Judge Ketanji Brown Jackson once expressed concern about a “climate of fear, hatred, and revenge” surrounding sex offenders.
Jackson later opposed the confinement conditions of a Taliban leader suspected of running a terrorist cell.
Now, as President Joe Biden’s Supreme Court nominee, Jackson faces questions about her legal career and record on crime when her Senate confirmation hearing convenes Monday.
Senate Minority Leader Mitch McConnell, R-Ky., this week noted that during a crime wave, Jackson is a favorite among interest groups that are soft on crime.
“Amid all this, the soft-on-crime brigade is squarely in Judge Jackson’s corner,” McConnell said Tuesday in a Senate floor speech. “They wanted her above anyone else on the short list. And they specifically cite her experience defending criminals and her work on the Sentencing Commission as key qualifications.”
The liberal nonprofit group Demand Justice promoted Jackson as one of its top picks on a list of potential Supreme Court nominees for Biden. Arabella Advisors, a major bankroller of left-of-center causes, sponsored the launch of Demand Justice.
Since June, Jackson has been a judge on the D.C. Circuit Court of Appeals. From 2013 to 2021, she was a judge for the U.S. District Court for the District of Columbia. From 2003 to 2005, she was an assistant special counsel for the Sentencing Commission, then a public defender until 2007.
President Barack Obama nominated Jackson, in private practice at the time, to serve on the Sentencing Commission itself starting in 2009. She became vice chairwoman.
‘Alarming Pattern’ on Sex Offenders
Sen. Josh Hawley, R-Mo., a member of the Senate Judiciary Committee, tweeted Wednesday that he sees “an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children.”
While on the commission, Hawley noted, Jackson said a “less serious child pornography offender” is motivated by “the use of technology.” She also said that some of those who possess child porn “are in this for either the collection, or the people who are loners and find status in their participation in the community.”
Hawley’s tweets referred to seven separate cases in which Jackson ruled.
“On the federal bench, Judge Jackson put her troubling views into action. In every single child porn case for which we can find records, Judge Jackson deviated from the federal sentencing guidelines in favor of child porn offenders,” Hawley wrote on Twitter.
Jackson authored 585 rulings while on the D.C. District Court, but has written only two opinions as a D.C. Circuit judge.
The lower court cases Hawley highlighted include:
- U.S. v. Hawkins, where sentencing guidelines called for up to 10 years in prison for a man convicted of possession of multiple images of child pornography. Jackson sentenced him to three months.
- U.S. v. Stewart, where sentencing guidelines called for 97 to 121 months in prison for a man convicted of possessing thousands of images of child porn and attempting to travel across state lines to abuse a 9-year-old girl. Jackson sentenced him to 57 months.
- U.S. v. Cooper, where the guidelines called for 151 to 188 months for a sex offender convicted of posting 600 images and videos online. Jackson sentenced him to 60 months, the lowest sentence allowed, according to Hawley.
- U.S. v. Chazin, where the guidelines called for 78 to 97 months for possession of child porn. Jackson’s sentence was 28 months.
- U.S. v. Downs, where the guidelines called for 70 to 87 months for someone convicted of posting sexual images of children, including at least one under age 5. Jackson handed down 60 months.
- U.S. v. Sears, where the guidelines called for 97 to 121 months for a perpetrator convicted of distributing 102 child porn videos as well as photos of his 10-year-old daughter. Jackson gave him 60 months. (Jackson, however, later denied him compassionate release in 2020 when he said diabetes mellitus and asthma placed him at greater risk of serious complications from COVID-19, according to a Congressional Research Service report.)
- U.S. v. Savage, where the guidelines called for 46 to 57 months for a man convicted of traveling with the intent to engage in illicit sexual conduct and also transporting child porn. Jackson sentenced him to 37 months.
White House spokesman Andrew Bates told a Washington Post reporter that Hawley used selective information.
“This is toxic and weakly presented misinformation that relies on taking cherry-picked elements of her record out of context—and it buckles under the lightest scrutiny,” the Post quoted Bates as saying.
‘Advocating Lighter Sentencing’
Democrats support the Jackson nomination and technically control the 100-member Senate by holding 48 seats, enjoying the support of two independents, and having Vice President Kamala Harris available to cast a tie-breaking vote.
Shortly after Biden nominated Jackson, the watchdog group American Accountability Foundation first flagged her 1996 Harvard Law Review article arguing that the justice system was unfair to sex offenders.
For a lifetime appointment to the Supreme Court, Jackson’s lifetime of legal views should be evaluated by senators, said Matt Buckham, a founder of the group.
“Maybe the article was written in the past about how the law is unfair to sexual predators and sex offenders, but she has had a long legal career advocating for lighter sentencing for crimes across the board,” Buckham told The Daily Signal.
Jackson’s Harvard Law Review article is titled “Prevention Versus Punishment: Toward a Principled Distinction in the Restraint on Released Sex Offenders.”
“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,’” Jackson wrote.
Jackson went on to compare laws on sex offender registries to the precedent set by the Supreme Court in the case of Kennedy v. Mendoza-Martinez, where it struck down laws denying national citizenship to draft dodgers as unconstitutionally punitive.
In her article, Jackson wrote:
Judges should abandon the prevention/punishment analyses that rely on legislative intent, that routinely apply the Kennedy factors, and that assess the ‘excessiveness’ of a sex offender statute’s punitive effects in favor of a more principled approach to characterization. Although ‘[a precise] analytical solution is almost impossible to construct,’ this note suggests that such a principled approach involves assessing the impact of sex offender statutes and deeming the laws ‘punitive’ to the extent that they operate to deprive sex criminals of a legal right in a manner that primarily has retributive or general deterrent effects.
The American Accountability Foundation’s Buckham said Jackson’s record on crime demonstrates that she isn’t qualified to serve on the high court.
“She has a record of being an activist for a social justice agenda, not an arbiter of justice,” Buckham said. “If more Americans were aware she wants the law to go lighter on sex offenders, they would be horrified. Biden had a lot of candidates to draw from and should go back to the drawing board.”
Jackson’s record on such crimes is a fair issue to raise, said Carrie Severino, president of the Judicial Crisis Network, a conservative legal nonprofit.
“To minimize child pornography is certainly not a positive for a Supreme Court nominee,” Severino told The Daily Signal.
If the issue is limited to opposing a sex offender registry, as outlined in Jackson’s law review article, liberal judges have opposed this before, noted Curt Levey, president of the Committee for Justice, another conservative nonprofit.
In a 2003 case, Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer—the justice whom Jackson hopes to replace—were in a 6-3 minority disputing the constitutionality of Alaska’s sex offender registry. The same year, the high court unanimously upheld a Connecticut sex offender registry.
Defending Terrorism Suspects
Jackson’s broader record on crime will be a significant issue in her Senate confirmation hearing as well, Severino said, including the judge’s time as a public defender.
Jackson was a lawyer for terrorism suspects held at the U.S. detention facility at Guantanamo Bay, Cuba, including a Taliban officer believed to be a leader of a terrorist cell. In defending the Taliban leader, Khiali-Gul, Jackson accused the U.S. government of engaging in torture tactics.
Objecting to Gul’s confinement conditions, Jackson wrote:
Many of the most egregious interrogation techniques used in the Abu Ghraib detention center and other detention facilities in Iraq—such as the use of aggressive dogs to intimidate detainees, sexual humiliation, stress positions, and sensory deprivation—were pioneered at Guantanamo.
In the D.C. Federal Public Defender’s Office, Jackson primarily represented clients in appeals in firearms, tax evasion, and fraud cases. Legal experts note that senior public defenders have discretion about cases they are assigned.
“Obviously, the duty of a public defender is to advocate on behalf of their client as best as possible, but you can’t make just any argument,” Severino said. “Arguments can’t go beyond what is fair and reasonable.”
Severino said Jackson made “nitpicky” arguments as a public defender in two 2007 cases, one involving illegal firearms possession and the other drug possession.
In the firearms case, Jackson argued on appeal that the defendant couldn’t be charged with two separate firearms charges at the same time.
In the drug case, police had pursued a driver who made an illegal turn, then found drugs in plain sight in his vehicle, Severino said. Jackson argued that the driver shouldn’t have been pulled over, saying the turn wasn’t illegal if the police were able to pursue him.
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