Although the Percy Foundation by charter does not support political candidates or take positions on specific legislation, it did take the step of voicing its support for Judge Ketanji Brown Jackson’s elevation to the U.S. Supreme Court. Her historical importance is not only as the first African-American woman, but as the only current member of the Court with a background in criminal justice at a time when both expert opinion and public sentiment demand a fundamental reconsideration of inequities in the administration of criminal justice and the heavy social costs of prolonged mass incarceration. From her time as a student editor of the Harvard Law Review to her work as a public defender to her service on the U.S. Sentencing Commission to her practical experience as a federal district judge trying criminal cases in Washington, D.C., she has developed a distinguished profile that recognizes the necessary balance between public safety and upholding the constitutional rights of the individual.
That some Senate Republicans chose to attack her jurisprudence in a handful of child pornography cases over which she presided only served to highlight the issue as one that merits nuanced debate rather than emotional appeal to the politics of outrage. For the first time within living memory, media coverage has recognized the complexity of sex offense issues and the need for distinguishing between varying degrees of severity, not one-size-fits-all condemnation. In defending her record, Democrat senators have recognized that this once undebatable issue does indeed deserve careful public discussion rather than expressions of disgust and dismissal. To the extent that people are now willing to talk about appropriate parameters of sentencing in this difficult area, the attacks on KBJ may have backfired on her opponents. This issue is indeed a consequential one, as child pornography offenders are the most rapidly rising component of the federal carceral system, with whole facilities (including U.S. Penitentiary Tucson, FCI Seagoville, FCI Elkton, FCI Petersburg, FCI Marianna) now devoted to warehousing them.
She has been severe in sanctioning offenders, as in the case of Charles Hillie, who inappropriately touched his girlfriend’s two daughters over a period of seven years and surreptitiously filmed one of them in the bathroom; she sentenced him to 29.5 years. The case for which she received the most criticism was that of Wesley Hawkins, a gay teenager who received illegal images of boys from other teenagers and was manipulated into sharing them with an undercover detective.
It is not surprising that in a world where most adolescent boys find it easy to access pornography online, some of them, unaware of the legal consequences, will seek out and share images of other minors rather than adult actors much older than themselves. KBJ correctly concluded that a long prison term for a vulnerable young man who had just graduated from high school with an exemplary record would only expose him to bad influences and make him more dangerous to society.
The only other case of illegal images that resulted in less than a three-year sentence was that of Adam Chazin, another young defendant (20 at the time of his offense) with no prior record and no computer search history for child pornography, who unknowingly received from a friend some images of underage girls among a file of mostly adult images. The 28-month sentence he received after a plea bargain was in line with the recommendation of the probation officer who interviewed him. Probation officers who have hands-on experience managing offenders often have much more insight into the dangerousness of a defendant or his likelihood of re-offending than do prosecutors. In six of the seven child pornography cases cited by Senate Republicans, they recommended shorter sentences than the prosecutors, sometimes much shorter (see https://www.factcheck.org/2022/03/the-facts-on-judge-jacksons-sentencing-in-child-porn-cases/); this commonly occurs in child pornography cases, as experienced probation officers know that these offenders are mostly low-risk and rarely recidivate.
Even some prosecutors have doubts about the wisdom of pursuing these cases. Noted conservative legal commentator Andrew McCarthy (a former Assistant U.S. Attorney for the Southern District of New York), although opposing KBJ on other philosophical grounds, defended her record on child pornography cases in National Review Online. He says, “I can’t tell you how much I hated these cases. … When the dust settled in computer-porn cases, it often turned out that the culprit was a kid who wasn’t much older than the children depicted in the porn.” He agrees with KBJ that sending such kids into prison with hardened criminals will do society more harm than good.
Moreover, KBJ’s consideration of these cases is fully in line with the views of most federal district judges, as a team of legal scholars who specialize in sentencing (led by Prof. Frank O. Bowman III of the University of Missouri) demonstrated at length in a letter sent to the Judiciary Committee (https://www.judiciary.senate.gov › media › doc).
Indeed, a survey of federal judges conducted by the U. S. Sentencing Commission in 2010 (when KBJ was a member) revealed that 70% of the judges thought the mandatory minimums in cases of child pornography possession were too high.
Public emotion over these cases is fed by two popular myths: (1) that most men who possess child pornography are pedophiles in waiting and long prison terms for illegal images are an effective strategy for keeping them off the streets, and (2) that they create a “market” for images from which criminals profit financially through exploitation of children who would not otherwise be exploited. (1) has been refuted by countless academic studies, surveyed by criminologist William Thompson on the Foundation’s website. (2) has never been credibly established, since most of these images are traded freely on the Dark Web. The Percy Foundation plans this Spring to conduct a survey of persons incarcerated for child pornography offenses to determine what percentage, if any, ever exchanged money for such images.
Already as a law student at Harvard, KBJ took a scholarly interest in the excesses and incoherence of federal jurisprudence with regard to sex offenses, in an anonymous student note (for which she later claimed credit in 2012) titled “Prevention versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders” (Harvard Law Review 109.7  1711-28). She questions in particular whether the onerous legal requirements placed on released sex offenders, including indefinite civil commitment in some cases based merely on the hypothetical possibility that one might re-offend, are not actually punishment rather than mere “administrative” measures for public safety. In her conclusion, she writes, “In the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments that ‘use public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.’” This is a direct challenge to what has now become a long, sad history of federal courts upholding such detention in the wake of Kansas v. Hendricks (1997), in which the Supreme Court justified civil commitment on the basis that it was not punishment, but administrative regulation of particularly dangerous individuals who could not control their behavior due to incurable mental disorders. That opinion was supported by reference to false and debunked statistics, such as former Justice Kennedy’s remarkably ignorant assertion that almost all sex offenders recidivate, whereas the most recent Bureau of Justice Statistics study shows that the recidivism rate is only 7.7% nine years after release, one of the lowest for any category of crime (https://bjs.ojp.gov/library/publications/recidivism-sex-offenders-released-state-prison-9-year-follow-2005-14). As Percy Foundation President Thomas Hubbard stated in a letter to California’s two senators, “Judge Jackson is an impressive voice for constitutional principles, from whom other justices on the Court and all of us can learn much.”