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No, Sen. Hawley, Ketanji Brown Jackson isn't soft on child pornography

It is inappropriate and misleading for Hawley to suggest that a judge is lenient just because she sentences below the sentencing guidelines range.

Supreme Court nominees should expect to be vetted. Harshly. Federal appeals Judge Ketanji Brown Jackson of Washington, D.C., knows this. Republicans can question her about her judicial philosophy. They can question her about whether she supports the notion of a “living Constitution.” They can ask about her limited experience on an appellate court. These are appropriate avenues of inquiry.

Jackson’s below-guideline child pornography sentences are actually “quite mainstream.” This is because other federal judges typically sentence below the guidelines range in about 66 percent of these cases.

Attacking Jackson for the sentences she gave to possessors of child pornography only because they were below the applicable U.S. sentencing guidelines range isn’t a legitimate area of inquiry. In Her Honor’s case, it’s downright misleading.

And yet, Sen. Josh Hawley, R-Mo., went there during her confirmation hearings this week. He also sent out a series of tweets attacking her record, claiming that “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes.”

You might think people convicted of child pornography crimes deserve an automatic life sentence, whether they produced the material or merely possessed it. That’s an understandable position; child pornography is a horrific crime. The law doesn’t require mandatory life imprisonment for possessors of child pornography, though. For child pornography penalties, the law differentiates among producers (a 15-year mandatory minimum sentence), distributors those who receive the materials (a five-year mandatory minimum sentence) and possessors (no mandatory minimum sentence).

According to Ohio State University law professor Douglas Berman, in eight of the nine child pornography cases decided by Jackson that he reviewed, Jackson's sentence was only about 1.8 years below the prosecutors’ recommendations and about six months above the defense requests. In two of those cases, she followed the prosecutors' sentencing recommendations, while in one case she imposed a sentence of 29.5 years even though the government asked for 45 years. While that one sentence was quite a bit below the government’s recommendation, one has to concede that 29.5 years isn’t exactly a “lenient” sentence.

On average, by Berman’s assessment, Jackson sentenced about 54 months below the calculated guideline minimums in these cases. Without context, that statistic seems to support Hawley’s “soft on crime” theory. But that reduction “is almost identical to the national average reduction” of the U.S. Sentencing Commission’s own statistics, Berman said.

Sentencing is, unfortunately, much more complicated than just mandatory minimum and statutory maximum sentences, thanks to a patchwork of federal legislation and Supreme Court case law. Before federal sentencing guidelines were created, federal judges had almost unlimited discretion and imposed indeterminate sentences within very broad statutory ranges. Under that system, the U.S. Parole Commission would decide when prisoners were actually released on parole.

But in the tough-on-crime era, Congress pushed through the Sentencing Reform Act of 1984. It called for developing a U.S. Sentencing Commission that would determine mandatory sentencing guidelines that specify appropriate sentences for each class of offenders and set minimum punishments.

Then, in the 2005 case U.S. v. Booker, the Supreme Court declared that the guidelines system violated the Constitution. The court fixed the problem by striking the “mandatory” provisions of the sentencing act. What remained was a modified guidelines system that the court described as “effectively advisory.”

Nowadays, a district judge begins all sentencing hearings by calculating the Sentencing Commission guidelines range. Then the judge is required by statute to consider seven additional factors. These include “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as the need for the sentence to reflect issues such as “the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

Other factors include the government’s interest in deterring criminal conduct, protecting the public, providing restitution and even a defendant’s need for education or vocational training. Another important factor is “the need to avoid unwarranted sentencing disparities” — different treatment of similar offenders or similar treatment of individual offenders who are different in important ways. There is also a general directive to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing.

Of course, if any maximum or minimum sentences for violators are spelled out in the law itself, those will override the sentencing guidelines. For example, a calculated guidelines range in excess of the maximum lawfully allowable sentence (yes, this happens sometimes) means the recommended guidelines sentence just becomes the maximum allowed. In other words, the guidelines formula sometimes yields … an illegal sentence.

A judge is also expected to consider possible grounds for a “departure” or “variance” from the applicable guideline range. Both are reasons to reduce (or increase) a sentence. A “departure” is typically a change from the final sentencing range allowed by the guidelines themselves. Often it’s done because a prosecutor is asking the court to reward an offender’s cooperation. Technically, any “departures” by Jackson weren’t truly “outside” the sentencing guidelines,” because they are part of the guidelines formula. A “variance,” by contrast, occurs when a judge imposes a sentence above or below the final sentencing range based on the application of those seven other statutory factors. It’s confusing — even to the lawyers.

The problem is the only thing the calculated guidelines range tells you for certain is the calculated guidelines range. It doesn’t necessarily tell you what other people are actually getting for the same crimes. According to the 2019 Annual Report and Sourcebook of Federal Sentencing Statistics, about 23 percent of all sentences imposed in 2019 were below the applicable guideline range.

When it comes to child pornography offenders who aren’t involved in its production, the sentencing guidelines fail to distinguish adequately between more and less severe offenders, and they can be too severe. That’s not my opinion. That’s the Sentencing Commission’s own conclusion in its 2021 report on the sentencing of child pornography non-production offenses.

As observed by Berman, a recognized author on sentencing law and policy, Jackson’s below-guideline child pornography sentences are actually “quite mainstream.” This is because other federal judges typically sentence below the guidelines range in about 66 percent of these cases. When deciding to go below the guidelines range, they typically impose sentences around 54 months below the calculated guideline minimums. Remember what Jackson’s average below-guidelines sentence was? About 54 months.

Bottom line: It was inappropriate and misleading for Hawley to suggest that a judge is “soft on crime” just because she sentences below the sentencing guidelines range. That’s even in cases of horrific crimes like child pornography. Under the current sentencing framework, sentencing below the guidelines range isn’t “letting child porn offenders off the hook.” Indeed, a below-guidelines sentence could still be a significant sentence.

There are legitimate avenues of inquiry for this Supreme Court candidate, such as her views on constitutional issues like due process. But attacking her for meting out below-guidelines sentences without more context is just wrong.