In one year 1996 Harvard Law Review Article, Ketanji Brown Jackson, then law school student, notes the “climate of fear, hatred, and revenge” in which policies are formulated with sex offenders. Before Jackson’s Supreme Court confirmation hearing began this week, Sen. Josh Hawley (R ‒ Mo.) protested to that observation, then proceeded to demonstrate its accuracy.
Hawley’s misrepresentation of Jackson’s record in this area was typical of the criticisms leveled at the Supreme Court nominee, which often involved inflammatory, contextual citations of a candidate’s statements and decisions. But it also illustrated the difficulty of having a rational conversation about the legal treatment of sex offenders, a broad and diverse category that goes far beyond the “child predators” that Hawley focused on.
The senator claimed that Jackson, as a federal judge, showed an “alarming pattern” of “convictions for sex offenders” who “spend money on children.” But the cases he cited actually involved defendants who were convicted of possessing or sharing child pornography instead of defendants who were convicted of sexually abusing children.
Hawley torn off that Jackson favored “letting child porn offenders get off the hook for their horrific crimes.” Here, too, he hid an important difference: between people who produce child pornography, which inevitably entails child abuse, and people who watch the pictures.
Hawley also equated the conviction of perpetrators of the latter kind, for example, five years in prison instead of 15 with “let [them] from the hook. “And he ignores long-standing, widespread, bipartisan criticism of the sentences, which recommend federal federal guidelines for non-production child pornography insults that many judges, prosecutors, and jurors view as excessive.
Federal law draws an excellent distinction between to get Child pornography, which triggers a five-year mandatory minimum sentence, and possess such material, which in the Internet context is basically the same crime. In owner cases, judges have more discretion, though the guidelines recommend penalties based on congressional prescribed “improvements” that cover almost all defendants.
In a 2010 poll, the U.S. Sentencing Commission (USSC) found that a large majority of federal judges thought both types of sentences were too long. In FY 2019, the USSC reported, 59 percent of non-production offenders received sentences under the guideline, proving that “courts increasingly believed that the sentencing scheme would be too severe for such offenders.”
As evidence that Jackson was particularly lenient, Hawley presented cases in which she convicted convicts caught with child pornography in terms below the guideline. But as Douglas Berman, a conviction expert at Moritz College of Law, pointed out, “Judge Jackson’s record for imposing CP sentences under guidelines is very mainstream.”
Andrew C. McCarthy, a former federal prosecutor who writes for National Criticism, described Hawley’s characterization of Jackson’s conviction record and her critique of the current conviction scheme as “a smear” that was “deserved to the point of demagoguery.” But such demagoguery is par for the course when it comes to policies aimed at sex offenders.
In addition to criticizing Jackson’s “fairly mainstream” views on child pornography sentences, Hawley cited hir Harvard Law Review Article arguing that courts should consider sex offender laws as “punishment” rather than “preventive” when “they work to deprive sex offenders of a legal right in a manner that has primarily retributive or general deterrent effects.” This distinction is important because punitive laws are subject to additional constitutional restrictions, including due process requirements and the prohibition on double jeopardy, ex post facto laws, and “cruel and unusual” punishment.
In 2016, for example, the U.S. Court of Appeals for the 6th Circuit ruled that Michigan’s Sex Offender Registration Act was primarily punishable, meaning that its claims could not be retroactively enforced. The Supreme Courts of several states, including Alaska, New Hampshire, and Pennsylvania, have reached similar conclusions about sex offenders being registered.
According to Hawley, however, Jackson’s discussion on this subject exemplified “a record that puts our children in danger.” This is exactly the kind of emotionalism that Jackson rightly described as an obstacle to clear thinking on a subject that generates more heat than light.
© Copyright 2022 by Creators Syndicate Inc.
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