When the confirmation hearings for Ketanji Brown Jackson began, Republican senators on the Judiciary Committee wasted no time getting to the heart of their case. The Supreme Court nominee is “soft on crime,” in the words of John Barrasso, R-Wyo. It’s a familiar allegation that politicians have used for decades, and here’s the beauty of it: There is no effective defense.
The attack is part of a broad portrayal of Democrats as too tender-hearted to punish dangerous lawbreakers. Sen. Tom Cotton, R-Ark., said, “The Biden administration is committed to these soft-on-crime policies.” He added that “liberal judges who have more sympathy for the victimizers than for the victims are a big part of the problem.”
Last Wednesday, Judiciary Committee Chair Richard Durbin, D-Ill., rebutted the charges, and Jackson defended her record. But whether the case against her holds up to scrutiny is not the Republicans’ concern. What’s important is that the topic is getting attention. When you’re attacking, you’re winning. When you’re explaining, you’re losing.
Jackson is automatically suspect because she was once a defense attorney. The critics also say that as a member of the U.S. Sentencing Commission, she called for reducing penalties for some crimes, and as a judge, she let offenders off with scandalously light sentences.
Being a public defender, however, should no more count as disqualifying than being a prosecutor. Our adversarial system requires both the government and the accused to have competent, vigorous representation.
One framer of the Constitution, John Adams, had served as counsel for British soldiers who were prosecuted for fatally shooting five colonists, in an incident known as the Boston Massacre. Atticus Finch, the most revered fictional lawyer in American history, was a public defender.
During her time on the sentencing commission, Jackson did endorse less onerous penalties for some drug crimes. But the 2014 proposals cited in the critique were not hers alone — they were the unanimous recommendation of a body that included three Republican-appointed judges.
The reforms, the panel said, “will free up resources to reduce overcrowding, fund programs that reduce recidivism, and increase law enforcement and crime prevention efforts — all of which may be more effective ways to reduce crime.” It said the sentences of some 40,000 inmates would be reduced by 25 months, on average — but that they would still serve an average of nine years.
Sen. Josh Hawley, R-Mo., charged that as a judge, Jackson had a habit of “letting child porn offenders off the hook.” But handing down prison sentences that are on the low side of federal guidelines is not letting the criminal off the hook. And as the Washington Post Fact Checker documented, her sentences were typically in line with those recommended by federal prosecutors or probation officers.
But the allegations can’t really be disproven. Almost any sentence that a judge pronounces could be longer. In the game of proving one’s toughness, the sky’s the limit. More punishment is always better.
Elected officials don’t worry about being assailed as too hard on criminals. That’s how we got the incarceration boom of the 1990s, when politicians competed to prove how merciless they were. States ratcheted up penalties, including “three-strikes” laws that imposed sentences of 25 years to life for minor crimes. State and federal prison populations soared.
But overly long sentences proved so expensive and unproductive that even red states changed course. The American Conservative Union Foundation asserted, “Stiff sentencing, aggressive prosecution, and the virtual elimination of parole has left us with overcrowded prisons, high recidivism rates, and an almost 700% increase in corrections spending over the past 35 years.”
The reforms recognized that not all offenses deserve draconian penalties and that excessive punishment imposes heavy costs on taxpayers and society without necessarily making Americans any safer. It became apparent even to politicians that piling on longer sentences for every crime was a bad policy — by liberal criteria and by conservative ones.
But Jackson’s critics also understand that a bad policy can be good politics. A generation ago, a lot of candidates got elected and reelected by attacking opponents and judges for being soft on crime. With crime on the rise, the time is ripe to deploy the same tactic. Before the hearings are over, some senator is bound to ask Jackson if she has a problem with South Carolina bringing back firing squads.
The Supreme Court nominee is not one to let criminals walk free for their misdeeds. But when your critics have no shame, you can never be tough enough.
