Sen. Hawley’s Bid to Make Federal Sentencing Guidelines Mandatory

    Judge Ketanji Brown Jackson’s elevation to the Supreme Court from the DC Circuit was confirmed earlier this month. She’ll be the first Black woman justice on the highest court in the land.

    For a time, the outcome seemed in real doubt. Senator Josh Hawley, a Republican from Missouri who is likely to run for President in 2024, used the confirmation hearings to push the idea that Judge Jackson Brown sentenced child pornography possession too softly. This amounted to a smear, given that he and his most vocal colleagues confirmed judges with very similar sentencing records. It was also dismissed out of hand by Senate Democrats.

    However, Sen. Hawley’s motivation may have gone beyond partisan vengeance for the way conservatives allege their preferred Supreme Court nominees—like Robert Bork—have been treated in the past. The clearest sign of this was his simultaneous introduction of the PROTECT Act of 2022.

    The Hawley bill took a shot at the 2005 Supreme Court decision Booker v. United States—a key ruling for human rights.

    The bill, which has already been blocked, would have done two things. First, it would have applied a five-year mandatory minimum prison sentence to federal child pornography possession convictions, bringing it in line with receipt and distribution offenses. Second, it would have made the federal Sentencing Guidelines binding for child pornography cases.

    The Senate Judiciary Committee killed the bill, leading Hawley to attack Senator Dick Durbin (D-Ill.) by name. How, Hawley implied, could any right-thinking person object to a crackdown on child pornography? Yet principled reasons could have motivated the Committee’s decision.

    In both press materials and substance, the Hawley bill took a shot at the 2005 Supreme Court decision Booker v. United States, which made the US Sentencing Guidelines “advisory” rather than binding. Since 2005, when federal judges issue sentences, they have to consider a host of factors, including the Guidelines but not limited to them.

    Booker was a key ruling for human rights, because it allowed defendants’ individual mitigating circumstances to be considered, opening the door—at least in theory—to mercy when sentences are handed down.

    The federal Sentencing Guidelines are promulgated by the seven presidentially-appointed members of the US Sentencing Commission (on which Brown Jackson served under the Obama administration). Some of their sentencing enhancements—including many that are considered for child pornography possession—have been mandated by Congress, but most are simply down to the Commission’s discretion.

    The non-binding nature of the Guidelines is something that anyone who wants decarceration should be anxious to preserve.

    Despite Booker, the Guidelines, as any practitioner in federal court would acknowledge, are still hugely influential. Many federal judges seem to find them as important as the law itself. Many federal appeals courts consider the Guidelines “presumptively reasonable,” warts and all.

    Nonetheless, the non-binding nature of the Guidelines is something that anyone who wants decarceration should be anxious to preserve. Because the Guidelines are incredibly harsh for almost everything. And in particular, a world without Booker is a world where federal drug sentencing gets even worse—drug charges are given especially disproportionate treatment in the Guidelines, and roughly half of all federal prisoners are incarcerated for drugs.

    While Sen. Hawley’s bill would only have nullified Booker in the child pornography context, it would represent the first major chip in the decision’s authority. If child pornography carried the requisite political alarm to do this today, it’s easily conceivable that selling fentanyl, say, could tomorrow. Why would legislators stop at child pornography when many other illegal acts are also damaging, or could be portrayed as such?

    Under the Guidelines, federal judges usually find factors used to increase sentences by a “preponderance of the evidence” standard, which asks them to decide whether the facts are more likely true than not. The “evidence” judges rely on for such purposes can be as limited and tenuous as the word of a single, self-interested confidential informant. In the drug context, quantity thresholds set out by the Guidelines are another frequent means for judges to justify harsher sentences.

    Booker does not come close to fixing all that is wrong with federal sentencing. But it permits judges to use their discretion to sentence below the Guidelines when they see compelling reasons to do so. Such decisions still have to be justified in writing, and can be reversed when appellate courts are not convinced of a judge’s rationale for leniency.

    We need much more than Booker. But we should also not take Booker for granted.

    A better path for US law would be to introduce a proportionality constraint to punishment. That is the case in In Canada; disproportionately harsh punishment is forbidden there, and that ban is explicitly codified. While the US Constitution contains the Eighth Amendment, which bans “cruel and unusual” punishment, it is basically a dead letter when a case involves neither capital punishment or juvenile defendants. For non-capital convictions of legal adults, Harmelin v. Michigan—the 1990 case where the Supreme Court found a mandatory life-without-parole sentence for cocaine possession was perhaps cruel but not unconstitutional—still stands as precedent.

    Prior to Hawley’s attacks, many decarceration advocates may have felt blasé about Booker, and that’s understandable. Even with it, the federal justice system is way too harsh, and there are almost 10 times more people locked up in federal prisons than in 1980. We need much more than Booker. But we should also not take Booker for granted—especially when the Supreme Court that Judge Brown Jackson will be joining retains a conservative majority.

    “Tough-on-crime” conservatives have always wanted a justice system where the power of judges is minimized in the name of “consistency” and “truth in sentencing.” Burying Booker fits right into that playbook.



    Photograph of Sen. Hawley (right) in 2019 by Chairman of the Joint Chiefs of Staff via Flickr/Creative Commons 2.0

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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