Missouri GOP Sen. Josh Hawley extensively questioned Supreme Court nominee Judge Ketanji Brown Jackson on Tuesday with regard to cases in which she sentenced child pornography offenders to shorter lengths than the Sentencing Commission recommends.
Hawley, a member of the Senate Judiciary Committee who said he was “troubled” over Jackson’s sentencing record in a viral Twitter thread last week, brought up a specific 2013 case, United States v. Hawkins, involving an 18-year-old defendant whom Jackson sentenced to three months in federal prison for possession of child pornography despite the government requesting 24 months in prison.
“I’m having a hard time wrapping my head around it,” Hawley said. “We’re talking about 8-year-olds, 9-year-olds, 11-year-olds, and 12-year-olds. [The defendant had] images that added up to over 600 images, gobs of video footage. … If it’s not heinous or egregious, how would you describe it?”
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Jackson responded, “The evidence that you are pointing to … is heinous. It is egregious. What a judge has to do is determine how to sentence defendants proportionately, consistent with the elements that the statutes include with the requirements that Congress has set forward. Unwarranted sentencing disparities is something that the Sentencing Commission has been focused on for a long time in regard to child pornography offenses.”
But Jackson pointed out that the government had departed from the Sentencing Commission recommendation, saying, “The government in this case and in others has asked for a sentence that is substantially less than the guideline penalty.”
Hawley cited Jackson’s words to the defendant in the case, saying she told him, “You were viewing sex acts between children who were not much younger than you,” to which Hawley said, “This whole discussion is about why you’re only giving him three months. Judge, he was 18. These kids are 8. I don’t see in what sense they’re peers.”
“I’m just trying to figure out — is he the victim, or are the victims the victims?” Hawley asked.
Jackson said the case was “unusual” because, unlike the other cases she oversaw involving child pornography offenders and her previous work on the Sentencing Commission, “this particular defendant had just graduated from high school.”
“And some of, perhaps not all when you were looking at the records, but some of the materials that he was looking at [were] older teenagers — were older victims,” Jackson added.
Jackson also recalled a 2003 Supreme Court ruling, United States v. Booker, signed by the late Justice Antonin Scalia, which determined that the guidelines that Congress wanted to be mandatory would be made advisory and ultimately up to a judge’s discretion.
The Supreme Court ruled “that they couldn’t be, and Congress since then has not come back to amend them or to change them or to make them mandatory again,” Jackson argued.
Jackson continued, “And so there is discretion at sentencing, and when you look at the sentencing statutes, Congress has given the judges not only the discretion to make the decision but require 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, the terrible nature of the crime, the harm to the victims. All of these factors are taken into account. and the probation office assists the court in determining what sentence is sufficient but not greater than necessary.”
The White House previously dismissed Hawley’s claims as cherry-picked when they were brought up last week, but Judiciary Chairman Dick Durbin chimed in to say, “Congress doesn’t have clean hands in this conversation.”
“We haven’t touched this now for 15, 16, or 17 years. And you aren’t the only one who faced this kind of challenge with the cases before you,” Durbin added, referring to appointees of former President Donald Trump who sentenced offenders below the recommendations.
“Trump-appointed judge Sarah Pitlyk, Sen. Hawley’s choice for the Eastern District of Missouri, sentenced an individual convicted of possession of child pornography to only 60 months, well below the 135-168 months sentence recommended by the guidelines,” Durbin said.
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In his rebuttal, Hawley argued Pitlyk “followed the prosecutor’s recommendation in that case,” adding, “As I’ve said over and over, part of my concern with Judge Jackson is that she has not followed the prosecutor’s sentences.”
Durbin urged Hawley to propose legislation on the matter, arguing, “We should concede in the meantime that we’ve left judges in the lurch. In many of these situations, there is no clarity in this situation.”
