The first two days of Supreme Court confirmation hearings for Judge Ketanji Brown Jackson have been preoccupied, in large part, by a contentious debate over the judge’s sentencing in child pornography cases.
Republicans on the Senate Judiciary Committee have accused Jackson of displaying “a consistent pattern of giving child porn offenders lighter sentences,” as Sen. Marsha Blackburn said. In making their case, Republicans compared Jackson’s sentences with the federal sentencing guidelines and/or the recommendations of government prosecutors.
Democrats and the judge herself say she consistently weighs all statutory factors concerning sentencing — including the recommended sentence in the probation officer’s presentencing reports, which the Republicans did not consider. In that context, Jackson’s sentences in cases involving child porn “matched the recommendation by either the prosecution or the probation office in most of the cases,” as Sen. Richard Blumenthal noted and Jackson agreed.
In addition, Democrats say most judges — not just Jackson — handed down sentences that were below the ranges determined by the federal sentencing guidelines for non-production child pornography, which is the receipt, possession or distribution of such material. “In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range,” according to a 2021 report by the U.S. Sentencing Commission cited during the hearings.
The U.S. Sentencing Commission itself has become ensnared in the partisan dispute, because Jackson was vice chair of the commission, from 2010 to 2014, when the commission issued a report in 2012 that recommended Congress revise the federal sentencing guidelines for non-production child pornography offenders. The guidelines date to when child pornography was distributed via snail mail, not the internet, and they include enhanced penalties based on the volume of a predator’s collection.
“As a result, the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements related to their collecting behavior,” the 2012 report said.
But Republicans on the committee were happy to have that debate. “We can have a policy debate about whether or not the guidelines are too lenient,” Sen. Josh Hawley said. “I would argue, in this era of exploding child pornography, they’re not too lenient at all.”
Here we will explore in more detail some of the claims made at Jackson’s hearings about her sentencing of defendants in child porn cases.
Hawley’s List
On Day 1 of the hearings, Sen. Hawley briefly recapped seven child porn cases overseen by Jackson, comparing her sentence to the federal sentencing guidelines and those recommended by the government prosecutors. “What concerns me, and I’ve been very candid about this, is that in every case, in each of these seven, Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested,” he said.
But Hawley did not include the probation office recommendations in any of the seven cases.
In a 2007 report, the Administrative Office of the U.S. Court described the probation officer’s “crucial” role in the sentencing process by submitting a presentencing report to the judge that “must be accurate and must distinguish between verified and unverified information and between fact and opinion.”
“The report’s primary purpose is to provide information that enables the court to impose a fair sentence that satisfies the punishment, deterrence, and corrective goals of sentencing,” the report said. “The officer considers applicable statutes and the sentencing guidelines, applies them to the facts of the case, and comes up with a recommended sentence and a justification for it.”
Jackson spoke to the importance of considering all factors, including the presentencing report filed by the probation office.
“The probation office is the arm of the court that does factual investigations in every criminal case unless — there are certain cases in which you can waive it. But the background is the probation office’s assessment of the facts related to a particular sentence and a particular crime,” Jackson said. “And the probation offices report when a court sentences, actually, in most cases becomes the findings of fact of the court. And so the probation office appears just like the prosecution and the defense.”
Sen. Ted Cruz said the probation reports aren’t public and complained that the Republican staff wasn’t given them. The White House provided us with that information.
Jackson’s sentences in five of the seven cases mentioned by Hawley were consistent with, or above, probation’s recommendation. In two, Jackson’s sentences were below the government and probation’s recommendations.
Here’s a list of those cases, the sentencing guideline ranges, recommendations of the prosecutor and probation offices, and Jackson’s sentence:
| DEFENDANT | CASE NUMBER | SENTENCING GUIDELINE | GOVERNMENT | PROBATION | JACKSON’S SENTENCE |
| Wesley Hawkins | 13-cr-244 | 97–121 months | 24 months | 18 months | 3 months |
| Jeremy Sears | 19-cr-21 | 97–121 months | 108 months | 120 months | 71 months |
| Neil Stewart | 16-cr-67 | 97–121 months | 97 months | 42 months | 57 months |
| Christopher Michael Downs | 18-cr-391 | 70-87 months | 70 months | 60 months | 60 months |
| Ryan Cooper | 19-cr-382 | 151-188 months | 72 months | 60 months | 60 months |
| Adam Chazin | 21-cr-076 | 78-97 months | 78-97 months | 28 months | 28 months |
| Daniel Savage | 15-cr-95 | 37-46 months | 49 months | 36 months | 37 months |
“Now, those are seven cases that represent, as near as we can tell, all of Judge Jackson’s cases dealing with child pornography from her time on the district court in which she had some discretion to hand down a sentence,” Hawley said. “There’s some other cases in which the law — she didn’t have any discretion.”
That’s not true.
We asked the senator’s office which cases it reviewed, but the senator did not mention at the first hearing because Jackson “didn’t have discretion” or for another reason. We were given three more cases — two of which were plea agreements. Brian Hess was sentenced to five years in 2017 for distributing child porn and Charles Nickerson, Jr., was sentenced to 10 years for possessing child porn and traveling across state lines to engage in sex with a minor. In both cases, Jackson had to approve the plea deals.
Hawley’s office also told us the senator did not mention the case of Joe D. Buttry, because it claimed the facts of the case weren’t provided to Republicans. It’s true that many records are sealed in Buttry’s case, but some information is publicly available.
Buttry pleaded guilty to one count of distributing child pornography, according to court records. The White House told us the prosecutor recommended 97 months and the probation officer recommended 72 months. On Sept. 3, 2020, Jackson sentenced Buttry to 72 months, with credit for time served since Sept. 19, 2018, court records show.
U.S. v. Hawkins
On Day 2 of the confirmation hearings, Democratic Sen. Dick Durbin of Illinois dismissed Hawley’s list of cases by saying: “It should be noticed as well that the cases which the senator from Missouri referred to yesterday all resulted in incarceration of some magnitude.”
The magnitude of a jail sentence is relative, of course. But in one case, Jackson sentenced the defendant — Wesley Hawkins — to three months in prison, even though government prosecutors sought two years and the probation office recommended 18 months.
Later in the hearing, Hawley spoke in detail about the case, which the senator said involved an 18-year-old young man who uploaded “five video files of child pornography” to YouTube. Hawkins also had 17 videos of child porn on his laptop, as well as images of child porn.
“The government goes on to describe some of these as sadomasochistic images. So this is — this is a tough case,” Hawley said. “This is one of those tough cases you were referencing earlier. You talked about it this morning. You said these cases are terrible. This is one of them. This is terrible stuff.”
Jackson called the case “unusual.”
Jackson, March 22: I remember in that case that defense counsel was arguing for probation, in part because he argued that here we had a very young man just graduated from high school. He presented all of his diplomas and certificates and the things that he had done and argued consistent with what I was seeing in the record that this particular defendant had gotten into this in a way that was, I thought, inconsistent with some of the other cases that I had seen.
Part of what a judge is doing, as required by Congress, is thinking about this case, thinking about unwarranted sentencing disparities that’s in the statute, other cases, other determinations that a judge may have made about this. I don’t remember in detail this particular case, but I do recall it being unusual.
Blackburn’s Misleading Comparison
At the first hearing, Sen. Blackburn argued that Jackson has “a consistent pattern of giving child porn offenders lighter sentences.” She went on to say, “On average, you sentence child porn defendants to over five years below the minimum sentence recommended by the sentencing guidelines.”
We asked her office to provide support for her claim that Jackson sentenced “child porn defendants to over five years below the minimum sentence recommended by the sentencing guidelines.” But we got no response.
However, Hawley has taken the lead on this line of questioning and, as we noted, he cited seven cases at the hearings. In our review of those seven cases, the average minimum sentencing guidelines were 90 months, and Jackson’s average sentence was 45 months. So, Blackburn is wrong to say “over five years.” In fact, Jackson’s average was 3 years and 9 months below the minimum sentencing guidelines.
But even that figure is misleading. The majority of sentences for defendants convicted of non-production child pornography in fiscal year 2019 were below the minimum sentencing guidelines, according to the U.S. Sentencing Commission.
So, we compared Jackson’s average sentence in those seven cases to the government prosecutors, who on average sought a minimum of 71 months. That means Jackson’s average was more than two years below the minimum.
Plus, there was very little difference between Jackson’s average sentence (45 months) and those recommended by the probation office (52 months) – just seven months.
Other Sex Crime Cases
So far, we have referenced 10 child porn cases — the seven mentioned by Hawley at the first two hearings and three others that the senator’s office reviewed but he did not bring up at the hearings.
More broadly, Jackson said she “presided over 14 cases that involve child sex crimes.”
The most significant case, which wasn’t mentioned by Hawley, involved Charles Hillie, who court records show sexually abused two of his partner’s children between 2007 and 2014. He surreptitiously filmed one of them while she was in her room alone and in the bathroom with a friend. He was charged for the abuse and for the recording. Court records show that prosecutors asked for 45 years. The White House told us that probation office recommended 41 years. Jackson sentenced him to 29.5 years.
The appeals court later vacated convictions related to the secret recordings.
At the hearing, Sen. Durbin quoted what Jackson said at Hillie’s sentencing.
“You were there. You heard the testimony. This family has been torn apart by your criminal actions. You saw it on the faces of those women. You heard it in their voices,” Jackson said. “And the impact of your acts on those very real victims who are still struggling to recover to this day makes your crimes among the most serious criminal offenses that this Court has ever sentenced.”
In two other cases, Jackson’s sentence was consistent with the plea agreements sought by prosecutors, according to the White House and court records.
Benjamin Fyffe pleaded guilty in 2016 to one count of crossing state lines with the intent to engage in sexual conduct with a minor, and was sentenced to 20 years in prison. Rambie Nguyen pleaded guilty in 2018 to one count of crossing state lines with the intent to engage in sexual conduct with a minor, and was sentenced the following year to 37 months. Both received credit for time served.
In one last case, Jackson sentenced Andre Hammond to 94 months in prison for sexually abusing a minor and failing to register as a sex offender. In this instance, the government sought 108 months and the sentencing guideline range was 94 months to 120 months, the White House told us and court records confirmed.
At one point in Day 2 of the hearings, Democratic Sen. Chris Coons of Delaware cited a recent National Review article by Andrew C. McCarthy, a former U.S. prosecutor, who called Hawley’s attack on Jackson “a smear.” National Review is a conservative publication and McCarthy wrote a book accusing Hillary Clinton of colluding with the Obama administration to “rig an election” and block Donald Trump from winning the White House in 2016.
“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,” McCarthy wrote. “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.”
Editor’s note: FactCheck.org does not accept advertising. We rely on grants and individual donations from people like you. Please consider a donation. Credit card donations may be made through our “Donate” page. If you prefer to give by check, send to: FactCheck.org, Annenberg Public Policy Center, 202 S. 36th St., Philadelphia, PA 19104.