Sen. Josh Hawley (Mo.), the first Republican senator to raise concerns about Judge Ketanji Brown Jackson’s handling of child pornography cases, told the Supreme Court nominee that he lives in fear that his own kids could be exploited by predators such as those he says she “let off the hook.”
Hawley’s tense back-and-forth with Jackson over her decisions to give sex offenders lesser sentences than what federal guidelines recommended provided one of the most dramatic moments of the first day.
Hawley focused on the case United States v. Hawkins, where Jackson gave the defendant a three-month prison sentence, below the government’s recommendation of two years in prison and far below the federal advisory guideline of a minimum of eight years of incarceration.
The freshman senator, who some colleagues believe is angling for a presidential run in 2024, went over the disturbing details of the 18-year-old defendant involved in the case.
Hawley challenged Jackson’s statement during the sentencing that she didn’t think it would be appropriate to increase a sentence based on the number of images involved as federal guidelines require because “these circumstances exist in many cases if not most and don’t signal an especially heinous or egregious child pornography offense,” quoting her.
“I just want to ask you about that, because I just have to tell you, I’m having a hard time wrapping my head around it. We’re talking about eight-year olds and nine-year olds and 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, but you say this does not signal a heinous or egregious child pornography offense,” he said.
“What word would you use if it’s not heinous or egregious?” he demanded.
Jackson responded somberly and deliberately.
“As a judge who is a mom and has been tasked with the responsibility of actually reviewing the evidence, the evidence that you would not describe in polite company, the evidence that you are pointing to, discussing, addressing in this context is evidence that I have seen in my role as a judge and it is heinous. It is egregious,” she said.
But she explained a judge has to determine “how to sentence defendants proportionately consistent” with the law and the requirements Congress has set forward.
She explained that unwarranted sentencing disparities in child pornography cases is something the U.S. Sentencing Commission “has been focused on for long time.”
“All of the offenses are horrible, all of the offenses are egregious but the guidelines … are being departed from even with respect to the government’s recommendation,” she said.
She noted that federal prosecutors asked for a sentence well below what the guidelines recommended for the defendant. She argued this shows “the guidelines in this area are not doing the work of differentiating defendants.”
“I want to assure you, senator, that I take these cases very seriously,” she said pointedly, bristling at Hawley’s previous claim made last week on Twitter that she has demonstrated “a pattern of letting child porn offenders off the hook for their appalling crimes.”
She said she’s concerned about more than just how much time a defendant spends in prison but also “redirecting the defendant’s attention” to why his or her crimes are wrong and harmful.
She said judges can also consider restricting a convict’s use of computers or freedom to be near children.
But Hawley said Jackson’s sentencing record showed that she was not following Congress’s intent when it passed the Protect Act in 2003, which stiffened penalties for child pornography cases and which the Senate approved unanimously.
Hawley then pivoted to Jackson’s statements in the Hawkins case.
He highlighted that Jackson didn’t view the size of his pornography collection as an aggravating factor and suggested the age of some of the minors depicted was a mitigating factor.
“You said, ‘You were viewing’ — this was you to the defendant — ‘you were viewing sex acts between children who were not much younger than you’ and this whole discussion is about why you’re only giving him three months,” Hawley said.
“Judge, he was 18. These kids are eight. I don’t see what sense they’re peers. I’ve got a nine-year old, a seven-year old and a 16-month old at home and I live in fear that they will be exposed to, let alone exploited in, this kind of material,” he said. “I don’t understand you saying to him that they’re peers and therefore you were viewing sex acts between children who were not much younger than you and that that’s somehow a reason to only give him three months.
“Help me understand this,” he said.
Jackson explained the defendant has just graduated from high school and that “some of, perhaps not all” of the pornographic material he was looking at involved “older teenagers.”
She said that Congress requires judges look at crimes on a case-by-case basis and that the Supreme Court in the United States v. Booker case gave judges the discretion to depart from sentencing guidelines, an opinion penned by the conservative late Justice Antonin Scalia.
“Congress has given the judges not only the discretion to make the decision but required judges to do so on an individualized basis taking into account not only the guidelines but also various factors including the age of the defendant, the circumstances of the defendant,” she explained.
“If you were to look at the greater body of not only my more than 100 sentences but also the sentences of other judges in my district and nationwide you would see a very similar exercise of attempting to do what judges do,” she said.
But Hawley kept pressing his attack.
“You were only going to give him three months because you had judged that he wasn’t a pedophile and then you said — and this is something I really need your help understanding — then you apologized to him,” he said, reading from the record of the case. “I can’t quite figure this out. You said to him, ‘This is truly a difficult situation. I appreciate that your family is in the audience. I feel so sorry for them and for you and for the anguish this has caused all of you.
“I’m just trying to figure out, judge, here: Is he the victim here or are the victims the victims?” he said, noting the lack of a victim impact statement in the record.
Jackson responded that while she didn’t have the entire record in front of her, she considered the case to be “unusual.”
She said that defense counsel was arguing for probation because the defendant has just graduated from high school and “had gotten into this in a way that I thought was inconsistent with some of the other cases I had seen.”