About one 1 in 4 people convicted of possession of child pornography go on to reoffend within three years — though only a small fraction of those subsequent offenses are sex crimes, according to federal statistics.
The recidivism rate of child pornography convicts has taken center stage this month as Judge Ketanji Brown Jackson, President Biden’s nominee for the Supreme Court, defends her sentencing record amid feverish charges from Republicans that she has been too lenient on serious criminals.
The U.S. Sentencing Commission looked at 1,093 offenders convicted of possession, but not production, of child pornography and determined an overall 27.6% recidivism rate among them.
The commission found that 4.3% were arrested on sex crime charges within three years after release from incarceration or placement on probation. Another 7.3% were nabbed for failing to register as sex offenders, and 16% ended up with other criminal entanglements.
“The punishments are quite harsh,” said Douglas Berman, a law professor at Ohio State University researching sentencing policies. “The average federal sentence for [child pornography] is almost as long as the average for many violent crimes in state courts. But only a tiny percentage of offenders get caught, and that reduces the deterrent impact of long sentences to those who do.”
Republicans spent much of their time allotted for questions prodding Judge Jackson over more than half a dozen cases in which she sentenced child pornography offenders. Republican senators said in each case where she had discretion, she delivered prison terms that were below sentencing guidelines and below prosecutors’ recommendations.
In two of the cases, the felons ended up with more criminal entanglements, Republicans on the Judiciary Committee said.
One case Republicans highlighted involved an offender whom Judge Jackson sentenced to three months in prison. Sentencing guidelines called for her to get up to 10 years, prosecutors sought two years and the probation office recommended 18 months, Republican senators said.
Republicans ticked off other cases, with the number of images found and ages of the victims.
Judge Jackson, defended her sentencing decisions. She said she lectured child pornography offenders on the human costs of their crimes and the trauma child victims are saddled with years after the images are first taken.
Still, she said, the online world has upended this area of criminal law — particularly the idea of tying more images to higher sentences.
“The sentencing scheme doesn’t place everybody at the same level,” Judge Jackson said. “On the internet, with one click, you can receive — you can distribute — tens of thousands. You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison.”
The judge said she and other courts were trying to bring rationality to those kinds of cases.
“This is what our justice system is about. It’s about judges making determinations in meting out penalties to people who have done terrible things,” she said.
Sen. Lindsey Graham, South Carolina Republican, said he supports the higher sentences. He said it’s the best way to stamp out the soaring number of trafficked images.
“I hope you go to jail for 50 years if you are on the internet trolling for images of children,” Mr. Graham said. “Every federal judge out there should make it harder for somebody to go on a computer and view this filth.”
He said the National Center for Missing and Exploited Children’s CyberTipline received reports of 85 million images, videos and other files showing child sexual exploitation in 2021.
Mary Graw Leary, a senior associate dean at the Catholic University of America, said the recidivism rate alone is a misguided measure for child pornography felons because they are in a “unique” group. One reason, she said, is that offenders can avoid arrest more easily by going on the darknet.
She said the felon revictimizes a child every time an image is seen or shared. She called it a “crime in perpetuity.”
“It is much more serious than looking at pictures,” Ms. Leary said.
The U.S. Sentencing Commission’s report says the median sentence federal judges hand down is about 60 months for nonproduction child porn felons.
According to the laws passed by Congress nearly 20 years ago, possession doesn’t carry a mandatory minimum, only a suggested range of up to 10 years in prison.
Distribution and receipt of child pornography carry mandatory minimums of five years in prison.
“The crime has grown so much in recent years due to the advance of digital technology and the way we define child porn,” said Mr. Berman. “When a teen sends nude selfies to another teen, that is [child porn]. And now anyone and everyone can take pics and make movies with every electronic device and can post those online very easily.”
Sen. Richard J. Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee, said the lawmakers must update sentencing laws to fix any discrepancy.
“Part of our job, we have failed in responding to the changing circumstances that face this crime. What has it been,15 or 16 years? She is not an outlier in sentencing. Seventy percent of the federal judges face the same dilemma and wonder why Congress has failed to act,” Mr. Durbin said. “We have to update these guidelines.”
The criticism of Judge Jackson’s record for child pornography felons apparently hasn’t unsettled Democratic senators.
The most moderate Democrat, Sen. Joe Manchin III of West Virginia, announced Friday that he would support Judge Jackson’s confirmation.
His announcement puts the caucus on schedule for a confirmation vote before the Easter recess, which begins April 8. With a 50-50 Senate, Democrats can’t afford to lose a single vote in favor of her nomination.
Judge Jackson will replace Justice Stephen G. Breyer, who is retiring at the end of the current Supreme Court term.
Once confirmed, Judge Jackson will be the first Black female justice and the sixth woman to serve on the Supreme Court.
• Stephen Dinan contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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