Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases | National Review

Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases | National Review


Judge Ketanji Brown Jackson delivers an opening statement at the U.S. Senate Judiciary Committee confirmation hearing on her nomination to the U.S. Supreme Court on Capitol Hill in Washington, D.C., March 21, 2022. (Evelyn Hockstein/Reuters)

Senator Josh Hawley could not have been more civil and engaging in his opening statement at Judge Ketanji Brown Jackson’s confirmation hearing today. He was also very fair in alerting Judge Jackson about the specific child-pornography cases he intends to question her about — i.e., about the sentences she imposed in those cases as a federal district judge.

This is as it should be. Judge Jackson is a progressive, and progressive judges tend to be light sentencers. It is fair game for senators to probe her judicial philosophy, which includes her approach to sentencing, the most wrenching task a district judge must perform. The objection I posited in my column from last night (which got some mentions during the opening hearing session on Monday), was that Hawley’s much-discussed tweet thread was not reflective of such an inquiry. It was a mudslinging allegation that Jackson is indulgent of “sex offenders” who “prey on children.” It created an impression that there is something deeply disturbing about her record.

In reality, the portion of her record that Hawley has highlighted is pedestrian. I am not going to rehash the column. Let’s just look at the cases Hawley cites. There is so little rain here for all the big wind, it’s hard to believe this is an issue. To grasp this, it’s important to know a bit about how federal sentencing works.

Every federal crime is codified in a statute that prescribes a maximum sentence. Sometimes — usually for very serious crimes — it also prescribes a minimum sentence, but otherwise the minimum is zero (i.e., no incarceration). Often, the range is broad, say zero to 20 years. The judge must impose a sentence within the statutory range.

Historically, the broadness of statutory ranges invited the scandal of disparate treatment: similarly situated defendants given markedly different sentences for the same offense, depending on what judge was assigned to the case. To promote equal protection, Congress created the U.S. Sentencing Commission, which promulgates federal sentencing guidelines. Based on a granular assessment of offense factors and offender characteristics, the guidelines compute a much narrower range of months that would make for a fitting sentence within the broad statutory range — say a guidelines range of 46 to 57 months, even if the statute would permit anything between zero and 20 years. Importantly, the Supreme Court has held that the guidelines are advisory, not mandatory. That is, a judge has the legal authority to sentence above or below the guidelines range — although the judge must remain within the statutory range (including any mandatory minimum term of years).

In every case involving a defendant who has been convicted, the parties make a presentencing submission. In it, each side advises the court on the application of the guidelines to the case. The vast majority of criminal cases are resolved by guilty plea, and the parties thus routinely negotiate a stipulation about the application of the guidelines to the case. Such stipulations will sometimes reserve the right to disagree about particular guidelines adjustments. In that situation, the judge must resolve the dispute before imposing sentence. (We’ll see that this happened in one of the cases Hawley cites, though Hawley may not have realized it.)

For every sentencing, the U.S. Probation Department, which is an arm of the court, independently prepares a report. The Probation Department gets input from the parties, but it is expert in the guidelines (as are federal judges), and it makes a recommendation to the judge which may differ markedly from the parties’ recommendations. To repeat, though, the sentence is ultimately up to the judge. She need not follow the Probation Department or the parties; she is limited only by the statutes of conviction. While the judge need not follow the guidelines, the government may appeal the sentence if it claims the judge got the guidelines wrong. Judges thus tend to be heavily influenced by the guidelines — and we should note that Judge Jackson served on the Guidelines Commission and believes in the guidelines system.

Applied faithfully, the guidelines tend to call for more severe sentences than most judges would impose in the absence of guidelines. Consequently, it is common for judges to sentence at the low end of the guidelines range — whether they have a reputation for being hard or soft on crime (the point of the guidelines is to dilute the relevance of such predilections). Indeed, in my experience, the real intrigue in sentencing involved the computation of the range, not where within the range sentence would be imposed. That is, the real haggling is about which guidelines adjustments to apply. That negotiation yields the agreed-upon guidelines range. From there, it is usually safe to assume the judge will sentence at or near the bottom of the range.

With that as background, the seven cases Hawley wants to discuss with Jackson are standard fare — there just isn’t anything that unusual about them.

Even Hawley does not dispute that, in every case, Judge Jackson imposed a sentence that was lawful. Hawley does not claim the Justice Department appealed any of the sentences he cites. And while the senator derides the judge for sentencing below the guidelines, he neglects to mention that in several cases, both the prosecutors and the Probation Department recommended sentences below the guidelines range. That goes to a theme of my column: The sentencing guidelines and the applicable statutes in many child pornography cases are draconian, and even the Justice Department does not always defend them.

Each of the seven cases in question has been analyzed by the Washington Post’s Glenn Kessler. To my knowledge, Senator Hawley has not disputed Kessler’s reporting on what the positions of the parties and the Probation Department were in these cases. Reviewing this information (which the senator did not include in his tweets), it is hard for me to believe that Hawley really sees this aspect of Jackson’s record as momentous. Let’s go through the cases.

(1) In the Savage case, Hawley apparently made a mistake. He claimed that the guidelines range was 46 to 57 months, and that Jackson imposed a sentence of 37 months. In fact, the parties did not agree to a 4657 range; rather, they disagreed on whether a two-point enhancement applied. Jackson ruled in the defendant’s favor, which reduced the guidelines range to 37 to 46 months. Jackson then imposed a 37-month sentence. That was not only within the range (the bottom of it, which is typical); it was a month more than the Probation Department’s recommendation of 36 months.

(2) The Stewart case has ugly facts, as all these cases do, but there also appears to be some hype that will be familiar to practitioners. Hawley says that, besides possessing thousands of child-porn images, the defendant “hoped to travel across state lines to abuse a 9-year-old girl.” Hoped is doing a lot of work in Hawley’s rendering. Obviously, if Stewart had actually crossed state lines and abused a nine-year-old girl, this would be a much different matter. But the Justice Department didn’t even charge him with attempting to do that.

Hawley says the guidelines called for 97 to 121 months’ imprisonment. Clearly, the court’s Probation Department didn’t think so — it recommended a sentence of just 42 months. Judge Jackson imposed a sentence of 57 months. This is noteworthy for two reasons. First, it is over a year more than the Probation Department recommended. Second, for all the talk about Stewart’s “hope,” this was not a case of physically abusing a nine-year-old girl; the conviction centered on Stewart’s possession of pornographic images. If it had been anything more than that, the mandatory minimum five-year provision would have applied, requiring a sentence of at least 60 months. This probably explains why the Probation Department’s recommendation was so much lower than what Hawley says was the guidelines range. For her part, though, Judge Jackson’s sentence is very close to 60 months. That is, she treated the case with the seriousness of a mandatory-minimum case, even though it wasn’t one.

(3) In the Cooper case, if Kessler is right, it is Hawley rather than Jackson who has some explaining to do.

Cooper was a mandatory-minimum situation: A 60-month sentence was required because of the number of images (over 600) the defendant possessed, plus his posting of some of them publicly. Jackson imposed the 60 months. Hawley says he’s alarmed because the guidelines supposedly called for 151 to 188 months. But what the senator conveniently omits is that the Justice Department recommended 72 months — less than half of what Hawley says was the bottom of the guidelines range, indeed more than six years less. Clearly, even the prosecutors believed the guidelines were too draconian to enforce.

Under the circumstances, Jackson’s 60-month sentence was not much less than what the government called for; and it was also exactly what the Probation Department recommended. (The two-month sentence the defense proposed would presumably have been illegal, though it does convey the sense that the guidelines calculation substantially overstated the seriousness of the offense.)

(4) In the Chazin case, Hawley says the guidelines range was 78 to 97 months, but Jackson imposed just a 28-month sentence. The senator elides mention of the fact that the Probation Department recommended 28 months. If you’re noticing a pattern here, you should be: The court’s Probation Department often sees the guidelines as too harsh (or the government’s calculation of them as too aggressive). Judges pay a good deal of deference to the Probation Department because, like the court, it is neutral in brokering the competing claims of the prosecutors and defense lawyers.

(5) Speaking of which: In the Downs case, which triggered the five-year mandatory minimum, Hawley complains that the guidelines called for 70 to 87 months, but Jackson imposed the 60-month minimum sentence. Again, however, a 60-month sentence is what the Probation Department recommended. It is also just 10 months less than the bottom of what Hawley says was the guidelines range. That is hardly scandalous.

(6) The Hawkins case sounds a lot like some of the investigations involving very young defendants that I described in the column. Hawley makes a point of saying the defendant “was over 18,” which suggests that he wasn’t much over 18 — why else mention it? The senator says the guidelines “called for a sentence of 10 years.” That is, Hawkins was a young, nonviolent offender whose crime was possession of child-porn images, and the senator would have him sent to a federal penitentiary for ten years.

This is so harsh that it puts Hawley out of the mainstream. Don’t take my word for it: In Hawkins’s case, prosecutors recommended just 24 months ­— eight years less than Hawley’s preferred sentence. I haven’t heard Hawley say the Justice Department is soft on “sex offenders” who “prey on children,” so why lob that bomb at Jackson? In any event, the senator says he’s alarmed that Jackson sentenced Hawkins to just three months. But the Probation Department recommended just 18 months — and the defense proposed just one day. All indications are that we’re dealing with a nonviolent defendant who was just over 18 — the age below which the government would have declined to prosecute at all. If Hawley is right about the guidelines, then everyone involved in the case — the defense lawyer, the prosecutor, the Probation Department, and Judge Jackson — was grappling with the manifest injustice that would have resulted if the guidelines had been followed to the letter.

(7) Finally, in the Sears case, a sociopath not only distributed 102 pornographic videos but included “lewd pictures of his own 10-year-old daughter.” Jackson imposed a 71-month sentence. That was nearly a year above the mandatory minimum. Still, it was over two years less than the 97-to-121-month range that both prosecutors and the Probation Department agreed would reflect an appropriate, guidelines-adherent sentence. Senator Hawley is right that this is a sentencing worth asking Jackson about. But let’s maintain some perspective: She did impose significant incarceration. Furthermore, Hawley has provided no indication that the Justice Department appealed; presumably, prosecutors would have done that if the term Jackson imposed resulted from a wrongheaded application of the guidelines.

In conclusion, the cases Senator Hawley cites do not show that Judge Jackson is an unusually soft sentencer in child-porn cases, much less that she is indulgent of “sex offenders” who “prey on children.” She is certainly not a harsh sentencer. The terms she has meted out, though, are compliant with the law and usually equal or exceed the sentencing recommendations of the court’s probation department. Moreover, the fact that the Justice Department’s own sentencing recommendations are sometimes dramatically lower than the guidelines range underscores that the guidelines in child-pornography cases — at least as applied to low-level, nonviolent offenders whose crimes entail consumption rather than production of pornography — are extraordinarily harsh. That is why they have drawn criticism from judges and practitioners across the political spectrum.





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About the Author

Tony Beasley
Tony Beasley writes for the Local News, US and the World Section of ANH.