A Senate airing on the uses of punishment
The confirmation hearings this week of Judge Ketanji Brown Jackson to join the Supreme Court have brought fresh scrutiny to one of the most emotional and subjective aspects of law: punishment.
During one exchange on Tuesday, Sen. Josh Hawley questioned the judge about her decision to sentence a man convicted of child pornography to just three months in prison. It reflected a pattern of leniency, the Missouri Republican charged, in Ms. Jackson鈥檚 approach to such cases.
Ms. Jackson tried to explain the range of factors that a judge is required by law to consider in determining punishment. She noted the defendant鈥檚 age. He was 18, just out of high school. The senator was unmoved. 鈥淚 am questioning your discretion, your judgment,鈥� he said.
That kind of exchange has become standard in Senate hearings to fill vacancies on the highest bench. Yet it sometimes obscures a shared recognition in the United States of all the aspects of justice, from deterrence to rehabilitation, that fulfill the purpose of a court sentence.
Since 1984, when Congress established the U.S. Sentencing Commission, there has been growing concern about how to fix the many disparities in sentencing. That focus has gained urgency in recent years as the country has grappled with how to decrease the size of the prison population. The U.S. incarcerates 664 out of 100,000 people, the highest rate in the world, according to the Prison Policy Initiative.
One example of fixing those disparities is the First Step Act. Passed by Congress four years ago, it enables incarcerated people to seek reduced sentences based on 鈥渃ompassionate release鈥� and to ease mandatory minimum sentences. As a former member of the commission, Judge Jackson helped identify those criteria. But she also noted that Congress has not updated sentencing guidelines since 2003. This nearly two-decade lapse has left judges to rely on out-of-date guidelines for determining punishment even as changes in technology and social norms have focused attention beyond the length of sentences.
鈥淧art of my sentencings was about redirecting the defendants鈥� attention,鈥� she said in response to Mr. Hawley. 鈥淚t鈥檚 not just about how much time a person spends in prison. It鈥檚 about understanding the harm of ... this behavior.鈥�
That struck a chord.
鈥淵ou want to get them to own up to what they鈥檝e done in these cases,鈥� the senator acknowledged. 鈥淎nd I thought that was powerful. And I thought that was right.鈥�
This week鈥檚 Senate hearings have offered a valuable service in enabling citizens to overhear debate about legal principles and modern points of law. At a time of waning trust in the Supreme Court, a helpful debate about the nature and purpose of punishment revealed deeper insights about the values that define justice. That can only help lift society in selecting the best jurists to the court.
