Key Point: “Judge Jackson strongly defended her record. But the Republican barrage of aggressive questioning, cheered on by QAnon conspiracy theory adherents, ignored widespread agreement among judges that punishments for the receipt or transmission of child sexual abuse images, established by Congress in the pre-internet era, are often overly harsh in an age when thousands of images can be downloaded or sent with a single keystroke.”

New York Times: Opinion: The Exploitation of Judge Jackson
By Emily Bazelon
March 30, 2022

Few crimes carry more social opprobrium than child sexual abuse. Last week, several Republican senators, among them a few thought to harbor presidential ambitions, tried to capitalize on that stigma. They went after Judge Ketanji Brown Jackson, President Biden’s nominee for the Supreme Court, for sentencing decisions she made in cases involving child pornography during her eight years as a Federal District Court judge.

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Judge Jackson strongly defended her record. But the Republican barrage of aggressive questioning, cheered on by QAnon conspiracy theory adherents, ignored widespread agreement among judges that punishments for the receipt or transmission of child sexual abuse images, established by Congress in the pre-internet era, are often overly harsh in an age when thousands of images can be downloaded or sent with a single keystroke.

More broadly, the Republican line of attack showed why it’s not easy for judges to act with proportionality when they hand down sentences that are within their discretion and, in their view, fit all of the circumstances of the case. In fact, it’s often thankless for them to do so, whatever the outdated reality of American sentencing law.

The Republican criticism concerned eight or nine cases in which a defendant was convicted of receiving or distributing images of child sexual abuse. News media fact-checkers said Senator Hawley was being misleading. Andrew C. McCarthy, a former federal prosecutor in the Southern District of New York who writes for National Review, called Mr. Hawley’s claims “meritless to the point of demagoguery.”

Some of Judge Jackson’s sentences were at the low end of the federal sentencing guidelines and, in a few cases, below them, but that is true for most of the punishments federal judges mete out in these types of cases. In the 2019 fiscal year, only 30 percent of convictions for the receipt or distribution of child sexual abuse images resulted in sentences within the guidelines, the U.S. Sentencing Commission noted in a 2021 report. Prof. Douglas A. Berman, a sentencing expert at Ohio State University, found that the reductions she gave were “almost identical” to the national average.

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The complicated history did not fit so easily into a sound bite or tweet. Judge Jackson had to explain why the guidelines are overly punitive in many cases while trying to make clear that the crimes do very real damage to very real victims.

“What we’re trying to do is be rational in our dealing with some of the most horrible kinds of behavior,” Judge Jackson said. “This is what our justice system is about.”

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The system can be a little more just, at least, only if judges look to all of the facts and circumstances in trying to decide on a sentence, as Judge Jackson did. In all likelihood, the Republicans who tried to discredit her won’t stop her from reaching the Supreme Court. But they may make other judges pause or even stop before sentencing as she has.

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