What If Lindsey Graham Really Wanted to Talk About Sentencing Under the Guidelines? A Close Reading of USSG §2G2.2(b)(6)
by Michael C. Dorf
Having kept her cool through the ordeal of misogynistic, sometimes racist interruptions and mischaracterization of her record by various Republican members of the Senate Judiciary Committee, Judge Ketanji Brown Jackson will now likely be confirmed, absent some unexpected hitch (which is possible in a 50-50 Senate). SCOTUS confirmation hearings have become substantially less informative since 2005, when then-Senator Joe Biden aptly called the process a "kabuki dance." Even so, amidst the cringe-inducing botching of the law by Senators and the artful dodging and absurdly formalistic accounts of judging by the nominees (of both parties), one occasionally finds something interesting. That didn't happen this week but it almost did.
Much of the questioning by the likes of past and future GOP Presidential hopefuls Ted Cruz, Lindsey Graham, Josh Hawley, and others focused on Judge Jackson's sentencing record in the handful of cases involving convictions for child pornography possession in which she had substantial discretion to choose a sentence. That record does not differ substantially from the record of other federal judges, including Republican appointees whom the Republican Senators recently confirmed for promotions. Confronted with that fact, Hawley, the creator of the Jackson-is-soft-on-pedophiles smear, said that he hadn't voted to confirm those judges to the U.S. Supreme Court--which is a complete non sequitur, given that neither Supreme Court Justices nor federal appeals court judges exercise sentencing discretion. If a nominee actually were soft on crime, that might be a reason not to confirm them to a district court judgeship, but it has no bearing on any supposed distinction between a federal appeals court judge and SCOTUS justice; indeed, if it has any bearing, it cuts the other way, as sentencing appeals routinely come before appeals court judges but rarely come to the Supreme Court.
Of course, none of that mattered to Hawley, Cruz, Graham, and the rest of GOP Senator-lawyers who should know better. The smear appears intended to put pressure on Joe Manchin via his FoxNews-informed constituents and probably also as a shout-out to the roughly one quarter of their own constituents who believe the QAnon lunacy that the Democratic Party and federal government are run by and for pedophiles.
In taking seriously a point raised by Graham during his questioning of Judge Jackson, I thus want to be clear that I know he was not acting in anything resembling good faith. I use one line of questioning simply as a launching point to discuss an issue that might have been raised and fruitfully discussed if these hearings were serious.
At one point Senator Graham objected to Judge Jackson's practice of not enhancing the sentences of defendants guilty of child pornography offenses on the ground that, as stated in USSG §2G2.2(b)(6), "the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material." Judge Jackson has explained that the provision was first adopted at a time when the typical child pornography case involved print materials. Computer distribution then involved distribution to potentially many more people than print distribution, so the use of a computer signified a more serious offense than the typical one. But now that child pornography (like many other things) is almost always distributed and viewed via computer, an enhancement on that basis doesn't makes sense, as computer use signifies an ordinary case, not an extraordinary one.
That seems right, no? Well, Senator Graham had a completely bonkers reaction. Making a great show of how much he despises child pornography and anyone associated with it, he, uhm, lost his shit. Graham addressed pedophiles directly saying he wanted to "put their ass in jail." He then said that a prison sentence of fifty years would be proportionate for someone on the Internet seeking child pornography. The average time served by murderers in the U.S. is 15 years.
Yet if Graham's reaction to Judge Jackson's approach to the §2G2.2(b)(6) enhancement was absurd, there is nonetheless a legitimate critique one might make. It goes like this: It's true that when the Sentencing Commission first adopted the use-of-a-computer enhancement, such use marked an extraordinary case, but it has amended the Guidelines, including this provision, as recently as 2009, and despite awareness of the changed nature of the distribution medium of child porn, retained the computer-use enhancement. Thus, a departure is not appropriate on the ground that Judge Jackson articulated.
Is that a good critique? Well, it's certainly more logical than the actual histrionics of Senator Graham, but the short answer is no. If §2G2.2(b)(6) were a statute, then yes, it would be correct to say that even if a statute appears outdated, a court cannot simply choose not to give it effect on that ground, at least absent some systematic reason to think that the legislature's decision to leave it in place is unreliable. Guido Calabresi advanced a theory of statutory desuetude under which courts would sometimes be able to take such a measure, but I don't think §2G2.2(b)(6) fits Calabresi's theory, which, in any event, has never been endorsed by anyone other than Calabresi. So, with the Calabresi theory unavailable, Judge Jackson's the-world-has-changed argument would seem unavailing if used to get out from under a statutory command.
But of course the Sentencing Guidelines are neither a statute nor a command. Following United States v. Booker, i.e., for the entire time that Judge Jackson sat on the bench, the Sentencing Guidelines have been advisory. As the Court held a couple of years later in Gall v. United States, district court judges do not necessarily abuse their discretion by departing downward from the Guidelines range simply because a case is not "extraordinary." And indeed, Judge Jackson's sentences in the cases invoked by the Senators from QAnon were not reversed on appeal--whereas refusal to follow a statute on the ground that it was outdated almost certainly would lead to a reversal (unless the error were harmless).
To put the point in everyday terms, suppose a high school senior asks a guidance counselor for advice about whether to go to college A or college B, having been accepted by both. The guidance counselor is an alum of A and so pushes A, based on her fond recollections, even though in the intervening years, A has sat on its laurels whereas B has gotten much better. Even if the guidance counselor knows all of that, she might nonetheless still promote A based on sentimentality. The student who knows as much (perhaps because also scouring the internet for information) will accordingly discount the guidance counselor's advice. That's simply part of what it means for guidance to be advisory.
Accordingly, I conclude that while Senator Graham could have registered an actual plausible objection to Judge Jackson's sentences in the tiny fraction of cases about which he and the other QAnon-coddling Republican Senators cared, even that objection would have been ultimately ineffective. But perhaps that only shows that, like Judge Jackson and President Biden, I'm just another human-skin-wearing lizard apologist for pedophiles.