Thread by @JelaniExum

The #SCOTUSHearings compel me to explain that federal judges have known that sentencing guidelines for child pornography are outdated. I wrote about needed fixes a decade ago: scholarship.richmond.edu/jolt/vol16/iss…. Here’s a thread to give #JudgeKetanjiBrownJackson’s decisions context:

It is not shocking that #JudgeKetanjiBrownJackson has sentenced defendants below the guidelines range. In 2005, the Supreme Court mandated that the Guidelines are ADVISORY and that a judge cannot treat them as mandatory. So, where do the guidelines fit into decisions?…

Judges use the guidelines as a starting point and then MUST consider other delineated #sentencing factors to select a reasonable sentence that satisfies the purposes of punishment. Those factors include things like “the need for just punishment”.

How do the federal sentencing guidelines work? Points are associated with certain offense factors. The guidelines add points for factors that make a person more culpable than the heartland off offenders for that crime. The points are meant to differentiate between offenders…

But those points offer less guidance when they don’t differentiate. Adding points for the use of a computer when virtually all CP possession offenders use computers is one example of the many outdated child pornography guidelines factors. Judges have noticed and adjusted…

What have judges done instead of relying on the child pornography guidelines? They’ve appropriately turned to goals of punishment. The concern for every judge is whether an offender will harm children in the future, but the guideline factors do not address that risk, so…

In non-production, possession only cases - the ones #JudgeKetanjiBrownJackson has been asked about - judges make a risk determination using other facts presented by counsel. This is why 2/3 of CP possession sentences in all federal courts are below the guidelines. That means…

#JudgeKetanjiBrownJackson’s CP sentencing is quite ordinary among reasonable judges. She, however, is extraordinary because she cares to write thoughtful, reasoned decisions. And it’s extraordinary that she will be the first Black woman on the US Supreme Court. #SheWillRise