0 stems back decades and that is concerning. you wrote your note on the harvard law review on sex crimes. 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 released 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. at many courts and commentators herald these laws as 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 offender statutes depends upon their characterization as essentially preventative rather than punitive." and what you go on to explain is 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 "in which sex offenders have no privacy right in registration information or blood samples." so you suggest that may or may not be constitutional. you raise doubts about it. and then you raise very significant doubts about community notification. and you heavily suggest that civil commitment for sexual predators is unconstitutional. do you still agree with the sentiments you expressed in your law school note? >> 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 courts would look at those laws and call them preventative, and that has a certain set of 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 that view, there had been some on the bench that have advocated that. the supreme court in 1997 decided a case called kansas versus hendricks in which it upheld kansas's civil commitment statute. that was a 5-4 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 and d.c. have laws that allow for the indefinite detention of sex offenders. i would note in the state of texas a state court of appeals relying on very much the same sort of reasoning you advocated in your note struck down texas's 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 respect -- >> either -- >> you argued that they were punitive and you further say in the note and you further say if they're punitive they're unconstitutional. >> i was looking at four different kinds of laws, and not all of them did i say were punitive. >> okay. so let's take civil commitments laws. if you look at civil commitment laws right now, the ucla school of law williams institute estimates more than 6,300 sex offenders are currently detained in civil commitment programs. if the view you advocated prevailed, presumably those 6,300 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 ones that carry with them certain rights versus -- excuse me. preventative. those -- >> okay, judge jackson. so you've pointed that these reviews in law school -- and listen, i will recognize that all of us when we were students may have views that as time and maturity passes on we may change. but what troubles me was 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 interested necessarily 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 why people might engage in this. 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 want 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 -- getting satisfaction from it? >> thank you, senator, for allowing me to address what aappears 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. >> 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 ten different cases involving child pornography. these are the cases. there are two, u.s. versus butry and u.s. versus cann for which the government did not make a recommendation. you said earlier when chairman durbin was trying to pre-empt this line of attack, you said it's a sickening and egregious crime, which i very much agree with. and you said the guidelines lean to extreme departures. let's look at what the prosecutors are asking for. i would know 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 -- united states versus hess there was i amandatory 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 chasen, the prosecutor asked for 78 to 97 months. you imposed 28 months. 28 months is a 64% reduction. in united states versus cooper the prosecutor asked for 72 months. you imposed 60 months. that was a 17% reduction. in united states versus downs the prosecutor asked for 70 months. you imposed 60. that was a 14% reduction. in united states versus hawkins the prosecutor asked for 24 months. you imposed 3 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. and in united states versus stewart the prosecutor asked for 97 months. you imposed 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 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 child -- those in possession of child pornography to far below what the prosecutor's 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 office's recommendation in these cases. >> well, judge, we don't have those -- the committee has not been given the probation officer's recommendation. we would welcome them. mr. chairman, i would love to see those -- >> 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 upon 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 and 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 defendants 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 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 victims' circumstances are heard, it was about my sentencing practices, that i -- >> 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 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 the senator was texas was referring to was part of the proceedings that led to that commission report. unanimous bipartisan basis commission report. >> mr. chairman, very briefly i would ask unanimous consent that the books i referenced be entered into the record. ? without objection. senator coons. >> thank you, chairman. ranking member grassley. judge jackson, good to be with you. >> good to be with you, senator. >> i'd like to take a few minutes, if i could, and just give you a chance to address some of the issues just raised. my colleague suggested that you've never sentenced a defendant in a child pornography case consistent with what the government requested, what the prosecution requested. but according to my staff's research, that's just not true. so let me briefly ask you about three specific sentencing cases. do you remember u.s. v. nickerson? you sented charles nickerson jr. to ten years in prison. exactly what the government requested. >> i do, senator. >> do you remember u.s. v. fife? you sentenced him to 20 years in prison. exactly what the government requested. >> i do, senator. >> and do you recall u.s. v.negin. you sentenced him to 37 months in prison. exactly what the prosecution requested. >> i do, senator. >> so in these three cases it's also true that the government, the prosecution requested below guidelines sentences. would that seem surprising to you at all? >> it would not. >> and is that because overwhelmingly nationwide in 70% of cases and in your district 80% of cases downward departures from the guidelines are the norm? >> that is correct, senator. >> so to the extent there seems to be some concerted effort to try and characterize you as being soft on crime or somehow unconcerned about child safety, i just want to take another moment and give you a chance to respond to that. as a parent, as the member of a family that's had several members who've served your brother, your uncles in law enforcement. could you share a bit about how having loved ones who serve as law enforcement officers, in one case a detective on a sex crimes unit, has had an impact on your sense of the balance of justice and mercy in the case of ensuring that we hold to account those who commit crimes against children? >> thank you, senator. as a mother these cases involving sex crimes against children are harrowing. what i think is important to understand is that trial judges who have to deal with these cases are presented with the evidence. or descriptions, graphic descriptions. these are the cases that wake you up at night. because you're seeing the worst of humanity. when there are victim statements that are presented, when people talk about how their lives have been destroyed as children, how the people who they trusted to take care of them were abusing them in this way, and then putting the pictures on the internet for everyone to see, i sometimes still have nightmares about the main witness, the woman i mentioned earlier who cannot leave her house because of this kind of fear. the vulnerability. the isolation. these crimes are horrible. and so i take them very seriously just as i did all of the crimes, but especially crimes against children. >> so your honor, if i could, the characterization that was just presented, in a recent column in the "national review," a conservative publication, has characterized that view of you as a smear that appears meritless to the point of demagoguery and characterizes your approach in sentencing in these cases as mainstream and correct. and i'll just remind my colleagues and those watching that two of the largest, most substantial law enforcement advocacy organizations in our country, the national fraternal order of police and the international association of chiefs of police have spoken up in support of your qualifications and your capabilities. the f.o.p. letter says there's little doubt you have the temperament, intellect, legal experience and family background to have earned this appointment. that sentiment was echoed by the iacp. in their letter they said you believe you have a deep understanding of and appreciation for the challenges and complexities confronting the policing profession and you have during your time as a judge displayed your dedication to ensuring our communities are safe and that the interests of justice are served. i find it hard to believe that these organizations having looked closely at your judicial decisioning record, your sentencing decisions, your lifetime conduct, would have taken those unusual steps to be that forceful in supporting you if in fact you had somehow a disturbing record of coddling child pornographers or being soft on crime. in fact, judge, your record in my view demonstrates you're an evenhanded and impartial judge, and i can see that when i look at cases you've ruled on that involve very politically charged or partisan interests. you've delivered rulings on both sides for plaintiffs and defendants, and in my review of your record you've put any personal views or concerns aside. you've based your decisions on the argument of the parties, the facts in the record, the applicable law and precedent, and the well-reasoned and thorough opinions you've written show to me a judge striving to make evenhanded decisions based on facts and law, not on some caricature of a leftist agenda. but don't just take my word for it. we've received an outpouring of support for your nomination, as we'll hear on thursday. a very wide range of groups and individuals have sent letters or testimony to this committee in support of your nomination. it's no surprise to me that your legal mind, your experience, your temperament inspires strong support from some of the best and brightest of our legal community. and i think it is worth highlighting that among those many that have written to us are included well-respected conservative and republican lawyers and republican-appointed judges who agree with my characterization that you're an evenhanded and impartial judge. we've received a letter from 24 conservative lawyers who held positions in republican administrations or are well known fo