Law professor defends Biden SCOTUS pick, says child porn sentencing guidelines 'unduly severe'

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Hawley hits back at Durbin, says Jackson’s record ‘concerning’

Sen. Josh Hawley, R-Mo., on Ketanji Brown Jackson’s confirmation hearing.

A law professor and sentencing policy expert argued against accusations that President Biden's Supreme Court nominee Judge Ketanji Brown Jackson gave out lenient sentences to sex offenders and child predators.

Ohio State University Moritz College of Law Professor Douglas A. Berman argued in a post on his blog "Sentencing Law and Policy" that "any review of Judge Jackson's CP [child pornography] sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe."

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill, April 28, 2021 in Washington, D.C. (Photo by Kevin Lamarque-Pool/Getty Images)

Berman went on to cite a recent U.S. Sentencing Commission report that explains that the child pornography sentencing guideline fails "to distinguish adequately between more and less severe offenders," and that "most courts believe [the guideline] is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case."

Judge Ketanji Brown Jackson speaks after President Joe Biden announced Jackson as his nominee to the Supreme Court in the Cross Hall of the White House, Friday, Feb. 25, 2022, in Washington. (AP Photo/Carolyn Kaster)

"With the CP guidelines ‘too severe’ and poorly designed to ‘measure offender culpability’ in the digital age, federal judges nationwide rarely follow them," wrote Berman. "Indeed, data in recent (and past) USSC reports document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases (p. 23), and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum (p. 25)."

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Berman explained how after reviewing the nine child pornography cases sentenced by Jackson, he was struck that the prosecution argued for a below-guideline sentence in five of the nine cases. In three others, he said, the prosecution argued only for the guideline minimum.

"In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes," Berman wrote.

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"In other words, Judge Jackson's record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties)," Berman added.

Berman's post was in response to a Twitter thread from Sen. Josh Hawley, R-Mo., who highlighted Jackson's record as a member of the U.S. Sentencing Commission and argued that she has a history of "letting child porn offenders off the hook."

Sen. Josh Hawley, R-Mo., meets U.S. Supreme Court nominee and federal appeals court Judge Ketanji Brown Jackson, in his office at the U.S. Capitol in Washington, D.C., on March 9, 2022. (Reuters/Evelyn Hockstein)

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Hawley told Politico after meeting Jackson that he liked her "personally," but had issues with her record on crime.

When reached for comment about his post, Berman responded: "Has Senator Hawley or anyone else questioned or disputed my post? You are welcome to use what I say there in your work."

A spokesperson for Hawley's office directed Fox News to an op-ed the senator wrote laying out his concerns with Jackson's record.