March 23, 2022 - Bannon's War Room
54:45
Participants
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| Speaker | Time | Text |
|---|---|---|
| President Jackson, all of us will agree that no one should be discriminated against because of race. | ||
| When you just testified a minute ago that you didn't know if critical race theory was taught in K-12, I will confess, I find that statement a little hard to reconcile with the public record. | ||
| Because if you look at the Georgetown Day School's curriculum, it is filled and overflowing with critical race theory. | ||
| That among the books that are Either assigned or recommended. | ||
| They include Critical Race Theory, An Introduction. | ||
| They include The End of Policing, An Advocacy for Abolishing Police. | ||
| They include How to Be an Anti-Racist by Ibram Kendi. | ||
| They include literally stacks and stacks of books and I'll tell you two of the ones that were most stunning. | ||
| They include a book called Anti-Racist Baby by Ibram Kendi and there are portions of this book that I find really quite remarkable. | ||
| One portion of the book says babies are taught to be racist or anti-racist. | ||
| There is no neutrality. | ||
| Another portion of the book They recommend that babies confess when being racist. | ||
| Now this is a book that is taught at Georgetown Day School to students in pre-K through second grade, so four through seven years old. | ||
| Do you agree with this book that is being taught with kids that babies are racist? | ||
|
unidentified
|
Senator. | |
| I'm going to let Jackson say it. | ||
| So you've you've pointed that these were views in law school. | ||
| And listen, I will recognize that all of us, when we are students, may have views that as time and maturity passes on, we may change. | ||
| But what troubles me is this was not just a law school view. | ||
| It's one that has continued. | ||
| So when you were vice chairman of the Sentencing Commission, you expressed significant concerns that the White House has argued that your quotes were taken out of context. | ||
| So I want to provide the full context of your quote, because You said, yes, I want to ask you about the means by which we can distinguish more or less serious offenders. | ||
| I know that all of you sort of touched on that. | ||
| Mr. Fitrell, you talked about going from singular to one-on-one to group experience. | ||
| I'm just wondering if there's some sort of inevitable and natural progression from one stage to the other, such that you could say that the least serious offenders are in the singular experience stage. | ||
| I guess my thought is in looking at some of the testimony that other people will have later in the day I was surprised at some of the testimony with respect to the motivation of offenders and we're talking about child pornography offenders and that there are people who get involved with this kind of activity who may not be pedophiles and who may not be necessarily interested really in the child pornography | ||
| But have other motivations with respect to the use of technology and being in the group and you know here are lots of reasons perhaps why people might engage in this and so I'm wondering whether you could say that there is a that there could be a less serious child pornography offender who is engaging in the type of conduct in the group experience level because their motivation is the challenge or to use the technology. | ||
| They're very sophisticated technologically but they aren't necessarily that interested in the child pornography piece of it. | ||
| Now I find that a pretty remarkable argument that people in possession of child pornography are not actually interested in the child porn, they're not pedophiles, they're just interested in technology. | ||
| Is that, and I wanted to provide the whole quote because the White House said that portions of this were used out of context, so this is your entire quote. | ||
| Do you agree with that sentiment that there is some meaningful population of people who have child pornography but are not in fact pedophiles or getting satisfaction from it? | ||
|
unidentified
|
Thank you, Senator, for allowing me to address what appears to be a question that I was asking in the context of a hearing on child pornography. | |
| You've provided the entire quote, and it looks as though I was asking that of someone, not taking that position. | ||
| And the position that I've taken in all of my sentencings involving child pornography offenders Is to ensure that despite the attitude and view of many of the offenders who came before me when I was a trial judge, that they were just lookers, that they weren't really harming anyone, that they were curating their collections and they never touched a child. | ||
| I made sure that they understood that notwithstanding their ...collecting behavior that they were causing significant harm. | ||
| Well, I was going to say, it struck me as a bit ironic that we got lectures from some Republicans saying they weren't going to take this into the gutter, and then Republicans took this into the gutter, saying that the judge was soft on crime and that she somehow was a friend of sexual predators and had her own hidden agendas. | ||
|
unidentified
|
I thought that was pretty sad and pathetic. | |
| So Judge Jackson, all right, you raise your actual sentencing, and I think that's very productive. | ||
| Let's take a look at your actual sentencing. | ||
| And you've had 10 different cases involving child pornography. | ||
| These are the cases, there are two, U.S. | ||
| v. Buttrey and U.S. | ||
| v. Kan, for which the government did not make a recommendation. | ||
| Earlier, when Chairman Durbin was trying to preempt this line of attack, you said it's a sickening and egregious crime, which I very much agree with. | ||
| And you said the guidelines lead to extreme departures, okay? | ||
| Let's look at what the prosecutors are asking for. | ||
| I would note that this was in the District of Columbia, where prosecutors are far more liberal than many of the prosecutors in this country. | ||
| And in every case in which, so United States versus Hess, there was a mandatory statutory minimum of 60 months, and you imposed 60 months because you had no discretion. | ||
| In United States versus Nickerson, there was a mutual agreement of the parties to 120 months, and that's what you imposed. | ||
| In every other case, United States versus Chazen, the prosecutor asked for 78 to 97 months. | ||
| You imposed 28 months. | ||
| months. You imposed 28 months. 28 months is a 64% reduction. | ||
| In United States v. Cooper, the prosecutor asked for 72 months. | ||
| You imposed 60 months. | ||
| That was a 17% reduction. | ||
| In United States v. Downs, the prosecutor asked for 70 months. | ||
| You imposed 60. | ||
| That was a 14% reduction. | ||
| In United States vs. Hawkins, the prosecutor asked for 24 months, you imposed 3 months. | ||
| That was an 88% reduction. | ||
| In United States vs. Savage, the prosecutor asked for 49 months, you imposed 37. | ||
| That was a 24% reduction. | ||
| In United States vs. Stewart, the prosecutor asked for 97 months, you imposed 57. | ||
| post-57, that was a 41% reduction every single case, 100% of them, when prosecutors came before you with child pornography cases. | ||
| You sentenced the defenders to substantially below not just the guidelines, which are way higher, but what the prosecutor asked for on average of these cases, 47.2% less. | ||
| Now you said you made sure the voice of the children was heard. | ||
| Do you believe in a case Like United States vs. Hawkins, where the prosecutor asked for 24 months and you sentenced the offender to only 3 months? | ||
| Do you believe the voice of the children is heard when 100% of the time you're sentencing those in possession of child pornography to far below what the prosecutor's asking for? | ||
|
unidentified
|
Yes, Senator, I do. | |
| OK, the answer was kind of meandering. | ||
| And so we've got I want to bring in Mike Davis and Terry Schilling. | ||
| Terry from American Principles Project. | ||
| Mike Davis from Article 3. | ||
| It's Tuesday, 22 February. | ||
| It's our afternoon show. | ||
| Year of Allure 2022. | ||
| We got to pack two hours here. | ||
| Packed this show and then the intensely political show at six o'clock. | ||
| I don't remember. | ||
| By the way, I guess Ted Cruz did catch the flight out of Montana and he arrived. | ||
| He eviscerated Judge Jackson. | ||
| I think if you watch it all day, it's pretty, I think, disturbing. | ||
| Sotomayor and Kagan. | ||
| Forget Comey and the Republicans. | ||
| There were no drama in those two. | ||
| Sotomayor and Kagan, as I remember, just kind of And that's not my special, but I just remember they had these hearings and had some different questions on law and other things, but got through. | ||
| This has turned explosive and the individual. | ||
| That did this, I think, showed real courage because everybody else, including, you know, JCN and all these other groups are supposed to do due diligence and put money up for this. | ||
| Everybody ran for the hills. | ||
| And it was Mike Davis and the guys over Article 3 said, no, these are records that need to go through and we need to have due diligence. | ||
| So, Mike, I want to bring you in. | ||
| We could have played. | ||
| I mean, it was so intense all afternoon, but what struck me the most Is how the judge was was I felt like she was unprepared like they hadn't done they hadn't murder board this and they didn't think it was going to be serious and so they shined it on and she just seemed to me her answers were just not crisp and some of the answers. | ||
| I don't say there were lies, but there are some that just strain credulity. | ||
| Particularly on CRT and her knowledge of it, and it was taught in the schools, and she clearly, I think, lied and says, oh, well, I thought you were talking about public schools. | ||
| I didn't know you were talking about private schools. | ||
| That was just a BS answer. | ||
| Mike Davis, your analysis so far, sir? | ||
| Yeah, so Senator Josh Hawley laid this out in his opening statement yesterday, and Senator Ted Cruz just eviscerated Judge Jackson in her testimony today. | ||
| Again, I said before her testimony, she went from a glide path to confirmation to uncertainty. | ||
| I think she's now in trouble. | ||
| And she's in trouble because now you have senators like Joe Manchin and Kyrsten Sinema, Raphael Warnock, who's up for re-election in Georgia, the senator from Nevada. | ||
| There are a lot of Democrats who are up for re-election this year in swing states and even red states. | ||
| They're going to have to explain to their voters why they are voting for a Supreme Court nominee who went out of her way to advocate for leniency for lesser sentences for people who possess and distribute child pornography. | ||
| Hold on, hang on one second. | ||
| Ted Cruz, and we haven't gotten to Josh Hawley yet. | ||
| In my understanding, he even got more information about what's in here and may drop that on her. | ||
| But Cruz went through in specific detail every case. | ||
| Do you believe that she answered with any facts at all about any of the cases, Mike Davis? | ||
| No, it was all emotion. | ||
| I mean, he had charts up with the facts. | ||
| Here is the recommended range from the Sentencing Commission, where she served. | ||
| Here's the range from the Sentencing Commission, the guidelines. | ||
| Here's what the prosecutor recommended, and here's how she sent. | ||
| It's in it every time 100% of the time seven seven out of seven cases where she had discretion to impose a sentence below the recommended sentence from the Sentencing Commission where she served as the vice chair and the recommendation from the prosecutor 100% of the time she went lenient on these child sex offenders. | ||
| She said her answer, one of her answers was that you're not taking into consideration guidance we got from Congress. | ||
| What did she mean by that? | ||
| There's a statute where it's 3553A, I believe. | ||
| I haven't done this for a long time, but 3553A, you have to look at many factors, but here's the bottom line. | ||
| It's her discretion, and she didn't have to go under the guideline recommendations. | ||
| When you sentence as a judge, when you sentence within the sentencing guidelines, your sentence is presumptively reasonable. | ||
| So, if it goes up on review to a higher court, to a court of appeals, in this case the D.C. | ||
| Circuit, The D.C. | ||
| Circuit's going to affirm her sentence if it's within those guidelines. | ||
| It's really when it's under the guidelines is when they start getting skeptical and think that it's unreasonable. | ||
| Terry Schilling, let me bring you here. | ||
| We've got about a minute. | ||
| We're going to hold you guys through the break. | ||
| What's your assessment, Terry? | ||
| You do this for a living. | ||
| What's your assessment so far? | ||
|
unidentified
|
I definitely think that Katonji Brown-Jackson's in trouble. | |
| It's unclear as to whether or not she'll get to the 50 votes, plus Kamala Harris is a tiebreaker that she needs. | ||
| I think that today's performance was lacking, to say the least. | ||
| She failed to address any of the major concerns that Ted Cruz or any of the other senators brought up. | ||
| I think what's really telling to me is Lindsey Graham and his tone and demeanor during this hearing. | ||
| If you remember, Lindsey Graham is someone that voted for Sotomayor, he voted for Kagan, and it seems to me that he's no longer going to be giving Democrats a free vote on these nominees. | ||
| So I think what it comes down to is whether or not Republicans can peel off votes like Joe Manchin and keep the entire party in line. | ||
| If we can keep our guys in line and peel off a Manchin or a Sinema or someone like that, I think that there's a real chance this could fail. | ||
| Well, if it goes up the scale from something that they were going to use in 2022 to something that's going to be a tough vote, or maybe even an impossible vote, maybe a career-ending vote, it's all to be seen. | ||
| But I got to tell you, a very disturbing start. | ||
|
unidentified
|
Be back in a moment in the War Room. | |
| You had discretion and you did not follow the prosecutor's recommendation or the sentencing guidelines, but let's just talk about one of them because We've talked about some of them as a group. | ||
| Let's talk about United States vs. Hawkins. | ||
| I think that's one you probably remember from 2013. | ||
| The defendant there was Wesley Hawkins. | ||
| He was 18 years old at the time. | ||
| He uploaded five video files of child pornography from his computer to YouTube. | ||
| This is how the police got onto him. | ||
| He then uploaded another 36 depictions of child porn and other lewd photos of children to his iCloud account. | ||
| When the police executed a search on his apartment on the premises, they found 17 videos on his laptop and 16 images of child pornography. | ||
| All of them very graphic. | ||
| Some of them involving very young children. | ||
| 17 videos in particular. | ||
| This is from the government sentencing memorandum in this case, just so we understand the facts. | ||
| Here are some of the videos that the government charged that they recovered. | ||
| There was a 24-minute, 6-second video depicting a 12-year-old male committing a sexual act. | ||
| I'm not going to read exactly what it was. | ||
| There was a 1-minute and 57-second minute video depicting an 8-year-old committing a sexual act. | ||
| There was an 11-minute and 47-second video depicting an 11-year-old committing a sexual act and being raped by an adult male. | ||
| There was a 15-minute and 19-second video depicting two 11-year-olds committing sexual acts. | ||
| There was a 7-minute and 51-second video depicting a 12-year-old committing a sexual act. | ||
| So, as the government said in this case, and I'm quoting now from the transcript of the sentencing hearing, 17 videos is a lot. | ||
| And some of the videos, including the ones that are described in the statement of the offense, and I've just related some of them, are very lengthy. | ||
| And include numerous images, numerous views, sometimes collages, sometimes multiple victims. | ||
| You see the act in progress. | ||
| The government goes on to describe some of these as sadomasochistic images. | ||
| This is this is a tough case. | ||
| This is one of those tough cases you were referencing earlier. | ||
| You talked about this morning. | ||
| So these cases are terrible. | ||
| This is one of them. | ||
| This is terrible stuff. | ||
| This is not a good guy who's doing this stuff. | ||
| Guidelines recommendation in the case was 97 to 121 months. | ||
| So if I'm Doing my math right, that's up to 10 years. | ||
| And in this case, the guidelines recommendation was essentially written by Congress. | ||
| Because in the PROTECT Act of 2003, Congress specified what they wanted the range to be in these kind of cases. | ||
| And Congress also specified what they wanted the mandatory minimums to be. | ||
| I know you remember the PROTECT Act because you've talked about it. | ||
| You've given lectures on it. | ||
| And it was enacted, as I said, in 2003. | ||
| It was 84 to 0 was the vote here in the Senate. | ||
| The concern, the reason the Protect Act was put into place is the Senate was concerned over lenient sentences by judges in child porn cases, which is what you described. | ||
| You said about it, there was an increasing perception on Capitol Hill and within DOJ that liberal judges were to blame for the downward pressure on federal sentences and that legislation was necessary to rein them in. | ||
| That's you in 2011 describing this law. | ||
| So Congress has set the guidelines here. | ||
| 84 to nothing in the Senate. | ||
| I noticed the chairman voted for it, as did a number of other members of this committee. | ||
| So the Congress sets the range. | ||
| Essentially, it's 97 months up to 10 years. | ||
| Now the prosecutor in this case, this is in DC, of course. | ||
| You're on the federal district court. | ||
| Prosecutor in this case, It's a liberal administration, I think it's fair to say. | ||
| This is in the state of Texas. | ||
| See my colleague from Texas next to me here. | ||
| Prosecutor in this case, nevertheless, still asked for two full years in prison. | ||
| You gave the defendant three months. | ||
| Guidelines called for ten years. | ||
| Prosecutor wanted at least two. | ||
| You gave him three months. | ||
| And when you did, you made a number of arguments and statements in the record. | ||
| I'd like to go through some of them, because I've read them all. | ||
| And the first argument you made was that the federal guidelines that punished child porn offenders, the ones that Congress wrote, were, and I'm quoting you now, are in many ways outdated. | ||
| That's your quote. | ||
| And you went on to say about why you thought they were outdated. | ||
| I'm going to quote you again. | ||
| You say, and I quote, I don't feel that it's appropriate to increase the penalty on the basis of the number of images I just want to ask you about that because I just have to tell you I'm having a hard time wrapping my head around it. | ||
| these circumstances exist in many cases if not most and don't signal an especially heinous or egregious child pornography offense." I just want to ask you about that because I just have to tell you I'm having a hard time wrapping my head around it. We're talking about eight-year-olds and nine-year-olds and eleven-year-olds and twelve-year-olds. | ||
| He's got images of these the government said added up to over 600 images, gobs of video footage of these children but you say this does not signal a heinous or egregious child pornography offense. | ||
| Help me understand that. | ||
| What word would you use if it's not heinous or egregious? | ||
| How would you describe it? | ||
|
unidentified
|
Thank you, Senator, for letting me address. | |
| The concern that you've put forward based on the record that you've reviewed. | ||
| And As a judge who is a mom and has been tasked with the responsibility of actually reviewing the evidence, the evidence that you would not describe | ||
| In polite company, the evidence that you are pointing to, discussing, addressing in this context is evidence that I have seen in my role as a judge. | ||
| And it is heinous. | ||
| It is egregious. | ||
| What a judge has to do is determine How to sentence defendants proportionately consistent with the elements that the statutes include with the requirements that Congress has set forward. | ||
| Unwarranted sentencing disparities is something that the Sentencing Commission has been focused on for a long time In regard to child pornography offenses, all of the offenses are horrible. | ||
| All of the offenses are egregious. | ||
| But the guidelines, as you pointed out, are being departed from even with respect to the government's recommendation. | ||
| The government, in this case and in others, has asked for a sentence that is substantially less than the guideline penalty. | ||
| And so what I Was discussing was that phenomenon, that the guidelines in this area are not doing the work of differentiating defendants as the government itself indicated in this very case. | ||
| And so that's what I was talking about. | ||
| But I want to assure you, Senator, that I take these cases very seriously, that these cases include The notion by many defendants that the folks at issue, the defendants themselves are collecting these images on the internet. | ||
| There are terrible things that have happened, but they're not involved, say the defendants. | ||
| They're not focused on, you know, what is actually happening to the children. | ||
| And so part of my sentencing was about redirecting The defendant's attention. | ||
| It's not just about how much time a person spends in prison. | ||
| It's about understanding the harm of this behavior. | ||
| It's about all of the other kinds of restraints that sex offenders are ordered rightly to live under at the end of the day. | ||
| Sentences in these cases include not only prison time, but Restraints on computer use, sometimes for decades. | ||
| Restraints on ability to go near children, sometimes for decades. | ||
| All of these things judges consider. | ||
| In order to affect what Congress has required, which is a sentence that is sufficient but not greater than necessary to promote the purposes of punishment. | ||
| Well, let me just ask you about that last point, because you've said this a couple of times now, the sentences that Congress require. | ||
| Congress wanted the guidelines to be mandatory. | ||
| Congress wrote the guidelines in this case. | ||
| They wanted them to be mandatory. | ||
| They gave the courts factors to consider to choose between the sentencing range. | ||
| Congress wanted you to choose between 97 and 121 months. | ||
| That's what Congress wanted. | ||
| The Supreme Court in Booker said that the sentencing guidelines would be discretionary, so the Supreme Court gave you the discretion. | ||
| But if we're talking about what Congress has wanted, Congress wanted them to be mandatory. | ||
| My only point in raising that is just to say that you had discretion in these cases, And you use your discretion to choose the sentences that you did. | ||
| Let me ask you about some of the things, though, that you said. | ||
| Because you said this this morning, and I appreciated it, how you want to direct the defendants. | ||
| You want to get them to own up to what they've done in these cases. | ||
| I thought that was powerful, and I thought it was right. | ||
| But let me just ask you about what you said to this defendant. | ||
| You said to this defendant, for whom you sentenced to only three months in prison, that your collection, I'm quoting you, your collection at the time that you were caught was not actually as large as it seems. | ||
| The government felt the need to respond to you on the record. | ||
| They said the government doesn't believe that it's appropriate to just disregard the number of images, that the number of images can be appropriate, and indeed in this case the defendant has amassed an extremely large collection of child pornography. | ||
| But you disregarded that. | ||
| You also told the defendant, you said this, this seems to be a case where you were fascinated by sexual images involving what were essentially your peers. | ||
| And then you went on to say the defendant was merely trying to satisfy his curiosity. | ||
| Curiosity is your word. | ||
| One more thing on this. | ||
| Same idea. | ||
| You said you were viewing, this is you to the defendant, you were, you were viewing sex acts between children who were not much younger than you. | ||
| And this whole discussion is about why you're only giving him three months. | ||
| Judge, he was 18. | ||
| These kids are eight. | ||
| I don't see in what sense they're peers. | ||
| I've got a nine-year-old, a seven-year-old, and a 16-month-old at home. | ||
| And I live in fear that they will be Exposed to let alone exploited in this kind of material. | ||
| I don't understand you saying to him that they're peers and that therefore you were viewing sex acts between children who are not much younger than you and that that's That's somehow a reason to only give him three months. | ||
|
unidentified
|
Help me understand this Senator I don't have the record of that entire case in front of me what I recall with respect to that case Is that unlike the many other child pornography offenders that I had seen as a judge and that I was aware of in my work on the Sentencing Commission, this particular defendant had just graduated from high school. | |
| And some of, perhaps not all when you were looking at the records, but some of the materials that he was looking at were older Teenagers. | ||
| We're older victims. | ||
| And the point, Senator, is that you said before the probation office is making recommendations and they do so on a case-by-case basis. | ||
| That is what Congress requires. | ||
| This is not done at the level of... But you're a discretion judge. | ||
| You admit that, right? | ||
|
unidentified
|
I just want to be clear on that. | |
| Senator, sentencing is a discretionary act of a judge, but it's not a numbers game. | ||
| It's not... I understand that Congress wanted the guidelines to be mandatory. | ||
| The Supreme Court in 2005 determined That they couldn't be, in an opinion by Justice Scalia, determined that they couldn't be and Congress since then has not come back to amend them or to change them or to make them mandatory again. | ||
| And so there is discretion at sentencing and when you look at the sentencing statutes, Congress has given the judges not only the discretion to make the decision, | ||
| But require judges to do so on an individualized basis, taking into account not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims. | ||
| All of these factors are taken into account, and the probation office assists the court in Determining what sentence is sufficient but not greater than necessary. | ||
| And I appreciate, Senator, that you have looked at these from the standpoint of statistics, that you're questioning whether or not I take them seriously or I have some reason to handle them in either a different way than my peers or a different way than other cases. | ||
| And I assure you that I do not. | ||
| That if you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do. | ||
| Attempting to take into account all of the relevant factors and do justice individually in each case. | ||
| Well, let's keep talking about this case. | ||
| You also said to this individual, who is an adult, tried as an adult, 18 years old, you also said to him, besides saying that you thought his victims were his peers, you also said there's no reason to think that you are a pedophile. | ||
| And then you went on to say, again, that's another reason why you weren't going to give him, you're only going to give him three months because you would have judged that he wasn't a pedophile. | ||
| And then you said, and this is something I'd, I really need your help understanding. | ||
| Then you apologized to him. | ||
| And I, I just have to tell you, I can't quite figure this out. | ||
| You said to him, this is a truly difficult situation. | ||
| I appreciate that your family's in the audience. | ||
| I feel so sorry for them and for you. | ||
| And for the anguish this has caused all of you. | ||
| I feel terrible about the collateral consequences of this conviction. | ||
| And then you go on to say sex offenders are truly shunned in our society. | ||
| I'm just trying to figure out, Judge, is he the victim here or are the victims the victims? | ||
| You're saying that you are apologizing to him. | ||
| You're saying you're sorry for the anguish this has caused him. | ||
| There was a victim impact statement in this case. | ||
| It didn't get read into the record, but it was there. | ||
| I've described the videos that we have. | ||
| You say earlier in the case, you talk about how heinous these crimes are and you describe them to your credit. | ||
| You describe how heinous it is to your credit and yet here you are giving him three months and apologizing to him and saying you feel sorry for the anguish it's caused him and also saying you think that sex offenders are truly shunned in our society. | ||
| So just talk about that. | ||
| Help me understand. | ||
| I mean, is he a victim? | ||
| Is that your view here? | ||
| Is that why you said this? | ||
| Is that what you meant by it? | ||
|
unidentified
|
Senator, I again don't have the entire record. | |
| I remember in that particular case, I considered it to be unusual in part for the reasons that I described. | ||
| I remember in that case that defense counsel was arguing for probation in part because he argued That here we had a very young man just graduated from high school. | ||
| He presented all of his diplomas and certificates and the things that he had done and argued, consistent with what I was seeing in the record, that this particular defendant had gotten into this in a way that was, I thought, inconsistent with some of the other cases that I had seen. | ||
| Part of what a judge is doing, as required by Congress, is thinking about this case, thinking about unwarranted sentencing disparities, that's in the statute, other cases, other determinations that a judge may have made about this. | ||
| I don't remember in I don't want to detail this particular case, but I do recall it being unusual. | ||
| And so my only point to you is that judges are doing the work of assessing, in each case, a number of factors that are set forward by Congress, all against the backdrop of heinous criminal behavior. | ||
| But the guidelines are no longer mandatory. | ||
| Congress has not corrected, as you would say, the Supreme Court's determination about that. | ||
| Justice Scalia's decision that the guidelines are not mandatory. | ||
| Congress has not said that. | ||
| And Congress has given judges factors to consider. | ||
| This, in my view, was an unusual case that had a number of factors that the defendant was pointing out. | ||
| That the government was pointing out that the probation office was pointing out and I sent this 18 year old to three months in federal prison under circumstances that were presented in this case because I wanted him to understand that what he had done was harmful | ||
| That what he had done was unlawful, that what he had done violated the law and needed to be punished, not only by prison, but also by all of the other things that the law requires of a judge who is sentencing in this area. | ||
| But Judge, with all due respect, and I tell you what, I'll be direct with you. | ||
| I am questioning your discretion and your judgment. | ||
| That's exactly what I'm doing. | ||
| I'm not questioning you as a person. | ||
| I'm not questioning your excellence as a judge, frankly. | ||
| But you said it, you had discretion, and that's exactly what I'm doing. | ||
| I'm questioning how you used your discretion in these cases. | ||
| And to me, To take a guy who's 18 years old, who has what the government says is an extremely large collection of prepubescent pornography, 8 year olds, 10 year olds, 11 year olds, we're talking about, I mean, gobs of hours of time here that he has. | ||
| And you say to him, what? | ||
| That you say that, well, you know, it was, it was just a collection. | ||
| I mean, he was just viewing it and it was, you know, essentially they were his peers. | ||
| You say to him that he's not a pedophile. | ||
| I don't know how you know that. | ||
| I don't know why that's relevant to the guidelines, but maybe it is. | ||
| You say he's not a pedophile. | ||
| Um, you say that you're very sorry for him and what he suffered. | ||
| And then you give him three months when frankly, a liberal prosecutor is asking for two full years. | ||
| I mean it does seem like an extraordinary case to me. | ||
| It would bother me no matter what. | ||
| It really bothers me when in every case, child porn case you've had, you've had discretion, you've sentenced below the guidelines and below the government's recommendation. | ||
| And saying that sex offenders are truly shunned in our society, as you said to him, it reminds me, it echoes what you said as early as law school on that Harvard Law Review article Senator Blumenthal was just talking about. | ||
| There you say, And I'm quoting you now, 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 regarding these sex criminals. | ||
| I guess like this, the enactment here, the Protect Act that Congress enacted. | ||
| So I want to try to understand here, is it your view that society is too hard on sex offenders. | ||
| You say they truly are shunned in society. | ||
| You wrote that many of these laws are products of a climate of fear, hatred, and revenge. | ||
| So just, is that, is that still your view? | ||
| I mean, do you think that these, that these laws are too tough, that we're too tough on sex offenders? | ||
| Explain what you meant in this case in 2013, and it seems to be the same thing you said many years ago. | ||
|
unidentified
|
Senator, it's not the same thing I said many years ago. | |
| Many years ago, as a law school student, I was evaluating a new set of legislation, state laws about registration, and I was analyzing them as law students do. | ||
| It wasn't about the sex crime, it was about the characterization of the law. | ||
| Is it a punitive law? | ||
| Is it a I'm sorry, I don't mean to interrupt you. | ||
| I've only got two and a half minutes left, but I just want to make sure I understand this. | ||
| I'm quoting from your conclusion now. | ||
| It was about the characterization of legislation. | ||
| I'm sorry, I don't mean to interrupt you. | ||
| I've only got two and a half minutes left, but I just want to make sure I understand this. | ||
| I'm quoting from your conclusion now. | ||
| This is on page 1728 of the Harvard Law Review. | ||
| This is your conclusion. | ||
| In the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts need to be especially attentive to legislative enactments. | ||
| That's a conclusory statement. | ||
| You're saying that there is a climate of fear, hatred, and revenge that are informing these laws. | ||
| And you described some of the laws earlier, I think. | ||
| Megan's Law and others. | ||
| Senator Cruz asked you about some of those. | ||
| I just am trying to understand what you meant by that because you're saying something similar in the Hawkins case. | ||
| You're saying that society truly shuns our sex offenders. | ||
|
unidentified
|
Senator, with all due respect, my article is now in the record. | |
| People can read it and they can see that I was evaluating these laws not to determine their constitutionality, not to say that they shouldn't be enacted, but to talk about The ways in which courts make determinations about the character of the law and all of the consequences that follow from them. | ||
| In law school, I had not had any experience in terms of the criminal justice system, and I was doing what law students do, which is seeking to analyze in a creative way new legislation. | ||
| With respect to Mr. Hawkins, I was doing what judges do, which is look at the statute 18 U.S.C. | ||
| 3553A, exercise discretion as Congress has required us to do, take into account all of the various aspects of a particular case, and make a determination consistent with My authority, my judgment, and understanding fully the egregious nature of the crime. | ||
| As you said, even the prosecutors in these cases are not recommending guideline sentences. | ||
| The probation office, which is an independent authority, Looking at these cases and the facts related to them are not recommending guideline sentences. | ||
| This is a particular area where the Commission has seen an enormous amount of disparity and has in fact asked Congress to come back and address to help judges Who are looking at these cases to be able to rely on the guidelines. | ||
| Which Congress has declined to do. | ||
|
unidentified
|
Senator, in that case, we have the statute that Congress has enacted concerning penalties, and we have judges who are doing their level best to make sure that people are held accountable as they need to be in our society in a fair and just way. | |
| Mr. Chairman, my time has expired. | ||
| Thank you, Judge. | ||
| I have no further questions at this time. | ||
|
unidentified
|
Just checking with my staff, so the original statute was passed in 2003. | |
| The Scalia decision, 2005. | ||
| The Booker decision? | ||
| So, the original statute that I'm talking about, I'm just thinking, I felt like it was in the 80s. | ||
| In 2003, Justice Scalia, the Booker decision made the guidelines advisory so that even though judges have to calculate them, they are no longer binding and what it meant in the statute is that the guidelines became one factor among many that judges consider at sentencing. | ||
| I'm not going to opine on Justice Scalia and his conduct and decision as it relates to the overall topic. | ||
| I hope we all agree that we want to do everything in our power, reasonably within our power, to lessen the incidents of pornography and exploitation of children. | ||
| You have made that clear, that is your position too. | ||
| But I just want to tell you, Congress doesn't have clean hands in this conversation. | ||
| We haven't touched this now. | ||
| For 15, 16, or 17 years. | ||
| And you aren't the only one who faced this kind of a challenge with the cases before you. | ||
| I said this morning, and it bears repeating, in United States v. Klotz, Trump appointed Judge Sarah Pitlick, Senator Hawley's choice for the Eastern District of Missouri, sentenced an individual convicted of possession of child pornography to only 60 months. | ||
| Well below the 135 to 168 month sentence recommended by the guidelines. | ||
| Mr. Chairman, you've mentioned- Let me finish. | ||
|
unidentified
|
I'll finish and of course I'll recognize you. | |
| Senator Hawley, you've said some very powerful things in support of this judge. | ||
| But clearly she faced a situation where she decided she would not follow the guidelines and took a sentence of less than half of what they recommended. | ||
| We have created a situation because of our inattention an unwillingness to tackle an extremely controversial area in Congress and left it to the judges. | ||
| And I think we have to accept some responsibility for that, Senator. | ||
| I just wanted to say, Chairman Durbin, since you mentioned Judge Pitlick in the Klotz case, she followed the prosecutor's recommendation in that case. | ||
| My, as I've said over and over, part of my concern with Judge Jackson is that she has not followed the prosecutor's sentences. | ||
| She didn't in the Hawkins case we were just talking about, or the guidelines. | ||
| And I'm happy, we can have a policy debate about whether or not the guidelines are too lenient. | ||
| I would argue in this era of exploding child pornography, they're not too lenient at all. | ||
| I think you were right the first time when you voted in 2003 to make them tougher. | ||
|
unidentified
|
I will just say that I don't know if you sponsored a bill to change this. | |
| I'll be looking for it. | ||
| But I will tell you that there Isn't a long line of people waiting to co-sponsor this controversial issue. | ||
| If we're going to tackle it, we should, but we should concede in the meantime that we've left judges in the lurch in many of these situations. | ||
| There is no clarity in this situation. | ||
| And I think to hold this judge responsible for the overall situation is to ignore our nonfeasance, malfeasance, whatever it might be, and lack of responsibility in dealing with this. | ||
| Senator Hirono. | ||
| Thank you, Mr. Chairman. | ||
| Okay, we can go ahead. | ||
| I want to thank Real America's Voice for blowing through a couple of breaks. | ||
| It was this important. | ||
| I think historic right there. | ||
| Josh Hawley laying it out. | ||
| I want to bring in Mike Davis from Article 3, who is really the individual that began the research in this controversial area. | ||
| I want to announce we were supposed to have the experts on, the technical experts for This machine issue in Colorado. | ||
| They're going to join us tomorrow to walk through a complete and total demonstration. | ||
| So they're going to be with us tomorrow. | ||
| Also, Mike Lindell is going to be back with us tomorrow to get to this. | ||
| We had to blow through these breaks to do this. | ||
| Also, Terry Schilling is going to join us tomorrow morning on this topic about Judge Jackson and the great Liz Yor is doing some research right now. | ||
| She's going to be on also. | ||
| Mike, in trying to clean up there, Durbin at the end said there's no clarity. | ||
| Correct me if I'm wrong, and I think particularly for the American people that are watching this, and I know for the War Room Posse, who Real America's Voice was good enough to pick up virtually the entire Hawley questioning, and their heads are blown up. | ||
| Was there any problem with clarity here of guidance for a judge on this? | ||
| Was clarity of any of the rules, regulations, stipulations, what the government was arguing and asking for, was there any issue with clarity? | ||
| Mike Davis. | ||
| There's no issue at all with clarity. | ||
| There are statutory provisions. | ||
| There are sentencing guidelines that come from the Sentencing Commission on which she served as the Vice Chair from 2010 to 2014. | ||
| There are the prosecutor's recommendations. | ||
| The only clarity we got today is Judge Jackson went out of her way seven out of seven times to order lenient sentences to people who possess and distribute child pornography. And as part of her 25 year pattern, going back to law school to advocate for leniency for sex predators of kids. | ||
| It is a disturbing pattern. And her testimony today made it even more disturbing. | ||
| Why did it make it? Why did it make it in your mind more disturbing, sir? | ||
| because she's trying to blame Congress. | ||
| She's trying to blame 18 U.S.C. | ||
| 3553A and say that she's compelled to, essentially compelled to order these lenient sentences and that's just not the case. | ||
| She's using 3553A as an excuse to order these below guideline sentences, presumptively unreasonable sentences This is part of her long, this is a long time pet project when she served on the Sentencing Commission from 2010 to 2014. | ||
| She made this her issue. | ||
| She's the one who ginned this up. | ||
| She's the one who got the sentencing to adopt a finding in 2012 that these people who possess and distribute child pornography are not | ||
| Pedophiles that they're essentially not dangerous and therefore we're punishing them too much and as Josh Hawley said it at the end there and it's exactly right we're not punishing these people hard enough and the reason is is we have an Explosion of child pornography because of high-speed internet available all over the world people have access to the internet they have access to their iPhones or their Samsung their smartphones where they have cameras and | ||
| And child pornography has exploded and the one way you can stop, the one way you can stop having these creepy Americans watching third world child porn is by having a mandatory minimum sentence as a deterrent. | ||
| She wants to get rid of that. | ||
| And it's just wrong. | ||
| She does not share our values as Americans and she should not be confirmed. | ||
| You think this is enough that would kill her confirmation to the Supreme Court? | ||
| Every Republican should vote against this nominee. | ||
| And if any Republican does not vote against this nominee after listening to her testimony today in response to Senator Cruz and in response to Senator Hawley, in response to looking at her 25-year record, if any Republican Senator votes for this nominee, they should be primaried and beat. | ||
| And if that means we lose the seat, so be it. | ||
| One thing, I just want to give the Inside Baseball Mechanics, because you ran this, you had this job for Grassley, when you chaired the committee. | ||
| When she says, I don't have the records, I haven't pulled the records, that's nonsense. | ||
| I mean, she knew, because you yourself came out, you won this show I think a week ago, Holly put the tweets out. | ||
| They knew that this was coming and they knew it coming specifically about these cases. | ||
| They obviously had every ability to pull those records and have her memorize that in preparation for this. | ||
| Was that just a spin that she didn't want to get into the details that she hadn't had a chance to review the records? | ||
| Because it boggles the mind that she would not have gone through in detail every aspect of this case. | ||
| There are two sets of records that are involved here. | ||
| There are the internal deliberative records, her emails, her memos, her internal deliberative records that are routinely, would have routinely been turned over for every Supreme Court nomination from her three years of service. | ||
| From 2010 to 2013 on the Sentencing Commission when she was the vice chair before she became a federal judge. | ||
| When she was a federal judge in 2014, the Republicans didn't ask for her records because they didn't want to fight over this. | ||
| So there were 40, I think it was 48,000 pages of records that Chairman Dick Durbin refused to turn over and refused to allow the American people to see. | ||
| He knows damn well that those records show that she was working behind the scenes to advocate for a lighter sentence for child for these child pornographers. And then if you look at the other set of records that she's citing to, when you're a sentencing judge, you look at several factors. You look at the sentencing guidelines that come from the United States Sentencing Commission from where she served. | ||
| You look at the statute, obviously. You look at the prosecutor's recommendation. And then you also look at what the probation officer has to say about the person's background. And it's called the pre-sentence report. | ||
| The pre-sentence report from the probation officer is not public. | ||
| She's trying to say that she ignored the sentencing guidelines and she ignored the prosecutor's recommendation because she relied on the the secret pre-sentence report. | ||
| It's nonsense. | ||
| It's her excuse To give lighter sentences to these people. | ||
| She talked about the empathy standard. | ||
| She has empathy for these predators who possess and distribute child pornography. | ||
| And that is very clear after today. | ||
| There's seven, we only got a couple minutes, so I just want to make sure we get some stuff done before tomorrow. | ||
| There's seven cases or so. | ||
| Hawley only had a chance because of the 30 minute time frame to go through one case. | ||
| Is that correct? | ||
| Yeah, I mean, he did high level on several cases. | ||
| He's going to have, I think it's a 20-minute round tomorrow. | ||
| And also, so Hawley, Cruz, Mike Lee touched on this today. | ||
| Any senator has the ability to go into this tomorrow. | ||
| I hope other Republican senators find the courage tonight to explore this issue instead of talking about nonsensical issues like dark money groups and all this other Nonsense that no one cares about. | ||
| Let's talk about Judge Jackson's record on child pornography. | ||
| Let's talk about her record on free and get low terrorists who kill Americans. | ||
| OK, I want every 2-0-2-2-2-4-3-1-2-1. | ||
| Here's what you can do. | ||
| Put dinner off for a few minutes. | ||
| Call that number right now. | ||
| 2-0-2-2-2-4-3-1-2-1. | ||
| That's the main switchboard of the United States Senate. | ||
| Ask for your senator, right, by name for your state. | ||
| Call and put in and tell the staff that picks up the phone, you demand Anything else? | ||
| I already hear that Mitt Romney's already saying that Hawley's way off base on that. | ||
| All the records, every part of the record for the judge, for Judge Jackson should be turned over. | ||
| So Judge Jackson gets a fair and complete hearing, but all the records are out there. | ||
| Anything else? | ||
| I already hear that Mitt Romney is already saying that Hawley's way off base on that. | ||
| What's your assessment of Mitt Romney calling out Josh Hawley and Ted Cruz for going down this this path? | ||
| So Mitt Romney apparently is he's trying to corner the Lincoln Project wing of the Republican Party, the Trump deranged Lincoln Project, Liz Cheney wing of the Republican Party. | ||
| If he truly believes that it is off course. | ||
| For United States senators to look at a Supreme Court nominee's record, including her sentences of 7 of 7 child sex offenders, her lenient sentences of 7 of 7 child sex offenders, he needs to resign. | ||
| He's a disgrace if he actually believes this. | ||
| He's not doing his constitutional duty, and if he actually thinks this is not a big deal, he's part of the problem. | ||
| Okay. | ||
| Mike Davis, real quickly, how do people get to Article 3? | ||
| You're in joining us tomorrow morning. | ||
| I want everybody to use that phone number and call Mike real quickly. | ||
| How do they follow you on Twitter and Article 3? | ||
| So, Article3Project.org, ArticleNumber3Project.org, and my personal Twitter is M-R-D-D-M-I-A, M-R-D-D-M-I-A, and I am lighting them up. | ||
| So, let's keep pushing. | ||
| And we'll see Mike again tomorrow morning. | ||
| By the way, stick with us. | ||
| Six o'clock, exploding news on the political front. | ||
| You're not going to want to miss, including a big case out of Arizona. |
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