Retired judge: In child porn cases, I did exactly what Jackson did
During her Supreme Court confirmation hearing, Judge Ketanji Brown Jackson gave a clinic on sentencing in the federal district courts.
As a retired federal judge, I watched with admiration as she earnestly and honestly talked about her record. Despite the tone and dubious purpose of questions posed by some members on the Senate Judiciary Committee, Jackson’s testimony was consistent with my own experience over 14 years of service as a district judge.
Sentencing is the hardest thing judges do.
Federal judges are fortunate to have guidelines published by the U.S. Sentencing Commission, a hardworking small group of judges and scholars. By the way, Jackson served on the commission, which is a presidential appointment subject to Senate confirmation – a true honor and itself an indication of her unique expertise.
These guidelines are the result of a deliberative process and are regularly reviewed and modified in response to, among other things, new research and sentencing statistics.
Complicated factors in sentencing
From 1984 until early 2005, the federal sentencing guidelines were mandatory. In United States v. Booker, the Supreme Court decided that the guidelines were important but not mandatory. Following Booker, federal judges are required to give the guidelines careful consideration, make a finding as to the applicable guideline range and then use the guidelines as one factor in the sentencing decision.
I (like other federal judges) established the remaining sentencing factors by statute, the nature and circumstances of the offense, the history and characteristics of the defendant, as well as the need for the sentence imposed to reflect the seriousness of the offense, promoting respect for the law and providing just punishment for the offense. The sentence imposed must also afford adequate deterrence, protect the public and provide the defendant with needed educational or vocational training and treatment.
Before the sentencing hearing, the judge receives a lengthy presentence report prepared by a U.S. probation officer and a memorandum from the government and the defense attorney. A sentence is imposed at the end of the hearing in open court, where the assistant U.S. attorney and the defense counsel can present witnesses and argue to the court in favor of what they think is fair.
Not surprisingly, the government frequently advocates for a guideline sentence while the defense counsel argues for a downward departure from the guideline range.
The defendant has an important opportunity to speak. Victim impact information is provided to the court, sometimes by live testimony.
Sentencing hearings can be emotional and are always dynamic. The judge has the very difficult task of processing a great deal of complex information, applying it in real time and deciding on a sentence that, under congressional directives, must be “sufficient, but not greater than necessary“to accomplish the legitimate goals of sentencing, which, among other things, is to deter crime.
The child pornography cases are especially difficult.
It’s not just about prison time
In my 14 years as a district judge, I sentenced a lot of child pornography defendants. Jackson was questioned about one case involving an 18-year-old defendant to whom she gave a sentence of three months for possession of child pornography. Sen. Josh Hawley, R-Mo., also asked her extensively about the sentencing guidelines. The line of questions seemed like an attempt to make Jackson look “soft on crime.”
Her answers gave a lie to that charge. Jackson talked about the fact that the guidelines are outdated and explained the process of sentencing, which involves recommendations and arguments from a variety of sources. Her sentences, she explained, have not only included prison time but also other punishments, including restrictions on computer usage.
To be sure, the process she described is the process followed by district judges all around the country. The kind of case they were talking about is, sadly, all too common. And judges struggle with the guidelines in nonproduction child porn cases all too frequently.
No one questions the seriousness of the crimes.
The district judge’s job is to look at all the circumstances and determine a sentence appropriate in the case before her. The child porn guidelines are excessive in some areas and appropriate in others. A sentencing judge has unique knowledge of the case and can exercise informed discretion, which sometimes means that a just sentence will be well below the guidelines.
I have imposed the equivalent of a life sentence in some child porn cases, and I have given light sentences in others. In each case, I did exactly what Jackson did: I studied the guidelines and the law, I pored over the presentence report and I listened carefully to the attorneys, the defendant and the victims. Then, like Jackson, I addressed the defendant standing 6 feet from me in the well of the courtroom, and I imposed what I truly believed to be a fair and just sentence on the basis of the law, the guidelines and all my knowledge of the case.
Jackson understands sentencing and demonstrated that she has applied her considerable intellect and heart to this terribly difficult task. Her approach to sentencing is solidly in the mainstream of federal district judges.
To suggest otherwise is both wrong and wrongheaded.