Iwould oppose Judge Ketanji Brown Jackson because of her judicial philosophy, for the reasons outlined by Ed Whelan last week. I address that in a separate post. For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.
Senator Hawley is a bright guy, but if he ever handled a child-pornography case in the brief time he spent as a practicing lawyer before he sought public office, that is not apparent. Nor does it appear, from the admittedly sparse research that I’ve done, that child pornography was a priority of the Missouri Attorney General’s Office during Hawley’s two-year stint as AG.
There is a wide variety of federal offenses that are gathered under the label “sex offenses.” In his critique of Jackson last week, Hawley tweeted that he had “noticed an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children” (emphasis added). That is a misleadingly broad claim, and Hawley is too smart not to know that.
“Sex offenders” who “prey on children” include deviants who rape children and those who force them into sexual acts — including abominable, inhumane sexual acts — for purposes that include prostitution and the production of pornography. At the other end of the spectrum, “sex offenders” include people who have never put a hand on a child for sexual purposes but are consumers of pornographic images, which they possess, transmit, or trade — sometimes for money but often not.
To be sure, well-adjusted people, if they had to view these images as investigators do, would be sickened. Still, when we talk about consumers, we are not talking about people engaged in the atrocious conduct that produced the images. It is rational to criminalize consumption offenses because they contribute indirectly (if usually unthinkingly) to the atrocious production conduct. If there were no market for the images, many fewer of them would be produced, and theoretically there would be less sexual abuse of children. Yet the criminal law makes these kinds of distinctions all the time. The offender who commits a gruesome murder is orders of magnitude more culpable than the associate who helps him get rid of the murder weapon — suspecting but not necessarily knowing what the weapon was used for. They’re both guilty of crimes, and we might broadly refer to both as “complicit in murder.” But they’re not nearly on a par; people understand why the murderer gets life imprisonment but his low-level conspirator gets a very light sentence.
After invoking the image of Jackson as indulgent of “sex offenders” who “prey on children,” Hawley narrows his portrayal a bit: “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker” (emphasis added). This leaves the impression that he is probably homing in on pornography rather than rape, abduction, and the like — although, as he must know, even that is not clear because a good deal of such sexual abuse goes into the production of porn. In any event, after all the throat-clearing, it emerges that Hawley is not talking about offenders who themselves abuse children, or even those who produce pornography. He is referring to porn consumers. . . . .