The Supreme Court is about to get a justice who goes easy on sexual exploiters of children

“Child pornography” is one of those sanitized phrases like “concentration camp” or “special military operation” that doesn’t nearly describe the horrors of its true nature. It’s a term that can be used sotto voce in polite company when the uncomfortable subject comes up at a cocktail party or, say, a Supreme Court nominee confirmation hearing.

Referring to the cruel sexual abuse of small children in bland language enables superficial discourse like that witnessed during this week’s Senate Judiciary Committee interview of Judge Ketanji Brown Jackson, whom President Biden has nominated to fill the seat of retiring Justice Stephen Breyer. It allowed a sterile legal exchange between senators and Jackson without having to say out loud the violent reality of what they really were talking about.  

So, let’s set the context of what the term “child pornography” truly represents, investigations I supervised during my tenure with the FBI. Let’s say out loud what law enforcement encounters every day on an ever-increasing scale. And then let’s keep all that in mind as we review Jackson’s rationale for handing out lower sentences for the abusers who landed in her court.

Here is the hard reality: These images are of mostly prepubescent children down to infants.  They are frightening, many are bloody, many depict screams and crying and pain and helplessness. They show little children drugged and forced to do horrific acts and to endure unspeakable, life-scarring abuse. They represent children who have been abducted, trafficked, lured into a neighbor’s or relative’s house or, unbelievably, turned over by a parent to an abuser for money.  

This sick industry scans social media platforms, copies the photos you post of your little ones, and then digitally manipulates them into vile images. Be aware, parents. 

It isn’t “child pornography”; it is mostly the actual or depicted torture of small, innocent children by grown men who record the torture and sell it to other men, who perpetuate the crime by trading the content and creating new demand, which, in a vicious cycle, generates more little victims. This is the reality that makes Jackson’s efforts to explain her soft approach toward these criminals all the more troublesome. 

During her Senate confirmation hearing, Jackson was confronted with her record of, on average, cutting sentences nearly in half for individuals convicted in her court of violating child pornography laws when she had the discretion to do so. Sadly, other judges also have downward departed from the sentencing guidelines at times, but not in every case.

Jackson may not be able to define what a woman is, but she obviously has devoted a great deal of thought as to why she believes sentencing guidelines are unfair to those who participate in and perpetuate an industry that brutalizes young children. 

She was put on the defensive and responded, as many in Washington do, by assigning blame elsewhere. It quickly got crowded under the bus as she tossed in Congress, then prosecutors, then other judges, followed by the U.S. Sentencing Commission, and the internet, and lifetime restrictions on access to children and computers, and finally society itself, which she has said unfairly “shuns” sex offenders.  

More than once she asserted that her discretion had to be guided by a principle that sentencing should be “sufficient but not greater than necessary to promote the purposes of punishment.” Yet, in child pornography cases where she had sentencing discretion, she determined that the recommended punishment was not necessary and a lower level would suffice.

Sentences, however, also are designed to deter bad behavior — not just by the offender but also within the citizenry, where penalties should be sufficient to dissuade others from committing similar crimes. It’s hard to point to another crime that deserves more deterrence than tormenting a child for sexual purposes. But, Jackson did not acknowledge the benefits of higher sentences that might deter participation in the child sexual abuse industry.   

She did, however, offer a stunning and puzzling rationale for her lighter sentences by asserting, while discussing a 2013 Sentencing Commission report, that the law has not kept up with changes in how child pornography is consumed. Her logic trail was difficult to follow but ultimately compared pre-internet acquisition of this type of illegal material by mail to the vast amount now available online. She asserted that the abundance and ease of acquisition of horrific images in today’s world is somehow an exculpatory factor when it comes to holding offenders accountable. In other words, since you can get more of it these days, you should be punished less. Good news for bad guys but not so great for children.

Jackson stated more than once that she has had to look at these terrible images presented as evidence in her court. This fact does not help her argument; it only calls into question her judgment because, as everyone in law enforcement knows, these repulsive images do not engender feelings of tolerance and reduced punishment in a normal person. Who looks at such horror and thinks, “Yep, I’m going to cut their sentence in half”?

Jackson correctly pointed out that this type of abusive material once was more difficult to obtain.  In fact, it largely had been eradicated, thanks to persistence by the U.S. Postal Service and FBI.  Then came the internet, and now it is an ever-growing wildfire infecting society in devastating ways.

The widening consumption of images of children in sexual situations is happening along with the overt grooming of school-aged children that suddenly has burst out into the open in ways that were inconceivable just a few years ago. Efforts to prematurely expose and desensitize early grades to sex topics; the placement of pornographic novels in school libraries; propaganda about gender fluidity; and allowing boys to access girls’ bathrooms are being forced upon our young. 

The kind of child pornography saturation we are experiencing in this country will have consequences. We, as a people, should be fully aware that Jackson’s philosophy of leniency towards participants in society’s sickest industry is on the cusp of being imported to the highest court in the land. 

Kevin R. Brock is a former assistant director of intelligence for the FBI and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.