“Why isn’t it rational to sentence people who have thousands of images on a computer to more time as opposed to somebody who has one or two pictures in the mail?”
During the second day of Senate questioning of Supreme Court nominee Judge Ketanji Brown Jackson, Senator Josh Hawley once again pressed the nominee regarding her lenient sentences for child pornographers over the course of her legal career.
Hawley asked Jackson specifically about United States v. Stewart, a case that Senator Ted Cruz had asked about earlier in the day.
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View on Rumble"Senator Cruz was asking you at the end of his time in questionings, about United States versus Stewart. This is the case where Neil Stewart tried to cross state lines to rape another person's nine year old daughter. He had 6,700 images and videos of egregious and brutal child pornography. The government recommended 97 months, the guidelines said 97 to 121 months. You came in at 67 months. Senator Cruz asked you why the chairman wouldn't let you, let you answer. I thought maybe you'd like to answer now," Hawley said.
"No one case can stand in for a judge's entire record," Jackson responded.
"I have sentenced more than 100 people and a variety of egregious circumstances in every case, especially cases that involve the kinds of acts that you're talking about the kinds of evidence that I had to deal with as a judge," she added.
Jackson continued on to say that she balances a number of factors to make a determination.
"The data points that Senator Cruz pointed to, that you may have in front of you, don't account for all of the information that was before me as a judge, and the authority that you all, Congress, and your prior confirmation when I was a district judge provided for me to exercise my judgment, and I treated those cases and every case very seriously, and I imposed a sentence that was sufficient, but not greater than necessary to promote the purposes of punishment," said Jackson.
"Would it surprise you to learn that Mr. Stewart is a recidivist? He has warrants issued again for his arrest just three years after you sentenced him?" Hawley asked.
"Would it surprise me?" Jackson said. "You know, Senator, there is data in the Sentencing Commission and elsewhere that indicates that there are recidivism, serious recidivism issues. And so among the various people that I've sentenced, I'm not surprised that there are people who reoffend and it is a terrible thing that happens in our system."
Hawley moved on to talk about a 2013 case, United States v Hawkins, in which an 18-year-old possessed and distributed hundreds of images of children being sexually abused when those children were between the ages of eight to 10 years old. Jackson previously noted that he had images of older teens as well.
"And you gave him, frankly, a slap on the wrist sentence of three months. Do you regret it?" Hawley asked.
Jackson responded that she could not remember whether it was a distribution or possession case, to which Hawley responded that it was both, pressing again whether she regretted her sentencing decision.
"Senator, what I regret is that in a hearing about my qualifications to be a Justice on the Supreme Court, we've spent a lot of time focusing on this small subset of my sentences and I've tried to explain many times…" Jackson began, before Hawley interjected with the question of regret again.
"I’m talking about the fact that you're talking about seven very serious cases, some of which, some of which involve conduct that I sentence people to 25-30 years," Jackson said, to which Hawley pointed out that in the case he’s speaking to, she sentences the 18-year-old to three months.
"I would have to look at the circumstances," Jackson added in regards to the case.
"You know the circumstances, we discussed it for half an hour yesterday. There's a 55 page transcript, which I'm sure you've read. You lived it. As you’ve emphasized to this committee over and over, you've lived it, right? You said that you've been through all of this. You've looked at all of the images, you're the one who's had to endure all of it. You gave him a three months sentence. I just wonder if you regret it if you stand by it. I mean, do you stand by that sentence?" Hawley asked.
"Senator in every case, I followed what Congress authorized me to do and looking, to the best of my ability, at all of the various factors that apply, that constrain judges, that give us discretion, but also tell us how to sentence and I ruled in every case, based on all of the relevant factors," Jackson responded.
"So you don’t regret it?" Hawley said.
Jackson attempted to say once again that no one case can stand in for a judge’s entire career, to which Hawley said that’s not what he’s asking about, he’s specifically asking whether she regrets the sentencing in this one case.
"In this case, it sounds like the answer is no," Hawley said.
"But I want to tell you, I regret it. I regret that you gave him only three months," he added.
Hawley continued on to read out what Jackson said in regards to the Hawkins case.
"Make no mistake, Mr. Hawkins. The children you saw on those pictures were not willing participants in the conduct that he witnessed. They were being forced to commit unspeakable acts of sexual violence for the pleasure of the person who was filming and for the gratification of sick people everywhere. People who apparently have no shred of empathy for what those must be doing to the children who are being abused in this way," Hawley said, quoting Jackson.
He continued on, still quoting Jackson, to say: "some of the children you saw in those pictures, will never have an adult — a normal adult relationship. Some of them will turn to drugs and prostitution and other vices to try to deal emotionally with the pain, the results from the torture that they have experienced and even those who manage to lead a somewhat normal adult life, say they live in constant fear of being recognized. Some people are even unable to leave their houses because once those pictures are on the internet, they are there forever. And the victims can't do anything without worrying that every person that they meet has seen them in their most vulnerable state at the most horrible time in their lives."
"I just don't understand why after saying this and believing this, you could give this guy three months in prison when the probation office that we've heard so much about recommended 18 months. Even the probation office recommended 18 months," said Hawley.
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The Senator continued on to ask Jackson about her "policy of not giving enhancements when there are prepubescent children."
In the Hawkins case, Hawley said that Jackson refused to give enhancements to the sentence, quoting "in your case, I don't feel that it is appropriate necessarily to increase the penalty on the basis of your use of a computer and we've talked about that, or the number of images or prepubescent victims as the guidelines require, because these circumstances exist in many cases, if not most, and they don't signal and especially heinous or egregious child pornography offense."
Hawley added that Jackson said a similar thing in the United Stated v. Cooper case last year, in which Cooper plead guilty to distributing dozens of child pornography images through the social media website Tumblr.
The Senator said that the government found numerous images of child pornography on Cooper’s computer, and that "that the content of those videos is on the more egregious or extreme spectrum of the child pornography videos that are encountered in these cases."
"And yet when you sentenced him, you said, I'm quoting now from the transcript in Cooper, 'I’m really reluctant to get into the nature of the porn.' and then later ’it's very difficult to assess how different Mr. Cooper's images are than those of other similarly situated child pornography dependents — defendants rather, such that I without going into looking at them, and I'm not an expert,' you say. So you say 'while I understand the government's arguments, Mr. Miranda, the government's arguments in that regard. I don't find them persuasive from the standpoint of characterizing this as an especially egregious child pornography offense.'"
Hawley then pressed why Jackson would not give an enhancement in a case like this, where small children are depicted.
"That’s not my policy disagreement," Jackson began. "I don’t know why you’ve characterized that in that way."
Hawley pointed out that Jackson said that in the cases, to which Jackson responded that "in every case I have policy disagreements with certain aspects of the operation, of the guidelines, that I lay out in every case as Congress has required and as the Supreme Court permits, in light of my experience, not only as a district judge, but also on the Sentencing Commission, which did a report about the operation of the guidelines."
Jackson continued on to explain that in every case, she had to take into account arguments made by the defendant, by the government, by the probation office, and others.
"So I understand that in certain cases, the government may have made an argument, but there are other people in our criminal justice system who make arguments and the court evaluates everything, as Congress has directed, and no one case can stand in for my entire record of how I deal with criminal cases or did when I was a district judge," said Jackson.
"I have law enforcement in my family. I am a mother, who has daughters, who took these cases home with me at night because they are so graphic, in terms of the kinds of images that you are describing. They give you, not only the actual videos, which you can ask to see, but they describe in the briefs in detail what these videos show. So I am fully aware of the seriousness of this offense and also my obligation to take into account all of the various aspects of the crime as Congress has required me to do and I made a determination seriously in each case," she continued.
Hawley asked once again why the presence of prepubescent victims in the cases of Cooper and Hawkins "does not signal that this is a heinous or egregious child pornography offense, and you're not going to apply any sentencing enhancements of the government's asking you for."
Jackson responded by saying that other Senators have asked her the question, and that she would "stand on what I’ve already said."
"So you have nothing to add about why these crimes why these images, in your view, do not signal an especially heinous or egregious child pornography offense," Hawley said.
"Let me ask you this. You said Senator Graham — to Senator Graham earlier today that you were trying to do what's rational, and you didn't — in sentencing in these cases — and you didn't think it was rational to sentence people who have thousands of images by using a computer to the sentencing guidelines, to the mandatory range — I’m sorry, it's not mandatory to the no longer mandatory range. The discretionary range," said Hawley.
"No, Senator, I said the guidelines system is designed to be rational," Jackson responded.
"Okay. So let me ask you this," Hawley said. "Why isn't it rational to sentence people who have thousands of images on a computer to more time as opposed to somebody who has one or two pictures in the mail in other words, the more images there are, why wouldn't you want to send that person to more time rather than less? Why isn't that rational?"
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View on XJackson responded that she has answered the question already, and the two went back and forth, with Hawley requesting to be refreshed on the answer.
Eventually Jackson answered the questions stating that the current guidelines pertained to a time where the primary mode of distributing the images was through the mail, not through the internet.
"What's happening now is that you have a guideline that has gradations in it for the number of images, that ends up being when you look at the scale something like the difference of 10 years, I'm making — I don't know exactly what it is, but each each two level enhancement is like several years, and the gradations are like zero to, and again, I don't have it in front of me, but it's like zero to 50 pictures, 50 to 100 pictures, 100 to 150 pictures, set up at a time in which the mail was the primary mode of possession and distribution," Jackson said.
"And so if somebody had 50 pictures, they, according to Congress and the Commission at the time, deserved an extra 10 years in prison. Now, with that scale, everybody's at the top, immediately, just because of the nature of the internet. So you're not differentiating using that scale anymore, given the way this crime is committed. And so judges are having to decide 'how are we going to deal with the penalties and do our jobs to impose sentences that are sufficient, but not greater than necessary under these circumstances?'" Jackson said.
"Thank you, Judge. I'll just say in closing that, I appreciate that answer, and I understand that as a policy matter, I just think we disagree. I think that somebody, the more images are there, the more punishment there should be. And I want to see this deterred. And I just think we've pretty fundamentally disagreed. I've enjoyed our exchanges. Thank you for your candor. And I appreciate it. I just disagree with you on the law," Hawley concluded.