And I'll confess. Judge Jackson is as look as I listen to your testimony.
I believe you are someone who is compassionate. I believe you care
for Children. Obviously, your Children and other Children.
But I also see a record.
Of activism and advocacy as a concern sexual predators.
That stems back decades, and that is concerning
Um, you wrote your note on the Harvard Law Review.
On
Sex crimes.
The Your note is your major academic work on the law review and yours
is entitled Prevention versus punishment towards a principled distinction
in the restraint of related released six sex offenders.
And in it.
You argue, and I quote
A recent spate of legislation purports to regulate released sex offenders
by requiring them to register with local law enforcement officials
notify community members of their presence, undergo DNA testing and
submit
To civil commitment for an indefinite term.
Although many courts and commentators Harold these laws is that valid
regulatory measures, others reject them as punitive enactments that
violate the rights of individuals who have already been sanctioned
for their crimes.
Under existing doctrine, the constitutionality of sex offenders statutes
depends upon their characterization as essentially preventative rather
than punitive and what you go out, go on to explain as if they're
viewed as punitive.
They are unconstitutional if they're viewed as preventative.
They are not.
And throughout the course of your
Note. You argue they should be viewed as punitive and therefore
Unconstitutional. Indeed, in the second to last page, you go through
each of those four categories.
You say requirements that sex offenders register may or may not be
unconstitutional, depending upon whether quote
Sex in which sex offenders have no privacy, right and registration,
information or blood samples. So you suggest that may or may not
be constitutional that you raised doubts about it.
And then you raise very significant doubts
about community notification.
And you heavily suggests that civil commitment for sexual predators
is unconstitutional.
Do you still agree with the sentiments you expressed in your law
school now?
Respectfully, Senator. Those are not the sentiments that I expressed
in my law school. Note my law school note.
Was about sex offender registration laws, which at the time were
relatively new.
As you know, from our time in law school. One of the things that
law school students do is they look for new developments in the law,
and they try to analyze them. That's something
That makes for good fodder for a law school note.
My note, which came out in 1996 was shortly after there were new
Megan's laws.
And the point that I was making was not that the laws were bad that
the laws were wrong. I was trying to assess something that is
Sort of fundamental in terms of the characterization of the laws.
I didn't say that they were unconstitutional one way or the other
what I was trying to assess
Was how they are characterized some, um some courts would look at
those laws and call them preventative, and that has a certain set
of, uh, consequences.
Some courts would call them punitive and that has a certain set of
consequences, and what I was trying to do is figure out
How to make the determination whether they were punitive or preventative.
Well, your note argued.
That they were punitive and I would note that view.
Alright. There had been some of the bench that have advocated that
the Supreme Court in 1997 decided a case called Kansas versus Hendricks
in which it upheld. Kansas is civil commitment statute.
That was a 54 vote. This has been a question that has been close
at the Supreme Court.
And
I would note beyond that that in terms of the prevalence of these
statutes, all 50 States and D C have registry requirements.
47 States have community notification requirements. All 50 states
have DNA or blood banks for sex offenders requirements.
And 20 of the States. The federal government in D. C. Have laws that
allow for the indefinite detention of sex offenders. I would note
in the state of Texas, a street state court of Appeals, relying on
very much the same sort of reasoning you advocated in your note.
Struck down Texas is sexually violent, Predator civil commitment
law.
At the time I was the solicitor general of Texas. I personally argued
that appeal in the Texas Supreme Court.
And the Texas Supreme Court unanimously reversed the court of Appeals.
And upheld our statute. And if the views you advocated in law school
prevailed.
Civil commitment laws.
Across the country would be struck down releasing sexual predators.
And under the argument, community notification and DNA bank laws
could well be struck down as well. Is that
Is that an outcome that should concern people?
Senator. My note wasn't advocating for the striking down of those
laws. My note.
Was trying to identify criteria that I thought could be applied consistently.
To determine whether the laws were punitive or preventative, but
with either character and you argued that they were punitive, and
you further say in the note, if they're punitive, they're unconstitutional.
I was looking at four different kinds of laws and not all of them.
Did I say we're punitive. Okay, so let's take civil commitments laws.
Ah!
If you look at civil commitment laws right now, the U. C L. A School
of law Williams Institute estimates more than 6300
sex offenders are currently detained in civil commitment programs.
If the view you advocated prevailed. Presumably those 6300 sex offenders
would be released to the public. Is that an outcome that should be
concerning
Senator.
In law school. When I was writing a note, I was looking at a brand
new set.
Of laws that had not previously been enacted in any jurisdiction.
They were new.
And I was assessing at the time as law school students do.
What criteria I thought might be used by courts to make a determination
in the future. As to whether or not they should be treated as punitive
and therefore not unconstitutional. But as therefore
Um, ones that come carry with them Certain rights versus picked up.
Excuse me, Preventative.
Those those Jackson C. You've you've pointed that these reviews in
law school and listen, I will recognize that all of us when we are
students may have used 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.
Um, 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 Petrol 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 and 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. The 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 pretty remarkable arguments that people in possession
of child pornography.
Are not actually interested in the child porn. They're not. Pedophiles
are 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.
Um
Do you agree with that sentiment that there is some meaningful population
of people who have child pornography but are not in fact.
Um pedophiles or getting getting satisfaction from it.
Thank you, senator for allowing me to address. Um
What appears to be a question.
That I was asking in the context of a hearing on child pornography.
You provided the entire quote and it looks as though I was asking
that if someone not taking that position
In the position that I've taken in. All of my sentencing is involving
Child pornography offenders.
Is to ensure
That despite
The
Attitude and, um, 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 not withstanding there.
Up collecting behavior that they were causing significant harm. So
Judge Jackson alright, you raise your actual sentencing, and I think
that's very productive. Let's let's take a look.
At your actual sentencing, and you've had 10 different cases involving
child pornography.
Um, these are the cases that there are two US versus but tree and
you US versus
Can
For which the government did not make a recommendation. And you said
Earlier when Chairman Durban was trying to preempt this line of attack,
You said, it's a sickening and egregious crime, which I very much
agree with.
Um And you said the guidelines leading to extreme departures, Okay?
Let's look at what the prosecutors are asking for it. 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 can post 60 months
because you had no discretion.
In United States versus Nickerson. There was a mutual agreement of
the parties, 220 months and that's what you imposed.
In every other case.
United States vs Chazen, the prosecutor asked for 78 to 97 months.
You don't posed 28 months 28 months.
Is a 64%.
Reduction.
In the United States versus Cooper, the prosecutor asked for 72 months.
You and posed 60 months. That was a
17%
Reduction.
In United States versus downs, The prosecutor asked for 17 months
you and post 60 that was a 14%.
Reduction.
The United States versus Hawkins, the prosecutor asked for 24 months
You imposed three months that was an
88% reduction in United States versus Savage, The prosecutor asked
for 49 months you imposed 37. That was a 24%.
Reduction in the United States versus Stewart, the prosecutor asked
for 97 months 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 versus Hawkins.
Where the prosecutor asked for 24 months and you sentence the offender
only three months to do you believe the voice of the Children is
heard when 100% of the time
You're sentencing child, those in possession of child pornography
too far below, with the prosecutors, asking for
Yes, Senator. I do.
Could you explain how I will
A couple of observations. One is that your chart does not include
All of the factors that Congress
Has told judges to consider including the probation offices recommendation
in these cases, so we don't have those probation. The committee has
not been given the probation officer's recommendation. We would welcome
them. I would Mr Chairman, I would love to see those the second.
The second thing I would say.
Is that
I take these cases very seriously as a mother.
As someone who as a judge has to review.
The actual evidence in these cases and
Based on Congress's requirement.
Take into account not only the sentencing guidelines, not only the
recommendations of the parties
But also things like
The stories of the victims also things like the nature and circumstances
of the offense in the history and characteristics of the defendant.
Congress.
Is the body that tells sentencing judges what they're supposed to
look at, and Congress has said.
That a judge is not playing a numbers game.
The judge is looking
At all of these different factors and making a determination in every
case based on
A number of different considerations and in every case
I did my duty.
To hold the defendant's accountable in light of the evidence and
the information that was presented to me.
In 100% of the cases was the evidence less than the prosecutors asked
for.
Senator. The evidence in this these cases are egregious. The evidence
in these cases are among the worst that I have seen and yet as Congress
Directs.
Judges don't just calculate the guidelines and stop
Judges have to take into account the personal circumstances of the
defendant because that's a requirement of Congress.
Judges have to consider things like the victims, and when I was talking
about making sure that victim's circumstances are heard it was about
my sentencing practices.
That that I quote victims being heard with respect.
Thank you, Mr Chairman.
In 2012, the sentencing commission.
On a unanimous bipartisan basis, issued a report recommending changes
to sentencing for non production child pornography, which is the
subject at hand.
Offenses because of widespread concern among judges and other stakeholders.
For example, 70% of surveyed judges said the guideline ranges for
possession receipt offenses were too high.
71% said the mandatory minimums were too high.
Notably, the report was supported by every member of the commission.
I believe the question which Senator Texas was referring to was part
of the proceedings led to the commission report Unanimous can convince
bipartisan basis