Fact check: Judge Ketanji Brown Jackson child porn sentences 'pretty mainstream'

Supreme Court confirmation hearings for Judge Ketanji Brown Jackson open this week amid a flurry of misleading allegations by Republican Sen. Josh Hawley that the nominee has a "long record" of letting child porn offenders "off the hook" during sentencing.

"In every single child porn case for which we can find records, Judge Jackson deviated from the federal sentencing guidelines in favor of child porn offenders," Hawley tweeted Thursday, highlighting nine cases from her time as a federal District Court judge.

While court records show that Jackson did impose lighter sentences than federal guidelines suggested, Hawley's insinuation neglects critical context, including the fact that the senator himself has voted to confirm at least three federal judges who also engaged in the same practice.

Federal appeals court Judges Joseph Bianco of the Second Circuit and Andrew Brasher of the Eleventh Circuit, both Trump appointees, had each previously sentenced defendants convicted of possessing child pornography to prison terms well below federal guidelines at the time they were confirmed with Hawley's support, an ABC review of court records found.

Asked about the votes Monday by ABC News, Sen. Hawley made clear he has never supported a high court nominee with a similar record in child porn sentencing cases. "Not for this court I haven't, not for the U.S. Supreme Court," Hawley told ABC's Rachel Scott when asked whether his criticism of Judge Jackson presented a double standard.

Hawley said he would not consider a below-guidelines child porn sentence "acceptable" from a nominee and suggested that he was not aware of the times Judges Bianco and Brasher and a third judge, Carl Nichols of the D.C. District Court, had rendered such judgments.

"If I had known about -- and I'm not sure which judges you are referring to -- but if there are judges who are soft on child porn offenders in a systematic kind of pattern, then that would be a big problem, and if I had known that at the time, then it would hurt my support," he said.

ABC News provided the judges' names and cases to Hawley's office but have not received a response or explanation of why the senator was not aware of the sentencing records of the Trump appointees at the time of his votes.

"If and when we properly contextualize Judge Jackson's sentencing record in federal child porn cases, it looks pretty mainstream," wrote Doug Berman, a leading expert on sentencing law and policy at The Ohio State University School of Law.

"Federal judges nationwide typically sentence below the [child porn] guideline in roughly 2 out of 3 cases," Berman noted on his blog, and "when deciding to go below the [child porn] guideline, typically impose sentences around 54 months below the calculated guideline minimum."

Berman also points out that government prosecutors often request below-range sentences, including in most of the Jackson cases that Hawley cited.

"The guidelines are now purely advisory, and many judges of all stripes routinely find that within-guidelines sentences are unduly harsh, in particular when it comes to first-time offenders," said Cardozo Law professor and ABC News legal analyst Kate Shaw.

The U.S. Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography – as opposed to producing the materials – have "been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year."

"Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019," the report said.

"Judge Jackson's record in these [child porn] cases does show she is quite skeptical of the ranges set by the [child porn] guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties)," Berman wrote.

Republican Sen. Mike Lee of Utah, a member of the Judiciary Committee, suggested Thursday that regardless of the context around Judge Jackson's sentences he remains concerned. "The White House's whataboutist response to Judge Jackson's very real record in child pornography cases is dismissive, dangerous, and offensive. We need real answers," he tweeted.

An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen had handed down below-guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.

Judge Ralph Erickson of the Eighth Circuit Court of Appeals, confirmed in 2017 with support from Sen. Lee, sentenced defendants in at least 11 child porn cases to prison terms below the recommendation, records show.

Sixth Circuit Judge Amul Thapar, who was on Trump's Supreme Court short list in 2018, sentenced a man convicted of distribution of child pornography to 73 months behind bars when the guidelines suggested 97-121 months.

District Court Judge Dabney Friedrich, a Trump-appointee who served alongside Judge Jackson on the U.S. Sentencing Commission for a time, also issued below-guidelines sentences in at least four child porn cases, records show.

Hawley accused Jackson of advocating "for drastic change" in sex offender sentencing by eliminating mandatory minimum sentences for child porn while on the Commission. But he failed to mention that the panel's Republican appointees – including Judge Friedrich – also supported revising the sentences in a unanimous vote.

"There were three Republicans on the Commission at the time including Judge Bill Pryor of the 11th Circuit, Ricardo Hinojosa, a judge in a border district, and Judge Dabney Friedrich, who was appointed to the bench by Donald Trump," said Rachel Barkow, vice dean of NYU Law School and a former Sentencing Commission member. "I don't think the three of them would be labeled soft on crime."

Multiple independent fact-checkers, including AP and the Washington Post, have debunked the bulk of Hawley’s claims. The White House has called them "toxic and weakly-presented misinformation."

"As far as Senator Hawley is concerned, here's the bottom line: He's wrong," Senate Judiciary Committee Chairman Sen. Dick Durbin said on ABC News "This Week." "He's inaccurate and unfair in his analysis. Judge Jackson has been scrutinized more than any person I can think of. This is her fourth time before the Senate Judiciary Committee, and three previous times, she came through with flying colors and bipartisan support."

ABC News' Lalee Ibssa, Rachel Scott and Trish Turner contributed reporting.