders lack.”
But most of all, she suspects, Jackson was oblivious to the graphic nature of the child porn that was presented as evidence by investigators and prosecutors in the cases she heard. And because she doubts the judge viewed the actual evidence herself, it was easier for her to downplay the severity of the offenses, unlike “those of us who fought these offenders for years.”
“I think also that she has bought into the theory that ‘it’s just pictures,’ and she probably has seen very little actual child porn,” Hakes said. ”Like most of these elites, they don’t really understand what it is. And even hearing it described simply lacks the emotional gut punch of the images themselves.”
“I had many magistrate and district judges outright refuse to view the images at all,” she added. ”Once, I had a magistrate grant a bond I opposed on a child porn defendant, and I appealed to the district court. That judge had never seen the images, either, and we forced her to view them, having made that our issue on bond. She was shocked and never sentenced these offenders the same way again. Also, she granted my motion to detain.”
“I think generally that defending these cases has become fairly easy for the left, because, like I said, most people have never seen these images and might think, as my district judge did, that it was teenagers having sex or baby-in-the-bathtub images,” Hakes continued.
“Of course, it isn’t those things almost ever. So, weakening sentencing for offenders who are white collar and have family and community support is an easy win, and they can call it ‘criminal justice reform.’ In fact, experts know and studies show that these offenders are, in fact, more likely to be actual pedophiles and to have hands-on victims who have simply failed to report the offense.”
Most judges have never seen the actual images and videos of child porn, “unlike me, who was the Department of Justice’s first National Coordinator for Child Exploitation Prevention and Interdiction, as well as a state and federal prosecutor specializing in child exploitation for 16 years,” Hakes said. But she said just hearing the sounds of small children being subjected to the “incredibly painful sexual assaults” is gut-wrenching. She said such porn is sado-masochistic violence, not sex.
Yet in case after case, Jackson let defendants who trafficked in such unspeakably wicked filth off easy.
In her April 2021 sentencing of child porn distributor Ryan Manning Cooper, for example, Jackson contradicted the findings of prosecutors, dismissing the crimes they described as “on the more egregious or extreme spectrum” of child porn as not “especially egregious.” Among the more than 600 images of child porn prosecutors told the judge he traded were depictions of sadomasochism, including sexually explicit images depicting bondage of infants and toddlers.
“I’m really reluctant to get into the nature of the porn,” Jackson told the court before sentencing Cooper to prison time short of what the prosecution recommended.
In 2018, Christopher Michael Downs was busted trading child porn in a private online chat room, “Pedos Only,” including images of adult males raping “a prepubescent female child,” according to court records. He posted 33 graphic photos including an image of a naked female child as young as 2 years old. Downs, then 30, told the group, “I once fooled around with my 13-year-old cousin.”
Jackson herself admitted that the felon was at “risk of reoffending,” the hearing transcript further reveals. But she declined to enhance his prison time based on the amount of porn he distributed, arguing such enhancements were “outdated” and “substantially flawed.” She acknowledged the average sentence nationally “for similarly situated defendants” was 81 months, but she gave him the statutory mandatory-minimum sentence of 60 months, which was short of the nearly six years prosecutors asked her for. In addition, Jackson gave him credit for time served starting from when he was first incarcerated in October 2018, so technically she gave him only 38 months, or a little over three years, in the federal penitentiary. Downs is scheduled for release in December.
In sentencing hearings, Jackson has given defendants stern lectures about the depravity of their acts, but then has failed to punish them according to federal guidelines, which she’s openly told defendants she disagrees with. She also had made excuses for their behavior, suggesting they were more addicted to the computer technology of storing, uploading, and sharing child porn files than the illegal images and videos themselves. In at least one case, she actually apologized to the defendant before incarcerating him for three months versus the two years the prosecution asked for.
“As to why she, in particular, has this idea that leniency toward those who drive the marketplace to abuse children is a winning issue, I just really think it is elitism,” Hakes said. ”I think it is easier, mentally, to believe someone just has a computer addiction ... than it is to believe people truly desire to abuse children.”
Jackson’s soft approach has led to some of her defendants reoffending. Hakes said putting such potential predators back on the street prematurely, without sufficient deterrent, poses a danger to children.
“The scope of the [child porn] problem is staggering, and if you know about it, you have to do something,” she said.
Jackson has also sympathized with child porn offenders having to register as sex offenders and distance themselves from schools, parks, and daycares. Before giving child porn offender Wesley Keith Hawkins just three months in prison, she told him, “I feel terrible about the collateral consequences of this conviction.” Jackson explained that ”sex offenders are truly shunned in our society, but I have no control over the collateral consequences.”
When she was earning her law degree at Harvard, Jackson wrote a brief in the Harvard Law Review arguing that the judicial system was unfair to people who sexually prey on children, because it sentences them to monitoring and treatment after prison, which she viewed as additional “punishment” masquerading as prevention. Although the Supreme Court has upheld such requirements, she complained that “community notification subjects ex-convicts to stigmatization and ostracism, and puts them at the mercy of a public that is outraged by sex crimes.” She further worried that ordering offenders to enter mental health facilities deprives them of their “fundamental right to freedom,” and she suggested that its real purpose is satisfying “the societal interest in locking sex offenders up and throwing away the key.”
Last month, despite his earlier quest to crack down on such offenders, former attorney general Holder made a full-throated endorsement of Jackson.
Jackson is expected to be confirmed when the full Senate takes up her vote possibly as early as Thursday evening. But her confirmation process has been rockier than expected. It marked the first time the Senate Judiciary Committee deadlocked (11–11) on a Supreme Court nod in the modern history of nominations. Thanks in large part to Republican objections to her soft-on-crime record, Democrats were forced to take an additional procedural step to “discharge” Jackson’s nomination from committee on April 4 in order to advance her to the Senate floor for a final vote.
At 51, Jackson is relatively young and could have an increasing influence on Supreme Court decisions over time, including ones involving child sex crimes and punishment.
