A look at the child pornography cases at issue in Ketanji Brown Jackson's Senate hearings
Judge Ketanji Brown Jackson, the first Black woman nominated to serve on the Supreme Court, came under intense questioning Tuesday and Wednesday at her confirmation hearings from some Republicans who accused her of being too lenient as a trial judge imposing sentences in child pornography cases.
Sens. Josh Hawley, R-Mo., Ted Cruz, R-Texas, and Lindsey Graham, R-S.C., led the charge in the Senate Judiciary Committee, suggesting Jackson was soft on crime during nearly a decade as a judge on the U.S. District Court in Washington.
They initially called attention to seven cases in which her sentences were below guidelines from the U.S. Sentencing Commission, which sets recommended sentences that judges must consider but are not required to impose.
Jackson, who serves on the U.S. Court of Appeals for the D.C. Circuit, dismissed the suggestion she was soft on crime. She said judges consider many factors beyond sentencing guidelines when imposing punishment. Those include prosecution and defense recommendations, information about the defendants, and U.S. Probation Office recommendations.
USA TODAY examined the charges and sentencing memoranda in the seven cases raised Tuesday.
In two of the cases reviewed, Jackson's sentences were above the punishment recommended by the Probation Office, which often serves as a fact-finder in federal criminal cases, according to the White House. Jackson issued the same sentence recommended by the Probation Office in three cases and a sentence below the agency's recommendation in one case. The Probation Office recommendation in the seventh case was not immediately available.
Cruz and Hawley pressed Jackson on a different metric: how often she followed prosecutors' sentencing recommendations in child pornography cases.
"Every single case – 100% of them – when prosecutors came before you with child pornography cases, you sentenced the defendants to substantially below, not just the (federal sentencing) guidelines ... but what the prosecutor asked for,” Cruz said.
Jackson responded that federal sentencing law "doesn't say impose the highest possible penalty for this sickening and egregious crime."
"The statute says, calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is sufficient but not greater than necessary to promote the purposes of punishment," the judge said.
Jackson said she made sure the experiences of victimized children "were represented in my sentencings." She emphasized that the sentencings included additional restraints, including lengthy restrictions on the defendants' computer usage.
Though the factors Congress instructed judges to consider include the victims' stories, they also include "the nature, circumstances of the offense" and "the history and characteristics of the defendants," Jackson said.
Graham pressed Jackson about her views on certain enhancements under the guidelines. "I know how serious this crime is,” the judge said as she detailed restrictions on top of prison time that she imposed. Graham was unconvinced. “All I can say is that your view of how to deter child pornography is not my view,” he shot back. “I think you're doing it wrong.”
Jackson's supporters and some independent experts noted that federal district court judges as a group often impose sentences below the guidelines. According to the U.S. Sentencing Commission, less than one-third of "non-production" child pornography offenders received a sentence within the guidelines in 2019.
Largely missing from the hearings has been extensive background on the cases in question. Here are summaries of the cases reviewed by USA TODAY:
U.S. v Hawkins
Wesley Hawkins was 18 and appeared to have a sexual identity issue, as well as insecurity issues about his weight and social acceptance, according to a defense filing in his case in 2013. His mother's strict religious beliefs complicated those factors, the filing said.
An undercover investigator received a tip that someone had uploaded child pornography to YouTube. An investigation linked the upload to Hawkins, and the undercover officer contacted him.
Hawkins agreed to share child pornography with the officer, the filings show. Most of the videos showed prepubescent boys in sexual activity, they said. Investigators executed a search warrant at Walker’s home in June 2013. He was arrested and charged with one count of possessing child pornography.
Hawkins, who had no previous criminal record, pleaded guilty.
Hawley questioned Jackson's judgment and discretion, challenging her extensively about the case Tuesday. Hawley noted that the judge said there was no reason to conclude Hawkins was a pedophile, a statement that echoed a claim by the teen's defense lawyer. Hawley said Jackson apologized to the defendant.
"Is he the victim here, or are the victims the victims?" Hawley asked.
"This particular defendant had gotten into it (collecting a cache of child pornography) in a way inconsistent with other cases I have seen," Jackson responded.
The federal sentencing guidelines recommended incarceration of 97-121 months for Hawkins.
Prosecutors recommended less time in prison, two years, followed by eight years of supervised release, because of "the defendant's very young age." The U.S. Probation Office recommended 18 months, according to information provided by the White House.
Jonathan Jeffress, at the time an assistant federal public defender in the same office where Jackson had held such a position, argued for an even lower sentence. He contended Hawkins should get credit for five months spent in a high-intensity supervision program while the case was pending and should be sentenced to just one day behind bars, followed by home detention.
Walker had graduated from high school before he was arrested. He subsequently lost a $4,000 academic scholarship he'd planned to use to attend Shaw University in Raleigh, North Carolina, Jeffress wrote.
"Everyone associated with Mr. Hawkins believes that his behavior was out of character and that he will never become involved in possessing child pornography again," Jeffress wrote.
Jackson sentenced Hawkins to three months of incarceration, followed by 73 months of supervised release.
The judge recommended that the teen be placed in a low-security federal facility relatively near his family based on a finding that "he is particularly vulnerable to abuse while incarcerated."
Jackson ordered that Hawkins register as a sex offender after release and have no contact with minors under 18 without written approval from the U.S. Probation Office.
In each of the seven Jackson sentencings in child pornography cases reviewed by USA TODAY, the court documents that provide the reasoning for the sentence she imposed are sealed.
Jeffress did not respond to a message seeking comment. The U.S. Attorney's Office for the District of Columbia said the prosecution office's policy is not to make any public comment about cases beyond court filings.
U.S. v. Stewart
Neil Stewart, 31, a Maryland resident, was enticed by a government undercover agent who placed ads in an online website frequented by suspected pedophiles, federal court filings show.
The undercover officer suggested that Stewart might have sex with the agent’s fictional 9-year-old daughter. Stewart provided more than 600 child sex images and videos to investigators.
Stewart, who had no prior criminal record, was charged with one count of possessing child pornography and pleaded guilty.
The federal sentencing guidelines range for Stewart's case was 97 to 121 months, court filings show.
Prosecutors recommended a prison sentence "at the bottom of the sentencing guidelines," followed by 120 months of supervised release, intensive sex offender treatment and drug treatment, a sentencing memo shows. They argued that Stewart had done nothing to address his drug use while he awaited sentencing.
The memo acknowledged that sentencings in child pornography cases vary widely in the District of Columbia federal district court.
“Avoiding sentencing disparity poses no small task in a case of this nature, as there is much variation in how courts apply (or decline to apply) the sentencing guidelines" in a case of child pornography possession, wrote then-Assistant U.S. Attorney Andrea Hertzfeld. "Indeed, the sentences imposed over the last decade within this jurisdiction vary wildly," including one case similar to Stewart's that resulted in up to 108 months of incarceration.
Other possession cases resulted in sentences of as little as 12 months, even though the federal sentencing guidelines recommend a sentence "several times that amount," Hertzfeld wrote.
The defense sentencing memo for Stewart recommended a 48-month prison term, followed by 15 years of supervised release. Assistant Federal Public Defender Carlos Vanegas, who, like Hawkins' lawyer, worked in Jackson's former office, argued that Stewart was “not a predator who needs to be removed from society for more than a decade.”
Jackson filed a notice that she had reviewed U.S. Sentencing Commission data for the ratio of the sentences relative to the federal sentencing guidelines for similar defendants.
Jackson sentenced Stewart to 57 months in prison, followed by 120 months of supervised release. That was above the 42-month sentence recommended by the Probation Office, according to the White House.
U.S. v. Sears
In another case, a Massachusetts man, Jeremy Sears, sent images and videos of child pornography to an undercover officer in 2018. Noting he was the father of a 10-year-old daughter, Sears said he would send explicit images of her.
Sears was arrested in 2018 and charged with distributing child pornography. Like other defendants in the cases Hawley cited, Sears struck a deal with prosecutors and pleaded guilty to the charge in exchange for a slightly lower sentence.
Prosecutors calculated the U.S. Sentencing Commission guidelines at 97 to 121 months, and they requested the lower end of that range, a little more than eight years in prison, followed by 10 years of supervised release.
"The essence of the crime to which the defendant has pleaded guilty does not lie simply in the sharing or receiving or images and videos; it is about the children in those images and videos," prosecutors wrote.
Sears’ defense attorneys noted their client had no prior criminal history and said he was trading the images rather than providing them for profit.
"While Mr. Sears committed a very serious crime, he has expressed regret and remorse for his actions," his attorney wrote. "These were the nine worst days of his life.... Not to downplay the seriousness of his behavior, his actions could best be described as unsophisticated."
The defense recommended a five-year prison sentence for Sears.
Jackson imposed a 71-month prison term, nearly six years, with credit for time Sears had already served, followed by 10 years of supervised release. The Probation Office's sentencing recommendation was not immediately available.
Sears sent the court a handwritten letter in 2020 seeking release because of the spread of COVID-19 inside the prison, stating that he had asthma, diabetes and other health problems.
Jackson denied the request, ruling that his actions “strongly suggest that Sears poses a threat to children, and the disturbing nature of his offenses is sufficient to persuade this Court that a substantial period of incarceration was, and still is, justified.”
U.S. v. Savage
The case of Daniel Savage, a Pennsylvania man who came before Jackson in 2015, involved different circumstances – and a different charge. Savage was charged with traveling to the District of Columbia with the intent to engage in illicit sexual conduct with a minor.
For several days in 2015, Savage exchanged emails and text messages with an undercover officer who promised to connect him with a 12-year-old boy. According to police, Savage drove to Washington to meet the officer after those exchanges and was arrested.
Savage brought child pornography with him to Washington, police said.
"The defendant’s conduct in this case is severely harmful to society in general and to the child victims of the images possessed, and therefore supports the government’s view that the defendant should serve a significant prison sentence," prosecutors wrote.
Noting that Savage had no criminal history and his quick agreement to a guilty plea, prosecutors recommended slightly more than four years of prison and 10 years of supervised release. That punishment was at the bottom third of the federal sentencing guidelines, which prosecutors said called for 46 to 57 months.
Prosecutors noted in their proposed plea agreement that one of the factors that "enhanced" Savage's sentence could be taken off the table at sentencing. It appears Jackson decided to do so, which reduced the sentencing guideline recommendations to 37 to 46 months.
Jackson imposed a 37-month sentence, with credit for time Savage had already served, followed by 10 years of supervised release. That was just above the 36 months recommended by the Probation Office, according to the White House.
U.S. v Chazin
Adam Chazin, 26, is a U.S. Army veteran from the District of Columbia who was arrested in 2019 for allegedly uploading child pornography to an online file account.
He was charged with possession of child pornography, possession of an unregistered firearm and attempted possession of a high-capacity ammunition loader. Chazin, who had no previous criminal record, agreed to cooperate and pleaded guilty to the charges.
Prosecutors asked for a prison term based on the federal sentencing guidelines calculation, which was 78 to 97 months. The Probation Office recommended 28 months, according to the White House.
“There is no doubt that the defendant’s criminal conduct is egregious. His offenses have been perpetrated against the vulnerable members of our society – children,” Assistant U.S. Attorney Amy Larson wrote in the government’s sentencing memorandum.
“It is true that in many cases judges in this district have departed from the guidelines range in child exploitation cases,” Larson wrote. However, she argued that Chazin's uploading of child pornography spanned three years, including part of his military service, and charges included illegal gun possession.
Defense attorney Danny Onorato asked Jackson to sentence Chazin to five years of probation. In a sentencing memorandum, Onorato argued that Chazin believed the files contained adult pornography and said the initial files he received confirmed that belief. “Mr. Chazin derives no pleasure from child pornography” but made a mistake and should have deleted the banned material, Onorato wrote.
The defense lawyer argued that an analysis of Chazin’s computer found no searches for child pornography. He wrote that a forensic analysis showed that Chazin “does not fit the definition of a pedophilic disorder.”
Jackson sentenced Chazin last year to 28 months in federal prison, consistent with the Probation Office recommendation, to be followed by 73 months of supervised release. He’s serving his sentence at a low-security federal correctional institution in New Jersey. His scheduled release date is in May 2023.
U.S. v Downs
Christopher Downs, 34, is an Arizona resident who posted numerous sexual images of children to a private online chat room during 2018, according to an undercover investigator who detailed the allegation in court filings.
Law enforcement authorities brought Downs to the District of Columbia federal district court and charged him with one count of distributing child pornography. He pleaded guilty in January 2019.
Prosecutors recommended a sentence of 70 months imprisonment, the low end of the 70 to 87 months recommended by federal sentencing guidelines, followed by five years of supervised release. They recommended that he be required to register as a sex offender for at least 25 years.
"Given the serious nature of the defendant's conduct in this case and his risk to the community, balanced against his lack of criminal history and early acceptance of responsibility, the government believes this is an appropriate sentence," wrote Assistant U.S. Attorney Nicholas Miranda.
A sentencing memo filed by defense attorney Kira Anne West sought 60 months of incarceration, a punishment below the sentencing guidelines that represented the mandatory minimum sentence.
The filing said Downs had been a victim of physical and sexual abuse and had symptoms of post-traumatic stress disorder after military service.
Jackson sentenced Downs to 60 months behind bars, consistent with the mandatory minimum punishment and the Probation Office recommendation, followed by 10 years of supervised release.
U.S. v Cooper
Ryan Cooper was a 28-year-old professional with no criminal history living in the District of Columbia when he was accused of posting pornographic images of children online during 2018. He was charged with one count of distributing child pornography.
Prosecutors alleged that he posted the images to a Tumblr account. He agreed to cooperate with investigators and pleaded guilty.
The federal sentencing guidelines range for Cooper's case was 151 to 188 months of incarceration. Prosecutors recommended a lower sentence, 72 months behind bars, followed by 10 years of supervised release.
"Given the serious nature of the defendant’s conduct in this case and his risk to the community, balanced against his particular circumstances, lack of criminal history, attempt to aid the Government, and early acceptance of responsibility, the government believes this is an appropriate sentence," wrote Assistant U.S. Attorney Nicholas Miranda.
Cooper's attorneys recommended a 60-month sentence, the mandatory minimum for the case, followed by five years of supervised release. The defense argued that Cooper suffered from depression and had poorly matched medication for a bipolar disorder. He had been a sexual abuse victim at age 15 and again when he was in college, defense attorney Emily Voshell argued.
Although Cooper pleaded guilty to distributing child pornography, the defense argued that he essentially had re-blogged material already available on the internet, not sent the material to someone specifically.
The Probation Office recommended 60 months of incarceration, the mandatory minimum punishment, followed by supervised release.
Jackson noted in the court record that she sought U.S. Sentencing Commission data for the sentences imposed on similarly situated defendants. She sentenced Cooper to the mandatory minimum incarceration, 60 months, followed by 10 years of supervised release.
Contributing: Nick Penzenstadler