For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.

Senator Hawley is a bright guy, but if he ever handled a child-pornography case in the brief time he spent as a practicing lawyer before he sought public office, that is not apparent. Nor does it appear, from the admittedly sparse research that I’ve done, that child pornography was a priority of the Missouri Attorney General’s Office during Hawley’s two-year stint as AG.

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Hawley cites Jackson’s record as a judge and “policymaker.” The latter refers to her service on the U.S. Sentencing Commission, which advises Congress on sentencing issues and promulgates the federal sentencing guidelines — advisory standards that heavily influence but do not control sentencing. (Congress ultimately controls sentencing by setting statutory maximum and minimum penalties, and judges consult the guidelines in each case but are not required to follow them.) What has the senator especially exercised is Jackson’s support for eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography.

Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Undoubtedly, Jackson — a progressive who worked as a criminal-defense lawyer — is more sympathetic to criminals than I am. If I were a judge, I’m sure I’d impose at least marginally more severe sentences than she has. (Contrary to Hawley’s suggestion, however, she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.) But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.

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It’s not soft on porn to call for sensible line-drawing. Plenty of hard-nosed prosecutors and Republican-appointed judges have long believed that this mandatory minimum is too draconian. Moreover, judges and prosecutors generally need no convincing to enforce the harsher mandatory minimums that Congress has prescribed against hands-on child abusers and producers of child pornography. But the receipt and distribution sentencing provisions are so heavy-handed that judges and lawyers end up engaging in the unsavory practice of “fact-pleading” — i.e., ignoring facts that suggest the defendant was up to more than simple possession in order to avoid triggering the mandatory minimum. That is an abuse of process, but it allows for a reasonable sentence, which may well be a non-prison sentence, with the proviso that it could turn into prison if the offender recidivates.