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Op-ed

Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures | GUEST COMMENTARY

The primary focus of the questions asked during the Supreme Court confirmation hearings of Judge Ketanji Brown Jackson were about her sentencing record. Some senators repeatedly accused her of being too lenient on those convicted of child pornography offenses, in particular.

But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.

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For most of American history, federal sentencing was largely unregulated. Congress set broad statutory ranges for sentences, and a federal judge could impose virtually any sentence within those generous statutory bounds. A predictable and harmful consequence of this almost unlimited sentencing discretion was sentencing disparities: Individuals who committed similar offenses and who had similar criminal histories were not receiving similar sentences. These disparities occurred across the country and even in the same courthouses.

No orderly or fair system of justice can tolerate that arbitrary treatment of individual liberty. In the 1970s and 1980s, federal judges, most notably Judge Marvin Frankel of New York, began calling attention to the disparities resulting from an uncoordinated system of federal sentencing. Congress took note, and responded by establishing the U.S. Sentencing Commission and by charging this new agency with developing sentencing guidelines that would serve as national norms in each and every federal sentence. Judge Jackson served on the Commission from 2010 to 2014.

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While the guidelines were designed to be binding, in 2005 the Supreme Court ruled that the guidelines were merely advisory. The court would go on to explain that federal judges must take three steps when imposing a sentence: first to calculate the sentencing range set forth in the guidelines, second to consider any reasons in the guidelines as to why the case may be unusual such that a deviation from the standard guidelines range may be appropriate, and third to weigh a number of sentencing factors enumerated by Congress.

It is this process that Judge Jackson was required to use for the more than 100 sentences she handed down as a federal judge. The exercise of her sentencing discretion, as with any other aspect of her judicial experience, should be examined as part of the Senate’s vetting process. Whatever one may make of her sentencing record, the sentencing system as a whole is in desperate need of repair.

Just as Dunder Mifflin sells limitless paper in a paperless world, Congress mandated binding guidelines for a now advisory world. These advisory guidelines are not achieving the goal of reducing unwarranted sentencing disparities that justified their existence in the first place. In the 17 years since the guidelines were made advisory, Congress has merely tinkered with specific guidelines. Instead, Congress must rebuild the outdated structure of the guidelines as a whole. It can do so in several concrete ways that will make for a more reasoned, coherent, and fair federal criminal justice system.

For starters, such reformed guidelines should be simplified. In addition, Congress should recalibrate penalty levels and prune the bloated criminal code. To comport with constitutional requirements and respect the role of juries, Congress should require aggravating factors that would put a sentence above a guidelines range to be found by a jury beyond a reasonable doubt, and should preclude judges from enhancing a sentence for conduct that a jury acquitted the defendant of committing. And Congress should harmonize the long list of factors that judges are to consider at sentencing, factors that often conflict and that frankly can be used by a judge to rationalize almost any sentencing outcome.

Judge Jackson should stand behind her sentencing decisions. So too should Congress step up and fix a system that only it is capable of repairing. It would be a shame for Congress to give attention to that system only when the cameras are rolling and the bright lights of the confirmation process are flashing. The American people, and the principled administration of justice, deserve more.

Dawinder S. Sidhu (dsidhu@gmail.com) is an attorney who served as Supreme Court Fellow at the U.S. Sentencing Commission during Judge Jackson’s time there.


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