« Spotlighting that public defenders are underrepresented on all high courts in the US | Main | Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber »

March 24, 2022

In praise of the continued sentencing sensibility of the National Review's Andrew McCarthy

Though I have been intrigued by the considerable attention given to Judge Ketanji Brown Jackson's sentencing record even since Senator Josh Hawley's tweets flagged his concerns about about her writings, comments and sentencings in some sex offense cases (background here), I have been quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations.  District judges often say sentencing is the hardest part of their job, and this is true even in the run-of-the-mill cases when the facts are routine and the applicable statutory law is clear and the applicable guidelines are helpful.  (A few years ago, I gave a talk (written up here) partially titled "Sentencing is So Dang Hard" which details just some reasons I think judge are right to describe sentencing this way.)

Critically, in federal child pornography (CP) cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful.  In the CP setting, applicable statutory law is quite messy — e.g., what is the real difference between child pornography "possession" and "receipt", how should USSC policy statements be considered here — and the applicable guidelines are widely regarded as badly broken.  Those legal realities mean federal sentencing takes on extra layers of challenge in CP cases.  The challenges become especially profound when difficult and distinctive facts come along, such as in the oft-discussed Hawkins case where, according to this New York Times article, the prosecutor described "very unique circumstances" involving teenage offender and the defense presented an "evaluation by a psychologist asserting that Mr. Hawkins did not 'demonstrate sexual deviation' but was instead driven to watch the pornographic images as 'a way for him to explore his curiosity about homosexual activity and connect with his emotional peers'."

Under difficult circumstances during questions from mostly GOP Senators, Judge Jackson tried hard to explain her sentencing process and goals, and she did highlight some of the unique challenges these cases present in light of problematic guidelines.  But, based on the parts of the hearing I was able to watch, I was generally underwhelmed by the efforts of Judge Jackson's supporters to discuss with her more broadly the deep challenges and profound humanity that all sentencing decision-making involves.  And I heard precious little discussion of the particulars of the Hawkins case or other cases in which defendants present significant mitigating circumstances that find little or no expression is problematic guidelines. 

But, as the title of this post suggest, there is one commentator who has done a great job in this arena this week, and I want to give a particular shout out to the work he has done to consistently and effectively contextualizing these stories.  Specifically, the National Review's Andrew McCarthy has now done three lengthy pieces that are must-reads for everyone following these stories:

"Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography"

"Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases"

"Judge Jackson and Judiciary Committee Republicans Joust on Child-Porn-Possession Case against 18-Year-Old . . . Again"

I flagged the first of these pieces in a prior post, but I want to especially laud Mr. McCarthy for not being content with his important first salvo against this line of attack on Judge Jackson.  Mr. McCarthy makes clear that he is not a fan or supporter of Judge Jackson, but he has still been willing to write a significant series of detailed pieces documenting in so many ways why the sentencing discourse by the GOP here is so misguided.  Kudos to him (and the National Review) for such sentencing sensibility.

March 24, 2022 at 10:10 AM | Permalink


Mr. McCarthy had plenty to say about Kevin Clinesmith too. Did you find it sensible? He also had a lot to say about the Russia hoax—did you find that sensible?

Posted by: Federalist | Mar 24, 2022 1:38:14 PM

I agree with some things Federalist says, but not everything. I agree with some things Andrew McCarthy says, but not everything. I agree with some things Judge Jackson says, but not everything. I even agree with some things Donald Trump and Joe Biden say, but not everything.

If there are certain things said about Kevin Clinesmith and about Russia you want me to weigh in on, link away.

Posted by: Doug B | Mar 24, 2022 3:15:46 PM

Doug --

You neglected the most damning part of your confession: You agree with me on some things (but not everything).

Posted by: Bill Otis | Mar 24, 2022 3:45:13 PM

Not damning at all, Bill, but I could not decide whether to use the modifier "some" or "most" with you! Jokes aside, I know most Americans agree on a lot more things than it seems, and we are all disserved when we focus on the disagreements.

Posted by: Doug B. | Mar 24, 2022 4:32:07 PM

Doug --

Yup, we agree on a lot more than we let on here, but I try to keep this more-or-less under wraps lest it ruin both our reputations.

Posted by: Bill Otis | Mar 24, 2022 4:50:09 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB