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Republican Senators have attacked Judge Ketanji Brown Jackson for being soft on child pornography offenders. Their intent is to frighten the American public into thinking that Democrats intend to put a maverick justice on the Supreme Court who will not protect their children. A basic understanding of the federal sentencing system demonstrates how disingenuous these attacks are.
Questioning by Sens. Ted Cruz, Josh Hawley, and Lindsey Graham about Jackson’s sentencing practices in child pornography cases not involving the production of new images, suggested that, by not following the U.S. Sentencing Guidelines, she must have been doing something improper. These lawyer-senators know that after the Supreme Court’s 2005 opinion in Booker v. United States, the sentencing guidelines no longer had the force of law. Until 2005, the misnamed “guidelines” were actually mandatory, so Judges could not sentence defendants below the guideline range unless extraordinary circumstances justified a departure. Downward departures were very rare and difficult to obtain. In Booker, the Court, in order to avoid declaring the guidelines unconstitutional, found that they were only advisory, and just one factor that the judge must weigh under the general federal sentencing statute, 18 U.S.C. section 3553(a), which does have the force of law. In addition to the nature and circumstances of the offense, the judge must also consider the history and characteristics of the defendant, the need for deterrence and
Congress created the bipartisan United States Sentencing Commission to remedy wide sentencing disparities among federal district courts. The seven-member Commission conducts research on sentencing law and policies, and proposes guideline amendments in response to statutory changes, sentencing trends, and advances in the study of human behavior as it relates to sentencing. Jackson served as one of three vice chairs on the sentencing commission from 2010 to 2014.
In 2012, the Commission noticed a remarkable sentencing trend — judges were imposing downward variances in a very high percentage of non-production child pornography cases — so the commission convened hearings to examine the reasons for this trend. The Commission, as usual, heard live testimony from experts. Jackson posed questions to an expert who testified that not all child pornography offenders are motivated by pedophilia. Jackson was merely attempting to clarify an expert opinion that surprised her, not adopting that opinion.
Cruz, Hawley, and Graham, however, deliberately distorted Jackson’s views on the sentencing of child pornography offenders, attempting to portray some of her questions to the expert as affirmative statements of her own beliefs. Likewise, Cruz and Sen. Marsha Blackburn tried to characterize Jackson’s sentencing philosophy as Critical Race Theory, based on remarks deliberately taken out of context from a speech she made in 2015. In that speech, according to a “PolitiFact Fact Check,” dated March 25, Judge Jackson did not argue that judges should rely on Critical Race Theory when making sentencing decisions, but merely urged her audience to be open minded about developments in other disciplines that could have a bearing on sentencing policy.
Cruz suggested that the frequency and extent of the variances Jackson granted were excessive, thereby making her an outlier among federal judges. However, the Commission’s report, titled, “2012 Child Pornography Report,” found that throughout all federal districts there was an unusually high frequency of downward variances (62.8 percent) in non-production child pornography cases. Moreover, according to a “Factcheck.org” post, dated March 23, Hawley neglected to mention that in five of the seven cases he spotlighted, Jackson’s sentences were “consistent with or above” the probation officer’s recommendation.
The commission found that technological changes, primarily the widespread availability of the internet, meant that certain specific offense characteristics, previously thought to be a valid way to distinguish the more serious offenders from the less serious, no longer provided a useful measure of relative culpability. For example, the commission concluded that the two-level increase for use of a computer was no longer a meaningful severity gauge because now, unlike 18 years ago, when the child pornography guidelines were last revised, virtually every case involves the use of a computer.
Likewise, enhancements based on the number of images are really only a testament to the ease of acquiring child exploitation images on the internet. The maximum increase is five levels if the defendant possesses over 600 images. Acquiring such a collection in the days when a defendant had to go to a pornography store, or order child pornography by mail, required considerable obsession. Today, a defendant can acquire thousands of images with a few clicks of a mouse, or even by clicking one link online.
Similarly, the ready availability on the internet of images of prepubescent children, and sadomasochistic sexual conduct, means that possession of such images is no longer a meaningful way to distinguish one defendant from another. Prior to the internet, such images were usually only possessed by defendants who had access to clandestine sources of such material, and the money to pay premium prices for it.
Judge Jackson was just one member of the sentencing commission. Her vice chair status did not give her any more authority to set the agenda than any of the other six commissioners. Also, the commission generally makes decisions by consensus, and no voting commissioner dissented from the 2012 report.
Cruz repeatedly demanded to know exactly how Jackson determined the length of the variances she granted, and implied that Jackson must have relied on a secret, personal sentencing policy based on sympathy for pedophiles. Jackson patiently explained that she based her sentences on the information detailed in the presentence report, including victim impact statements, the guideline calculations by the probation officer, the recommendations of the probation officer, the evidence presented at sentencing, the arguments of counsel, and the allocution of the defendant, as she is required to do under section 3553(a). As Cruz well knows, even if Jackson had a personal, uniform policy of reducing each non-production child pornography sentence by a certain amount, there would have been absolutely nothing illegal or improper about it. Cases subsequent to Booker have made clear that Judges have discretion to vary downward based on policy disagreements with particular guidelines. Cruz tried to create the illusion that Jackson engaged in improper judicial behavior when he knew that she was simply performing her duty to sentence each defendant as an individual, rather than as a member of a class of offenders.
Republican senators have three choices regarding Judge Jackson’s nomination. First, they could vote to confirm, and it’s possible that three of them might do so. Second, as they genuflect to Q-anon, they could vote no, and claim, falsely, that Jackson approves of child pornographers, or they could falsely assert that she would base sentencing decisions on Critical Race Theory. Although Jackson is certainly aware of Critical Race Theory, awareness does not equate to adherence. She is also undoubtedly aware of white nationalist theory, but it would be equally absurd to say that her sentences would advance white supremacy. Third, Republicans could claim they reject Jackson because she is not an “originalist” in her approach to constitutional interpretation. Judge Jackson clerked for Justice Breyer, whose approach to constitutional interpretation was to focus on the intent of the founders, which was to preserve our democratic republic. Like Breyer, Jackson believes that the Constitution provides a framework for our democracy, and she has the audacity to believe that the Constitution is not the political equivalent of the Dead Sea Scrolls — a brittle document, espousing dogma that is forever stuck in the past.
Originalism is the dominant theory of constitutional interpretation on the current Supreme Court. However, if Sens. Chuck Grassley and Mitch McConnell hadn’t blocked Merrick Garland’s appointment to the Court, the originalist to non-originalist ratio on the Court would be only 5 — 4, rather than 6 — 3. Although originalism may be in vogue within conservative legal circles, a May 11, 2018, Pew Research Report, showed that 55 percent of the public believed that the Court should base its rulings on “its understanding of what the Constitution means in current times.” Originalist theory also has been roundly criticized by constitutional experts, for, among other things, failing to acknowledge that the Constitution does not explicitly provide any standards for its interpretation. Nevertheless, originalism adherents are so certain of the correctness of their theory, that they will not feel obliged to respect prior opinions of the court resting on different analytical approaches. Indeed, those opinions can and will be discarded by unsigned orders filed on the Court’s shadow docket.
The fact that Judge Jackson does not adhere to the originalist model of constitutional analysis, should reassure the public. The more pragmatic, less anachronistic approach, favored by justices such as Stephen Breyer, has increased protection of the peoples’ rights against encroachment by the government — both state and federal — and helped to promote the public welfare. Originalist theory, by contrast, not only provides a convenient rationale for not expanding the scope of constitutional protections, but can, and will, be used to roll back or abrogate rights already enjoyed by the people.
James F. Whalen of Des Moines served as the federal public defender for the Northern and Southern Districts of Iowa from 2012 to 2020 and was an assistant federal public defender from 1994 to 2012.