Ketanji brown Jackson, Supreme Court nominee has patiently answered Republican criticisms about her sentencing decisions for child pornography case cases. First, the current federal sentencing scheme for people convicted of possessing or sharing child pornography is a mess—a point that the bipartisan U.S. The United States Sentences Commission (USSC) has been working for over a decade with federal judges from across the nation. A judge’s role in sentencing does not include following federal guidelines blindly or approving the recommendation of the prosecution. Instead, the judge must make an impartial assessment of the severity of each case.
Jackson’s most prominent Republican critics are clearly ignorant to a certain extent. Sens. Josh Hawley (R–Mo.) and Ted Cruz (R–Texas) are both attorneys who, like Jackson, graduated from Ivy League law schools (Yale and Harvard, respectively) and clerked for Supreme Court justices. Hawley has served as a senator since 2003. He was also the Missouri attorney general. Cruz has served as a senator nine years. He was also the former solicitor general of Texas.
Although both senators are trying to pretend otherwise, it is clear that inflicting a sentence of imprisonment shorter than the requested length does not mean that the judge will be more lenient. Each must acknowledge the crucial distinction that they are trying to hide: the difference between children abused by sexual assault and child pornography producers, as well as defendants who were convicted of looking at those images.
Hawley still calls the second category of defendants “child predators” or “sex criminals”, who prey on children, while Cruz refers to them as “sexual predators.” Andrew C. McCarthy was a former federal prosecutor, who wrote for this reason. National ReviewAccording to, Hawley’s attacks on Jackson were “disingenuous”, “a smear” and “meritless up the point of demagogy.”
However, there are also signs that Cruz and Hawley may not be knowledgeable about the subject they’re expressing opinions on. McCarthy wrote that Senator Hawley was a brilliant man, but it isn’t clear if Hawley ever dealt with a child pornography case during his brief tenure as a lawyer. It is not clear, based on the limited research I’ve conducted, that Missouri Attorney General’s Office considered child pornography a top priority during Hawley’s 2-year tenure as AG.
McCarthy was an Assistant U.S. lawyer in New York, and had vast experience dealing with these cases. McCarthy describes the problems posed by mandatory minimal sentences that are based upon technologically outdated distinctions.
Under federal law, ReceivingChild pornography is subject to a mandatory five-year minimum. BesitzenChild pornography is not considered child pornography, even though defendants can view and download the images. DistributionThe same minimum standard applies to child pornography. This includes non-commercial sharing via peer-to-peer or other methods.
“The receipt and distribution sentencing provisions are so heavy-handed,” McCarthy explains, “that judges and lawyers end up engaging in the unsavory practice of ‘fact-pleading’—i.e., ignoring facts that suggest the defendant was up to more than simple possession in order to avoid triggering the mandatory minimum. This is an abuse, however it permits for a reasonable sentence which could well be non-prison, with the condition that the sentence can turn into prison if it’s recited.
McCarthy said that although “I don’t exactly have a history of being soft-on crime” and would “have no qualms about Congress imposing a sentence for life imprisonment for real predators of children” McCarthy stated, the five year sentence McCarthy is referring to is “too harsh.” McCarthy notes that this mandatory minimum is much harsher than sentences he has handled in terrorist cases and almost equal to the sentence of “a Mafia boss”, who was sentenced under a plea agreement in racketeering, which made no sense.
McCarthy stated that in child pornography case, McCarthy often found out the suspect was an older kid than the ones depicted in porn. He stated that federal prosecutions of minors were not available except in cases involving serious and violent crime. It meant that, “if the offender was less than 18 days old, we would dismiss the case.” However, if the offender turned 18, we’d take the case. “If the case was filed later and we decided to proceed, he would face a mandatory sentence of several year’s imprisonment. This was called “insanity.”
No matter whether the mandatory minimum is applied, sentencing guidelines suggest penalties that are based upon congressionally-required “enhancements” which cover most defendants who have been caught using child pornography. Other punishments include the use of a computer (ubiquitous) and the number images in each video.
Jackson explained today at her hearing that the latter factor is often emphasized by the prosecutors but does not necessarily indicate the severity or seriousness of defendants’ conduct. Jackson explained that Judges are trying to make justice for those in “terrible circumstances” by eliminating any unjustified disparities and “ensuring the worst defendants receive the longest time periods.” “When modes of commission of the crime change, such that in two seconds someone can receive or distribute thousands of images, that is no longer…an indicator of a person who, relative to other people, has committed this crime in a more aggravated way. Our goal is to deal with those who exhibit the most horrific of behaviors. It is this that our justice system was created. This is how judges decide to punish people for doing terrible things.
Jackson pointed out that Congress’ guidelines are not consistent with the way these crimes were committed, and there is extreme inequality. The current system allows anyone who sees, has, or shares child pornography to be sentenced to two years in federal prison. Someone who has the same crime might get probation, or even a shorter term. This situation can be difficult to accept with any notion of justice.
USSC stated in a 2012 report that it found “some offenders’ sentencing guidelines are too harsh” due to outdated and unjustified enhancements. According to the commission, 2021 saw “most courts” conclude that the sentencing structure for nonproduction cases is “generally too severe” and doesn’t accurately measure the offender’s guilt in non-production child pornography cases. In this regard, 59 percent (in fiscal year 2019), of the defendants involved in these cases receive sentences that are below the range.
Douglas Berman of Moritz College of Law is a sentencing expert and notes that Jackson’s history of imposing CP sentences below the guidelines is very common. Nine retired federal judges including two Republicans were among those who agreed to Berman’s opinion in a Monday letter sent to Senate Judiciary Committee.
“Judge Jackson’s record—both as a Commissioner on the United States Sentencing Commission and as a judge on the District Court for the District of Columbia—is entirely consistent with the record of other district court judges across the country (appointed by presidents of both parties) as well as with the position of the Department of Justice,” the former judges wrote. “Judge Ketanji Jackson’s records in individual cases are completely consistent with the U.S. patterns.” Sentencing Commission and the recommendations of U.S. courts probation departments or DOJ prosecutors. To the extent she departed, it was well within the mainstream of what other judges”—”appointed by both Republicans and Democrats”—”were doing nationwide.”
This is all Hawley’s news if we believe him. In his first statement, he stated Monday that “some have suggested the federal sentencing Guidelines are too harsh for child sex crimes and child pornography.” That argument has been repeated many times. in recent days….I can’t say that I agree with that. In recent years, the amount of child pornography has exploded.”
Hawley seemed to be unaware of the bipartisan, long-standing criticism of federal penalties in nonproduction child pornography offences until he attacked Jackson last week. Hawley is a remarkable incurious if that’s the case.
Hawley’s indictment of Jackson included the fact that, as a member of the USSC, she “advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn.” He forgot to mention that Jackson was not the only one who criticized the “existing mandatory minimum sentences.”
According to the USSC 2012 report, Congress should “amend the statute scheme to align penalties for receipt or possession offenses.” Members disagreed on the question of whether there should be a minimum mandatory time limit for nonproduction offenses. However, members “unanimously” agreed that the minimum statutory period should be no more than five years.
Hawley may not have known about this 10-year-old recommendation. Although his confusion may have been genuine, this does not excuse Hawley from failing to conduct research on the topic before accusing Jackson with being too soft about “child predators”. He was not able to refute the argument against the penalty scheme even though he was aware of them. To refute the widespread belief that current penalties are too harsh, he mentioned “the quantity of child pornography currently in circulation.” This is absolutely irrelevant to determining an appropriate sentence for one defendant.
Jackson explained that Jackson takes the cases extremely seriously as a mother and as someone who has to examine the evidence in these trials. Jackson noted that Congress requires him to take into consideration not only sentencing guidelines, recommendations by the parties but also the victim stories. “Also things like the nature and circumstances of the offense, the history and characteristics of the defendant….Judges have to take into account the personal circumstances of the defendant because that’s a requirement of Congress.”
Hawley initially presented Jackson’s case. It was clear that Jackson had inflicted sentences that were below those recommended by guidelines. Yesterday, Cruz refined his critique. All that was important to Jackson was the fact that he had imposed sentences that were shorter than those recommended by the prosecutors. These sentences are often more severe than the guidelines sentences. Jackson pointed out that judges are also required to take into account recommendations made by the federal probation officer. Cruz confessed that they had never seen these.
Cruz stated, “We don’t have them.” Cruz stated that the committee had not received the recommendation of probation officers. They are welcome to join us.
Washington PostAn analysis released last week revealed that Jackson met or exceeded her probation recommendation in four of seven cases Hawley cited to show that she had shown unusual lenience. Jackson was sentenced within the guidelines in one instance. Two cases saw her sentence be less harsh than that recommended by the probation office, yet still much worse than the defense demanded. The defense requested that the sentences be reduced to a minimum of ten years. Post Jackson only gave a sentence in “only two” of seven Hawley cases.
If you are interested in the Post Although I was able last week to get this information, it is possible that staff working for Hawley/Cruc could also have obtained the same information. Jackson was attacked in a reckless and demagogic manner.