President Joe Biden's Supreme Court nominee Judge Ketanji Brown Jackson faced three days of confirmation hearings before the Senate this week, and while Biden promised a qualified nominee to ascend to outgoing Justice Stephen Breyer's seat, Jackson's confirmation hit a snag when Republican Senators uncovered lenient sentences Jackson gave to child pornographers and pedophiles.
The fact checks on this assertion have been furious and swift, with many of those fact checks claiming that Jackson's view that sentences should be less than the guidelines for those who collected images via computer was correct. But even if there was judicial consensus that child pornography enthusiasts should receive lesser sentences for large caches of digital images versus those with large numbers of analog images, that doesn't make the claim that Jackson gave lesser sentences false.
Human Event's Daily's Jack Posobiec pointed out that Jackson's concern appears to be more about the perpetrator of these crimes than the victims, as though she had forgotten that each image of an exploited child represents instances in which a child has been sexually abused, exploited, or even raped.
"She seems so incredibly focused and hung up on this idea that the distribution method, the method of conveyance of child pornography trafficking, whether it's someone who is distributing or collecting, that the method the mode that is used for this communication, because it is digital versus analog, when the laws were written, that that should change someone's sentence," Posobiec said.
But he noted that the reason the law was written in the first place was not to punish child pornographers, but to protect children. It was called the Protect Act, passed in 2003, and was intended to stop people from sharing and collecting images of child sex abuse in order that the images of the abuse would no longer be a commodity in the marketplace. If there are no consumer of child pornography, if the hunger for those images does not exist, then there would be no manufacture of the images.
And it is the manufacture of the images that is the primary problem. Every image of a child being sexually abused or rape is a record of horrific abuse and mistreatment of that child, and countless others who are trafficked into child pornography.
"Every piece of child pornography is an image or a video of a child being raped," Posobiec said, "either raped or exploited, because children obviously cannot give consent. And when you have a market for this type of material, that creates incentive for people to create more of it. That's the chain that you're trying to disrupt. That's the network that you're trying to disrupt. You want to stop people from doing it in the first place by deincentivizing this type of behavior," he said.
And this, he points out, is a global market. Children featured in sex abuse images and videos could be from anywhere in the world. There is a global marketplace of child sex abuse traffickers that create this material for western "lookers," as Jackson calls them. There is also a marketplace for graphic sex abuse and rape of children in live videos, Posobiec points out.
"I've looked at multiple federal cases like this," he said, "where they have centers where this is being done on live video in real time, overseas, so they could be in Thailand. They could be in the Philippines. They could be somewhere in Eastern Europe, right. Obviously Bulgaria, Romania, Ukraine, areas where this is being done. And so the pedophile can be inside the United States or somewhere in Western Europe. And that is then sending messages or making requests of what's happening in live real time.
"Why don't people understand this? This is the crime that we're trying to stop. This is the type of behavior that obviously any serious society we want to be trying to stop," Posobiec said.
Fact checkers, too, were more interested in making sure that no one thought Jackson was going easy on pedophiles than looking into the bizarre logic that upholds that those convicted of possessing child pornography who have thousands of digital images should get lesser sentences than those convicted who have hundreds of analog photographic images.
Fact-checkers, Democrats, and Jackson made the counter-argument that these sentences, which were lighter than federal guidelines put in place by Congress with the Protect Act of 2003, were by consensus the appropriate sentences. Jackson argued before the Senate that, essentially, the advent of internet porn made the sentencing guidelines imposed by Congress—which the Supreme Court said were not legally binding on judges—too harsh. Those guidelines scaled the punishment for child pornography offenders based on the number of child sex abuse images those offenders had.
However, Jackson argued, because the internet allows purveyors of child sex abuse images to have that many more images than when the images were analog, and sentences increased in proportion to the number of images a person had, each offender starts at the top end of the spectrum, facing the harshest sentences.
Factcheck.org cited a Sentencing Commission report in 2012 that read: "the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements related to their collecting behavior."
Vox wrote that there were "several reasons why most judges believed that the guidelines governing child pornography offenses are too harsh. When the guidelines were drafted, for example, offenses involving the use of a computer were considered particularly severe, and the guidelines call for a 2 level enhancement with such offenses. By 2010, however, over 96 percent of child pornography offenders used a computer — so the guidelines effectively increased the recommended sentence for virtually all offenders."
Jackson defended her record, saying that she tells defendants about the severity of their crimes, and explains to them that they have harmed children who likely will never recover from the abuse and exploitation they suffered for the pleasure of those who consume the images.
"These people are looking at 20, 30, 40 years of supervision. They can't use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is," Jackson said.
What was missed by fact-checkers, Senate Democrats, and apparently Jackson herself was that the sentencing guidelines as written were not merely to punish offenders, but to protect exploited children. The fact that offenders end up at the top of the sentencing guidelines as a matter of course, because, as Jackson put it, a 15 minute internet child porn session could end up garnering the "looker" hundred of images, is not a reason to give lesser sentences for quantity, but to uphold the basis of the guidelines.