WASHINGTON — Several Republican senators have repeatedly and misleadingly suggested during this week’s Supreme Court hearings that Judge Ketanji Brown Jackson had given extremely lenient sentences to felons convicted of child abuse.
But all Republican critics had previously voted to confirm judges who issued prison terms below the prosecution’s recommendations, the very bar they accused Judge Jackson of failing to clear.
Only 30 percent of offenders who possessed or shared child sexual abuse images received a penalty in fiscal year 2019 within the range suggested by non-binding federal guidelines, and 59 percent received a penalty below the range of the federal law. directive. And in general, it’s not uncommon for judges to impose shorter sentences than prosecutors have recommended.
“I’ve listed these seven cases where you had discretion and you did not follow the prosecution’s recommendation or sentencing guidelines,” Missouri Republican Senator Josh Hawley said during Judge Jackson’s hearing on Tuesday. “I wonder how you have used your discretion in these cases.”
Mr. Hawley’s point was shared by three of his Republican colleagues: Senators Lindsey Graham of South Carolina, Tom Cotton of Arkansas and Ted Cruz of Texas. Cruz said the sentences imposed by Judge Jackson in cases involving child sexual abuse images were, on average, 47.2 percent lower than the prosecutor’s recommendations.
“You were always under the recommendation of the prosecutor,” Mr Graham told the judge on Wednesday. “I think you’re doing it wrong, and any judge doing what you’re doing makes it easier for the kids to be exploited.”
But Mr. Hawley, Mr. Graham, Mr. Cotton, and Mr. Cruz all voted to confirm President Donald J. Trump’s appointed judges to the appellate courts, even though those nominees had handed out sentences lighter than the recommendations. of the prosecution in cases involving child sex images abusing. Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021, despite the sentencing decisions she made as a district judge.
In 2017, Judge Ralph R. Erickson was confirmed by a 95-to-1 vote on the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative. (Mr. Hawley was not yet a senator.) While serving as a district court judge in North Dakota, Judge Erickson imposed sentences shorter than the prosecutor’s recommendations in nine child abuse footage cases from 2009 to 2017, on average. 19 percent lower.
In the case with the largest discrepancy – in which a 68-year-old man pleaded guilty to possession and transport of such illegal material – prosecutors asked for 151 months and Judge Erickson sentenced him to 96 months.
Judge Amy J. St. Eve was confirmed in 2018 by a vote of 91 to 0 before the United States Court of Appeals for the Seventh Circuit. While serving as a judge in a district court in Illinois, Judge St. Eve imposed lighter sentences than the district attorney’s recommendations in two such cases. In United States v. Conrad, she sentenced a man who carried child sexual abuse images to 198 months, 45 percent less than the prosecutor’s recommendation of 360 months.
All four Republican senators voted in 2019 to confirm Judge Joseph F. Bianco on the U.S. Court of Appeals for the Second Circuit. As a New York district court judge, Judge Bianco previously sentenced three defendants to shorter prison terms than prosecutors had demanded.
In a 2013 hearing for a 25-year-old defendant who possessed and distributed illegal materials, Judge Bianco stated that the court had “discretion” to impose such sentences and spoke of “extenuating circumstances” — an echo of what Judge Jackson repeatedly told the senators at this week’s hearings. The defendant was sentenced to 60 months in prison, while prosecutors had asked for “a sentence above 60 months”.
“The guidelines here are simply disproportionate to the facts of this case, and I do not consider them to be particularly helpful in this case,” Judge Bianco said at the time. “I disagree with the government that this case is kind of at the heart of normal cases. There are a number of mitigating factors in this case that I believe are compelling.”
Most recently, Mr. Cotton, Mr. Cruz, and Mr. Hawley voted to confirm Judge Andrew L. Brasher on the U.S. Court of Appeals for the 11th Circuit in 2020. (Mr. Graham was not present on the vote.) As a District In Alabama, Judge Brasher had sentenced a defendant to 84 months in prison, under the district attorney’s recommendation of 170 months.
In a 2019 hearing before issuing the verdict, Judge Brasher noted that “one of the things I am legally required to evaluate and consider with regard to ‘the defendant’ is differences between offenders who are in a similar situation. “
That, too, was similar to an explanation Judge Jackson gave for her sentencing decisions.
“Judges across the country are grappling with how to apply this guideline under these circumstances,” she told Hawley on Wednesday. “The judge doesn’t just evaluate what the government says in these cases. In every criminal case, a judge has to take into account all kinds of factors.”