A Senate airing on the uses of punishment

The hearings for Supreme Court nominee Ketanji Brown Jackson highlight the need to refine court sentencing to better define justice.

Supreme Court nominee Judge Ketanji Brown Jackson testifies before the Senate Judiciary Committee.

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’s 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’s age. He was 18, just out of high school. The senator was unmoved. “I am questioning your discretion, your judgment,” 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 “compassionate release” 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 This nearly two-decade lapse has left judges to rely on out-of-date guidelines for determining punishment even as changes in technology and social norms have focused attention beyond the length of sentences.

“Part of my sentencings was about redirecting the defendants’ attention,” she said in response to Mr. Hawley. “It’s not just about how much time a person spends in prison. It’s about understanding the harm of ... this behavior.”

That struck a chord.

“You want to get them to own up to what they’ve done in these cases,” the senator acknowledged. “And I thought that was powerful. And I thought that was right.”

This week’s 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.

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