[Congressional Record Volume 168, Number 60 (Tuesday, April 5, 2022)]
[Senate]
[Pages S1954-S1957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. 3951
Mr. HAWLEY. Mr. President, I rise today to urge the Senate to take
action to crack down on child pornography offenders and to protect our
children. This is a growing crisis, and it is one that is near to the
heart of every parent in America. I can attest to that as a father of
three small children myself. I have got a 9-year-old, a 7-year-old, and
a 16-month-old baby at home.
But I can also attest to it as a former prosecutor. As the attorney
general for the State of Missouri, one of the first things I did was
establish a statewide anti-human trafficking initiative and task force
because what I saw as attorney general of my State was that human
trafficking, including, unfortunately, child sex trafficking, is an
exploding epidemic.
In my State and around our country, children are exploited, children
are trafficked. And those who work in this area and those who prosecute
in this area--law enforcement who work day in and day out--will tell
you that the explosion of child pornography is helping to drive this
exploding epidemic of child sexual exploitation and child sex
trafficking.
The problem is that child porn itself is exploding. A New York Times
investigative reporter found that in 2018, there were 45 million images
of children being sexually exploited available on the internet--45
million. Just a few years before, it had been 3 million and in 2018,
45. Then, last year, the National Center for Missing and Exploited
Children found that that number had grown to 85 million--85 million
images on the internet of children being brutally sexually exploited.
And as every prosecutor and every law enforcement advocate and every
law enforcement agent who works in this area will tell you, that
explosion of this material--which, by the way, is harmful in and of
itself, is exploitative in and of itself--is driving a crisis of child
exploitation and child sex trafficking in this country.
Now the nomination of Judge Ketanji Brown Jackson to the Supreme
Court has helped bring this issue front and center. Her record of
leniency to child sex offenders has been much at the center of her
hearings, and it has startled the public. A recent Rasmussen survey
found that following her hearings, 56 percent of all respondents said
that they were troubled by her record on child sex offenders. That
included 64 percent of Independents.
And they are right to be troubled. Her record is indeed startling. In
every case involving child pornography where she had discretion, she
sentenced below the Federal sentencing guidelines, below the
prosecutor's recommendations, and below the national averages.
We now know that the national average for possession of child
pornography--the national sentence imposed, on average, is 68 months.
Judge Jackson's average is 29.3 months. The national average sentence
for distribution of child pornography: 135 months; Judge Jackson's
average, 71.9 months.
In fact, it is true for criminal sentencing across the board. The
national average of all criminal sentences imposed in the United
States, 45 months; Judge Jackson's average, 29.9 months.
This is a record of leniency. In the words of the Republican leader,
leniency to the ``extreme'' to child sex offenders and on criminal
matters in general.
But--but, but, but--we are told, and have been told for weeks on end
now, it is not really her fault. We were told by the White House and
Senate Democrats that it is not her fault because those Federal
sentencing guidelines that she, in every case where she could went
below--those guidelines aren't binding. Thanks to the decision by the
Supreme
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Court, by Justice Breyer and Justice Stevens, those guidelines are only
advisory. And so we were told, repeatedly, that if we really want to
get tougher sentences for child porn offenders, then we are going to
have to change the law.
In fact, I see my friend Senator Durbin here today, the chairman of
the Judiciary Committee. He said this to me multiple times during the
committee.
On March 22, he said to me:
I hope we all agree that we want to do everything in our
power . . . to lessen the incidence of pornography and
exploitation of children. . . . I . . . want to tell you,
Congress doesn't have clean hands. . . . We haven't touched
this for 15, 16 or 17 years.
Senator Durbin went on:
We have created a situation because of our inattention and
unwillingness to tackle an extremely controversial area in
Congress and left it to the judges. And I think we have to
accept some responsibility.
And he went on:
I don't know if you--
Meaning me--
have sponsored a bill to change this. I will be looking for
it. . . . If we're going to tackle it, we should.
Well, I agree with that 100 percent. I agree we should tackle it.
This is the time to tackle it, and I am here to do that today. I am
proud to sponsor and introduce legislation along with my fellow
Senators Mike Lee and Thom Tillis and Rick Scott and Ted Cruz to get
tough on child porn offenders.
Now, let's be clear. When Congress wrote the child pornography
Federal sentencing guidelines, and it is Congress that wrote them
substantially, way back in 2003--when Congress wrote them, they wanted
them to be binding. Congress meant for these guidelines to bind Federal
judges. The Supreme Court struck those guidelines down.
Now it is time to put it back into place. My bill would put a new
mandatory--mandatory--sentence of 5 years for every child porn offender
who possesses pornography, 5 years. If you do this crime, you ought to
go to jail. It would make the guidelines binding for any and all facts
found by a jury or found by a judge in a trial, restore the law to what
Congress intended back in 2003, take away discretion from judges to be
soft on crime, and get tough on child sex offenders. That is what this
bill would do.
Now, I called this bill the Protect Act of 2022 because it is modeled
on the PROTECT Act of 2003, when Congress wrote these guidelines. And I
would just note for the record that I believe every Senator voted for
it back in 2003, including the chairman of the Judiciary Committee,
Senator Durbin, and every member of the Judiciary Committee, Republican
and Democratic, who was serving at the time.
That act back in 2003 toughened penalties for child porn offenders,
made the guidelines mandatory, and explicitly took away discretion from
judges to sentence below the guidelines.
I think it was a pretty good law, and I think now is the time to act.
Our children are at risk. The epidemic of sexual assault, sexual
exploitation, and victimization is real.
And let's be clear what child pornography is. It is an industry--an
industry that feeds on the exploitation of the most vulnerable members
of our society, that feeds on the spectator sport of child abuse and
child victimization.
If you have a lot of images of child pornography, you ought to go to
jail for a long time. If you possess child pornography, you ought to go
to jail for at least 5 years. And, yes, it is time for every judge in
America to get tough on child porn. That is what this bill would do,
and I urge the Senate now to take this opportunity to act.
So as if in legislative session, I ask unanimous consent that the
Committee on the Judiciary be discharged from further consideration of
S. 3951, and the Senate proceed to its immediate consideration; I
further ask that the bill be considered read a third time and passed
and that the motion to reconsider be considered made and laid upon the
table.
The PRESIDING OFFICER. Is there objection?
The majority whip.
Mr. DURBIN. Mr. President, reserving the right to object. I have to
ask myself, why now? Why does the junior Senator from Missouri bring
this bill to the floor of the U.S. Senate today?
When you think back, this matter has been considered. Originally, the
guidelines were considered in 1984. The question of child pornography
came back to us in 2003.
In 2005, there was a Supreme Court case about applying the guidelines
on sentencing to these types of cases--a case known as Booker. We know
that in 2005, that decision was handed down.
We know that in 2012, the Sentencing Commission said to Congress and
to the world that you need to do something here. These guidelines that
you promulgated don't reflect the reality of today.
We know, as well, that the guidelines were written--some were written
in an era when the materials we are talking about were physical
materials. And we now live in the world of internet and access to not
just tens and hundreds but thousands of images, if that is your
decision.
And all these things have happened, and we come here today--today. I
don't know exactly how many years the Senator from Missouri has been in
the Senate, but to my knowledge, this is his first bill on this subject
that he has presented in the last few weeks. And I wonder why--why now?
Are there valid questions about sentencing guidelines? Certainly,
there is no question about it. I said as much, and he quoted me.
The Sentencing Commission told us over a decade ago, in 2012: You
have got a problem here. The world has changed, and the law doesn't
reflect it.
But this is the first time, to my knowledge, that the Senator from
Missouri or any Republican Senator has tried to enact legislation on
the subject. Why now? Well, I know why. He said as much. It is because
we are now considering the nomination of Judge Ketanji Brown Jackson to
the Supreme Court.
This Senator has suggested over the course of the last 2 weeks in
hearings before the Senate Judiciary Committee that somehow this
judge--this judge who is aspiring to the Supreme Court--is out of the
mainstream when it comes to sentencing in child pornography cases.
It is no coincidence that the Senator from Missouri comes to the
floor today while Judge Jackson's nomination is pending on the Senate
calendar. It was discharged from our committee by a bipartisan vote in
the Senate last night. It is no coincidence that he is raising this
issue within hours or days before her confirmation vote. It is one
more, very transparent attempt to link Judge Ketanji Brown Jackson's
confirmation with this highly emotional issue of Federal sentencing
when it comes to child pornography or child exploitation.
There are some political groups--at least one well-known political
group--that manufacture theories about child pornography, pedophilia,
and the like and that even inspire deadly reactions to them, and they
are cheering this on. I have seen their reactions already, this
morning, in the newspaper. They are watching this and hoping that
someone can keep this issue alive on the floor of the U.S. Senate--for
them.
The Senator from Missouri has even gone so far as to make the
outrageous claim that this woman, Judge Jackson--the mother of two
wonderful girls, whom I had a chance to meet, a mother who comes to
this issue not only as a judge but as the sister and niece of law
enforcement officials who have been part of her family--in the words of
the Senator from Missouri, that this woman ``endangers children''--
``endangers children.''
Mr. HAWLEY. Will the Senator yield for a question?
Mr. DURBIN. I will yield when I am finished.
One conservative former prosecutor called Senator Hawley's charges
``meritless to the point of demagoguery.''
I have read so many reviews of the Senator's charges against this
judicial nominee, and not one of them gives him any credence. They
basically say: What you are dealing with here is a complicated area of
the law, a controversial area of the law, and to try to ascribe to this
one nominee these motives, these outcomes, is baseless and meritless.
Consider this: How can this judicial nominee possibly have the
endorsement of the largest law enforcement organization in America--the
Fraternal Order of Police--the endorsement of the International
Association of Chiefs of Police, and many other law
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enforcement groups--how could she possibly have all of that and be as
wrong on a critical issue as the Senator from Missouri has asserted?
How is it possible that the American Bar Association took a look at
all of her contacts as a judge, as a lawyer, as a law student and came
up with 250 individuals who knew her personally, appeared in court with
and against her, judged her in her individual capacity as a lawyer--how
can the American Bar Association interview those 250 and find no
evidence of the charges that have been made by the Senator from
Missouri? How is it possible that they would review all of this and
miss such a glaring fact? They didn't.
They told us, under oath, that they were asked point blank: Is her
sentencing standard soft on crime? different than other judges?
The answer was no, no.
The net result of it was that the American Bar Association found this
nominee, whom the Senator from Missouri charges with these outrage
claims--they found her to be unanimously ``well qualified''--
unanimously ``well qualified.'' Yet the Senator from Missouri believes
that he has discovered something that the whole world has missed.
Unfortunately, he is wrong, and he doesn't admit it.
When Judge Jackson is confirmed to the Supreme Court--and I pray that
she will be later this week--it will be in part because she is a
thoughtful, dedicated person who has worked as a judge for over 10
years. She has published almost 600 written opinions. She has had 100
cases wherein she has imposed criminal sentences and a dozen-plus cases
involving children.
What the Senator from Missouri has done is to cherry-pick arguments
from one small part of her service on the bench that has been debunked
across the board. But let me say it again: Judge Jackson's sentences
were appropriate exercises of discretion as a judge in applying the law
to the facts in difficult cases.
It is interesting to me how the Senator from Missouri has carefully
drawn lines to exclude Trump appointees to the bench who have done
exactly what this judge has done as well--so-called deviate from the
guidelines when it has come to sentencing. In fact, one judge from his
State, from the Eastern District of Missouri, whom he has personally
endorsed as a good judge--and he may well be--has followed the same
practice as this judge. Did he raise that at all in the Senate
Judiciary Committee about the Missouri judge who was doing the same
thing as Judge Jackson? No, nothing.
There is nothing about these judges that is deviating from other-
than-accepted practices. When 70 to 80 percent of sentences handed out
by judges across America are using the same standard, Judge Jackson is
in that mainstream, along with judges whom this Senator from Missouri
has endorsed.
If this issue needs to be addressed--and I believe it does--we can do
so if we do it carefully, and we should do it carefully. Make no
mistake, I don't back off from my words. As a father, as a grandfather,
as a caring parent, I sincerely consider this to be one of the most
serious crimes--the exploitation of children. I can't think of anything
worse.
The pornography issue certainly is out of control because of the
internet and because of those who are making a dollar on it. We should
take it very seriously--very seriously. It changes and destroys lives.
But let's make sure we do this in the right way.
What have we done in the Senate Judiciary Committee?
It is great for the chairman to stand on the Senate floor and talk
about the issue.
Well, what have you done, Senator?
Let me tell you what I have done, and I think the Senator from
Missouri knows it.
We have done what we can to address this issue from many different
angles. The committee held a hearing on the FBI's failure to properly
investigate allegations against Larry Nassar for assaulting young
athletes, Olympic gymnasts included, which enabled the abuse of dozens
of additional victims. We called them on the carpet. We put them under
oath. We brought the testimony forward. We didn't back away from the
issue of child abuse.
Following that hearing, I introduced the Eliminating Limits to
Justice for Child Sex Abuse Victims Act, with Senator Marsha Blackburn,
a Republican from Tennessee. The Senate has now passed this bipartisan
legislation, which would enable those survivors of child sex abuse to
seek civil damages in Federal court no matter how long it takes the
survivor to disclose the facts of the case.
The committee has also unanimously reported a bill which the Senator
from Missouri knows well, the EARN IT Act, which is legislation he has
cosponsored with Democratic Senator Blumenthal that will remove blanket
immunity for the tech industry for violations of laws related to online
child sexual abuse material.
I make no apologies for our approach on this, and there is more work
to be done.
I want to tell you that I am tempted to leave it just at that but for
one part, one thing I am concerned about.
Our Federal sentencing guidelines have been advisory, not mandatory,
since the Supreme Court's 2005 ruling in the Booker case. This bill now
being offered on the floor in a very quick fashion by the Senator from
Missouri attempts to create mandatory sentencing guidelines for a
single category of offense. It is not clear whether it passes the
constitutional test of Booker. It could be a waste of time. We don't
need to waste time in a critical area of the law that has been so
controversial and has been considered and reviewed over decades.
Even so, it is a dangerous slope to go down. Imagine a world wherein
every time it was politically advantageous--whether it was a Supreme
Court nominee or a headline in the paper--that some Senator could come
forward, disagree with a Federal judge in a particular case, and say:
Let's pass a mandatory minimum sentencing guideline to take care of the
matter.
That is no way to approach the law in a fashion that is used for
deterrence and punishment. We need to be thoughtful about it. A subject
of this seriousness, of this gravity, deserves more than a driveby on
the floor of the U.S. Senate.
I invite my colleague to do his work on this issue as we all should--
the work that is required, the work that is required by the seriousness
of this matter.
I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Missouri.
Mr. HAWLEY. Mr. President, the Senator asks: ``Why now?'' Why act
now?
It is because it is a crisis now, because there are 85 million images
of children being exploited on the internet now, because child
exploitation is exploding in this country now.
Today, the Senator lays bare on this floor the bait and switch that
he and his colleagues have employed.
They say: Oh, Judge Jackson--it is not her fault. You should act on
the law to change the law.
But when we come to change the law and do what this Congress did in
2003, to do it now in 2022--a measure that Senator Durbin supported in
2003--he says: Oh, no, no, we don't need to act now. Why do it now? It
is rushed. It is too hurried. Let's do it later. Let's think about it
longer.
Then we hear recited again the bizarre claims that somehow child
pornography is a conspiracy theory. This is something that Senate
Democrats, including the chairman, have repeated over and over and
over, led by the White House--the idea that child exploitation is a
conspiracy theory.
I would just invite you to look any parent in America in the eye and
tell them that the exploitation of children is a conspiracy theory--or
any law enforcement agent or any prosecutor or anyone who is working on
the exploitation, to combat the exploitation of children in this
country. No. It is a crisis, and it is real. The fact that the Senate
hasn't acted until now is, I think, shameful for the Senate. But why
wait another day?
Now, I look forward, if the Senator is serious. He does hold the
gavel in the Judiciary Committee. We could mark this bill up. We could
hold hearings. We could take action. I would invite him to cosponsor
this bill. He voted for it in 2003. Let's have hearings, then, if we
can't vote on it today, if we can't debate it today. Let's have
hearings. Let's mark it up. Let's take it seriously. I will wait. I
suspect I will be waiting for an awfully long time.
[[Page S1957]]
Here is the bottom line: I am not willing to tell the parents of my
State that I sat by and did nothing. I am not willing to dismiss child
exploitation as just some conspiracy theory. I am not willing to
abandon the victims of this crime to their own devices and say: Good
luck to you.
No, I am not willing to do that--nor am I willing to excuse Judge
Jackson's record of leniency that does need to be corrected. She should
not have had the discretion to sentence leniently in the extreme, as
she did, nor should any judge in America, in my view. What is sauce for
the goose is sauce for the gander. We should fix it for everybody
across the board, and we can begin by acting as we did in 2003.
So I am disappointed, but I can't say that I am surprised that this
measure has been objected to today. All I can say is that I pledge to
my constituents--I pledge to the parents of my State and, yes, to the
victims of my State--that I will continue to come to this floor and
that I will continue to seek passage of this act until we get action
from this Senate to protect children and to punish child pornographers.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, after 27 minutes of debate on the floor of
the Senate, the Senator now believes we are prepared to change the law
that has been debated for decades. He has put in a bill introduced 7
days ago. It has been 7 days he has had passion for this issue--enough
to introduce legislation.
If you want to take on a serious issue, take it on seriously, and
that means doing the homework on it. Yes, have a hearing. Of course,
have a hearing. We want to make sure the people from the Sentencing
Commission and others are part of this conversation. It isn't just a
matter of throwing charges out against a nominee.
If you want to be serious about it, then admit the obvious: In 70 to
80 percent of cases involving child sexual abuse material, Federal
judges struggle with the same sentencing that we have set down. In
light of Supreme Court decisions, we understand--I ask for order, Mr.
President.
The PRESIDING OFFICER. There was no response to begin with to the
Senator, so let's move forward.
Mr. DURBIN. Mr. President, I will say, as far as I am concerned, this
is a serious matter that should be taken seriously. You don't become an
expert by, 7 days ago, introducing a bill and saying: I have got it.
Don't change a word of it. Make it the law of the land. Make it apply
to every court in the land.
No. We are going to do this seriously. We are going to do it the
right way, and we are going to tackle an issue that has been avoided
for more than two decades, when you look at the history of it.
I find this reprehensible--the pornography, this exploitation of
children--and there are no excuses whatsoever, but I am not going to do
this in a slipshod, make-a-headline manner. We are going to do it in a
manner that is serious, one in which we work with prosecutors,
defenders, judges, and the Sentencing Commission, and get it right. It
is time to get it right.
We wrote this law some 19 years ago, before the internet was as
prevalent in society as it is today. Let us be mindful of that as we
attack this problem and address it in a fashion that is befitting the
Senate and the Senate Judiciary Committee.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. HAWLEY. Mr. President, the Senator from Illinois says that
Congress hasn't acted in two decades; that is true. I haven't been here
for two decades; he has.
There is no excuse to not take action now. There is no excuse to not
act on this problem when we know what the solution is.
So, listen, if the Senator is saying today, if he is committing
today, to holding hearings and marking up a bill to toughen the child
pornography laws, to make mandatory the sentencing guidelines, that is
fantastic. I will take him at his word. I look forward to seeing those
hearings noticed and to seeing that markup noticed, and I hope it will
be forthcoming.
I am here to make a prediction. I think we will be waiting a very
long time, because let's not forget what his party and the Sentencing
Commission, stacked with members of his party, have been recommending.
It has not been to make child sentences tougher--child pornography
sentences tougher. They have wanted to make them weaker.
What the Sentencing Commission has recommended, with its liberal
members for years now, is to make them weaker. That is what Judge
Jackson has advocated. She also wants to change the guidelines--to make
them weaker.
I think that is exactly the wrong move, and that is why the Senator
was here to block this effort today. He doesn't want there to be
tougher sentences. He doesn't want to talk about this issue. He wants
to sweep it under the rug. I am here to say I won't let that happen. I
will be here as long as it takes. I will be advocating for this in the
Senate Judiciary Committee as long as it takes, until we get justice
for the victims of child pornography and child exploitation.
I yield the floor.
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