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Posts twist Jackson’s remarks on child porn sentencing

March 23, 2022 GMT
Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022. Some social media users are taking a clip from Jackson’s hearing out of context to make misleading claims about her judicial record. (AP Photo/Alex Brandon)
Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022. Some social media users are taking a clip from Jackson’s hearing out of context to make misleading claims about her judicial record. (AP Photo/Alex Brandon)

CLAIM: Supreme Court nominee Ketanji Brown Jackson “says she gave pedophiles lighter sentences” because it is different when they use computers instead of mail to get volumes of child porn.

AP’S ASSESSMENT: Missing context. Jackson was discussing a report by a federal commission, not explaining decisions in specific cases. The commission found in part that sentencing guidelines were outdated because of the ways in which the internet has affected volume.

THE FACTS: Jackson’s judicial record has been twisted amid her confirmation hearings before Congress.

On social media, some users have shared a short clip of her discussing child pornography sentencing guidelines in an attempt to cast her as sympathetic to child predators.

A Facebook post of the clip was paired with text claiming that Jackson “says she gave pedophiles lighter sentences bc its different when they use computers vs mail to get volumes of child porn.”

But Jackson was discussing a 2012 report regarding federal sentencing guidelines for child pornography cases — not how she ruled on specific cases.

And she wasn’t advocating for lower sentences for defendants who used the internet to view child pornography, but pointing out that volume of content no longer necessarily predicts the seriousness of an offense because the internet has made it much easier to access the illegal materials.

The full video of the hearing shows she was responding to a question from Democratic Sen. Dick Durbin about whether existing sentencing guidelines were appropriate given how the internet has affected volume.

Referring to her work as vice chair of the U.S. Sentencing Commission, Jackson said: “The Sentencing Commission has written at least one report. It did when I was there. Looking at the operation of this guideline, as you said, the guideline was based originally on a statutory scheme and on directives, specific directives by Congress at a time in which more serious child pornography offenders were identified based on the volume, based on the number of photographs that they received in the mail.”

“And that made totally, total sense before when we didn’t have the internet, when we didn’t have distribution,” she continued. “But the way that the guideline is now structured, based on that set of circumstances, is leading to extreme disparities in the system because it’s so easy for people to get volumes of this kind of material now by computers. So it’s not doing the work of differentiating who is a more serious offender in the way that it used to.”

Jackson added that such scrutiny of the guidelines “says nothing about the court’s view of the seriousness of this offense.”

The 2012 report indeed noted that some sentencing enhancements — meaning factors of a case that warrant a harsher sentence — fail to differentiate between different levels of culpability.

“These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders,” the report said. “Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail.”

Jelani Jefferson Exum, dean of the University of Detroit Mercy School of Law, emphasized that the report was the conclusion of the whole commission — not Jackson alone.

The guidelines, Jefferson Exum said, are intended to promote sentencing proportional to the crime and therefore need to clearly account for differentiating factors. But considerations such as the use of a computer — or the number of images, which are now often packaged in large batches — are no longer useful to differentiate between offenders for sentencing, she said.

That reality has led to judges routinely sentencing below the guideline range, Jefferson Exum added, noting the prosecutors also often request sentences below the guidelines.

“It’s just not telling an accurate story at all to make it sound as though this is at all about being light on child porngraphers and that there’s somehow unusual behavior here,” Jefferson Exum said. “This is completely mainstream.”

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This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.