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Ukrainian Forces Regain Control Of Town Near Kyiv; Senate Hearing For Supreme Court Nominee Ketanji Brown Jackson; Ketanji Brown Jackson Supreme Court Confirmation Hearing; More Than 3.5 Million Refugees Have Fled Ukraine; Ukrainian Gains Near Kyiv Threaten To Cut Off Russian Units. Aired 5-6p ET
Aired March 22, 2022 - 17:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[17:00:00]
PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: We've been listening to the question of Supreme Court nominee Ketanji Brown Jackson on Capitol Hill.
I'm Pamela Brown in for Jake Tapper. You can follow me on Twitter @pamelabrowncnn or tweet the show @theleadcnn. Our coverage continues now with Wolf Blitzer in THE SITUATION ROOM.
WOLF BLITZER, CNN HOST: Happening now, breaking news, large explosions in smoke over the Ukrainian capital of Kyiv as the country's forces fight to retake key territory from the invading Russian troops. But the southern city of Mariupol is quote, "reduced to ashes" in the words of the country's president.
We're also following the historic Senate confirmation hearing for Judge Ketanji Brown Jackson, the first African American woman nominated to the United States Supreme Court. Underway right now, she defends her record under intense questioning.
We want to welcome our viewers here in the United States and around the world. I'm Wolf Blitzer. You're in THE SITUATION ROOM.
UNIDENTIFIED MALE: This is CNN breaking news.
BLITZER: The key Ukrainian port city of Mariupol is facing brutal bombardment right now being attacked from the sea. Officials their estimate more than 90 percent of the sea city's infrastructure has now been destroyed from the relentless Russian assault.
CNN's Senior National Corresponden Alex Marquardt has the latest developments as Putin forces step up their attacks.
(BEGIN VIDEO TAPE)
ALEX MARQUARDT, CNN SENIOR NATIONAL SECURITY CORRESPONDENT (voice- over): The booms of Russian missiles landing near Ukraine second largest city Kharkiv, which has borne the brunt of so much of the Russian onslaught. But few places that felt the wrath of Russia like the port city of Mariupol now facing an attack coming not just from land, but from the water as well. Russian ships in the Sea of Azof now joining the relentless bombardment of this key city.
The deputy mayor estimating 90percent of the city's infrastructure is now destroyed.
SERGIE ORLOV, MARIUPOL DEPUTY MAYOR: The city does not receive any humanitarian aid cities without food, electricity, water, energy supply. Cities under continuous bombing, a lot of death, a lot of cry and a lot of awful war crimes.
MARQUARDT (voice-over): The Ukrainian military says this explosion at a Mariupol industrial compound was caused by a Russian attack as new satellite images show the city is crumbling, while Russian artillery units dig in around it.
PRES. VOLODYMYR ZELENSKYY, UKRAINE (through translator): Hard working on a city of Mariupol which is being destroyed by the occupiers and being reduced to ashes, but it will survive.
MARQUARDT (voice-over): In the capital Kyiv, loud explosions were heard after yet another curfew was imposed this time until Wednesday morning.
The Ukrainian Interior Ministry saying that air defenses destroyed a Russian missile. Russia now claims Ukraine was hiding weapons in that Kyiv shopping center that Russia had previously bombed. Ukraine denies the allegation. Local officials say at least eight people were killed.
The U.S. believes these brutal attacks signify an increasingly desperate Russian military that is struggling to resupply and is facing mounting casualties. Almost 10,000 Russian troops dead according to report in a Russian tabloid, which the Kremlin denied after the report was pulled down, the outlet claimed they were hacked.
Asked if Russian President Vladimir Putin has achieved his aims in Ukraine, Kremlin spokesman Dmitry Peskov told this to CNN.
DMITRY PESKOV, KREMLIN PRESS SECRETARY: Well, first of all, not yet. He hasn't issued yet and we're speaking about special military operation that is going on. And it is going on strictly in accordance with the plans and with purposes that were established beforehand.
MARQUARDT (voice-over): There are growing signs of Ukrainian troops on the offensive fighting to take back lost territory, pushing Russian forces back around Kyiv and claiming to have retaken the nearby town of Makariv. They're trying to do the same in the town of Izyum, which Russia has pummeled.
Ukraine soldier is also pushing towards her son near Crimea, which had been taken by Russian forces which are now being forced to reposition.
And while they struggle, U.S. and NATO officials are now warning that key Russian ally, Belarus, could soon send its forces into the war zone to help Vladimir Putin.
With the war raging on, Ukrainian president, Volodymyr Zelenskyy continues his outreach to world leaders. ZELENSKYY (through translator): This morning I spoke to His Holiness, Pope Francis, he said very important words. I understand that you longed for peace. I understand that you need to defend yourselves.
MARQUARDT (voice-over): Alex Marquardt, CNN at the State Department.
(END VIDEO TAPE)
BLITZER: Thank you, Alex.
There are also new signs of progress for Ukraine in this desperate fight against Putin's invasion. A counterattack in the north and west of Kyiv is now jeopardizing Russian attempts to encircle the capital city.
[17:05:06]
CNN Senior International Correspondent Fred Pleitgen is on the ground for us in Kyiv, the capital.
Fred, there was intense fighting, I understand, where you are today. Give us the latest.
FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes, certainly there was a lot more intense fighting here, Wolf, today than we've actually seen since the entire time that we've been here. And we saw some of that in Alex's report with those sirens that were going on. That was really a theme that we saw really here the entire day intermittently with those sirens going off. But then also those massive plumes of smoke.
And, you know, just to make that a little more specific, Wolf, a lot of that was happening on the northern outskirts of the Ukrainian capital of Kyiv, sort of to the northwest of there. And we were observing things going on. We see some of our screen right now as there were plumes of smoke coming up pretty much the entire time. And we could hear also a lot of outgoing artillery, outgoing rockets, also incoming, of course, as well.
And intermittently also, some pretty heavy firefights that were going on. So, all indications that we got, Wolf, is that while we're down here in this curfew, which possibly the Ukrainians might have used to move some military equipment round to try and start some sort of counter offensive, there really was an extreme battle going on that really engulfed the northern part of the city and, you know, smoke over the entire city for the better part of the day. It's impossible for us to ascertain what exactly is going on there.
The Ukrainian authorities, of course, understandably, not saying very much about it could be either the Russians trying to gain the upper hand, once again, trying to make another push. But it could also be, Wolf, the Ukrainians, launching a counter offensive to not only stop the Russians, but to also win some of that territory back, but certainly some pretty intense fighting. And you know, Wolf, the past couple of days that we've been around close to that area that we're seeing right here, we did see the Ukrainians also position additional rocket launchers in that area as well, Wolf.
BLITZER: And I understand, correct me if I'm wrong, there are some really significant growing signs, the Ukrainian military is making some significant gains, at least in some areas.
PLEITGEN: Yes.
BLITZER: Give us a little bit more about what you're learning.
PLEITGEN: Well, that's absolutely correct. And it's certainly something what Ukrainian say that it is a big deal, that they took back this town of Makariv, which is about 35 miles to the west of Kyiv. And you know, Makariv is one of those axes where the Russians are trying to encircle the Ukrainian capital. They're trying to do that via the North East and then also via the Northwest, that's sort of where Makariv is. And now that the Ukrainians have that back, they've essentially cut that off. They're not allowing the Russians to go around to the capital of Kyiv.
Makariv, and we're seeing some of the video there right now is we also in a strategic location because it's one of the main routes that goes towards the west of the country, which is of course, from where the Ukrainians get a lot of their supplies here for the capital city of Kyiv both military and then, of course, also supplies for civilian life here as well.
We can see there on the video right now that Makariv was apparently absolutely destroyed in the fighting that took place. A lot of the buildings destroyed. The Ukrainians are now saying it's fully under their control. Once again, they've raised the flag there.
And they're also saying that they want to start counter offensives in other locations as well. Of course, we know that the U.S. says that for Vladimir Putin, the main prize, if you will, is still Kyiv. And the Ukrainians are certainly saying they're not going to give that up without a massive fight. And it seems as though right now, they might have the Russians on the backfoot, Wolf.
BLITZER: We're seeing, Fred, as you know, the utter devastation inside the southern, the southern Ukrainian city of Mariupol, Russia now firing on the city from the sea. Can the city withstand this new battle tactic from the Russians?
PLEITGEN: Yes, you know, I think a lot of people have been extremely surprised how long Mariupol has already was stood up until now. You know, of course, it is encircled from pretty much all directions. And as you said, the Russians now firing at it from the sea as well.
And that's one of the things where we have to point out to our viewers that cannons on warships are absolutely devastating the shells (ph). And also in some cases, the rockets that are fired from warships are extremely large and caused a lot of damage.
So far, Mariupol the defense appears to continue to hold up. Certainly the city has not surrendered. As you know, there have been those humanitarian corridor where a lot of civilians have come out. But of course, apparently there are still a lot of civilians who are trapped there inside Mariupol.
The Russians certainly do appear to be making an attempt, a big attempt to try and get that city. It's obviously very strategic for them as they tried to link up their forces between the Donbass Republic's and Crimea, where some of their other forces are coming from.
It's interesting to see though, because Mariupol, for the general war that's going on, also has a major role. The Ukrainian Defense Minister he came out today and he said that the defense of Mariupol plays a massive role in the defense of the other -- of the entire country because of course it binds a lot of Russian forces that then can't join the fight elsewhere and obviously attack other locations that are still held by the Ukrainian army. So certainly, a key city, a strategic city, and one that apparently continues to hold up despite the fact that, of course, it's being pounded right now. And of course, also pretty much impossible for those defending that city to get any sort of reinforcements and any sort of resupplies as well, Wolf.
[17:10:29]
BLITZER: That pounding continues.
Fred Pleitgen, please be careful over there. Fred's in the Ukrainian capital of Kyiv. We will stay in very close touch with you.
There's more breaking news we're following. Up next, we'll go live to Ukraine for the latest on the growing refugee crisis. More than three and a half million people have now fled the Russian invasion.
(COMMERCIAL BREAK)
[17:15:08]
BLITZER: Breaking news, we're following the historic U.S. Supreme Court nomination hearings for Judge Kitanji Brown Jackson. Let's go live to the U.S. Senate right now where the question and answer session was underway. Senator Josh Hawley of Missouri, Republican, asking the questions.
SEN. JOSH HAWLEY (R-MO): -- international guidelines, right. I mean, the probation office doesn't issue sentencing guidelines, they're not public, they're not recommended all judges, the probation office provides advice to judges case by case usually in private, usually not available to the public. Is that right, Judge?
JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Not exactly, Senator. The probation office in criminal cases is assigned by the court to work with respect to the evaluation of cases. In every case consistent with Congress's requirements, the probation office prepares a presentence report in which they review all of the statutory factors concerning sentencing.
Congress has a statute for sentencing. It requires judges to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote various purposes of punishment. There are many purposes listed in the statute.
And the probation office is the arm of the court that does factual investigations in every criminal case, unless -- there are certain cases in which you can waive it, but the background is the probation offices assessment of the facts related to a particular sentence and a particular crime. And that the probation offices report when a court sentences, actually, in most cases becomes the findings of fact of the court. And so, the probation office appears just like the prosecution and the defense, the probation office has written a report and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant and sentence.
HAWLEY: Understood. So, they give the court counsel, understood.
However, they don't issue guidelines. They're not uniform. It is by its very nature a case-by-case inquiry, as you said, the report goes to the judge. As I understand it the presentencing report, I'm sorry, the probation reports are not public in all of the cases that we're talking about here. I'd love to see them if they are. But it's not as if there's one set of guidelines that are federal sentencing guidelines and then there's the probation guidelines, the probation officer is giving advice to the judge, it varies case-by-case.
JACKSON: Senator --
HAWLEY: But it's not the same.
JACKSON: Sorry, I thought you were done.
HAWLEY: That's right. Let me ask you about a specific case. I mean, let's talk about -- I listed the seven cases in which you had discretion and you did not follow the prosecutor's recommendation or the sentencing guidelines, but let's just talk about one of them because we've talked about some of them as a group.
Let's talk about United States versus Hawkins. I think that's when you probably remember from 2013, the defendant there was Wesley Hawkins. He was 18 years old at the time, he uploaded five video files of child pornography from his computer to YouTube. This is how the police got onto him. He then uploaded another 36 depictions of child porn and other lewd photos of children to his iCloud account.
When the police executed a search on his apartment on the premises, they found 17 videos on his laptop and 16 images of child pornography. All of them very graphic. Some of them involving very young children.
The 17 videos in particular, this is from the government sentencing memorandum in this case, just so we understand the facts. Here are some of the videos that the government charged then they recovered. There was a 24 and six -- 24 minutes six second video depicting a 12- year-old male committing a sexual act. I'm not going to read exactly what it was.
There was a one minute and 57 second minute video depicting an eight- year-old committing a sexual act. There was an 11 minute and 47 second video depicting an 11-year-old committing a sexual act and being raped by an adult male. There was a 15 minute and 19 second video depicting to 11-year-olds committing sexual acts. There was a seven minute and 51 second video depicting a 12-year-old committing a sexual act.
[17:20:01]
So as the government said, in this case, and I'm quoting now from the transcript of the sentencing, hearing 17 videos is a lot. And some of the videos, including the ones that are described in the statement of the offense, and I've just related some of them are very lengthy and include numerous images, numerous views, sometimes collages, sometimes multiple victims, you see the act in progress, the government goes on to describe some of these as saddle masochistic images.
So this is a tough case. This is one of those tough cases you were referencing earlier, you talked about this morning. So these cases are terrible, this is one of them. This is terrible stuff. This is not a good guy who's doing this stuff.
Guidelines recommendation in the case was 97 to 121 months. So if I'm doing my math right, that's up to 10 years. And in this case, the guidelines recommendation was essentially written by Congress because in the Protect Act of 2003 Congress specified what they wanted the range to be in these kinds of cases. And Congress also specified that they wanted the mandatory minimums to be.
I know you remember the Protect Act because you've talked about it, you've given lectures on it. And it was enacted, as I said, in 2003 was 84 to zero was the was the vote here in the Senate. The concern, the reason to Protect Act was put into place as the Senate was concerned over lenient sentences by judges and child porn cases, which is what you described, you said about it, there was an increasing perception on Capitol Hill and within DOJ that liberal judges were to blame for the downward pressure on federal sentences, and that legislation was necessary to rein them in. And that's you in 2011 describing this law.
So Congress has set the guidelines here, 84 enough in the Senate, I noticed the chairman voted for it as it a number of other members of this committee. So the Congress sets the range, essentially it's 97 months up to 10 years.
Now, the prosecutor in this case, this has been D.C., of course, you're on the federal district court, prosecutor in this case say a liberal administration, I think it's fair to say, this isn't state of Texas, see my colleague from Texas next to me here, prosecutor in this case, nevertheless, still asked for two full years in prison. You gave the defendant three months. Guidelines called for 10 years. Prosecutor wanted at least two, you gave him three months.
And when you did you need you made a number of arguments and statements in the record, I'd like to go through some of them, because I've read them all. And the first argument you made was that the federal guidelines that punished child porn offenders, the ones that Congress wrote, were and I'm quoting you now, "are in many ways outdated." That's your quote. And you went on to say about why you thought they were outdated. I'm going to quote you again, you say, and I quote, "I don't feel that it's appropriate to increase the penalty on the basis of the number of images or prepubescent victims," meaning little kids, "as the guidelines require because these circumstances exist in many cases, if not most, and don't signal and especially heinous or egregious child pornography offense," end quote.
I just want to ask you about that because I just have to tell you I'm having a hard time wrapping my head around it. We're talking about eight-year-olds, and nine-year-olds and 11-year-olds and 12-year-olds. He's got images of these, the government said added up to over 600 images, gobs of video footage of these children, that you say this does not signal a heinous or egregious child pornography offense.
Help me understand that. What word would you use if it's not heinous or egregious? How would you describe it?
JACKSON: Thank you, senator, for letting me address the concern that you've put forward based on the record that you've reviewed. As a judge who is mom and has been tasked with the responsibility of actually reviewing the evidence, the evidence that you would not describe in polite company. The evidence that you are pointing to discussing, addressing in this context is evidence that I have seen in my role as a judge, and it is heinous, it is egregious.
What a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include with the requirements that Congress has set forward.
[17:25:04]
Unwarranted sentencing disparities is something that the Sentencing Commission has been focused on for a long time in regard to child pornography offenses. All of the offenses are horrible. All of the offenses are egregious. But the guidelines, as you pointed out, are being departed from even with respect to the government's recommendation.
The government, in this case and others has asked for sentence that is substantially less than the guideline penalty. And so what I was discussing was that phenomenon, that the guidelines in this area are not doing the work of differentiating defendants as the government itself indicated in this very case. And so, that's what I was talking about.
But I want to assure you, Senator, that I take these cases very seriously, that these cases include the notion by many defendants that the folks at issue that the defendants themselves are collecting these images on the internet, there are terrible things that have happened but they're not involved, say the defendants, they're not focused on, you know, what is actually happening to the children. And so, part of my sentencings was about redirecting the defendant's attention. It's not just about how much time a person spends in prison, it's about understanding the harm of this behavior, it's about all of the other kinds of restraints that sex offenders are ordered rightly to live under at the end of the day.
The sentences in these cases include not only prison time but restraints on computer use, sometimes for decades, restraints on ability to go near children, sometimes for decades. All of these things judges consider in order to effect what Congress has required, which is a sentence that is sufficient but not greater than necessary --
HAWLEY: Let me just --
JACKSON: -- to promote the purposes of punishment.
HAWLEY: Yes. Well, let me just ask you about that last point, because you said this a couple of times, the sentences that Congress require. Congress one of the guidelines to be mandatory.
Congress wrote the guidelines in this case, they wanted them to be mandatory. They gave the courts factors to consider to choose between the sentencing range. Congress wanted you to choose between 97 and 121 months. That's what Congress wanted.
The Supreme Court in Booker said that the sentencing guidelines would be discretionary. So the Supreme Court gave you the discretion. But if we're talking about what Congress has wanted, Congress wanted them to be mandatory. My only point in raising that is just to say that you had discretion in these cases. And you use your discretion to choose the sentences that you did.
Let me ask you about some of the things though that you said, because you said this this morning and I appreciated it how you want to direct the defendants, you want to get them to own up to what they've done in these cases. I thought that was powerful and I thought it was right. But let me just ask you about what you said to this defendant. You said to this defendant, for whom you've sentenced to only three months in prison, that your collection -- I'm quoting you, "your collection at the time that you were caught was not actually as large as it seems."
Now, government felt the need to respond to you on the record, they said the government doesn't believe that it's appropriate to just disregard the number of images, that the number of images can be appropriate. And indeed in this case, the defendant has amassed an extremely large collection of child pornography. But you disregarded that.
You also told the defendant, you said this, this seems to be a case where you were fascinated by sexual images involving what were essentially your peers. And then you went on to say, the defendant was merely trying to satisfy his curiosity. Curiosity is your word. One more thing on this, same idea, you said you were viewing -- this as you to the defendant, you were viewing sex acts between children who were not much younger than you. And this whole discussion is about why you're only giving him three months.
Judge, he was 18. These kids are eight. I don't see in what sense they're peers. I've got a nine-year-old, a seven-year-old and a 16- month-old at home, and I live in fear that they will be exposed to, let alone exploited in this kind of material. I don't understand you saying to him that they're peers.
[17:30:00]
And that therefore, you are viewing sex acts between children who are not much younger than you. And that that's somehow a reason to only give him three months. Help me understand this.
JACKSON: Senator, I don't have the record of that entire case in front of me. What I recall with respect to that case, is that unlike the many other child pornography offenders that I'd seen as a judge, and that I was aware of in my work on the Sentencing Commission, this particular defendant had just graduated from high school. And some of perhaps not all when you were looking at the records, but some of the materials that he was looking at were older teenagers, were older victims.
And the point, Senator, is that you said before, the probation office is making recommendations, and they do so on a case by case basis. That is what Congress requires, that -- this is not done at the level of --
HAWLEY: You with the Russian judge? You admit that, right? I just want to be --
JACKSON: Senator, sentencing is a discretionary act of a judge. But it's not a numbers game. It's not -- I understand that Congress wanted the guidelines to be mandatory. The Supreme Court in 2005 determined that they couldn't be in an opinion by Justice Scalia determined that they couldn't be and Congress since then, has not come back to amend them or to change them or to make them mandatory again.
And so there is discretion at sentencing. And when you look at the sentencing statutes, Congress has given the judges not only the discretion to make the decision, but require judges to do so on an individualized basis, taking into account not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims, all of these factors are taken into account.
And the probation office assists the court in determining what sentence is sufficient but not greater than necessary. And I appreciate Senator, Senator, that you have looked at these from the standpoint of statistics, that you're questioning whether or not I take them seriously, or I have some reason to handle them in either a different way than my peers or a different way than other cases.
And I assure you that I do not, that if you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges, in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do, attempting to take into account all of the relevant factors and do justice individually in each case,
HAWLEY: Well, let's keep talking about this case. You also said to this individual who isn't adult, try it as an adult, 18 years old, you also said to him, besides saying that you thought his victims were his peers. You also said there's no reason to think that you are a pedophile.
And then you went on to say, again, that's another reason why you weren't going to give him -- you're only going to give him three months because you had a judge that he wasn't a pedophile. And then you said and this is something I'd I really need your help understanding, then you apologize to him.
And I just have to tell you, I can't quite figure this out. He said to him, this is a truly difficult situation. I appreciate that your family's in the audience. I feel so sorry for them. And for you. And for the anguish this has caused all of you. I feel terrible about the collateral consequences of this conviction. And then you go on to say sex offenders are truly shunned in our society.
I'm just trying to figure out judge, is he the victim, here are the victims, the victims? You're saying that you are -- you're apologizing to him. You're saying you're sorry for the anguish This has caused him? There was a victim impact statement in this case. It didn't get read into the record, but it was there. I've described the videos that we have you say earlier in the case you talk about how heinous these crimes are and you describe them to your credit.
[17:35:05]
You describe how heinous it is to your credit, and yet, here you are giving him three months, and apologizing to him and saying you feel sorry for the anguish it's caused him, and also saying you think that sex offenders are truly shunned in our society? So just talk about that helped me understand, I mean, is he a victim? Is that your view here? Is that what you said this? Is that what you meant by?
JACKSON: Senator I, again, don't have the entire record. I remember, in that particular case, I considered it to be unusual, in part for the reasons that I described. I remember in that case, that defense counsel was arguing for probation, in part, because he argued that here we had a very young man just graduated from high school, he presented all of his diplomas and certificates and the things that he had done, and argued, consistent with what I was seeing in the record, that this particular defendant had gotten into this in a way that was I thought inconsistent with some of the other cases that I had seen.
Part of what a judge is doing, as required by Congress is thinking about this case, thinking about unwarranted sentencing disparities, that's in the statute. Other cases, other determinations that a judge may have made about this, I don't remember in detail this particular case, but I do recall it being unusual.
And so my only point to you is that judges are doing the work of assessing in each case, a number of factors that are set forward by Congress, all against the backdrop of heinous criminal behavior. But the guidelines are no longer mandatory. Congress has not corrected as you would say, the Supreme Court's determination about that Justice Scalia's decision, that the guidelines are not mandatory. Congress has not said that. And Congress has given judges factors to consider.
This, in my view was an unusual case that had a number of factors that the defendant was pointing out, that the government was pointing out, that the probation office was pointing out, and I sent this 18-year- old to three months in federal prison, under circumstances that were presented in this case, because I wanted him to understand that what he had done was harmful, that what he had done was unlawful, that what he had done violated the law and needed to be punished not only by prison, but also by all of the other things that the law requires of a judge who is sentencing in this area.
HAWLEY: But Judge with all due respect, and I'm -- I tell you what, I'll be directed to you. I am questioning your discretion, your judgment, that's exactly what I'm doing. I'm not questioning you as a person. I'm not questioning your excellence as a judge, frankly, but you said it, you had discretion. And I that's exactly what I'm doing. I'm questioning how you used your discretion in these cases.
And to me to take a guy who's 18 years old, who has what the government says is an extremely large collection of prepubescent pornography, eight year olds, 10 year olds, 11 year olds, we're talking about, I mean, gobs of hours of time here that he has. And you say to him, what that you say that? Well, you know, it was just a collection. I mean, he was just viewing it. And it was, you know, essentially they were his peers. You say to him that he's not a pedophile. I don't know how you know that. I don't know why that's relevant to the guidelines, but maybe it is you say he's not a pedophile.
You say that you're very sorry for him and what he suffered, and then you give him three months when frankly, a liberal prosecutor is asking for two full years. I mean, it does seem like an extraordinary case to me. It would bother me no matter what, it really bothers me when in every case child porn case you've had, you've had discretion. You've sentence below the guidelines and below the government's recommendation, and saying that sex offenders are truly shunned in our society, as you said to him
It reminds me, it echoes what you said as early as law school on that Harvard Law Review article Senator Blumenthal was just talking about out there you say and I'm quoting you now, in the current climate of fear, hatred and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments regarding these sex criminals.
[17:40:16]
I guess like this, the enactment here the Protect Act that Congress enacted. So I want to I want to try to understand here, is it your view that society is too hard on sex offenders? You say they truly are shunned in society. You wrote that many of these laws are products of a climate of fear, hatred and revenge. So just is that -- is that still your view? I mean, do you think that these laws are too tough that were too tough on sex offenders? Explain what you meant in this case in 2013, and it seems to be the same thing you said many years ago? JACKSON: Senator, it's not the same thing I said many years ago, many years ago as a law school student. I was evaluating a new set of legislation, state laws about registration, and I was analyzing them, as law students do wasn't about the sex crime. It was about the characterization of the law. Is it a punitive law? Is it a prescriptive law? And how would a court go about determining that, that was the frame that I used then. It could have been about anything. It was about the characterization of legislation.
HAWLEY: But could it just -- I don't -- I'm sorry, I don't mean to interrupt you. I've only got two and a half minutes left, but I just want to make sure I understand this. This is I'm quoting from your conclusion. Now, this is on page 1732, 1728 of the Harvard Law Review, this is your conclusion. In the current climate of fear, hatred and revenge associated with the release of convicted sex criminals, courts need to be especially attentive to legislative enactments.
So you -- that's a conclusory statement. You're saying that there is a climate of fear, hatred and revenge that are informing these laws. And you describe some of the laws earlier I think Megan's Law and others. Senator Cruz asked you about some of those. I just -- I'm trying to stay on what you meant by that, because you're saying something similar in the Hawkins case, you're saying that society truly shuns our sex offenders.
JACKSON: Senator, with all due respect, my article is now in the record, people can read it, and they can see that I was evaluating these laws not to determine their constitutionality, not to say that they shouldn't be enacted, but to talk about the ways in which courts make determinations about the character of the law and all of the consequences that follow from them.
In law school, I had not had any experience in terms of the criminal justice system, and I was doing what law students do, which is seeking to analyze in a creative way new legislation.
With respect to Mr. Hawkins, I was doing what judges do, which is look at the statute 18 USC 3553, exercise discretion, as Congress has required us to do take into account all of the various aspects of a particular case and make a determination consistent with my authority, my judgment, and understanding fully be egregious nature of the crime.
As you said, even the prosecutors in these cases are not recommending guidelines sentences. The probation office, which is an independent authority, looking at these cases, and the facts related to them, are not recommending guidelines sentences.
This is a particular area where the commission has seen an enormous amount of disparity, and is in fact asked Congress to come back and address to help judges who are looking at these cases, to be able to rely on the guidelines.
HAWLEY: Which Congress has declined to do?
JACKSON: Senator in that case, we have the statute that Congress has enacted concerning penalties. And we have judges who are doing their level best to make sure that people are held accountable as they need to be in our society in a fair and just way.
HAWLEY: Mr. Chairman, my time has expired. I have -- thank you Judge. I have no further questions at this time.
[17:45:04]
SEN. DICK DURBIN (D-IL) CHAIRMAN, JUDICIARY COMMITTEE: Just checking with my staff. So the original statute was passed in 2003. The Scalia decision 2005, the Booker decision?
JACKSON: So the original statute that I'm talking about, I'm just thinking it was I felt like it was in the 80s.
DURBIN: We think --
JACKSON: In 2003, I'm --
DURBIN: 2003.
JACKSON: All right. And then --
DURBIN: And decision by --
JACKSON: Justice Scalia, the Booker decision made the guidelines advisory, so that even though judges have to calculate them, they are no longer binding. And what it meant in the statute is that the guidelines became one factor among many that judges consider at sentencing.
DURBIN: I'm not going to opine on Justice Scalia and his conduct and decision as it relates to the overall topic. I hope we all agree that we want to do everything in our power reasonably within our power to lessen the incidence of pornography and exploitation of children. You have made that clear, that is your position, too.
But I just want to tell you, Congress has doesn't have clean hands in this conversation. We haven't touched this now for 15, 16 or 17 years. And this -- you aren't the only one who faced this kind of challenge with the cases before you.
I said this morning and it bears repeating, in the United States versus Klotz (ph), Trump appointed Judge Sarah Pitlyk, Hawley's choice, Senator Hawley's choice for the Eastern District of Missouri sentence than individual convicted of possession of child pornography to only 16 months well below the 135 to 168 month sentence recommended by the guidelines.
HAWLEY: Mr. Chairman, you've missed --
DURBIN: Let me finish it. I'll finish and then of course I'll recognize you. Senator Hawley, you've said some very powerful things in support of this judge. But clearly, she faced a situation where she decided she would not follow the guidelines, and took a sentence of less than half of what they recommended.
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 for that, Senator.
HAWLEY: I just wanted to say, Chairman Durbin, since you've mentioned Judge Pitlyk, in the Klotz (ph) case, she followed the prosecutors recommendation in that case. My -- As I've said over and over part of my concern with Judge Jackson is that she has not followed the prosecutor's sentences. She didn't in the Hawkins case we're just talking about or the guidelines. And I'm happy -- we have a policy debate about whether or not the guidelines are too lenient. I would argue in this era of exploding child pornography. They're not too lenient at all. I think you were right the first time when you voted in 2003 to make them tougher.
DURBIN: I will just say that. I don't know if you've sponsored a bill to change this. I'll be looking for it. But I will tell you that there isn't a long line of people waiting to co-sponsor this controversial issue. We -- If we're going to tackle it, we should but we should concede in the meantime that we've left judges in the lurch in many of these situations. There is no clarity in this situation.
And I think to hold this judge responsible for the overall situation is to ignore our nonfeasance malfeasance, whatever it might be, and lack of responsibility in dealing with this.
Senator Hirono.
SEN. MAZIE HIRONO (D-HI): Thank you, Mr. Chairman. Judge Jackson --
BLITZER: All right. Let's assess what's going on right now. We while -- we've all been watching the Supreme Court confirmation hearing for Judge Katanji Brown Jackson, let's get some immediate analysis. Our chief legal analyst Jeffrey Toobin is with us, our senior political correspondent, Abby Phillip is with us, the anchor of insight politics Sunday. So Jeffrey, what's your reaction to this exchange? Republican senator Josh Hawley trying to paint judge Jackson as somehow sympathetic to child porn offenders.
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I mean, this was really extraordinary. You have a judge here who's been on the bench for 10 years almost. And we had the entire half hour of Senator Hawley's question about a single case where he got to recite the grisly details of and say pedophilia over and over again. This is about appealing to the QAnon audience, this cult that is a big presence in Republican Party politics now that is -- where Senator Hawley is trying to ingratiate himself with that group and run for president with their support.
This has very little to do with Judge Jackson, who as has come out throughout the hearing today is one of many judges who have found the sentencing guidelines in these child porn possession cases excessive but I mean that was really an extraordinary half hour all about a single case.
[17:50:09]
BLITZER: Abby, what's your reaction to Senator Hawley's questioning of Judge Jackson on this one case?
ABBY PHILLIP, CNN SENRIO POLITICAL CORRESPONDENT: Yes, I mean, I think first of all, Jeffrey is absolutely right that this is definitely a dog whistle to the kind of QAnon right. And the substance of the argument, as has been explained, many times don't really check out. But it -- but interesting to me that this, she's addressed this now by this point of the day multiple times. And it's been actually an opportunity for her to explain an element of her resume that makes her actually quite unusual. She has been a trial court judge and has had to be in a position to make some of these very tough decisions. And that is actually a qualification that even among the, you know, the justices currently on the Supreme Court. She would be only in the company of Sonia Sotomayor in that respect.
And so it does give her an opportunity to do something that I think that her supporters believe, makes her an asset. She has a lot of experience as a judge in a lot of different areas. She understands a lot of different aspects of the criminal justice system. And that was very much on display.
The fact that Senator Hawley's spent a lot of time on this singular case was probably to no effect. I don't think it really changes the dynamic of her nomination. And in fact, in all of the questioning that came before it, she had a lot of opportunities to talk about some other cases that Senator Hawley didn't mention in which she did follow, for example, the prosecutors guidelines and other cases as well.
BLITZER: Overall, Jeffrey, how has Judge Jackson handled today's first round of questioning? Well, I can't
TOOBIN: Well, I can imagine that any votes were changed, and that's good news for the judge because in a democratic majority, I'll be at a liberal -- a narrow one she is heading for confirmation. What struck me was how her language in talking about her methodology to interpret the Constitution was often the language of conservatives. She talked about the limited role of federal judges staying in her lane. She even said several times that she believed in looking at the original intent of the framers of the Constitution.
This is language that's very much associated with Justice Scalia, with Justice Thomas, and I will be curious to see if there are some Democrats who are a little startled by that.
BLITZER: Jeffrey Toobin, Abby Phillip, guys, thank you very, very much. There's others were following as well. According to the United Nations, more than three and a half million people have now fled Ukraine since the start of Russia's unprovoked invasion, many of them travelling to neighboring Poland. CNN's Melissa Bell joins us now from the Polish-Ukrainian border.
Melissa, so what are you hearing from the refugees at the border today?
MELISSA BELL, CNN CORRESPONDENT: Stories of their escape from so many of these besieged towns that we've been following over the course the last few days. People even at this late hour and this after 10:00 p.m. local continue to arrive.
Again, Wolf, as we've been saying these last few days, women and their children, the couple of suitcases that they can carry, often, also a pet, whatever they've been able to grab as they leave and of course, the extraordinary stories of the trauma that they carry with them of what they left behind. They're fighting aged men that continue to wage that war. And to try and defend Ukraine.
I just want to show you how we'll organize this medical crossing where they cross on foot is. There's an area for their pets to be fed as they arrive. Tents have been set up all along, or this walkway where they arrive to try and give them comfort, to try and give the children a bit of candy, a bit of a soft toy, something to say welcome to Poland, extraordinary scenes, more than 2.1 million people that have now crossed this particular border.
And it is of course Poland that has received the lion's share of those coming in 10 million displaced within the country, three and a half million that have sought to flee altogether. It is on this country that that tremendous strain of welcoming an extraordinarily vulnerable group of people since by definition, we're talking about women with their small children that are arriving with absolutely nothing.
And I'll just show you the border crossing itself from where even at this late hour, Wolf, they continue to arrive. That is where they come carrying very little their trauma, their child, their pet and a suitcase and it continues even tonight, after nearly a month of war, Wolf.
BLITZER: Yes, you got to give the Polish people so much credit, to people in the other neighboring countries as well for accepting these millions of Ukrainian refugees. Melissa Bella the Polish-Ukrainian border for us. Thank you very much.
And for information about how you can help humanitarian efforts in Ukraine go to cnn.com/impact and help Impact Your World.
Meanwhile, Ukrainian forces and our fighting to take back key territory from the invading Russian troops.
[17:55:03]
Let's get the latest from CNN's Brian Todd and CNN military analyst retired Army Major General Spider Marks. Brian, set the scene for us.
BRIAN TODD, CNN CORRESPONDENT: Right, Wolf, day 27 of this war, day 28 if you're in Ukraine and the indications we're getting from Pentagon officials today is that Ukrainian forces are going more on the offensive.
Now, General, what were told by Ukrainian and U.S. officials of the Ukrainians at least claiming to have captured the city of Makariv about 40 miles west of Kyiv. Russians have suffered setbacks in the north and west. What does all this do for the battle of the capital city? MAJ. GEN. JAMES MARKS (RET.), CNN MILITARY ANALYST: Well, when you look at this map, let me take a couple of liberties here. When you look at this map, you see that they have this exposed flank, which means the Ukrainians have come in and have secured the city of Makariv. That's good news.
What it means for the Russians is right now they have this exposed flank. They have to worry about Ukrainian units in this location that could potentially provide some great resistance along that flank. It really exposes them. And then when you look at this over here, obviously, the Ukrainians are achieving some great success --
TODD: Engaging over in the --
MARKS: Absolutely.
TODD: Let's look at some of the video for Makariv posted by Ukrainian regional police. They toured Makariv after they apparently captured it yesterday. And look, it's a decimated city. No one is there. It's completely abandoned. What does that tell you? Do you think the Russians abandoned it? Were they driven out?
MARKS: Well, you really don't know. But if you were to look at the map, again, if we can go back to this.
TODD: Absolutely.
MARKS: I don't think that the Russians would have abandoned that.
TODD: OK.
MARKS: Because of that very reason, and that they would have been exposed. So clearly what has happened if that city fell, it fell as a result of the Ukrainian efforts.
TODD: I want to ask you about the Russian generals that we've been talking about, according to the Ukrainians, U.S. officials not verifying this. They've killed five Russian generals in about three and a half weeks of combat. To me, General, that is a staggering number of generals being killed. What do you make of that?
MARKS: It's staggering. And it also demonstrates one major issue that this Russian military has, it's called command and control. The only reason that five generals would be killed is because they have to expose themselves to go get information to achieve situational awareness. They're at the rear, so to speak, they get no communications that's coming their way. All their tactical communications have been jammed. Their cell phones are not working. They've got to get out of their vehicles go forward to find out what's going on. It makes them very vulnerable.
TODD: And possibly picked off by snipers --
MARKS: You bet.
TODD: All right, Wolf, that's it for this segment. Again, Ukrainian forces going on the offensive making some gains. Russian suffering setbacks, especially north and west of the capital city.
BLITZER: Brian Todd, thank you very much. Retired Army Major General Spider Marks, thanks to you as well. The Breaking News continues next year in the Situation Room. We'll go live to Kyiv where we've just seen some fresh explosions. Plus, the latest on Ukrainian efforts to retake key territory from the invading Russian force.
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