As always, the Party of GnOP has found multiple issues to attack a minority candidate that are based on a gross distortion of realities. The big charge has to do with how Judge Jackson has been imposing sentences for child pornography. To understand the allegations, you first need to know the basics.
When Congress or state legislators pass a criminal statute, they establish a penalty for a violation. With limited exceptions, most statutes do not establish a precise penalty. Instead, they create a range of punishment. The concept behind having a range of punishment is to permit individualized punishment. However, in creating a range, the legislature is attempting to define the penalties that are appropriate for most cases. Thus, for example, stealing a car might have a penalty of up to seven years. That’s not a decision that seven years is the appropriate penalty for the offense. Rather, it’s a decision that a case that merits more than seven years will be so rare that it makes sense to take such a long sentence off the table. On the other hand, murder might have a range of ten years to life. Again, that’s not a decision that ten years is the appropriate penalty in any specifc case, but that the cases in which a sentence of lower than ten years will be so rare that it makes sense to take penalties less than ten years off the table. For some statutes, often referred to as mandatory minimums although that is inaccurate as all offenses have statutory minimums, the law precludes a court from considering probation as an alternative to the authorized sentences.
In addition to the statutes defining range of punishment, most jurisdictions have a set of statutes defining what courts should consider in imposing sentences. For federal courts, the law requires the court to consider four factors, but those factors are what most scholars have discussed for decades as the four considerations that are appropriate in sentencing. The first factor is retribution — i.e. what is an appropriate penalty for the conduct. The second factor is deterrence — creating a disincentive for commission of a crime. This factor is both individual (what will teach this offender a lesson about the consequences if he reoffends) and collective (what punishment will scare othe potential offenders). The third factor is incapacitation — what is needed to prevent this offender from reoffending. The final factor is rehabilitation. The law further requires the penalty to be no greater than is needed to satisfy those four concerns.
The problem with creating a range of punishment is that it allows different judges in different parts of a state (for a state law) or the nation (for a federal law) to impose different punishments. Even in the same district, judges could impose different penalties. In adopting a law, Congress (or the state legislature) finds that there is a national (or a state) interest in preventing certain behavior. In theory, similar acts should receive the same penalty regardless of where it occurs or which judge is the sentencing judge. Additionally, giving judges the ability to impose individualized sentences creates the possibility that judges will consider factors that judges should not consider. In response to these concerns, in the mid-1980s, Congress created the U.S. Sentencing Commission and required that Commission to draft a set of guidelines to structure the sentencing decision. While judges could depart from those guidelines, a judge would have to give a reason for the departure which could be reviewed by an appellate court to determine if that reason was an acceptable one.
For federal crimes, the guidelines system is rather complex consisting of two parts. The first part is a calculation of the seriousness of the offense. While each offense is different, each offense has a base level (e.g., level 14). Within that offense, there can be additional points that can be added for various reasons such as whether a weapon was used, how many images of pornography were possessed, the value of property taken, or the quantity of controlled substances. There are also adjustments based on the offender’s role in the offense. The second part is an assessment of the offender — how many prior offenses has that person committed and what type of offenses. Those two parts then create a grid with specific recommended narrow ranges of punishment for a given offense level and criminal history level.
Around twenty years ago, the U.S. Supreme Court — with the conservative justices taking the lead — decided that a mandatory guideline system which depended on judicial findings of fact related to offense conduct violated the defendant’s right to have a jury find facts that determine the range of punishment. The ultimate remedy was to make the guidelines advisory. Before this change, a departure from the guidelines required the sentencing judge to identify something about the offense and the offender that was not covered by the guidelines. After this change, the guidelines became a mere starting point in the analysis, and the ultimate sentence merely needed to be reasonable.
This now allows us to turn to child pornography and the guidelines. Many people fault the guidelines as a whole for being too complex with too many factors that go into determining the adjusted offense level. For child pornography, the complaint is the opposite — that the guidelines do not account for what matters most in assessing the seriousness of the offense and does include factors that judges think are not significant. In short, most judges think that the base level for child pornography is too high and the guidelines penalties are only appropriate for the more serious cases. As a result, downward departures are common. Even conservative legal analysts agree that, for most cases, Judge Jackson’s sentences for child pornography are similar to what other judges are imposing. And the nattering nabobs of negativism have not identified any case in which the appellate courts rejected any of those sentences.
The other complaint being made by the fringe of the Republican Party is that Judge Jackson sentenced offenders to less than the government recommended. That complaint is rather astonishing. The government is merely one party in the case. Just because a prosecutor thinks that a certain sentence is appropriate does not meant that the recommended sentence is correct. A dirty secret of sentencing is that both sides do not expect the judge to follow their recommendation. Imposing something between the government’s recommendation and the defense request shows that the judge is independent. As a result, while both sides want to appear reasonable (so that the judge’s ultimate sentence is closer to their ask than to the other sides ask), both also ask for something slightly better than what they truly want to see happen (to give the judge some room to appear to have considered both sides). So a sentence less than the government’s recommendation is not unusual and how much below is significant depends upon how inflated the recommendations are.
In short, the sentencing critique of Judge Jackson is built on a house of cards that depends on most people being clueless about how sentecing works.
One other thing that came up during the hearing were some of the books on the reading list at a school whose board Judge Jackson sits on. From the description of the books and my knowledge of the authors, the Republican argument is Orwellian at best. The book in question states that children being learning how to be racist from an early age. The Republicans somehow convert this argument into a claim that children are born racist. In terms of the typical psychological debate, the author is claiming that racism is environmental into a claim that racism is genetic. If you believe that racism is environmental (as the author of those books does), believing that the character trait begins developing at a young age is not that shocking. Early childhood is a very formative time and a lot of our bad habits can be traced to behavior that we learned at home about what is proper and what is not.
In short, once again, we see Republicans making misleading attacks on a person based on twisting facts to suit their reality and to raise “hot button” culture war issues. Meanwhile, when serious credible accusations of criminal conduct emerge against Republicans, Republicans insist that those issues do not warrant any further investigation. Judge Jackson will be confirmed, but the decline of the Republican Party as a serious party of ideas and policies leaves our democracy weaker.
