Recently, Senator Josh Hawley said that judge Ketanji Brown Jackson is indulgent of “sex offenders” who “prey on children”. Senator Josh Hawley wants a legitimate inquiry into her sentencing practices across the board.
What is the case about?
Child pornography is one of the worse and at the same time very sensitive issues. The frustration with the federal sentencing guidelines in these cases is intense and bipartisan. It has emerged from the hearings that, in most cases, judges depart from the guidelines.
As it has been shown with respect to the seven specific cases Senator Hawley cited, and as was illuminated by the senator’s very civil and fair questioning of Judge Jackson during the Supreme Court confirmation hearing late Tuesday afternoon, it is common for the prosecutors to recommend a sentence below the guidelines range, so it should hardly be surprising that the judge would do so.
What did Senator Ted Cruz say?
In fact, it has been quite remarkable, to hear Republican senators — Senator Ted Cruz most recently — express bewilderment during the hearing that a judge would impose a sentence more lenient than what the prosecutor recommended.
The judge is not a rubber stamp for the prosecutor. The judge is in the middle of the government and the defendant. It makes no more sense to ridicule a judge for sentencing below the prosecutor’s recommendation than it would do for sentencing above the defendant’s recommendation.
It is very common for federal judges to impose sentences that are more convenient than what the U.S. attorney recommends. A more objective measure might be to compare the judge’s sentence to the report prepared by the Probation Office, which is an arm of the court. In the child-porn cases cited by Hawley, it has been noted that most of the time, Judge Jackson has always been fair to the victims and the defenders.
What happened in the Supreme Court?
While she was sentencing the individual, Hawley said, Jackson apologized to him and his family for the pain the sentence would cause. “Is he the victim here or are the victims the victims?” Hawley later added.
Jackson also said, according to Hawley, that the man’s porn collection “was not actually as large as it seems” and that he was “fascinated by sexual images involving what was essentially your peers.”
“Judge, he was 18, these kids are eight. I don’t see in what sense they’re peers,” Hawley said. Jackson defended her decision on that sentence. Here is the most consequential point. Because Senator Hawley and now Senator Cruz have put so much emphasis on child pornography, Republicans have obscured the fact that Judge Jackson’s testimony effectively guts the sentencing guidelines.
What have senators said about Jackson?
When senators pointed out that Jackson was sentenced below the guidelines in various places, she insisted that guidelines are just one factor in sentencing. Congress, she maintains, has instructed judges to consider other factors (principally in Section 3553 of the penal code), particularly characteristics of the defendant.
Jackson told Hawley during his questioning that judges are supposed to assess, regardless of the guidelines, what would be the least severe sentence that would be consistent with the statutory objectives of federal sentencing. That is a skewed reading of the sentencing statute.
Section 3553 directs the court to consider the guidelines, and what Jackson is portraying as other factors are actually factors that the guidelines take into account. Indeed, the guidelines embody the objectives of federal sentencing, and every guidelines sentence includes a calculation of offender characteristics (that is half of the equation, which is combined with factors about the offence to arrive at a sentencing range).
What has Jackson said?
Yet, what Jackson continues to claim is that after the judge considers the guidelines’ calculation, which has already factored in the defendant’s characteristics, the judge should then look at the defendant’s characteristics a second time, independent of the guidelines calculation, for the purpose of rationalizing a sentence different from — and invariably below — the guidelines range. By that theory, we are to believe, the statute that enables the guidelines and directs judges to apply the guidelines nevertheless cancels out the guidelines.
More views on the case
That is not very convincing. It might thus have been worthwhile if, rather than child-porn tunnel vision, Republicans had compared all of Jackson’s sentences to the guidelines calculations in those cases.
If she routinely comes in materially under the guidelines, and she has developed a theory for not following the guidelines, that would be a meaningful strike against her. It would undermine her claim to be a judge who has followed the law and can be depended on to follow the law on the high court.
Some say, Instead of making this case, committee Republicans have buried it under provocative claims about child pornography. Hopefully, they can still unearth it. Let’s toast to making good on missed opportunities.