If only Lindsey Graham were in a job where he had the power to propose a law requiring judges to sentence child-porn consumers to a decade or four in federal prison.
Having apparently concluded that they don’t have the votes to stop Ketanji Brown Jackson’s Supreme Court appointment, some Senate Judiciary Committee Republicans — mainly, the ones who just might have a presidential run on their minds — have turned Judge Jackson’s confirmation hearing into a good show for the base. Senator Graham got in on the act Wednesday morning, grilling Judge Jackson on the case of 18-year-old Wesley Hawkins, who possessed and uploaded for the consumption of others (including on a YouTube-controlled web address) numerous videos and images of unspeakably vile child pornography.
I guess I shouldn’t say “unspeakable” because the Justice Department did speak of it, in necessary but lurid detail in a presentence submission. Graham ignored a great deal of relevant information in the submission (which I’ll get to); instead, he emphasized that prosecutors had recommended a two-year sentence, yet Jackson imposed a sentence of just three months.
I’ve already discussed this issue couple of times (here and here), but a few points bear making (and remaking, at the risk of belaboring some of them).
(1) Hawkins was in high school when he committed the offense. If he had been just a bit younger — a little under 18, instead of 18 — he would not have been prosecuted at all. While the images in the case were atrocious, Hawkins was a consumer, not a producer. Though it’s rarely done, the Justice Department sometimes prosecutes minors who commit serious, violent crimes. But Hawkins did not engage in a violent crime. He did not physically imperil any child. He was barely out of minority, and if he were still a minor, the Justice Department would have dropped the case — not 120 months in prison, not 24, not 18, not 3. No prosecution at all.
(2) In its presentence submission to the court, the prosecutors acknowledged that Hawkins, who had no criminal history whatsoever, pled guilty and “cooperated at all stages of this investigation and case.” This means Hawkins gave investigators whatever help he could to identify and build cases against whatever distribution sources he had dealt with. It is a commonplace, even in violent-crime cases, as well as cases involving high-level drug trafficking and profound financial harm, that if a defendant fully cooperates — even if the defendant has a criminal record — the Justice Department will recommend that the court sentence the cooperating defendant to either time-served or no prison time at all. More often than not, judges follow such recommendations.
(3) At Wednesday’s second day of Jackson’s testimony, Senators Graham and Josh Hawley derided her for imposing a sentence that was 21 months below the prosecutors’ recommendation. Yet they conveniently skipped over the fact that the prosecutors’ recommendation was eight years below the top of the guidelines range (97-121 months). The Probation Department — an independent arm of the court — reportedly recommended a sentence of just 18 months, eight and a half years below that range. This is because everyone in the equation, not just Judge Jackson, recognized that the guidelines were draconian and would have worked a profound injustice if applied.
(4) The issue brought into sharp relief by Hawkins’s case — namely, the need for Congress to provide courts with rational guidance in the sentencing of nonviolent consumers of child pornography, especially those who are young — has been well known for over 20 years. Yet Congress has done nothing. If, as he asserted, Senator Graham would like to see nonviolent possessors of child pornography sentenced to decades in prison, he could at any time have proposed legislation calling for a mandatory minimum in possession cases. Ditto Senator Hawley and Senator Ted Cruz — the latter did not go into the Hawkins case on Wednesday, but he ripped Jackson’s sentences in other child-porn cases. If these senators are so passionate about the need for nonviolent possessors of child pornography to be sentenced to ten or more years, why have they not proposed legislation calling for that?
(5) Speaking of which, in its presentence submission in the Hawkins case, at page 7, the Justice Department explained that it was recommending a sentence that was just a fraction of the guidelines range because the Sentencing Commission itself had
identified many problems with the non-production child pornography Guidelines and included recommendations about how to change the Guidelines to better account for offender behavior, including through the elimination of some specific offense characteristics and the revision and addition of other enhancements. Although the Commission has asked Congress for permission to revise the child pornography Guidelines, no changes have been made at this time.
That Sentencing Commission report was nine years ago. They have pleaded with lawmakers to address this problem. Congress has been indifferent . . . until it became politically useful at a confirmation hearing. Let’s see if (a) they’re still as animated once the hearing is over, and (b) they make proposals calling for lengthy mandatory imprisonment — like the harsh sentences they suggested during Wednesday’s hearing — even though the problem the courts, the Sentencing Commission, the Justice Department, and practitioners have identified is that the sentencing guidance currently on the books is too draconian. Anyone want to bet me on this?
(6) The Republican senators repeatedly remarked that the images involved in these cases include prepubescent children. But the defendants are not accused of abusing the children. They are not accused of producing images of children. They are accused of possessing and viewing these images. There is no allegation that Jackson has gone light on defendants who actually produce the pornography and abuse children. We are talking about consumers — in this instance, a teenage consumer barely out of adolescence, at least technically.
(7) This is not a Judge Jackson issue. In a 2010 survey, more than seven in ten federal judges — i.e., judges appointed by presidents of both parties — said that the five-year mandatory-minimum sentence for receiving child-porn images with the intent to distribute them was too harsh. This polling is significant for two reasons. First, this child-porn-receipt crime was one of only two offenses (the other being trafficking in crack cocaine) in which a majority of judges believed the mandatory-minimum provision enacted by Congress was too harsh. Second, with respect to Hawkins, we are not even talking about receipt; he was charged with simple possession, which carries no mandatory minimum. That is, Congress has never suggested that this offense called for a mandatory prison sentence of any amount of time — not even a day, let alone the years or decades of incarceration that Judiciary Committee Republicans have called for at Jackson’s hearings.
(8) The rationale for criminalizing consumption of child pornography is a market theory. Everyone — except, evidently, Republican senators at a hearing for a Democratic judicial nominee — recognizes that the offense of possessing images of child abuse is not comparable to physically abusing children. But we criminalize possession because people who seek to consume these images create and drive a market for them, which has the effect of causing more child abuse, even if the possessors do not themselves abuse children.
(9) This is similar to the theory on which federal law criminalizes simple possession of illegal narcotics. Everybody recognizes that, while possession and consumption of illegal narcotics is harmful behavior, it is by dimensions less harmful and serious than the production and large-scale distribution of illegal narcotics — and all of the violence and other criminal activity that attends narcotics trafficking. That is why production, importation, and distribution offenses are severely punished not only under the sentencing guidelines but in the statutes themselves. That is, Congress has enacted harsh mandatory-minimum sentences of anywhere from five years to life imprisonment depending on the circumstances of the offense (weight of narcotics, number of convictions, whether the defendant was a supervisor of a significant drug network, violence in furtherance of the trafficking, etc.).
(10) If there were not simple possessors and consumers of illegal narcotics, there would not be a market that drives the much more serious drug-trafficking crimes. Yet no senators have suggested that illegal-drug possessors and users should be sentenced to harsh prison terms, much less mandatory minimums. And the Justice Department generally does not enforce simple possession statutes at all.
(11) Finally, let’s put child-pornography cases to the side. To repeat what I noted in Tuesday night’s column, Judge Jackson has articulated a theory of sentencing that would enable her to ignore the guidelines in every criminal case, no matter what the crime is. Yet committee Republicans have not spotlighted that alarming fact, which is directly relevant to the central question of whether she truly is committed to following the law rather than legislating from the bench. Instead, Republicans chose to spotlight sentencing in nonviolent child-porn-consumption cases — a matter that vexes judges, practitioners, and analysts across partisan and ideological lines. This was very poor judgment.