Arkansas Republican Senator Tom Cotton and Supreme Court Nominee Ketanji Brown Jackson got into a testy exchange during her confirmation hearing before the Senate Judiciary Committee on Wednesday.
Cotton began by pointing out that murder rates jumped from about 16,000 in 2019 to more than 20,000 in 2020, an increase of 25%. Cotton also pointed out that a number of major cities around the country have seen record-high murder rates. At the same time, Cotton noted that the U.S. prison population has declined by approximately 14%, and put the blame for this decline on fewer prosecutions and lax sentencing guidelines. He then asked Jackson to give her opinion on whether the country needed more police or fewer police.
“As you just noted,” Jackson began, “I have law enforcement in my background, and I am very familiar with the problems that crime [causes] in the communities where we live—”
“Okay, judge, I’m sorry,” Cotton interjected. “We have a few minutes here; you have a lifetime appointment if you’re confirmed. I asked a simple either/or question.” Cotton then repeated his question: “Does the United States need more or fewer police?”
“Senator, the determination about whether there should be more or fewer police is a policy decision by another branch of government. It is not something that judges have control over, and I will stay in my lane in terms of the kinds of things that are properly in the Judicial branch,” Jackson responded.
After accusing Brown of evading the question, Cotton moved on to sentencing, pointing out that her record on sentencing had been the subject of much discussion throughout the day. “In general, is someone more or less likely to commit a crime if they know that they will be caught, convicted, and sentenced?”
“Senator, what is in my lane is the consideration of particular cases,” Jackson began to reply.
Cotton cut in again. “Judge, you’ve spoken a lot today about criminal sentencing, about the theory of sentencing, you’ve written a lot about it in your record. It is a very simple question. Is someone more likely or less likely to commit a crime if they’re more certain that they’re going to be caught, convicted, and sentenced?”
“Senator, I am aware from my work on the sentencing commission and not as a judge, that there is research into recidivism rates, into rehabilitation, into the factors that go into a determination about whether someone is more or less likely to commit crime,” Jackson responded. “Part of what Congress has taken into account, when it determined that one of the purposes of punishment is deterrence, is the idea that if someone is convicted and punished, they will be deterred from committing other crimes.”
“And you’ve mentioned that, and you’ve written about that in your writings; there’s four purposes of punishment, one of those is deterrence. Isn’t it inherent in the concept of deterrence that people are less likely to commit crime if they’re more likely to get caught, convicted, and sentenced? Why can’t you just say [that] that’s the case?”
“It’s not that I’m avoiding saying that’s the case—” Jackson said
“No, judge, that’s exactly what you’re doing,” Cotton fired back. “I’m asking a very simple question. In general, is someone more likely or less likely to commit a crime if they know they’re going to be caught, convicted, and sentenced?”