SCOTUS Did A Good Thing For Civil Rights?!
Not a thing we are used to writing about this Court.
This week, in an opinion written by Brett Kavanaugh, the Supreme Court did a good thing for civil rights.
I'm just as shocked as you are.
Until Tuesday, in most of the country, an innocent person who was framed by the police and charged with a bogus crime could almost never sue the cops who framed him. But in Thompson v. Clark, SCOTUS ruled that innocent people can sue for malicious prosecution after their criminal charges have been dismissed.
Or, as Amir Ali, one of the lawyers on the case put it,We just won a significant civil-rights case in the Supreme Court (yes, you read that correctly). \n\nUntil today, the law almost everywhere allowed a police officer to frame an innocent person for a crime with impunity (yes, you read that correctly too). \n\nNot anymore. \n\n:https://twitter.com/theamirali/status/1510982794385711117\u00a0\u2026— Amir Ali (he/him) (@Amir Ali (he/him)) 1649083499
#WorstJustice Samuel Alito dissented, joined by Clarence Thomas, and Neil Gorsuch.
(Full disclosure: I did a civil rights clinic in law school where I was a student lawyer with the MacArthur Justice Center. The MacArthur Justice Center represented petitioner Larry Thompson in this case and I think they're awesome.)
Let's break this down
This is one of those things that is so shocking it doesn't even sound true.
Until now -- I shit you not -- the prevailing rule in many parts of the country, including the entire Second Circuit (home to the nearly 25 million people who live in New York, Connecticut, and Vermont), was that you could almost never sue police who framed you or knowingly charged you with a bogus crime.
Under the old rule, a person could only bring a malicious prosecution/unreasonable seizure claim of a Fourth Amendment violation under the Civil Rights Act of 1871 (42 USC § 1983 or "Section 1983") if the criminal prosecution ended with a "favorable termination" of the criminal charges against them. And several courts, in their infinite wisdom, decided that a case only had a "favorable termination" if a "criminal prosecution ended not merely without a conviction, but also with some affirmative indication of his innocence." That's not generally a thing. So even if police framed an innocent person, and planted fake evidence, and a prosecutor discovered that and dismissed the charges, in most cases, the person who was framed couldn't sue.
This has now changed, with none other than Justice Kegstand writing for the Court,
In sum, we hold that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction.
Eventually, the prosecutor and judge in Mr. Thompson's case dismissed the charges "in the interest of justice." As in most pre-trial dismissals of this nature, there were no additional findings. So, despite beating his criminal charges, Thompson couldn't even bring a malicious prosecution claim against the officers who baselessly arrested and charged him.
In Mr. Thompson's civil rights case, the trial court judge wrote that he had to dismiss the malicious prosecution claim, but reminded the Second Circuit that its precedent "can and should be changed" to allow malicious prosecution claims in cases like this one. The Second Circuit said "No thanks" and affirmed the dismissal.
But, amazingly, the Supreme Court stepped in and decided to do the right thing.
Because American law is dumb, most of the opinion dealt with what the rule was for malicious prosecution cases when the Civil Rights Act was enacted in 1871. Fortunately, even back in 1871, a whole bunch of courts were like "Yeah, dismissing the charges outright is a favorable termination, this really shouldn't be that difficult of a question." (Paraphrasing.)
As the Court ruled,
The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.
Makes sense.
In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.
Yup.
Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.
So there you have it! An actual good decision, from this Court!
(Note: If you're wondering about qualified immunity, this case hasn't gotten that far yet. The old rule prevented civil rights plaintiffs from even bringing a claim without a "favorable determination," so no qualified immunity analysis has been done yet. So it is entirely likely Mr. Thompson ends up screwed on those grounds. But we shall see!)
But wait ...
We would be remiss if we didn't spend at least a little bit of time mocking the dissenters. Samuel Alito, who has always really wanted to be Antonin Scalia but just isn't good enough at writing to do so, begins his dissent about the Civil Rights Act of 1871 with ... something about The Iliad?
Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat between.” The Iliad p. 201 (R. Fagles trans. 1990). Today, the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim.
Greek mythology aside, Alito, Clarence Thomas, and Neil Gorsuch just don't think any malicious prosecution claims should exist, no matter how horrific the police actions. The dissent doesn't get any better; in fact, the ridiculous invocation of The Iliad is the most interesting thing about it.
It's all pretty on-brand for this three, if nothing else.
Anyway
This is a good decision! From the Supreme Court! In 2022!
As this Supreme Court season moves forward, there is going to be a lot of terrible bullshit. But that just makes it even more important to recognize and celebrate these victories when we get them.
Here's the opinion, in your OPEN THREAD.
[ SCOTUS / Twitter / MacArthur Justice Center ]
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Ketanji Brown Jackson Going To Supreme Court. Cry About It, Lindsey Graham.
History almost made.
This is a happy post about Ketanji Brown Jackson making it out of the Senate Judiciary Committee last night and moving full-speed ahead toward confirmation as the first Black woman ever to serve as an associate justice of the Supreme Court.
But first, let's get some bitching and moaning from Lindsey Graham out of the way:
Sen. Lindsey Graham (R-SC) attempts to explain voting \u2018no\u2019 on Judge Jackson's Supreme Court nomination despite voting to confirm her in the past:\n\n\u201cIf you win an election, I expect you to pick somebody I wouldn\u2019t support on the court.\u201dpic.twitter.com/kh2C9bZT0N— The Recount (@The Recount) 1649083579
That was Graham explaining yesterday why he voted for Ketanji Brown Jackson for the DC Court of Appeals, but simply could not support her now. He said it's different when it's lower courts. And oh boy he's just so mad about all these other things, he simply can't vote for Jackson, GRRRRRR!
“When you had a chance to support an African-American conservative, you used her ideology against her,” Graham said. “You blocked her from being considered by this committee, and we’re supposed to be like trained seals over here clapping when you appoint a liberal. That’s not going to work.”
Oh good lord, get a life, Lindsey. Nobody "blocked" anyone. Someone else got nominated, because Lindsey Graham is not actually the president who gets to decide who is even nominated or not. (That is Joe Manchin.)
Graham also made sure Democrats understand that if Republicans take over, decent and good and qualified human beings won't even get a hearing in a Republican Senate:
"If we get back the Senate and we’re in charge of this body and there is judicial openings, we will talk to our colleagues on the other side. But if we were in charge, she would not have been before this committee. You would have had somebody more moderate than this. So, I want you to know right now, the process you started to go to a simple majority vote is going rear its head here pretty soon when we’re in charge. Then we’ll talk about judges differently.”
Right, Lindsey. See, we've actually seen how Republicans handle judges. They steal Supreme Court nominations from Democratic presidents, and then when Russia-assisted Republicans hold the presidency, they cram through the most grossly unqualified, most foul human beings the Federalist Society can scrape off the ground in a dog park. In the case of Brett Kavanaugh, they do that over a chorus of people coming forward to say he sexually assaulted them. And all the while, they stuff 24-year-old white bigots into lifetime appointments on the lower courts, in order to try to exert white Christian supremacist control over American life long after all their garbage asses are in the ground.
But we do thank Lindsey Graham for his succinct candor, which will translate well into campaign ads about how much it matters that the Senate stay in the grownups' hands.
Now, happy post! Ketanji Brown Jackson will almost certainly be confirmed to the Supreme Court by the end of the week.
Last night, after hours of debate in the Senate Judiciary Committee, the nomination of Ketanji Brown Jackson deadlocked 11-11 in a party line vote. But that's fine, you guys! Because Democrats control the Senate, therefore according to Senate rules, Republicans get to eat it, and the nomination goes to the floor.
After that, there was a vote in the full Senate to do what's known as discharging the nomination. That vote simply had to pass by a majority, and it did just that, passing by 53-47, after Mittens Romney and Lisa Murkowski joined Susan Collins to cross the aisle and vote for the most highly qualified Supreme Court nominee in US history.
Here's Murkowski's statement:
GOP Sen. Lisa Murkowski on her decision to vote for KBJ\u2019s confirmation this week:\n\n\u201cShe will bring to the Supreme Court a range of experience from the courtroom that few can match given her background in litigation.\u201d— Ali Zaslav (@Ali Zaslav) 1649110571
And Romney's:
I intend to vote in support of Judge Ketanji Brown Jackson\u2019s confirmation to be an associate justice of the U.S. Supreme Court. My statement:pic.twitter.com/uGaxx8sJn5— Senator Mitt Romney (@Senator Mitt Romney) 1649110914
Murkowski also said something that, translated out of Republican-ese, suggests she's grossed out by the lying attacks on KBJ being somehow soft on child porn: “It also rests on my rejection of the corrosive politicization of the review process for Supreme Court nominees, which, on both sides of the aisle, is growing worse and more detached from reality by the year.” That is all true, except for the "both sides of the aisle" part. But she got to the right answer, so we won't dwell on it.
Meanwhile, you should see how mad Marjorie Taylor Greene is.
1. Any Senator voting to confirm #KJB is pro-pedophile just like she is.\n\nThere are MANY more qualified black women judges, that actually can define what a woman is, but Biden chose the one that protects evil child predators.\n\nAnd then Romney, Murkowski, and Collins vote for her.— Rep. Marjorie Taylor Greene (@Rep. Marjorie Taylor Greene) 1649126418
And now that you've seen how mad Marjorie Taylor Greene is, like that even matters, you may go about your day with joy.
Congratulations Judge Ketanji Brown Jackson! You're almost there.
[Mediaite]
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Supreme Court To Voting Rights Act: AND STAY DEAD!
IT'S A BAD COURT BRANT.
Yesterday, the US Supreme Court, which loves "state's rights" just as long as you're attacking women's bodily autonomy, trans people, or people of color, decided to jump into Wisconsin's redistricting war. Because why not?
And, of course, this Court is never just going to fuck things up in the normal Republican-evil way of the past. No, they are in the midst of an all-out attack on voting rights — especially for Black and brown Americans. (Full disclosure: In my other life, I'm the Policy Director for Wisconsin Voices and have been working on redistricting and ensuring Black and Brown voices are represented in our state's maps. This is not my first rodeo.)
When this Court goes for it, they really go for it. And so, the Court didn't just issue a stay or decide to hear Wisconsin Legislature v. Wisconsin Elections Commission; in an unsigned opinion, it summarily reversed the Wisconsin Supreme Court's ruling on the state's electoral maps without any argument or briefing on the merits. And in that unsigned opinion, they made it pretty clear that Section 2 of the Voting Rights Act is next on the chopping block.
Here's the background
Since before the 2020 Census results were even released, we knew redistricting in Wisconsin was going to be a shitshow and that a court was going to end up drawing our maps. The Wisconsin Constitution requires that the legislature and the governor agree on electoral maps, and we have a batshit insane legislature hell-bent on destroying our democracy as well as a reasonable governor in Tony Evers. When the legislature and the governor can't agree, the issue goes to the courts.
In the past, the Seventh Circuit has drawn Wisconsin's maps when there was no agreement, but this year our state supreme court decided to step in. The majority-conservative Wisconsin Supreme Court ruled that it would choose the maps that presented the least change from our uber-gerrymandered 2011 maps. And earlier this month, the court did just that, finding that Governor Evers's maps presented the least change from the 2011 maps and also complied with the Voting Rights Act by creating a new majority-Black district in Milwaukee because of the increase of Black voters in the area.
Let's talk law
When race can be considered in redistricting is a very normal legal doctrine — by which I mean it's one full of rules and exceptions and "well, it depends" answers to what sound like simple questions.
The general rule is that the Fourteenth Amendment's Equal Protection Clause prohibits making race a primary consideration when drawing political maps. To use race as a predominant factor in map-drawing, you have to pass the strict scrutiny test: You have to show the maps are (1) narrowly tailored to further a (2) compelling state interest.
Section 2 of the Voting Rights Act prohibits voting practices that discriminate on the basis of race. This includes a ban on diluting minority vote by doing things things like packing minority voters into a small number of districts or cracking minority voters across several districts. Since 1965, the Supreme Court and lower courts have considered compliance with the Voting Rights Act to be a compelling government interest.
After the US Supreme Court decimated Section 5 of the Voting Rights Act in Shelby County v. Holder (aka the Plessy v. Ferguson of our time), Section 2 became the most important federal tool for challenging racist election practices. But don't you worry, racists who hate it when Black and brown people vote, because our esteemed Supreme Court justices are working to destroy Section 2, too.
Last summer, the Court weakened Section 2 by ruling in Brnovich v. DNC that it was totally fine for Arizona to enact racist voting laws that target racial minorities, as long as those laws might also disenfranchise some poor white people. And yesterday, the Court showed us once again just how excited it is to do away with these so-called "voting rights" once and for all.
Let's talk Milwaukee
During the five months the Wisconsin Supreme Court spent on the redistricting litigation, all parties pretty much agreed Section 2 of the Voting Rights Act applies to Milwaukee. Per long-standing SCOTUS precedent (Gingles v. Thornburg), Section 2 applies when a minority population is "sufficiently large and geographically compact to constitute a majority in a single-member district," is "politically cohesive," and the "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate."
Milwaukee ticks all of those boxes. And I agree with Governor Evers that Section 2 requires seven majority-Black districts in Milwaukee. The problem isn't the idea of an additional majority-Black district, but ensuring any Section 2 districts actually create opportunity for minority voters.
As Senator Lena Taylor, one of just three Black Wisconsin state senators, argued to SCOTUS, the issue with the maps wasn't carving out seven majority-Black districts — it was creating "majority-Black districts" that didn't have enough Black people to comply with the Voting Rights Act. (The Republican maps would have reduced the number of majority-Black districts from six to five, despite a growth in Milwaukee's Black voting age population and a corresponding drop in Milwaukee's white voting age population, but that's an issue for another court and another day.)
But this, of course, is not the Supreme Court's problem with our maps. Rather, the Court stepped in here to try to ensure the Wisconsin Supreme Court takes even more power from Black voters if possible, Voting Rights Act be damned.
For most of the redistricting litigation, it was essentially undisputed that Section 2 of the Voting Rights Act applied to Milwaukee. Even Wisconsin's 2011 maps, often declared the most gerrymandered in the country, created six majority-Black state Assembly districts in Milwaukee County. But now, the US Supreme Court is saying that the analysis done by the Wisconsin Supreme Court wasn't enough to justify the creation of seven majority-Black districts.
One of the scariest parts of all of this is that Governor Evers never argued that his maps were primarily drawn to create majority-minority districts. Historically, the rule has always been that the Equal Protection Clause prohibits using race as the predominant factor in map-drawing. The maps that were submitted weren't drawn specifically with race in mind — they were created to follow the Wisconsin Supreme Court's guidance of creating the least change from the 2011 maps. They also created seven majority-Black districts in order to comply with the Voting Rights Act.
The posture of this case is different from normal Voting Rights Act cases. Usually, when a court is considering a Section 2 issue, it is in a Voting Rights Act case filed in federal court — and the court creates a large record analyzing maps, legislative history, historic voting patterns, and the local history of minority disenfranchisement. That gives the courts the ability to consider all of the relevant facts and do a full analysis.
That just isn't going to be possible in certain cases where courts are acting as map drawers. The Wisconsin Supreme Court was creating the maps, not reviewing them for Section 2 compliance. The governor submitted maps to the court specifically to follow the court's "least change" measure. The governor also considered compliance with the Voting Rights Act when drawing his maps.
This is what should happen! It has been the law for decades that compliance with the Voting Rights Act is a valid reason to take race into consideration when drawing maps. Requiring states to completely ignore Section 2 compliance when drawing maps will, at the very best, result in justice delayed. Minority voters will be required to wait until illegal maps are drawn and then litigate the issue, likely for years, before any corrective measure can be taken. But that is essentially what SCOTUS said must happen when it wrote:
The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity. Answering that question requires an "intensely local appraisal" of the challenged district. When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand.
The rule in Section 2 cases has never been that the court must consider race-neutral alternatives. And if this is applied in all Section 2 cases, that part of the Voting Rights Act is, at least in practice, probably going the way of Section 5 à la Shelby County.
The Court's suggestion to the Wisconsin Supreme Court is that "the court is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence."
No mention of the Voting Rights Act.
This is fine
While the impending decimation of the rest of the Voting Rights Act is the scariest thing about this opinion, it's far from the only fucked up part. The Court issued a summary reversal without full briefing — parties had only filed briefing on the legislature's request to stay the state court ruling and had not even briefed the merits. Summary reversal is rare and generally requires six justices to sign-off, so even though the opinion is unsigned (cowards), we can be reasonably sure John Roberts, who hates Black voting rights as much as anyone, sided with the five fullblown fascists. Justices Sonia Sotomayor and Elena Kagan were the only noted dissents.
This case is also another example of the Supreme Court using the "shadow docket" to make important rulings. Most major Supreme Court rulings come after months of briefing, oral arguments, and consideration by the Court. But in recent years, the Roberts Court has increasingly enjoyed issuing major rulings on the merits of cases without any of this. Precedents intended to last for decades if not longer are created, as in this case, after just a couple of weeks and no full picture of the issue at hand.
Between this case and the Supreme Court's recent ruling in Merrill v. Milligan (another shadow docket case), the Voting Rights Act is, at best, on life support. In Merrill, the Court overruled a decision requiring Alabama to create a second majority-Black congressional district. (The very "liberal activist" three-judge panel the Supreme Court overturned included two Trump appointees.)
In the Alabama case, the judges said it was just too close to the state's May primary to bother worrying about the Voting Rights Act. Sorry, Black voters!
Here in Wisconsin, on the other hand, our maps were summarily reversed and sent back despite the Wisconsin Elections Commission repeatedly saying that it needed the state's maps finalized by March 15 at the latest. That's because the candidate nomination period starts April 15 and people need to know what district they live in. Oh well! If you don't know what district you're going to be in for the next decade, too bad, so sad.
For the record, I part from most Dems in that I don't think it's a bad thing for a court to take a second look at Governor Evers's maps. But my issue is that the governor's maps didn't give enough power to Black voters — and SCOTUS is out here trying to diminish the power of Black voters even more than they already have.
But all of this is par for the course with the Roberts Court. I'm almost surprised they didn't just force the Wisconsin Supreme Court to just choose the Republican maps, like the legislature asked them to.
[ SCOTUS ]
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A List Of Josh Hawley's Lies About Judge Ketanji Brown Jackson In Handy F*ck You Josh Hawley Form
Clip and save!
In the Trump years, factchecking came to feel like an almost Sisyphean task. There was just so much complete bullshit, and so many of the Trump faithful didn't care that it was bullshit, that the task seemed fruitless — but still necessary to make sure reality got on the record. Which brings us to our post-truthiness era, where a majority of Americans voted for reality and an entire political party has convinced itself that living in a world of lies is just plain more satisfying.
That's fully on display this week in the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson. Out here on Reality Earth, she's an extremely well-qualified jurist with impeccable credentials and a commitment to justice, even Justice with a capital J. On GOP Planet, she's automatically unqualified because Joe Biden said he'd appoint a Black woman, and that means he automatically excluded more-qualified candidates like Justice Freeze-In-Your-Truck And Justice Rapeybeer.
But just in case the obvious racism weren't enough, Sen. Josh Hawley and s few other Republicans have decided to lie outright about Jackson's record. In mere reality, the sentences Jackson gave as a federal judge were in line with those of her peers. But in GOP moral panic world, Hawley has taken a bunch of cherry-picked examples and misleading quotes, taken out of context, to smear her with the false claim that she's a big fan of people convicted in child pornography cases. It's bullshit, and you can find very good, detailed fact checks of Hawley's lies at Vox, the New York Times, the Washington Post (here, have a paywall-free linky!), and even at the National Freaking Review.
The chief thing to remember about Hawley is that he's using a load of dishonest claims about Jackson's record. He has already insisted that critics are being super unfair to him, because everything he claimed about her is a "fact." But nah: Without proper context, they're still misleading bullshit. Josh Hawley is a smart but evil man who knows how to twist the truth; that doesn't make him any kind of truth-teller.
As WaPo's Glenn Kessler points out, Hawley posted a 17-part Twitter thread last week in which the senator offered a whole load of lies about KJB's record. Most of the lies he told fell into three basic areas.
1. Out Of Context Quotes
Hawley quoted questions Jackson asked during US Sentencing Commission (USSC) hearings and pretended those questions about child porn defendants reflected Jackson's own views. In each case, Jackson had restated something a witness had said in testimony, then asked for more information or a clarification, because the whole point was to revise sentencing recommendations that federal judges had been complaining about.
For instance, when Jackson asked expert witnesses about "less serious offenders," and about people who might access child porn not because they're pedophiles but as a way of proving their computer skills, she was asking for more information about the experts' research, and how prevalent they thought such behaviors were. She was not, as Hawley claimed, presenting her own "troubling" views. And as Kessler notes, the witness said that people who persist in collecting the stuff over time tend to become more serious offenders.
In reply to a request for comment, Hawley preemptively issued a news release on Twitter and accused WaPo of simply "regurgitating White House talking points," although the column hadn't yet run. Also too, Hawley seemed to deny that context exists, because if Jackson quoted any words, they now are her words:
Judge Jackson’s words are right there in print, and they speak for themselves. [...] When she does quote from or refer to previous testimony, she does so with approval and indicates the witness has changed her mind on child porn offenders.
After all, she must approve, since look at "her" words right there. (See WaPo for a detailed breakdown, which makes clear, that, NUH-UH.)
2. Pretending Unanimous Recommendations Were Jackson's Weird Radical Ideas
Hawley also pretended on Twitter that Jackson had personally "advocated for drastic change in how the law treats sex offenders" when in fact all the USSC's recommendations were the result of consensus among the seven members of the bipartisan commission, which had three Republican and four Democratic members.
The New York Times points out that the commission
noted in a 2012 report to Congress that existing sentencing guidelines on crimes involving images of child sexual abuse “fail to differentiate among offenders in terms of their culpability” and result in penalty ranges that “are too severe for some offenders and too lenient for other offenders.”
At WaPo, Kessler adds that the report noted that the guidelines also didn't make distinctions as to how dangerous the various types of offenders were. Since there was no mandatory minimum sentence for possessing child porn, but there was a five-year minimum for sending, receiving, or distributing it, Kessler explains, the commission found that
prosecutors and courts were gaming the system, seeking ways to limit sentence exposure by, for instance, charging someone only with possession even if they had committed other related crimes.
Judges didn't care for the inflexible guidelines either:
A 2010 survey showed 71 percent of judges said the mandatory minimums for receipt of images were too high. Moreover, in 2010 only 40 percent of convicted offenders for non-production — people who use existing images but do not make them — received sentences that matched the guidelines.
As a result, the commission suggested changes in minimums for non-production offenses, but not for people who make child pornography. It also recommended equalizing the punishment for possession and for receipt, transportation and distribution.
The members of the commission were divided on whether mandatory minimums were actually necessary for non-production crimes, but agreed unanimously that Congress should equalize the penalties for possession with those for the other charges, and that any minimum sentence be less than five years. Again, that was all the members, not Jackson on her own, and Congress didn't act on the recommended changes. Kessler notes that in 2021, the USSC again called for the changes.
Hawley's very smart answer to the critique was that even if it was the USSC's unanimous recommendation, Jackson nonetheless called for it, so it's on her. Also too, the other commissioners who made the very same recommendations "probably shouldn’t be on the Supreme Court either.” One of the commission's Republicans, Dabney Friedrich, was appointed to a federal judgeship by Donald Trump in 2017, before Hawley was elected. She was confirmed on a 97-3 vote, with all Senate Republicans supporting her.
3. OMG Her Sentences For Child Porn Were What Prosecutors Asked For!
Hawley also listed seven cases in which we're supposed to be horribly outraged that Jackson sentenced convicted child-porn offenders to less time than recommended in the federal sentencing guidelines. As should be clear by now, those guidelines are widely disliked by actual federal judges, who depart from them fairly regularly, as Kessler points out:
The 2021 USSC report noted that in 2019, only 30 percent of non-production child-porn offenders received a sentence within the guideline range. “The non-production child pornography guideline has been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year,” the report said.
After Hawley tweeted his thread of lies, another former member of the Sentencing Commission, NYU Law professor Rachel E. Barkow, tweeted that Hawley's complaints were "silly," explaining that Jackson's sentences for non-production child porn offenders were in line with "what most of the federal bench does," because "just about [every] federal judge realizes these Guidelines are too severe."
Kessler compared what prosecutors and US Probation officers had recommended in pre-sentencing reports for each of the nine cases, and found that in three of the seven cases, Jackson had imposed a longer sentence than the recommendation (and in one, Hawley had entirely misstated the details, claiming Jackson's sentence was much lower than the guidelines; in reality, it was within them). In two others, she had given the same sentence probation had recommended. Only two of the cases had sentences that were shorter than the prosecutors or probation had recommended.
Further, in US v. Sears, a case that Hawley had cited as a horror story because Jackson gave a shorter sentence (71 months) than the guidelines recommended (97 to 121 months), Kessler notes that Jackson later returned to the case in 2020 when the offender asked for a compassionate medical release. She denied the request, noting in her ruling that
The possession and distribution of child pornography is an extremely serious crime because it involves trading depictions of the actual sexual assault of children, and the abuse that these child victims endure will remain available on the internet forever.
She said the offender's behavior — which included showing clothed photos of a young female relative and a friend's child to an undercover cop — made him a likely danger to children, especially since he hadn't undergone the treatment she'd ordered in his original sentence.
It's difficult to read that order and decide Jackson is a pal to child pornographers. But then, Josh Hawley is all about smears, not about honesty.
[Vox / NYT / WaPo / National Review]
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