Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography

He distorts her record on ‘sex offenders.’

I would oppose Judge Ketanji Brown Jackson because of her judicial philosophy, for the reasons outlined by Ed Whelan last week. I address that in a separate post. For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.

Senator Hawley is a bright guy, but if he ever handled a child-pornography case in the brief time he spent as a practicing lawyer before he sought public office, that is not apparent. Nor does it appear, from the admittedly sparse research that I’ve done, that child pornography was a priority of the Missouri Attorney General’s Office during Hawley’s two-year stint as AG.

I was a federal prosecutor for nearly 20 years and ran a satellite U.S. attorney’s office for the last four of those years, in the Southern District of New York. Child pornography increasingly became a priority for the SDNY in the 1990s, with the ascendancy of the Internet, social media, and digital markets — which not only dramatically increased the volume of images but made interstate facilities, over which the federal government has jurisdiction, the dominant means of commerce in pornography and of soliciting minors for sexual purposes. The FBI worked the cases and combined with state and municipal police (including the NYPD) in sex-crimes task-force arrangements. Needless to say, we had lots of investigations.

There is a wide variety of federal offenses that are gathered under the label “sex offenses.” In his critique of Jackson last week, Hawley tweeted that he had “noticed an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children” (emphasis added). That is a misleadingly broad claim, and Hawley is too smart not to know that.

“Sex offenders” who “prey on children” include deviants who rape children and those who force them into sexual acts — including abominable, inhumane sexual acts — for purposes that include prostitution and the production of pornography. At the other end of the spectrum, “sex offenders” include people who have never put a hand on a child for sexual purposes but are consumers of pornographic images, which they possess, transmit, or trade — sometimes for money but often not.

To be sure, well-adjusted people, if they had to view these images as investigators do, would be sickened. Still, when we talk about consumers, we are not talking about people engaged in the atrocious conduct that produced the images. It is rational to criminalize consumption offenses because they contribute indirectly (if usually unthinkingly) to the atrocious production conduct. If there were no market for the images, many fewer of them would be produced, and theoretically there would be less sexual abuse of children. Yet the criminal law makes these kinds of distinctions all the time. The offender who commits a gruesome murder is orders of magnitude more culpable than the associate who helps him get rid of the murder weapon — suspecting but not necessarily knowing what the weapon was used for. They’re both guilty of crimes, and we might broadly refer to both as “complicit in murder.” But they’re not nearly on a par; people understand why the murderer gets life imprisonment but his low-level conspirator gets a very light sentence.

After invoking the image of Jackson as indulgent of “sex offenders” who “prey on children,” Hawley narrows his portrayal a bit: “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker” (emphasis added). This leaves the impression that he is probably homing in on pornography rather than rape, abduction, and the like — although, as he must know, even that is not clear because a good deal of such sexual abuse goes into the production of porn. In any event, after all the throat-clearing, it emerges that Hawley is not talking about offenders who themselves abuse children, or even those who produce pornography. He is referring to porn consumers.

Hawley cites Jackson’s record as a judge and “policymaker.” The latter refers to her service on the U.S. Sentencing Commission, which advises Congress on sentencing issues and promulgates the federal sentencing guidelines — advisory standards that heavily influence but do not control sentencing. (Congress ultimately controls sentencing by setting statutory maximum and minimum penalties, and judges consult the guidelines in each case but are not required to follow them.) What has the senator especially exercised is Jackson’s support for eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography.

Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Undoubtedly, Jackson — a progressive who worked as a criminal-defense lawyer — is more sympathetic to criminals than I am. If I were a judge, I’m sure I’d impose at least marginally more severe sentences than she has. (Contrary to Hawley’s suggestion, however, she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.) But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.

The law in question (Section 2252 of the federal penal code) imposes a five-year mandatory-minimum prison sentence, and a maximum 20-year term, on defendants who receive or distribute pornographic images. By contrast, Congress imposes no mandatory minimum for the crime of possessing such images. This makes little sense since there is often no meaningful difference between a defendant who collects child porn (no mandatory minimum), and one who receives images that he intends to distribute but hasn’t yet gotten around to distributing (five-year mandatory minimum).

I can’t tell you how much I hated these cases. The investigators often did not know who the offender was until we’d gathered enough evidence of porn transmission on the computer and gotten a warrant to seize it. That is, back before everyone had iPads and smartphones, we’d know that a computer in the home was being used to collect or trade pornographic images, but we often didn’t know which person in the household was the culprit. In most criminal investigations, it’s the opposite: You know who the offender is, and the question is how much he has exploited the instrumentality of the crime. When the dust settled in computer-porn cases, it often turned out that the culprit was a kid who wasn’t much older than the children depicted in the porn.

Generally speaking, we did not prosecute minors federally except for serious violent crimes (in the rare instances when we had jurisdiction to do so). So here was insanity No. 1: If the offender was a day short of his 18th birthday, we would drop the case; but if it was a day later, and we took the case, he’d be looking at a mandatory-minimum sentence of several years’ imprisonment.

Then insanity No. 2: He would be spending that time in the company of hardened criminals in a federal penitentiary even though he was barely out of adolescence and was not a hardened criminal. He was being sent to prison on a theory that, because of market consequences, people who collected and traded child pornography should be treated as if they were directly complicit in its production. By sending such a young person to prison — not a gangbanger, not a violent recidivist, just an idiot — we were more apt to lead him into a life of crime than steer him away from it.

I am not saying receipt and distribution should not be a crime. But, again, the crime on the books has a statutory maximum of 20 years. That is more than enough leeway for a judge to distinguish between, say, a 40-year-old miscreant with a history indicating that prison time is warranted and an immature 22-year-old who drifted into shameful behavior and needed supervision and psychiatric help rather than prison. It is more than enough leeway for a judge to distinguish between young people who are trafficking in images for money (and therefore are consciously contributing to the market that drives production) and those who collect because they’re titillated and desensitized (and may not appreciate the connection between their consumption and the abuse of children by producers).

It’s not soft on porn to call for sensible line-drawing. Plenty of hard-nosed prosecutors and Republican-appointed judges have long believed that this mandatory minimum is too draconian. Moreover, judges and prosecutors generally need no convincing to enforce the harsher mandatory minimums that Congress has prescribed against hands-on child abusers and producers of child pornography. But the receipt and distribution sentencing provisions are so heavy-handed 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. That is an abuse of process, but it allows for a reasonable sentence, which may well be a non-prison sentence, with the proviso that it could turn into prison if the offender recidivates.

I do not exactly have a reputation for being soft on crime. For example, I would have no qualms if Congress imposed a sentence of life imprisonment for real sex offenders who prey on children. But the required five-year sentence we’re talking about is too harsh. To compare, when I first started doing terrorism cases 30 years ago, there was no federal bombing-conspiracy statute, so mass-murder plots had to be charged under the catch-all conspiracy statute that prescribed a possible sentence of no time and a maximum sentence of five years. And at the very time my office was starting to grapple more regularly with child porn, we gave a Mafia boss a six-year plea in a racketeering case — yet the suggestion was that we should be sending young, nonviolent offenders to prison for more time than that (sometimes much more, depending on how many and how gruesome the porn images). That made no sense.

There are strong philosophical arguments for opposing Judge Jackson’s nomination to the Supreme Court. And she may in fact be too solicitous of criminals. But the implication that she has a soft spot for “sex offenders” who “prey on children” because she argued against a severe mandatory-minimum prison sentence for the receipt and distribution of pornographic images is a smear.