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From New Yorker

From Vox

The Attica prison rebellion in 1971.

This is your first Oscar nomination after directing more than 25 films, and I know you’ve produced many more. What does this particular recognition mean to you? I know there are other accolades — you won the DGA (award for Outstanding Directorial Achievement in Documentary) — but an Oscar nomination … what does that mean to you?

Well, the Oscar was always the biggest. It’s just so special. I remember, as a kid, watching the Oscars with my mother and just being fascinated by all the gowns, the movie stars, that whole thing. It’s just really huge.

Just being nominated draws so much more attention to Attica and so many more people will see it. The Oscar nomination is like a stamp of approval. It’s really big for me personally, but it’s even bigger ’cause it means more people will now see the film.

Also, it isn’t as if one necessarily has to see it in the theater. People can pull it up on Showtime and YouTube. There’s more accessibility to the material you’re putting out there.

The accessibility of my films and all films has changed the industry, especially for documentaries. People who might not go to the movies to see a documentary call one up at any time and see it. They can say, “Hey, honey, we’re tired of watching people swing on webs — let’s try a doc.” And without costing them any money. They can watch the first five or 10 minutes and see if they wanna proceed.

A grainy black-and-white photo shows four men pulling a prison guard, who is on a low gurney. Courtesy of Showtime

Attica guard William Quinn is taken to safety by prisoners on September 9, 1971, after being assaulted near the beginning of the insurrection. Quinn died two days later due to his injuries.

I’d like to talk more about how the film begins, with the very first moments of the rebellion — including the violence done to (and care for) William Quinn, the only guard who died from injuries caused by the men incarcerated at the prison. And it tells us about the poor treatment that inspired the insurrection.

Having done a number of historical films, one of the hardest things to do is to tell what we call the backstory. Why did the prisoners rebel? What was happening in Attica? So many times, we kinda have to leave out that history because you gotta get to the story.

With Attica, we had this little historical segment that talked about the town of Attica, New York — and then [another in which] they talked about the mistreatment of the prisoners. We didn’t know where to put it. We actually tried to put the history unit first, and it was like, “I thought we were talking about a rebellion in the prison. Why are we talking about this town?”

Then we found this great piece where “L.D.” Barkley, one of the prisoners, is talking into the mic after the rebellion starts on the first day. And he says, well, you wanna know why we’re here? We’re here because of the mistreatment that we’ve been [subjected to] in the Attica prison. And it seemed the perfect way to go back in time. So we started the film, immediately, with the rebellion and that seemed to work. If the story of the rebellion was exciting enough that first day, you wouldn’t be sitting there wondering, “Well, why did they rebel?”

You’re a New Yorker, and I’ve lived in New York before for many years. The Attica prison and the rebellion were things that you heard about, that you knew about. But there are folks who just have no frame of reference whatsoever.

I think one of the things that we had to do with this film is it had to play to everybody. So that there were people like yourself who knew the broad outlines of Attica or [just] some of the details. There are people who don’t know anything about Attica. I mean, I can’t tell you the number of people, when we say “Attica,” they’re like, “Oh, so what’s that? Is it a type of dog? Is it a place? Is it a thing?” We had to make the film make sense to everybody and also hold everybody’s attention.

Yeah. And that’s the thing: It’s tough to know necessarily what everybody would want or need. Do you feel like there has been a change in how your films, including this one, are received as time has passed?

In a way, I think that Attica definitely has been received in a different way than it would have, like three or four years ago. Because of George Floyd, because of the protests against the police, because we’ve seen — over and over and over again — the police violence against people of color. The door is cracked open a little bit for people.

The people who are interviewed in Attica are all so incredibly convincing — from the prisoners to the news people, to the hostage families, to the observers, to the National Guard. You don’t doubt for one second that anything they tell you is the truth.

I’m interested in what you knew of the truth before. Can you describe what Attica signified to you and to other Black people in New York City well before the rebellion, particularly before the massacre happened?

I was 20 years old when Attica happened. I was old enough to remember it. It was like a thriller story: the prisoners had taken over this prison, what’s gonna happen? What’s gonna happen through five days? And then finally, devastating that it ended with such incredible violence that nobody thought it would end in. Nobody thought that they would just go in with guns blazing and kill [nearly] 40 people.

So, I think that for so many people, especially in New York, Attica came to symbolize the power law enforcement [has] and the willingness to use that power to put down any kind of rebellion in the most violent way. Attica became really a symbol of the power that is [in] rebelling: The power that the prisoners had to rebel, and then the power that the state would take, and the violence that the state was perpetrating on people who rebelled against it. Because there’s probably no one more powerless than prisoners in a penitentiary.

We didn’t know anything about Attica. It was an upstate prison, 250 miles from New York City. Unless you were involved in the prison system or you had a loved one in the prison system, nobody talked about it or thought about it.

I mean, that’s what prisons are made to do. That’s one reason why prisons are in the middle of nowhere. We don’t have to see it day-to-day and we don’t have to think about the prisoners and that’s what prisons are set up to do. So we don’t have to think about the prisoners and the fact that we’re incarcerating more than 2 million people. We don’t have to think about it.

What did you learn about the rebellion and the massacre during the process of filmmaking?

I learned, one, why the rebellion started. We never really understood why the rebellion started, how cruel and unusual the punishment was. Why they felt that they had to rebel. The vast majority of people never quite understood the ins and outs of why [New York Gov. Nelson] Rockefeller ordered them to go in and use deadly force. We learned that in the film, through interviews that we did. The phone calls [with President Nixon], which are just really shocking.

I knew about the incident, but I didn’t realize the political consequences for Rockefeller’s career that stemmed from that. I knew him as the vice president under President Ford. I had actually not really understood how this incident really helped embolden his power.

Propel him to go to be vice president, yeah.

You’ve spent a great deal of your career, Stanley, telling various stories about Black experiences. Profiles of people such as Madam C.J. Walker, Marcus Garvey, and the Freedom Riders. You’ve looked at tragedies like Tulsa, as well. How has making these films changed how you personally look at America, if at all?

I think that one of the things it’s done for me is it’s helped me to understand that — that America’s like a roller coaster ride, you know?

[laughs]

Sometimes up and sometimes down, on this back up and there’s down again. And a lot of times we, especially, as African Americans, wanna look at the idea of “up from slavery.” Slavery was the worst, and now, it’s upward progression into the light. But it is really a roller coaster ride. There’s times when [it’s] at the top and there’s times when it goes down to the bottom. But it stays at the top much longer as long as we push. That’s not only African Americans, but [all] people of color. As long as we push for change, at least we’ve got a chance. 

    <img alt=" " src="https://cdn.vox-

cdn.com/thumbor/uzIupAKOJg87JbTL5jQKamgc1yo=/800x0/filters:no_upscale()/cdn.vox- cdn.com/uploads/chorus_asset/file/23337900/Attica_0046_R.jpg" /> Courtesy of Showtime

Attica Correctional Facility in Attica, New York. During the 1971 rebellion, more than 1,000 prisoners controlled the central control facility, known as “Times Square,” among other areas.

As the documentary makes clear early on, the physical structure of Attica aided the insurrection in the first place. How did you make decisions about the film’s structure, the graphics that you use, archival footage, to illustrate points such as that most effectively?

You as an audience had to be aware of the physical structure of the prison. That you had to be aware of where you were in time. And then, we could really concentrate on the kind of roller coaster ride, which was every day, of Attica.

You had to understand that they were trapped in one yard in the prison and that there were guys with guns on the walls, trained down at them, for five days. And that the only thing that held [those guns] off was the fact that they had hostages.

And you needed to understand that every day was different. And so, we have a very simple five-day structure to most of the film. The exhilaration of the first day. The despair of the fourth and, then, the morning of the fifth day. We really wanted to have a framework so that you could understand that much easier.

How did all the technical expertise that you’ve acquired over the course of your career help audiences to comprehend a story like this in full?

We made the film during the time of Covid. So many of the archives were closed down and we just had to wait and keep calling. Find people’s home phone numbers, sometimes to call at home and see what we get. [We had] to be tenacious.

We made a couple decisions early. I made a number of films in the last few years without narration, and we thought that we could make this one without it. I think it kind of makes the audience see the film in a very different way. So we don’t have anybody, like the “voice of God,” telling you what to think.

We had thought that we would need historians to talk about it. We actually filmed one historian and cut together a couple of scenes, and he was great. But we realized that we didn’t need them. We would let the story all be told by people who were there.

And we realized early that we just wanted the music to kind of be a wind at the back of the story. We didn’t want the music to take over. That was really complicated because we had to really cut back on the drama, on how loud the music was. The story’s just so amazingly dramatic in and of itself, and we didn’t wanna send it overboard.

Some of the logistical challenges you alluded to with Covid, I mean … I’ve spent a lot of time digging through archival footage during my career. How much do you enjoy that particular part of the filmmaking process, if at all? ’Cause I know so many people don’t get to see that.

I love watching old film. Finding archival material and looking at old pictures. And I never knew that [before]. It wasn’t like I went into filmmaking, and made a bunch of historical films ’cause I was like, “Oh, I love looking at old films and seeing old pictures.” But I just really do. I love it. I love looking for the details.

Think [about] when the helicopters come in on the final day. They fly over and they’re gonna go into the prison. There’s a shot of the families outside and these three or four women, and they all look up.

I mean, it’s just as if you were directing a feature film. All those kinds of great things that just happened. There’s a woman with her head bowed and then the camera pans down and she’s praying, Her hands are together and she’s praying. It’s just like, “Oh, shit!” [laughs] “This is great stuff.”

It’s a matter of really loving the footage. And we really had to mine it and look at it over again.

I understand exactly what you mean. I was astonished by some of the stuff that you were able to find. I mean, the footage of the incarcerated men rolling out the injured guard, William Quinn, on a stretcher. I’m thinking, “Who was even filming at this point?”

That’s the shot. When I saw the first rough cut, when I saw that shot, I thought, “Now we’re in the prison. Let’s keep you there.” We’ve got something that’s special. It’s recognizing those shots.

Putting together a film is like putting together a puzzle without a picture of what it looks like when it’s completed, right? You just gotta figure out how it fits.

I would do jigsaw puzzles with my daughter. There’s a whole line of puzzles that are hand-cut, that don’t have a picture. They’re supposed to be impossible. You have no guide.

Talking about pictures, I’m reminded of the first image we talked about, of the naked prisoners held in the yard after the insurrection. It slaps everyone across the face.

What kind of urgency is there for you as time moves on to tell such stories while you can? And if so, how does that—

I mean, am I gonna die soon?

No, no, no, no, no. [laughs] I don’t mean it like that.

I’m not sure if there is urgency. You know, I’m truly honored to be able to tell the stories that I’ve been able to tell. I think that it’s really exciting because you know, there’s any number of stories to tell about the African American experience.

Given that, what are your thoughts about the government determining which parts of the African American experience that students can or cannot learn in school? And what parts of history are considered palatable?

[laughs] I think that it’s unbelievable. We have to really be conscious of what’s happening. Ten years ago, you wouldn’t have believed it if somebody told you what was gonna happen and what’s happening. We’re not gonna teach about the enslavement of African Americans because it makes somebody uncomfortable?

I just think that it’s really, really destructive, and it boils down to the cliché: If you don’t know your history, you’re doomed to repeat your mistakes. It’s an incredible step backward.

Criminologist Howard Zehr, the “grandfather of restorative justice,” began his work in the 1970s for two main reasons: The harsh, punitive, and counterproductive ways that the criminal justice system often responds to offenders and the growing anger that victims are often entirely shut out of the criminal justice process.

“We were really concerned that victims were not only being left out of the justice process, but they were re-traumatized by it. So we wanted to provide a better experience and more options for victims,” Zehr explained in an interview published by Eastern Mennonite University, where he founded the Center for Justice and Peacebuilding in 2015. “Accountability is understanding the harm you’ve caused and doing something to make it right.”

Restorative justice has spurred the development of private and public programs within schools and universities that seek to apply restorative justice principles to conflicts that arise within these institutions. Even more crucially, there are restorative justice programs that seek to replace or reform existing practices within the criminal justice system; state-sanctioned programs now exist in the vast majority of American states.

Restorative justice is not a fact-finding process and so it cannot in its current form replace the adversarial justice system, which seeks to determine whether the accused is guilty. Its role generally comes after someone’s guilt has already been determined, either through a plea agreement or a trial. Then comes sentencing.

The sentencing process generally follows this pattern: An offender is convicted of a crime, the judge sets a date for sentencing, and then the judge conducts a pre-sentence investigation to determine the appropriate sentence. According to the American Bar Association, this investigation “may consider the defendant’s prior criminal record, family situation, health, work record, and any other relevant factor.” In the vast majority of cases, the sentence is solely up to the judge.

Restorative justice programs in operation throughout the country — some of which explicitly label themselves as such and some of which are clearly influenced by its principles — seek to upend the post-conviction process. The programs are run by different groups, some by state and local governments and others by independent or even for-profit organizations. Participation in these programs varies, with some states allowing these programs to exist as alternatives only for certain crimes or certain offenders (e.g., juveniles). These programs are generally opt-in for offenders in qualifying cases, and so, the vast majority of offenders still go through the traditional sentencing process.

Rich Pedroncelli/AP

California state Sen. Steve Glazer discusses a state-funded restorative justice program during a news conference in Sacramento, California, in 2019. Glazer’s measure, SB 678, which was co-authored by Assemblymember Susan Eggman, left, created a pilot program where the victims of crimes can deal directly with their offenders.

According to research by Occidental College law professor Thalia González, as of July 2020, “The only states that have not codified restorative justice into criminal law are North Dakota, Rhode Island, South Dakota, South Carolina, and Wyoming.” (Restorative justice programs can be found outside the US too, from Canada to Ireland to Australia.)

Impact Justice, a criminal justice reform group, lays out a simple model for understanding restorative justice when it comes to criminal proceedings. Instead of asking what law was broken, who broke it, and what punishment is warranted — as our punitive system does — restorative justice asks who was harmed, what do they need, and whose obligation is it to meet those needs.

Typically, these programs involve what practitioners call a “conference” where the victim, offender, and community members (often friends or family of both parties) sit down. The offender will apologize or take responsibility for the harm they have caused and seek to make amends, and the victim is given the opportunity to ask questions and make clear all the ways the crime has impacted them and their community.

While these conferences vary widely, restorative justice facilitator sujatha baliga explained for Vox what session results can look like: “At the end of the process, which typically ends with one or more face-to-face sessions with the entire circle, a plan to meet the survivor’s self-identified needs is made by consensus of everyone present. The responsible person is supported by family and community to do right by those they’ve harmed. For example, if joining a sports team is a part of the responsible person’s plan to help them stay out of trouble after school, people in his circle agree to take him to practice, or pay for the enrollment fees.”

It’s notable that the majority of these programs are for juvenile offenders; Gonzalez found that 91 laws in 33 jurisdictions are related to restorative justice programs aimed at minors, while just 42 laws in 15 jurisdictions are related to adult offenders. While the research is mixed, there is good evidence that programs focused on minors have been found to reduce recidivism.

A 2017 meta-analysis of restorative justice programs, which looked at dozens of research projects and studies, found “a moderate reduction in future delinquent behavior relative to more traditional juvenile court processing.” The authors, however, were wary as to the reliability of these results since reductions were smaller for the “more credible random assignment studies.”

Encouragingly, one recently released paper looked at offenders ages 13 to 17 that were randomly assigned to either go through a restorative justice program or the traditional process. After six months, the former group was rearrested at a rate 19 percentage points fewer than those in a control group prosecuted in the ordinary juvenile justice system.

What restorative justice can — and cannot — do for victims

Restorative justice is perhaps overly optimistic about what it expects. It imagines a world where victims can be magnanimous about some of the most heinous transgressions, guilty offenders can be truly apologetic, and the broader community is positioned and able to help both parties.

According to University of New South Wales Sydney criminologist Julie Stubbs, there is disagreement over whether restorative justice programs actually prioritize victims. Participants cite high levels of satisfaction, but it’s unclear how much of this can be attributed specifically to the programs as opposed to selection effects (are the types of people ending up in restorative justice programs somehow different from people who aren’t?), the effects of time, or support from their communities. She also notes that satisfaction has been conceptualized and measured inconsistently, making it hard to be definitive about victims’ experiences.

Cymone Fuller, co-director of the Restorative Justice Project at Impact Justice, told Vox that victims often come to restorative justice conferences looking for answers: “They might be asking for very practical things like, ‘I want my car back,’ and then sometimes they really are looking for a fuller narrative for what happened to them.”

One study by Fuller’s organization of 100 cases that were diverted to a restorative justice program in Alameda County, California, found that 91 percent of the victim participants who completed the survey would be willing to participate in another conference, and the same percentage would recommend the process to a friend.

When asked about the role of forgiveness in these encounters, Fuller argues that “it’s so important to disentangle this assumption or this requirement that people assume it’s necessary for restorative justice to equal forgiveness. There is no expectation that at the end of this it becomes this huge moment of forgiveness.”

Matt Jonas/Digital First Media/Boulder Daily Camera via Getty Images
A letter written by a shoplifter is seen tacked to the wall at the Longmont Community Justice Partnership in Longmont, Colorado. The restorative justice program there includes apology letters from offenders.

There are some practical problems with seeking forgiveness within a criminal justice system, even one purporting to be “restorative.”

While there may be those among us who can forgive an unrepentant offender — if forgiveness is even the right word for such an act — for most of us, forgiveness requires a sincere apology. There isn’t extensive research on the question, but a set of interviews in 1999 with minors who went through a restorative justice program indicated that while 61 percent of offenders said they really were sorry, just 27 percent of their victims thought the offenders were sincerely apologetic.

This could be because in some restorative justice programs, facilitators require participants to apologize. Victims can feel as though the apology is only happening because the perpetrator is being prompted to give it, not because they truly feel contrition.

Even with a sincere apology, the coercive environment extends to the victim as well.

“Forgiving under government pressure is not really forgiveness, and it places further burdens on people already victimized,” former Harvard Law School dean Martha Minow wrote in her book When Should Law Forgive?

It’s uncomfortable not to accept someone’s apology, especially in front of other people. In most restorative justice settings, victims are not only in front of a facilitator but also the offender’s family or friends and members of their community. Some research has shown that in these communal conference situations, victims will say they forgive the offender simply to avoid the embarrassment of not doing so.

It is bad for victims to feel forced to accept their perpetrator’s apology in and of itself, but the larger concern is that it could lead to further abuse.

“There’s a danger about pressures to forgive, particularly on some victims more than others,” York University philosophy professor Alice MacLachlan cautions. It’s helpful to think about this in terms of intimate partner violence and the cycle of abuse, as that cycle includes reconciliation. Following a period of building tension, an incident will occur, perhaps physical violence, after which the perpetrator — overcome with guilt or simply scared that their partner will reveal the crime to the community or law enforcement — will attempt to reconcile. This reconciliation process often includes pleas for forgiveness and, if the victim relents, can bring the two closer together and lay the groundwork for continued abuse.

Restorative justice conferences could unwittingly play a role in this cycle of abuse by facilitating apologies and eliciting forgiveness, potentially laying the groundwork for further harm. As Stubbs writes, because “domestic violence is commonly recurrent” and the “threat of violence may be ongoing and not reducible to discrete incidents,” restorative justice programs that seek to find closure for a specific offense are inappropriately theorizing how this crime functions.

“I came to this whole work out of concern about mass violence, genocide, atrocities, and seeing cycles of violence,” Minow told the New Yorker’s Isaac Chotiner about her work on forgiveness in the criminal justice system. “And the cycles of violence are perpetuated by resentments because of the way the last cycle of violence was resolved. I fear that that’s where we are living right now, and that there are many justified resentments. And maybe some unjustified ones, but, because there’s a perception that some people are treated better than others, we are laying the seeds for further conflict.”

Forgiveness and power

At its root, forgiveness is about letting go of justified negative emotions and a desire for retribution. It is also about giving up a certain form of social power that victims hold.

Paul Marotta/Getty Images

Martha Minow at Harvard University in 2013.

“Expectations of forgiveness are raced and gendered,” Minow argued on the Brennan Center for Justice’s podcast. “They’re also about class. They’re about power, but that’s partly because forgiveness is one of the powers of the weak. To claim the ability to forgive — and let’s be clear, to not forgive — is to claim the position of equality and dignity. And that’s a power that we shouldn’t actually ever take away from people.”

Before forgiving, victims can try and gain necessary concessions from society or from offenders, but after, forgiveness implies that the victim has moved on and society has permission to do so as well. But a community getting over the impact of a specific crime without addressing the underlying systemic reasons why the wrong happened in the first place can just make things worse.

Put another way, with forgiveness, victims provide society a catharsis and relief from the tension of recognizing that a wrong must be rectified.

It’s therefore not surprising that there is a notable tension in left-leaning political spaces between calls for leniency and restorative justice for criminal offenses, and calls for punitive measures against sexual abusers as the Me Too movement gained traction.

Georgetown University philosophy professor Alisa Carse has seen her students’ reluctance to bring restorative justice programs to their college campus for the purpose of resolving sexual misconduct cases. “I was so surprised,” she told Vox. “But a lot of the students felt like it would convey that we think these crimes are less important.”

“We tend to think of forgiveness in very transactional, dyadic terms,” she adds, “but often it’s the broader community that’s playing a very important role both in bolstering the wronged party and in validating that what was done counted as a wrong.”

If that is lacking, Carse argues, and you have a culture that valorizes forgiveness, it leads to isolation of the wronged party — creating a “toxic” situation.

At first glance, it can seem like a simple case of hypocrisy: liberals that support less punitive measures for criminals who are unlikely to hurt them, but more punitive measures for criminals when they view themselves as more likely to be potential victims. But perhaps there’s more than that going on; it’s not difficult to see how sexual assault cases are distinct. Unlike a murder or a robbery where society regularly recognizes a clear victim and clear aggressor, in cases of sexual misconduct, society has so often shown indifference — shrugging at the problem, as if adjudicating “he said/she said” is only possible when sexual violence isn’t involved.

However, as baliga wrote for Vox in 2018, restorative justice has been shown to work in some sexual violence cases. In one promising example, baliga recounts a conference she helped facilitate between a young woman, Sofia, who had been assaulted by a classmate, Michael.

“Sofia’s transformation was breathtaking — she found her voice that day. And by the end of our time together, it felt like Michael had gained an understanding of consent. As we moved into creating a plan to repair the harm, Michael offered to clear up Sofia’s reputation by posting on social media a public apology to her, which included the words ‘she didn’t lie.’ Michael also agreed with Sofia’s request for him to spend a month of school at home to give Sofia space. Afterward, everyone except for Michael and Sofia hugged.”

Baliga writes that Sofia’s self-confidence returned to her in the weeks following the conference and that, following graduation, Michael wrote a research paper on sexual violence.

Restorative justice can, then, help restore both individuals to a community. But the expectations may be too high. In encouraging these interactions between offender and victim, restorative justice makes the potential for forgiveness much more real, which may play a part in why many victims of violent crime reject the idea of entering into a conference with their offender.

“If we’re going to think about forgiveness in terms of restorative justice, the only morally and politically careful way to do that is to recognize the legitimacy of the unforgiving victim,” MacLachlan told Vox. “Not forgiving is a legitimate response to being seriously harmed.”

Republicans turned the hearing into a blizzard of misleading attacks, many of which seem designed to appeal to QAnon supporters.

One day after Republican senators promised they wouldn’t levy personal attacks against Supreme Court nominee Ketanji Brown Jackson, several of them generated a storm of misleading — and often offensive — attacks against her.

On Monday, the first day of Jackson’s confirmation hearing, several Republicans complained about the way that Justice Brett Kavanaugh was treated prior to his confirmation, after Kavanaugh was credibly accused of sexually assaulting a woman while he was in high school.

Multiple Republican senators promised not to levy similarly “personal attacks” against Jackson. “No Republican senator is going to unleash an attack on your character when the hearing is almost over,” Sen. Lindsey Graham (R-SC) promised Jackson.

It’s not hard to guess what happened next. Tuesday, the first day of the hearing where senators on the Judiciary Committee could actually ask questions of Judge Jackson, included allegations from five Republican senators that Jackson is soft on child pornography offenders.

Before those misleading attacks kicked off in real force, Graham stormed out of the hearing after attacking Jackson for providing legal counsel to Guantanamo Bay detainees — and suggesting that by doing so, Jackson endangered national security. Two other Republican senators attacked the high school that one of Jackson’s daughters attends.

Sen. Ted Cruz (R-TX) spent much of his question time on Tuesday criticizing Georgetown Day School — Jackson is a member of this school’s board of trustees, and she told Cruz that she was drawn to the school because it was founded to provide a racially integrated education at a time when Washington, DC’s public schools were segregated.

Cruz attacked the school because, he said, it teaches books he finds objectionable by Boston University historian and National Book Award-winning author Ibram X. Kendi. Cruz also accused Jackson of being a proponent of critical race theory, an academic framework for examining how racism is embedded in America’s laws and institutions. He did this even though Jackson said that critical race theory has “never been something I’ve studied or relied on” as a judge.

The Republican Party tweeted a similar attack on Jackson shortly before Cruz brought up critical race theory at the hearing.

https://t.co/wYFmFNUepU pic.twitter.com/NGa6SgTxdY

— GOP (@GOP) March 22, 2022

The most inflammatory — and, sadly, the most predictable — allegation against Jackson was that she’s spent her career trying to protect sexual predators, and specifically child pornographers. Sen. Josh Hawley previewed this attack on Twitter last week, and at least four other senators, Cruz and Sens. Mike Lee (R-UT), Marsha Blackburn (R-TX), and Tom Cotton (R-AR), brought versions of it up on Monday or Tuesday. The broad strokes of this allegation are false, and the details of it rely on a mendacious reading of federal sentencing policy.

Hawley’s dishonest attack on Jackson, briefly explained

The gravamen of Hawley’s attack is that, in seven cases involving child pornography offenders, Jackson sentenced these offenders to less prison time than federal sentencing guidelines recommended. This allegation is narrowly truthful — Jackson did, indeed, sentence these offenders to a prison term below that recommended by the guidelines — but this is the ordinary practice within the federal judiciary.

The Federal Sentencing Guidelines are an advisory manual that recommend a sentencing range for various offenses to federal judges. But the consensus view among judges and sentencing policymakers is that these guidelines recommend sentences that are too harsh for “nonproduction” child pornography crimes — that is, crimes where the offender views or distributes child sexual abuse material but does not produce it.

According to a 2021 report by the US Sentencing Commission, “the majority (59.0%) of nonproduction child pornography offenders received a variance below the guideline range.” When judges do depart downward from the guidelines, they typically impose sentences that are more than 50 months lower than the minimum sentence recommended by the guidelines. Indeed, in a majority of the child pornography cases heard by Judge Jackson, the prosecution recommended a below-guidelines sentence.

It’s also worth noting that the guidelines are a blunt instrument that take only limited account of the particular circumstances of an individual offender’s actions. Before a criminal defendant is sentenced, probation officials recommend a sentence that is tailored to their specific circumstances. And Jackson handed down sentences that were at or above the probation office’s recommendations in five of the seven cases identified by Hawley.

Numerous independent fact-checkers examined this attack on Jackson and determined that it is bogus. The New York Times said Republicans are “distorting” Jackson’s record. The Associated Press said that Republicans “twist Ketanji Brown Jackson’s judicial record.” ABCNews warned of “a flurry of misleading allegations by Republican Sen. Josh Hawley.” Even the conservative National Review described the allegations against Jackson as a “smear” that “appears meritless to the point of demagoguery.”

Cruz and Hawley paid particular attention to one case — that of an 18-year-old Wesley Hawkins. Hawkins was still in high school when he committed his offense, which included sharing child abuse images and videos online and with an undercover detective. A psychological evaluation of Hawkins determined that “there is no indication that he is sexually interested in prepubescent children,” and that “his interest in watching teens engaged in homosexual activity was a way for him to explore his curiosity about homosexual activity and connect with his emotional peers.”

Although the guidelines recommended a minimum sentence of 97 months in prison for Hawkins, even the prosecution felt this was too harsh. Prosecutors recommended two years in prison for Hawkins, and Jackson sentenced him to three months of incarceration plus an additional 73 months of supervised release.

As Jackson explained during the hearing, all child pornography crimes are “heinous and egregious,” because the mere act of looking at such images helps create a market for content that can only be produced by abusing a child. But federal law requires judges to hand down a sentence that is “sufficient, but not greater than necessary” to punish a particular offender. And, in Hawkins’s case, the prosecution, the defense, probation officers, and ultimately Jackson all agreed that the guidelines’ recommended sentencing range was much too high.

Though these allegations are unlikely to derail Jackson’s confirmation — when crucial Sen. Joe Manchin (D-WV) was asked about Hawley’s attack on the judge Monday, Manchin responded by questioning Hawley’s credibility — the stakes here are very high.

For one thing, at least according to polling data, a simply astonishing percentage of Republicans believe or believed in conspiracy theories tying top Democrats to child sex trafficking — as much as half of all Donald Trump supporters, according to a 2020 poll. Last year, 15 percent of Americans said they believed Satan-worshiping pedophiles ran the country.

Perhaps progressives or media don’t see the QAnon signaling, or assume no-one buys it.
That is a mistake.
About half of Republicans believe Democratic leaders are engaged in child sex trafficking! Thats a huge constituency! 2/ https://t.co/Yd1fNp47AZ pic.twitter.com/yXmtYM5BbS

— Don Moynihan (@donmoyn) March 20, 2022

The false belief that top Democrats are in league with child abusers is the core of conspiracy theories such as QAnon or Pizzagate. These conspiracy theories have inspired violence in the past. In 2016, for example, a man with an assault rifle opened fire in a DC pizzeria because he falsely believed that Hillary Clinton and her former campaign chair John Podesta ran a child sexual abuse ring in the restaurant’s basement.

If Republicans succeed in derailing Jackson’s nomination with these kinds of allegations, that will teach the GOP that this kind of allegation works. It will teach them that the apparently quite large minority of Americans who believe in ridiculous conspiracy theories about Democrats and sex offenders are a powerful political force that can be tapped into.

But even if they don’t succeed, Republicans are tapping into the ugliest ideas that exist in American society. They’re throwing around allegations that rely on distorted versions of someone’s actions. And they’re doing so in the hopes of derailing the nomination of a judge with an entirely mainstream record.

If this works, things are likely to get much uglier very fast.

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