Why Josh Hawley's 'dishonest' claim that Ketanji Brown Jackson was soft on child pornography is devoid of context and without merit
Evelyn Hockstein/Pool via AP
- Experts say Josh Hawley is off-base in his characterization of Judge Ketanji Brown Jackson's record.
- Hawley has misleadingly suggested that Jackson was too "lenient" toward child pornography offenders.
- But experts tell Insider his claims ignore the context and debate around how to properly sentence people convicted of such crimes.
Republican Sen. Josh Hawley on Monday defended his criticisms of Judge Ketanji Brown Jackson, refusing to back away from what legal experts and fact-checkers have found to be deeply misleading suggestions that President Joe Biden's Supreme Court nominee took a lenient approach to child pornography offenders.
"I want to be candid with you today, so you know exactly what it is I want to talk about," Hawley told Jackson during the first day of her confirmation hearing, before discussing a number of child pornography cases from her time as a federal district judge, in which he says she imposed lighter sentences than the federal guidelines recommended.
Jackson herself addressed Hawley's criticisms for the first time on Tuesday. She pushed back hard on what she said was a mischaracterization of her record. Sen. Dick Durbin, the top Democrat on the Judiciary Committee, tried to get ahead of Republicans by asking Jackson about her record and by personalizing the attacks, asking how she felt that her family had to hear Hawley's charges against her.
"As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth," Jackson said.
A spokesperson for Hawley tweeted out a clip of Jackson's Tuesday response and reiterated the criticisms of her, indicating the senator has no intention of dropping the issue. Hawley, a Missouri Republican and rumored 2024 hopeful, cherry-picked quotes and ignored context to craft the baseless notion that Jackson did not take seriously enough crimes involving the possession of child pornography, legal experts told Insider. Besides Jackson, federal judges across the ideological spectrum believe the current guidelines are outdated and improper, the experts said.
"The claims take Judge Jackson's record completely out of context," Jelani Jefferson Exum, dean of the University of Detroit Mercy School of Law and leading expert on sentencing law, told Insider. Jackson "has never been known as an overly-lenient or one-sided jurist," she added, calling Hawley "dishonest" to single out a few of Jackson's cases and "distort her record, which is quite mainstream."
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On Monday, Hawley dismissed defenses of Jackson's record.
"I will note that some have said the federal sentencing guidelines are too harsh, especially on child sex crimes and especially on child pornography," Hawley said in his opening statement. "I'll be honest, I just don't agree with that. The amount of child pornography in circulation has absolutely exploded in recent years."
Hawley's claims seem to have upended what was expected to be largely civil proceedings. Other Republicans, who have struggled to find a consistent message to oppose Jackson's nomination, have now latched on to and propped up Hawley's line of attack.
"We're going to ask you what we think you need to be asked," Sen. Lindsey Graham of South Carolina said Monday, encouraging Hawley to ask Jackson about her sentencing record. "We'll see what she says. Very fair game."
Drew Angerer/Getty Images
Jackson's experience on the Sentencing Commission
Hawley first aired his accusations against Jackson on Twitter last week, going as far as to say her record "endangers our children." The claims unleashed a wave of pushback from some of his Democratic colleagues, the White House, and supporters of Jackson.
"Attempts to smear or discredit her history and her work are not borne out in facts," White House press secretary Jen Psaki said during a news briefing last week, hailing Jackson's long list of endorsements from major law-enforcement officials and organizations across the country.
At issue is both Jackson's time as a federal district judge and her service on the US Sentencing Commission, a bipartisan independent federal agency that advises Congress and the executive branch on how to best interpret federal law when it comes to sentencing convicted criminals.
Jackson served as vice-chair of the commission from 2010-2014, after President Barack Obama nominated her and she was confirmed by the Senate. Hawley claimed in one of his tweets that Jackson "advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn."
In 2012, Jackson and the rest of the commissioners released a bipartisan report that looked at sentencing data from the federal courts and found that "a growing number" of them considered the current guidelines to be "overly severe."
"The current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements related to their collecting behavior," the report reads.
The commissioners concluded that the existing guidelines should be reviewed to better reflect the new reality of the crimes being committed. For example, given technological advances, possessing child pornography online should now be factored into the guidelines, the report argued.
The commission "did not eliminate mandatory minimums for child pornography offenders — they could not — only Congress can adjust mandatory minimums, and they remain in place," Jefferson Exum told Insider.
What the commission did was "appropriately adjust the applicable guidelines calculations based on real offense conduct, social science, and crime trends, as part of its mandated duties," she added.
Historically, Congress and the commission have tangled over mandatory minimum sentences for child pornography and related crimes, Ronald Weich, dean of the University of Baltimore Law School, told Insider.
"There has been a widespread understanding, including from the sentencing commission, that the guidelines do not fairly assess culpability," said Weich, who worked on the commission around four decades ago.
Nancy Gertner, a retired federal judge appointed by President Bill Clinton, told Insider that Hawley's attacks are "a complete red herring."
That 2012 report was unanimous, meaning that Republican commissioners also approved the proposed recommendations to reduce the federal guidelines for people convicted of viewing child pornography but not producing it, Gertner added.
Still, Hawley refuted the context, saying in a statement last week that: "As for the other Commissioners who supported this bad recommendation, they probably shouldn't be on the Supreme Court either."
Jacquelyn Martin/AP Photo
Jackson's record on child pornography cases
Hawley also pointed to a slew of child pornography cases Jackson decided as a federal district judge, accusing her of being too lenient on offenders by imposing lighter sentences.
In 2021, long after Jackson left the agency, the Sentencing Commission found that most federal courts viewed the sentencing guidelines as overly severe.
The commission's own statistics portray how Jackson, as a federal district judge, was well within the mainstream of her peers on the bench. Federal guidelines were followed in less than 30% of cases in fiscal year 2019. The commission urged Congress to reexamine the issue then, but lawmakers failed to do so.
Crucially, Gertner told Insider, the federal government itself began to stop pushing the harshest allowable sentences. The 2019 statistics found that the Trump-era Justice Department called for a below-guideline sentence in roughly 20% of the applicable cases.
"Judge Jackson's record is entirely consistent with what judges did across the country, Republicans and Democrats," Gertner, who is also a senior lecturer at Harvard Law School, told Insider. "The guidelines lumped in the same category offenders who were really remotely not the same."
Moreover, in five of the seven cases that Hawley referenced, Jackson imposed a sentence higher than what the probation officer recommended, Jefferson Exum told Insider. And in five of the cases, the prosecution also asked for the lower sentence.
"So, none of this is Judge Jackson being soft on crime," she said, "Rather it is Judge Jackson ... being smart and thoughtful about appropriate, proportionate sentencing."
Independent fact-checkers also found Hawley's claims to be lacking. The Washington Post's Fact Checker gave three Pinocchios for "selectively quoting" Jackson and ignoring "a long debate within the judicial community about whether mandatory minimums were too high." The Associated Press found that Republicans twisted her record.
Evan Vucci/AP
Hawley sets up questioning for confirmation hearings
Hawley was never anticipated to be a swing vote for Jackson's nomination, given that he opposed her confirmation to her current seat on the US Court of Appeals of the DC Circuit and he's voted "no" on all 48 of Biden's judicial nominees so far.
But his attack leading up to the confirmation hearings and on Monday teased some of the GOP's messaging strategy against Jackson this week.
Some other Republicans on the committee, including Sens. Ted Cruz of Texas, Marsha Blackburn of Tennessee and Mike Lee of Utah, have also expressed concerns about Jackson's sentencing record.
During her opening remarks on Monday, Blackburn said Jackson has a "consistent pattern of giving child porn offenders lighter sentences."
"Your philosophy, it appears, is backward on these issues," Blackburn claimed.
The stakes are much lower for Republicans this time around compared to the recent confirmation fights for former President Donald Trump's nominees Brett Kavanaugh and Amy Coney Barrett. Jackson's nomination is historic, yet her addition to the bench will not change its ideological makeup. If confirmed, she'll replace retiring Associate Justice Stephen Breyer, a liberal, and maintain the court's 6-3 conservative tilt cemented under Trump.
No Republican has publicly stated their support for Jackson's nomination, but the White House is vying to peel off some GOP votes for a bipartisan confirmation. Biden has made it clear that he wants his nominee to receive bipartisan support. Still, Jackson only needs a simple majority to advance to the Supreme Court, which Democrats can secure on their own with all 50 senators and Vice President Kamala Harris as the tie-breaker.
Former Sen. Doug Jones of Alabama, who has guided Jackson's nomination, told reporters on Monday that Hawley's allegations "shouldn't be a factor" in any of the senator's final decisions on whether to vote for her.
Contributer : Business Insider https://ift.tt/s7HV1xb
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