Note: at DoingFedTime, we are not Republicans or Democrats. We think both sides are incredibly corrupt and the equivalent of two different sides of a coin. It’s still just a quarter. We disagree with some of the positions in this article (such as the fact that child sex offenders are given to much time). We point out the reason for this in the last paragraph. We like to provide two sides to every topic, when possible, as that different view we feel is essential.
Judge Ketanji Brown Jackson experienced hours listening to arguments stated by the power at last week’s Senate Judiciary Committee hearing on her candidacy to a Supreme Court seat.
But for federal convicts, there are three takeaways worth remembering:
First, the Republicans want to pound on the Democrats in this year’s mid-term elections as being soft on crime. No shock there. I suggest they go into a local federal prison and spend a few months there to see what it’s actually like. We both know that will not happen, though.
Senate GOP leaders indicated in February that they’d evaluate Jackson’s activities as a former public defender, member of the Sentencing Commission, and a district judge. But with an upsurge in crime making headlines this year, the Republican approach ultimately solidified around branding Jackson as soft on crime.
At one point, Senator Tom Cotton (R-Ark) attacked Jackson for granting compassionate release to a crack defendant who a mandatory minimum had pummeled. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”
Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post supported Jackson’s sentencing read as mainstream. In the conservative National Review, Andrew McCarthy, a former federal prosecutor, termed Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s opinions on this topic are not simply mainstream; they are correct, in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”
This, of course, is total nonsense. Not all judges hand out the “low end” of a sentence. To say they do is an outright lie.
Judge Jackson: Additional views
The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post wrote. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”
It shows that either says will change their opinion or stance on any given topic when it suits them. Resulting in the casual playing of people’s lives to further their political images. We are talking about potentially years in prison that are added to one’s sentence so a politician (democrat or republican) can look good or sound right.
For anyone interested in serious criminal justice reform from this Congress, that’s terrible news.
Second, Jackson has the credentials and history of being a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ authors and was the Supreme Court’s dean of criminal sentencing. Jackson has a long time as a district court judge (nearly eight years) than Justice Sonia Sotomayor (6 years) (6 years).
None of the other seven Justices was served a day on the trial bench.
And no one on the Supreme Court other than Jackson was ever a public defender, while at least two are former prosecutors.
On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.
She responded to assaults on her below-Guidelines child porn penalties in a way that provides an insight into her sentencing philosophy:
“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That code doesn’t state inflict the heaviest possible sentence for this terrible and atrocious crime… [Instead] the statute says [to] compute the guidelines but also look at other factors of this offense and impose a sentence that is ‘sufficient but not larger than necessary to promote the purposes of punishment’.”
In a 2014 case involving a defendant caught with 1,500 child pornography photographs on his computer, Northern District of Ohio federal Judge James Gwin asked the jurors what they felt a suitable sentence would be. They proposed a prison term of 14 months — significantly shorter than the 5-year mandatory minimum, the 20 years asked by prosecutors, and the 27 years recommended by the Guidelines. Gwin took the jurors’ judgment to heart and sentenced the defendant to the 5-year obligatory minimum.
Reason magazine noted that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to indicate that the concept that the sentencing guidelines are in sync with cultural mores about what constitutes adequate punishment—that’s baloney’.”
Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”
Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he acknowledged Congress was partly to fault for the antiquated guidelines. “We have failed in responding to the changing circumstances,” he added, noting that at least 15 years had elapsed since the body revised the child pornography guidelines. “We should be doing our job here.”
That said, child porn is not a victimless crime. The exploited child is exploited every time the material is watched by the individual who derives sexual gratification from it. Therefore, even though the lawmakers (some of them) and decision-makers (judges) think that people are given too much time for such a crime, I think we forget the people that matter. The victims. I wonder if they would state that the “prison term is to low” for someone who watched them get molested, raped, or brutalized.
I doubt it.
Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)
Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)
Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)
National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)
Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)
Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)