Ketanji Brown Jackson Was Right To Use Discretion On Sentences. Why Didn’t Democrats Defend It?

Throughout four days of confirmation hearings for Supreme Court nominee Ketanji Brown Jackson, Republican lawmakers baselessly accused her of being soft on child pornography.

This line of attack was no surprise: Senate Judiciary Committee member Josh Hawley (R-Mo.) previewed it in a misleading Twitter thread last week, which was thoroughly debunked by conservative and liberal legal experts as well as media fact-checkers before the hearings began. Even so, Republican lawmakers devoted much of their allotted time for questions to performatively accusing Jackson of protecting people who sexually abuse children.

Despite this preview of the GOP’s plan, Democrats on the committee appeared ill-prepared to defend Jackson. They could have pointed out that there is bipartisan agreement that federal sentencing guidelines for child pornography offenses are outdated, resulting in unreasonably severe punishments for certain offenses. They could have said that by sentencing people below those federal guidelines, Jackson was doing what federal judges often do in similar cases — and at times what prosecutors ask for. Elected officials of a party whose president ran on eliminating mandatory minimum sentences could have praised Jackson’s discretion in sentencing challenging cases.

Instead, Democrats largely sidestepped the issue, leaving Jackson in the difficult position of explaining to politicians wholly uninterested in facts why she didn’t simply throw every person in her courtroom in prison for the longest amount of time possible.

When Democrats did address the attacks, they did so indirectly, careful to avoid saying anything that could be clipped into a politically disadvantageous soundbite. At one point, Sen. Chris Coons (D-Del.) suggested that instead of criticizing Jackson for using her discretion from the bench, lawmakers could make federal sentencing guidelines mandatory. He then transitioned into describing a time where Jackson opposed leniency in an unrelated sentencing issue.

In doing so, Coons legitimized Republicans’ false narrative: that seeking harsher penalties is what makes a judge worthy of a seat on the Supreme Court.

The GOP’s attack centers on Jackson’s approach to punishing people convicted of non-production child pornography offenses — people who have or view graphic images of children but do not make it. In his Twitter thread, Hawley inaccurately claimed that Jackson “advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn.” He also claimed that when Jackson went on to become a federal judge, she “put her troubling views into action” and “deviated from the federal sentencing guidelines in favor of child porn offenders.”

In reality, Jackson’s positions and actions on child sex abuse are well within the mainstream. Hawley’s first claim refers to when she was a member of the U.S. Sentencing Commission, which creates sentencing guidelines for federal courts. In 2012, the bipartisan agency put out a unanimous recommendation to align the penalties for receipt and possession of child pornography. Although the two offenses are often indistinguishable, receipt carries a five-year mandatory minimum and possession does not — resulting in inconsistent punishments for similar acts, depending on how the prosecutor chooses to charge the case.

That unanimous recommendation was joined by Dabney Friedrich, who is now a federal judge, appointed by former President Donald Trump and confirmed without objection by Republican lawmakers.

That report came out a decade ago, but lawmakers have not implemented its recommendations.

“They will never fix it, I don’t think, because if they try, you’re going to have someone like Josh Hawley or Ted Cruz doing exactly what they did to Judge Jackson, but to their colleagues,” said Rachel Barkow, a New York University law professor who previously served on the U.S. Sentencing Commission. “They’re going to say, ‘My colleague wants to go easy on child predators.’ Because the public is never going to understand any of the nuances that we’re talking about here.”

Because of Congress’ refusal to act, federal judges, including Jackson, have often sentenced people in non-production child pornography cases below the federal sentencing guidelines. A 2021 report from the Sentencing Commission found that 59% of non-production offenders received a variance below the guideline range. That’s because the federal sentencing guidelines for child pornography “are widely recognized as dysfunctional and unduly severe,” Ohio State University law professor and criminal sentencing expert Douglas Berman wrote in a blog post last week.

A key issue with the sentencing guidelines, according to the 2021 report, is that they are outdated and fail to consider modern computer and internet technology. Congress last directly amended the guidelines in 2003, creating mandatory minimum penalties and sentencing enhancements for crimes that involved the use of a computer, victims under a certain age, and the offense involving a certain number of images.

Several of those enhancements now “cover conduct that has become so ubiquitous that they now apply in the vast majority of cases,” according to the 2021 report. For example, in fiscal year 2019, 95% of non-production child pornography offenders received enhancements for using a computer and for the age of the victim in the images.

As a result, the current sentencing guidelines are “insufficient to distinguish between offenders with different degrees of culpability,” the report continued.

“The prior regime assumed that the more images you had, the more culpable you were,” Barkow said, noting that before the internet, people obtained physical copies of the images in the mail. Now, Barkow said, “You get some sad sack who downloads a ton of pornography and they sometimes have child porn in there and they don’t even know. You get young people who, themselves, are just barely of age and they get in this online world,” Barkow said. “It’s really sad, there are people who get caught in this internet world and they’re not irredeemable, and they’re not actually going to hurt a child and they can absolutely be safely released and not do any harm, but they’re sentenced for decades.”

Because of a 2005 Supreme Court decision, those enhancements are now discretionary, rather than mandatory, and judges are increasingly declining to use them.

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) acknowledged Tuesday that Congress had abdicated its role in updating the sentencing guidelines and referenced a Hawley-backed federal judge who had also sentenced someone convicted of possessing child pornography below the federal guidelines. But he neglected to explain what adjustments to the guidelines he thought were necessary.

“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,” Durbin said. “And I think we have to accept some responsibility for that.” His office did not respond to multiple requests for comment.

Coons suggested on Wednesday that Congress could update the federal sentencing guidelines — but to eliminate judges’ discretion, rather than to implement bipartisan recommendations to shorten sentences for certain offenses.

“If we want to change the sentencing guidelines to make [them] mandatory rather than advisory — if we want to change the structure within which a federal judge imposes sentences, we could do that,” Coons said. “But to demand that you be held accountable for this practice that is nationwide, and is years old, I view as an unfair misrepresentation of your record.”

Coons’ spokesman declined to comment on whether the senator supports making the federal guidelines mandatory.

It’s understandable why Democrats are not eager to have a sentencing reform discussion that centers around child sex offenses. But it’s also a “missed opportunity, particularly in light of the fact that all of the recent congressional work when it comes to sentencing has been lowering sentences,” Berman said, referring to the Fair Sentencing Act of 2010, which lowered penalties for crack cocaine, and the First Step Act of 2018, which lowered mandatory minimum sentences.

Democrats could have made the case that “we, as members of Congress, have been signaling that we fully see that the guidelines and our statutes have often been too severe, and our reforms have been to give more discretion to judges because we recognize that you have to look at all the factors of the case,” Berman said. “And that’s what Jackson was doing.”

One of the cases in which Republicans attacked Jackson over her sentencing decision involved an 18-year-old gay high school student whose religious family disapproved of same-sex relationships. In 2012, he downloaded pornographic images, including ones “showing young boys engaged in a variety of sex acts, some of them violent,” The New York Times reported. The teen’s lawyer said he felt “confusion and shock rather than arousal.” He swapped images with an undercover detective but expressed no interest in the detective’s suggestion of real-life sexual encounters.

Federal guidelines called for a sentence between eight and 10 years in prison, but prosecutors asked Jackson to sentence the teen to two years and his lawyer requested a single day in jail. Citing the defendant’s age, remorse, and the short period of time he had viewed the images, Jackson ultimately decided on three months in prison, followed by six years of supervised release.

“I cannot even express adequately how horrifying it is for me to know that somewhere out there there are children who are being trapped and molested and raped for the viewing pleasure of people like yourself,” Jackson said at the time.

She described the challenge of identifying the right sentence: “One that allows you … to spend enough time in prison to understand and appreciate the consequences of your actions … but not so long that you will be subjected to harm in prison or introduced to incorrigible influences such that you are lost to society forever.”

At the hearings this week, Hawley asked her whether she regretted that ruling. In response, she hinted at frustration that Republicans were fixed on a narrow portion of cases when she has nearly a decade as a federal judge, plus extensive prior work, to consider.

“What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences,” she said.