Throughout Ketanji Brown Jackson’s Supreme Court confirmation hearings, Republican senators have tried to smear the stigma of sex offenses onto Jackson, a former district court judge, by equating her occasional exercises of sentencing discretion to an endorsement of sex crimes. The latest desperate attempt to cast doubt on Jackson’s qualifications came from South Carolina Senator Lindsey Graham, who criticized Jackson for having the gall to treat each defendant as an individual. “There’s an epidemic of this stuff on the internet,” he said. “I think the more you download—like drugs, the more you have, the more you should go to jail.”
In their exchange, Graham expressed theatrical disbelief at Jackson’s decisions to depart from sentencing guidelines in certain child pornography cases—guidelines which, per the Supreme Court’s decision in United States v. Booker, are not binding on federal judges like Jackson. Much of his attention focused on a particular case, United States v. Hawkins, in which Jackson sentenced an 18-year-old offender to three months in federal prison. The prosecutor had asked for two years; the guidelines suggested up to ten.
Jackson explained to Graham how advances in technology made federal sentencing guidelines particularly inapposite to child pornography offenses: The guidelines, which were based on offenses that involved sending pornographic materials through snail mail, are largely irrelevant to a judge sentencing someone today, when millions of people carry computers in their pockets. Storing and sharing large volumes of images does not mean in 2022 what it meant two decades earlier. “On the internet, with one click, you can receive and distribute tens of thousands of pornographic images,” she told Graham. “You can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years in prison.”
At this point, Graham began yelping over her mid-sentence: “Good. Good. Absolutely good!” he said. “I hope you go to jail for 50 years if you’re on the internet trawling for images of children—you don’t think that’s a bad thing? I think that’s a horrible thing.” It appears Graham would prefer a factory line of rubber-stamping incarceration zealots to a judiciary with discretion to rule in each individual case before them.
Again, Jackson explained what Graham seemed incapable of grasping: the blindingly obvious distinction between endorsing child pornography and understanding that Mark Zuckerberg’s internet exists. “Our sentencing system—the system congress created—is a rational one,” she replied. “What we’re trying to do is be rational in our dealing with some of the most horrible kinds of behavior. This is what our justice system is about.”
Graham’s gripes with Jackson’s sentencing decision is perhaps one he should take up with his colleagues. In 2012, the U.S Sentencing Commission recommended that lawmakers amend the guidelines to account for the transformed technological landscape. A decade later, however, Congress still has not enacted them, leaving in place guidelines that are, as Doug Berman of the Sentencing Law and Policy blog explained last week, “dysfunctional and unduly severe.” It seems the subject is too sensitive for senators to take action on it, but not sensitive enough to stop Graham from harassing Jackson about it on national TV.
Graham’s real issue seemed to be that Jackson didn’t mete out the harshest of punishments at every opportunity. The whole point of sentencing guidelines is to create fairness across convictions and avoid arbitrary disparities, and because of their known flaws in this context, judges frequently sentence below the guidelines in child pornography cases. Graham’s histrionics illustrate how a Court dominated by putative originalists and textualists might benefit from a justice with experience applying laws drafted by people who might not have fathomed modern fact patterns.
This aspect of Jackson’s resume would make her a valuable addition to a Court that has proven itself to be indifferent to the situations of people in the criminal legal system. In a dystopian reality where Lindsey Graham is a judge, he would lock up anyone and everyone accused of sex crimes, like Oprah handing out life sentences to the studio audience. Jackson’s performance on Wednesday is the latest reminder of why she is well-suited for a job that requires the ability to consider nuance and context, and Graham is well-suited for a job that prizes his ability to throw public tantrums and then storm out of the room.