Fact check: Judge Ketanji Brown Jackson condemns child pornography as ‘pretty common’

Supreme Court confirmation hearings for Justice Ketanji Brown Jackson open this week amid a storm of misleading allegations by Republican Senator Josh Hawley that the candidate has a “long history” of letting child porn offenders “off the hook” while on sentencing.

“In every child pornography case we can find records for, Judge Jackson has deviated from federal sentencing guidelines in favor of child pornography offenders,” Hawley tweeted Thursday, highlighting nine cases from her time in as a federal district court judge.

While court records show Jackson handed down lighter sentences than federal guidelines suggested, Hawley’s insinuation overlooks critical context, including the fact that the senator himself voted to confirm at least three justices. Federals who also engaged in the same practice.

Federal Court of Appeals Judges Joseph Bianco of the Second Circuit and Andrew Brasher of the Eleventh Circuit, both appointed by Trump, had each previously sentenced defendants convicted of possession of child pornography to prison terms well below federal guidelines at the time they were confirmed with support from Hawley, an ABC review of court records found.

Hawley’s office did not immediately respond to ABC News’ request for comment on the votes. ABC News asked Sen. Hawley directly on Monday morning for any comment on the confirmation support of other federal judges who have handed down similar sentences, and he replied, “Not for this job, I certainly didn’t, not for this job.”

“If and when we properly contextualize Judge Jackson’s conviction record in federal child pornography cases, it seems fairly commonplace,” wrote Doug Berman, a leading expert on the law and policy of determining the sentence at Ohio State University Law School.

“Federal judges across the country generally sentence below the [child porn] directive in about 2 out of 3 cases,” Berman noted on his blog, and “when he decided to go below the [child porn] directive, generally impose sentences of around 54 months below the calculated minimum of the directive.

Berman also points out that government prosecutors often seek lower-than-range sentences, including in most of the Jackson cases cited by Hawley.

“The guidelines are now purely advisory, and many judges of all persuasions routinely find sentencing within the guidelines to be unduly harsh, particularly when dealing with first-time offenders,” said law professor Kate Shaw. at Cardozo and legal analyst for ABC News.

The US Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography — as opposed to to the production of material – have “long been the subject of criticism from stakeholders and have one of the lowest rates of sentences within the guideline range each year.”

“Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019,” the report said.

“Judge Jackson’s record in these [child porn] cases show that she is quite skeptical of the ranges set by the [child porn] guidelines, but so do prosecutors in the majority of his cases, as do district judges nationwide (appointed by the presidents of both parties),” Berman wrote.

Republican Senator Mike Lee of Utah, a member of the Judiciary Committee, suggested Thursday that whatever the context surrounding Judge Jackson’s sentences, he remains concerned. “The White House’s whataboutist response to Judge Jackson’s very real record in the child pornography cases is dismissive, dangerous and offensive. We need real answers,” he added. he tweeted.

An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen handed down sentences below the guidelines in cases of defendants viewing, possessing, transporting or distributing child pornography.

Eighth Circuit Court of Appeals Judge Ralph Erickson, confirmed in 2017 with the support of Senator Lee, sentenced defendants in at least 11 child pornography cases to prison terms below the recommendation, records show.

Sixth Circuit Judge Amul Thapar, who was on Trump’s Supreme Court shortlist in 2018, sentenced a man convicted of distributing child pornography to 73 months behind bars when guidelines suggested 97 to 121 months.

District Court Judge Dabney Friedrich, a Trump appointee who served alongside Judge Jackson on the US Sentencing Commission for a time, also handed down below-guideline sentences in at least four child pornography cases, according to archives.

Hawley accused Jackson of advocating “a sea change” in the sentencing of sex offenders by eliminating mandatory minimum sentences for child pornography while he was a commissioner. But he failed to mention that the Republican appointees on the panel — including Judge Friedrich — also supported the sentencing review in a unanimous vote.

“There were three Republicans on the Commission at the time, including 11th Circuit Judge Bill Pryor, Ricardo Hinojosa, a judge in a border district, and Judge Dabney Friedrich, who was appointed to the bench by Donald Trump” said Rachel Barkow, associate dean of NYU Law School and former member of the Sentencing Commission. “I don’t think all three of them would be labeled as soft on crime.”

Several independent fact-checkers, including AP and the Washington Post, have debunked much of Hawley’s claims. The White House called it “toxic and poorly presented misinformation.”

“As far as Senator Hawley is concerned, here’s the bottom line: He’s wrong,” Senate Judiciary Committee Chairman Sen. Dick Durbin said on ABC News’ “This Week.” “He is inaccurate and unfair in his analysis. Judge Jackson has been scrutinized more than anyone I can think of. This is the fourth time he has appeared before the Senate Judiciary Committee, and three times previously she has been presented with brilliance and bipartisan support.”

ABC News’ Lalee Ibssa and Trish Turner contributed reporting.

ABC News

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