During the second day of Supreme Court confirmation hearings for Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace outgoing Justice Stephen Breyer, Sen. Ted Cruz (R-Texas) and Jackson herself heatedly debated her record in sentencing those accused of child porn possession.
Republicans have said that Jackson has been too lenient in sentencing people convicted of possessing child porn, while the White House, Democrats, and Jackson have said that her decisions were largely in accord with federal sentencing standards.
Citing Jackson’s earlier comment, Cruz pulled out a graphic displaying the outcomes of several cases overseen by Jackson.
In cases where she had no discretion due to mandatory minimum sentencing laws, Cruz noted, Jackson gave the recommended sentence “because she had no choice.”
But in several cases where she was not subject to mandatory minimums, Cruz showed that Jackson gave sentences well below state recommendations.
In one case, United States v. Chazin, prosecutors asked for a 78 to 97-month prison sentence, but Jackson ultimately gave him a 28-month sentence. In another, U.S. v. Hawkins, prosecutors requested 24 months in prison, but Jackson only gave the defendant three months. In U.S. v. Stewart, the defendant received a 57-month sentence, far below the 97 months requested by the state.
On average, Cruz said, Jackson gave 47.2 percent less time behind bars than prosecutors asked for.
“Do you believe the voice of the children is heard when 100 percent of the time you’re sentencing those in possession of child pornography to far below what the prosecutors asked for?” Cruz asked.
“Yes senator, I do,” Jackson responded.
“Your chart does not include all of the factors that Congress has told judges to consider, including the probation office’s recommendation in these cases,” Jackson claimed.
“The second thing I would say is that I take these cases very seriously as a mother, as a ... judge who has to review all of the evidence in these cases and take into account not only the sentencing guidelines, not only the recommendations of the parties, but also things like the stories of the victims ... the nature and circumstances of the offense and the nature and history of the defendant,” Jackson continued.
“Congress is the body that tells sentencing judges what they’re supposed to look at,” Jackson said. The process, she added, is not “a numbers game,” but takes into account the totality of circumstances in the individual case.
Following an increasingly heated exchange between Cruz and Jackson, Sen. Chris Coons (D-Del.) interjected to defend Jackson.
Coons cited a comment made about the charges by the right-leaning publication National Review, which said that the charges were “a smear which appears meritless to the point of demagoguery,” and called Jackson’s approach to sentencing “very mainstream and correct.”
Coons added that Jackson has received the support of two of the largest law enforcement groups in the country, the National Fraternal Order of Police and the International Association of Chiefs of Police.
“I don’t believe that these organizations—having looked closely at your judicial, decisional record, your sentencing decisions, your lifetime conduct—would not have ... [been] that forceful in supporting you if in fact you had some kind of disturbing record of coddling child pornographers or being soft on crime,” Coons said.
“Your record indicates, in my view, that you’re an even-handed and impartial judge,” Coons added.
Coons said that several conservative and GOP-leaning groups have been equally supportive of Jackson’s nomination, which Coons suggested further shows no merit to the charges that Jackson has faced.
“I’ve been researching the record of Judge Ketanji Brown Jackson, reading her opinions, articles, interviews, and speeches,” Hawley wrote. “I’ve noticed an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children.”
Earlier on Tuesday, Jackson attempted to acquit herself of the allegations.
According to Jackson, sentencing guidelines were originally based on child pornography received by mail, but the advent of the internet has created challenges to the old guidelines.
“The guideline was based originally on a statutory scheme and specific directives by Congress, at a time when more serious child porn offenders were identified based on the volume, based on the number of photographs that they received in the mail,” Jackson said.
“That made total sense before—when we didn’t have the internet, when we didn’t have distribution. But the way the guideline is now structured, based on that set of circumstances, is leading to extreme disparities in the system because it’s so easy for people to get volumes of this kind of material now by computers.
“So it’s not doing the work of differentiating who is a more serious offender the way that it used to. So the commission has taken that into account, and perhaps even more importantly, courts are adjusting their sentences in order to account for the changed circumstances. But it says nothing about the court’s view of the seriousness of this offense.”
However, the issue has remained controversial, and will likely continue to be much-criticized by Republicans on the Senate Judiciary Committee as they finish out the hearings for Jackson.
