The primary focus of the questions asked during Justice Ketanji Brown Jackson’s Supreme Court confirmation hearings concerned his conviction record. Some senators have repeatedly accused her of being too lenient towards those convicted of child pornography offenses, in particular.
But, on the contrary, the senators’ questions highlight the failures of Congress to erect the sentencing structure in which federal judges across the country, including Judge Jackson, operate. Once the confirmation process is complete, the Senate should fix the very system it criticizes the judges for following.
For most of American history, federal sentencing was largely unregulated. Congress set wide statutory ranges for sentencing, and a federal judge could impose virtually any sentence within those generous legal limits. A predictable and harmful consequence of this almost unlimited discretion in sentencing was sentencing disparity: people who committed similar offenses and had similar criminal histories did not receive similar sentences. These disparities have occurred across the country and even in the same courthouses.
No orderly or fair justice system can tolerate this arbitrary treatment of individual liberty. In the 1970s and 1980s, federal judges, notably Judge Marvin Frankel of New York, began to draw attention to the disparities resulting from an uncoordinated federal sentencing system. Congress took notice and responded by creating the U.S. Sentencing Commission and tasking this new agency with developing sentencing guidelines that would serve as national standards in every federal sentence. Judge Jackson served on the Commission from 2010 to 2014.
While the guidelines were designed to be binding, in 2005 the Supreme Court ruled that the guidelines were advisory only. The court would go on to explain that federal judges must follow three steps when imposing a sentence: first, calculate the sentencing range set out in the guidelines, second, consider any reason within the guidelines as to why the case may be unusual, so that a deviation from the standard guideline range may be appropriate, and thirdly to weigh a number of convicting factors enumerated by Congress.
It was this process that Judge Jackson had to use for the more than 100 sentences she handed down as a federal judge. The exercise of his sentencing discretion, like any other aspect of his judicial experience, should be considered as part of the Senate’s vetting process. Whatever one may think of his conviction record, the sentencing system as a whole is in desperate need of fixing.
Just as Dunder Mifflin sells unlimited paper in a paperless world, Congress has imposed binding guidelines for a now consultative world. These advisory guidelines do not achieve the goal of reducing the unwarranted disparities in sentencing that justified their existence in the first place. In the 17 years since the guidelines were made advisory, Congress has been content to modify specific guidelines. Instead, Congress must rebuild the outdated structure of the guidelines as a whole. It can do this in a number of concrete ways that will lead to a more reasoned, coherent and fair federal criminal justice system.
To begin with, these reformed guidelines should be simplified. In addition, Congress should recalibrate penalty levels and prune the bloated penal code. To comply with constitutional requirements and respect the role of juries, Congress should require aggravating factors that would place a sentence above a range of guidelines to be determined by a jury beyond a reasonable doubt, and should prevent judges improve a sentence for conduct that a jury acquitted the accused of having committed. And Congress should harmonize the long list of factors that judges must consider when determining sentencing, factors that often conflict and which, frankly, can be used by a judge to rationalize almost any outcome of sentencing. sadness.
Judge Jackson should stand behind her sentencing decisions. Congress should also step in and fix a system that only Congress can fix. It would be a shame if Congress only paid attention to this system when the cameras were rolling and the bright lights of the confirmation process were flashing. The American people and the principled administration of justice deserve better.
Dawinder S. Sidhu is an attorney who served as a Supreme Court member on the US Sentencing Commission during Justice Jackson’s stay there.
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