If a criminal figures out a more effective way to break into people’s homes to steal more, should he receive a lighter sentence per dollar of what he steals? Biden’s nominee for the U.S. Supreme Court, Judge Ketanji Brown Jackson, certainly thinks so.

The legal system doesn’t normally work that way. Where each crime a criminal gets convicted for gets a separate penalty. That has traditionally been true for child pornography, where more pictures of children mean crimes have been committed.

In testimony before the Senate Judiciary Committee, Jackson discussed concerns that she was lenient on people who possessed child pornography. There were seven cases where she gave sentences way below the federal sentencing guidelines. As a member of the U.S. Sentencing Commission, she also pushed to lower the penalties for child pornography.

“More serious child pornography offenders were based on the volume, based on the number of photographs that they received in the mail, and that made total sense before when we didn’t have the internet, when we didn’t have the distribution,” Jackson explained.

Jackson claims that a criminal getting 100 child porn pictures through the mail is less harmful than getting 100 pictures on his computer over the internet. The point of the penalties is to discourage pedophiles from getting more pictures because taking pictures harms children. The greater the demand for those pictures, the more children are harmed.

Indeed, Jackson acknowledged this in her answer: “There is only a market because there are lookers. You are contributing to child sex abuse.” But she doesn’t understand where her answer logically leads. Both electronic images of child porn and printed copies increase the demand. 

ABC News came to Jackson’s defense by using Biden administration talking points to note that Republican Senators had voted for judicial nominees who sentenced criminals below the guidelines for child porn cases. But there is a problem with this claim. Judges will once in a long while deviate from the sentencing guidelines. Indeed, most judges have probably done it a couple or a few times out of the hundreds of cases that they have heard because there might be unusual circumstances that might auger for either stiffer or more lenient sentencing.

Republican judges probably do this much less often than Democrat ones. But going through all the judges that Hawley has voted for and finding a few cases doesn’t prove what ABC thinks it does.

Trump got 174 district court and 54 circuit court judges confirmed. Of all those judges, “An ABC News review of federal judges appointed and confirmed during the Trump administration found 
nearly a dozen had handed down below-guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.”

Suppose that “nearly a dozen” means eleven judges – that is still just 4.8% of the judges that Trump placed on the bench. Of course, ABC provides no information on exactly the number of cases that handful of judges sentenced below the guidelines for any type of pornography case. For many of that eleven, it could be just one case each.

What is clear is that Jackson is an outlier. For her to do it seven times truly distinguishes her. No one should be surprised by Jackson’s generally lenient sentencing of all criminals. Jackson was a public defender, and they tend to be very liberal. A very liberal president appointed her. Left-wing activist organizations strongly support her.

With violent crime soaring and Democrats facing backlash over cutting police budgets and left-wing District Attorneys refusing to prosecute violent criminals, Biden nominated and Democrats will vote for a Supreme Court justice who personifies soft on crime policies.

* Lott is the president of the Crime Prevention Research Center. He is a former chief economist for the United States Sentencing Commission and until January 2021 he was a senior advisor for
research and statistics at the U.S. Department of Justice.