Josh Hawley misleads on Judge Jackson and child pornography sentencing

On Day One of the U.S. Supreme Court confirmation hearing for Judge Ketanji Brown Jackson, Sen. Josh Hawley, R-Mo., accused her in an op-ed of having a "pattern of going soft on child pornography offenders." 

"In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting," Hawley wrote. "This isn’t a one-off. It’s a pattern."

During the hearing, Hawley listed seven specific sentences Jackson had handed down.

"In every case of these seven, Judge Jackson handed down a lenient sentence which was below what the federal guidelines recommended and below what prosecutors requested," Hawley said March 21.

The next day, other Republicans, including Sens. Ted Cruz of Texas and Mike Lee of Utah, pressed Jackson on the same point. Cruz focused on the victims of child porn.

"Do you believe the voice of the children is heard when your sentences for those who are in possession of child pornography are far below what the prosecutors are asking for?" Cruz asked March 22.

For Hawley, Cruz and Lee, the gap between what prosecutors were seeking and the sentences Jackson handed down is proof of her leniency.

It’s not the revealing yardstick they make it out to be.

Judges regularly give lesser sentences than what the government wants, and that’s particularly true for child pornography offenses. 

Sentencing guidelines have been around since Congress introduced them in the mid-1980s. For lawmakers, they were a way to take discretion away from judges and make sure that federal offenders paid the full price for their crimes. Instead of judges meting out justice as they saw fit, the U.S. Sentencing Commission, an independent agency created by Congress, would give them a table to match each crime and situation to a prison sentence. 

In 2003, Congress passed the PROTECT Act to crack down on crimes against children. Penalties for child pornography went up.

Within the decade, the system showed signs of strain. 

"Despite strong congressional belief, a growing number of federal judges instead view most offenders who possess or trade child pornography as mostly harmless to others," wrote University of Texas law professor Melissa Hamilton in 2010.

The guidelines were written before the internet made widespread sharing of images and videos possible. Penalties under the guidelines increase based on the number of images, and more and more offenders have been subject to those longer sentences.

Judges and prosecutors make a distinction between people who exchange child pornography, and those who produce it. Because to produce it means someone personally committed child abuse. In contrast, having the pornography can take place without having direct contact with the children depicted.

In 2012, the U.S. Sentencing Commission found that two-thirds of the sentences in non-production cases were shorter than the sentencing guidelines. (A 2005 U.S. Supreme Court decision made the guidelines advisory, not mandatory.)

That trend continued. In 2021, a follow-up U.S. Sentencing Commission analysis of non-production crimes found that if anything, the disparity between the guidelines and actual sentences had become more frequent.

"As the U.S. Sentencing Commission’s data shows, judges across the country routinely impose sentences far below what the guidelines recommend," University of North Carolina law professor Carissa Byrne Hessick said.  

Hessick said that in her view, Jackson is no more lenient than the average federal judge.

Hawley documented the number of times that Jackson issued sentences shorter than the guidelines. But he left out that sometimes, prosecutors also recommend shorter prison terms. Analyzing data from 2019, the U.S. Sentencing Commission said government recommendations went below the guidelines about 20% of the time.

That’s about how often the pattern showed up in Hawley’s examples of Jackson’s cases.

The seven cases Hawley mentioned generally involved non-production child pornography crimes, although one included a man who, in addition to possessing pornography, made plans to have sex with a minor.

Among those cases, in two instances, prosecutors sought sentences below the guidelines. In one, the guideline minimum was 97 months and prosecutors suggested 24 months. Jackson gave three months. In the other, the guideline minimum was 151 months, and prosecutors asked for 72 months. Jackson gave 60.

In four cases, prosecutors recommended the low-end of the guideline range, and in one, they sought a sentence three months above the minimum. Jackson’s sentences in those five cases were below the guidelines and below the prosecutors’ recommendations.

But this list is not the full story. 

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Hawley omitted two additional cases where the charge was having or sharing child pornography. In one, prosecutors filed no recommendation at all, and in the other, they suggested a sentence that was more than 50% below the minimum suggested by the guidelines.

To sum it up, out of nine cases — all but one involving possession or distribution of child pornography — prosecutors in Jackson’s courtroom were mum or went below the guidelines four times. In five cases, they opted for a sentence equal to or three months above the low-end of the guidelines.

It bears noting that for more severe cases that combined possession of child pornography with attemped or actual sexual abuse of a minor, Jackson generally accepted the prosecution’s recommendation. In one instance, she handed down a sentence that was eight years longer than what the guidelines recommended.

We contacted Hawley’s office and his staff referred us to comments he or his office had made to the press and reiterated the information Hawley presented during the hearings. 

Hawley, and Cruz, emphasized how much shorter Jackson’s sentences were than what prosecutors sought. She appears to have company, including among judges elevated to federal appeals courts during the Trump administration.

Ralph Erickson was confirmed to a seat on the U.S. Court of Appeals for the 8th Circuit in 2017. During his time as a district court judge, Erickson handed down child pornography sentences less than the prosecution requested eight times between 2014 and 2015.

Joseph Bianco joined the U.S. Court of Appeals for the 2nd Circuit in 2019. He sentenced child pornography offenders to less than what the prosecution wanted three times between 2011 and 2018.

For Ohio State University law professor Douglas Berman, this is no surprise. Prosecutors, he said, often go high in their sentencing recommendation, not because they expect to get it, but as a way to frame the judge’s decision.

"Prosecutors know going in that the defense will ask for the lowest plausible sentence," Berman said. "They then ask for the highest sentence that they think is appropriate. They want to signal to the judge the parameters of what a reasonable range is."

Berman added that the focus on prison time is just one part of the overall punishment. Jackson included long periods of supervised release, generally for 10 years after serving time, and in one case for 20 years. Berman said it’s an underappreciated component of sentencing.

"You can’t go to certain parts of your community and you can’t travel without permission," Berman said. "Someone is monitoring your computer 24/7. These are very strong restrictions on your liberty."

Hawley said Jackson "gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting" showing she is "soft on child pornography offenders."

Hawley’s claim has an element of truth: Jackson’s sentences were below the guidelines and below the prosecutors’ recommendations.

But Jackson’s approach to sentencing in child pornography cases did not significantly differ from that of other judges, data show. A comprehensive federal study found that for these crimes, sentences are shorter than what the guidelines suggest more than two-thirds of the time.

Prosecutors sometimes recommend sentences below the guidelines, too. Hawley failed to prove that Jackson is any more lenient than federal judges on average.

We rate this claim Mostly False.