POLITICS

Supreme Court pick Ketanji Brown Jackson could have 'profound' impact on sentencing

John Fritze
USA TODAY

WASHINGTON – Few Americans outside the criminal justice system paid much attention when a small group of judges and lawyers gathered in a conference room in 2014 to vote on a proposal to dramatically lower federal prison sentences for drug offenders

The idea, which arrived at the U.S. Sentencing Commission at a time when there was bipartisan support for rethinking the nation’s response to the drug trade, was to align the guidelines judges use to set sentences with the minimums required by law. In the end, more than 30,000 people received retroactive reductions after the policy was approved. 

In the middle of the debate was Ketanji Brown Jackson, then a vice chair of the commission and now President Joe Biden's nominee to the Supreme Court.

Under the old system, Jackson told her commission colleagues before the vote, the guidelines made it harder for judges "to sentence drug offenders proportionately." In other words, she suggested, the guidelines essentially treated "low-level dealers and high-level traffickers alike."

Assuming she is confirmed by the Senate next month, Jackson, now a judge on the U.S. Court of Appeals for the D.C. Circuit, is unlikely to change the ideological balance on the nation’s highest court, where conservatives currently hold a 6-3 edge. But that doesn’t mean she won’t have influence. And sentencing, experts say, is one area where Jackson could exert considerable soft power.

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As a former public defender, federal trial court judge and member of the sentencing commission, Jackson has an in-the-weeds insight into criminal punishment that is rare on the Supreme Court. Her ascension would come as Washington continues to wrestle with the fallout from mandatory minimum drug sentences that filled federal prisons with low-level offenders – often from predominately African American communities.

Congress, meanwhile, has appeared to lose some of the bipartisan bonhomie it had in recent years for criminal justice issues, a dynamic underscored by its failure to find agreement on a measure to hold police more accountable for violent encounters with civilians. 

"She's been thinking about these issues for her entire life and during an era that makes it so much richer and more salient for her than maybe for others," said Douglas Berman, a law professor at Ohio State University who specializes in criminal law.

"That's where her impact could end up being profound." he said. 

Jackson would replace retiring Associate Justice Stephen Breyer, who played a key role as a Senate aide in the 1980s in creating the Sentencing Commission, an independent agency of the federal courts that sets guidelines for judges. Breyer was among the first to serve on the commission. His brother, U.S. District Judge Charles Breyer, is currently its acting chair and only Senate-confirmed member

Jackson, who clerked for Breyer during the Supreme Court's 1999-2000 term, has also studied the issue for years. As an undergrad at Harvard, she wrote her senior thesis on how the criminal justice system nudges defendants toward plea bargains. One of Jackson’s uncles received a life sentence for a drug crime. Another became Miami's police chief.

Supreme Court nominee Judge Ketanji Brown Jackson meets with Sen. Shelley Moore Capito, R-W. Va., on March 15, 2022.

In part because of her history with the issue, Republicans on the Senate Judiciary Committee are seeking additional documents – including her emails – from her time on the commission. Democrats have pushed back, setting up a potential spat when the committee begins four days of hearings on Monday to consider Jackson’s nomination.

"By her supporters' own accounts, Judge Jackson's service on the sentencing commission is an important part of her experience, so her records there must be part of a thorough review," said Iowa Sen. Chuck Grassley, the committee's top Republican.

Democrats say Jackson has already provided dozens of public documents from her time on the commission. Any non-public materials from that period, they argue, would add little value to the committee’s evaluation of Jackson as a potential justice. 

"Judge Jackson has issued nearly 600 opinions in her time on the bench. More than anything, those cases provide the best window into Judge Jackson’s legal reasoning, into her approach to judicial decision-making and into the kind of justice she will be if confirmed to the Supreme Court,” said Emily Hampsten, a spokeswoman for Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat

Sen. Josh Hawley, R-Mo., raised the stakes in that debate late Wednesday with a series of tweets that questioned how Jackson has dealt with sex offenders on the commission and, later, as a judge. Hawley asserted that Jackson had frequently departed from sentencing guidelines in cases involving people convicted of possessing child pornography.

"Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker," Hawley wrote. "This goes beyond 'soft on crime.' I’m concerned that this a record that endangers our children."

Hawley said the opinions and Jackson's statements on the commission elevated the need to see the documents Grassley had requested.

White House officials pushed back, calling Hawley's tweets "toxic and weakly-presented misinformation."

White House spokesman Andrew Bates criticized Hawley for "failing to note what sentencing practices are across the entire federal judiciary regarding these crimes" and said that "in the overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”

According to a 2001 U.S. Sentencing Commission report, 59% of child pornography offenders who were not charged with producing the material received a sentence below federal guidelines.

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The Sentencing Commission’s decision in 2014 in what became known as its "Drug Minus Two" policy, was applied retroactively months later. That resulted in an estimated average sentence reduction of just more than two years, according to a 2020 report.

Jackson also served on the commission when it applied the 2010 Fair Sentencing Act retroactively. That law reduced the disparities between sentences involving crack cocaine and powder cocaine offenses, a policy that had sent a disproportionate number of low-level drug offenders, most of whom were Black, to federal prison. Nearly 8,000 motions for retroactive sentence reduction were granted after that change.

Congress in 2018 backed that decision by passing a bipartisan law with support from President Donald Trump that made the Fair Sentencing Act retroactive.

The Supreme Court regularly deals with sentencing cases that often receive little attention. Earlier this month the justices decided whether a man who had burglarized 10 units at a single storage facility in Georgia committed 10 separate crimes or only one for purposes of his sentencing. The Supreme Court's decision – that it amounted to a single occasion of a crime instead of 10 – knocked 15 years off the defendant’s sentence.

In another decision, the court ruled in June against a Florida man who had sought to have his sentence for a low-level drug crime reduced retroactively. The court ruled that the First Step Act's language didn’t allow for a reduction for the sentence of Tarahrick Terry, who pleaded guilty to possessing a small amount of crack cocaine in 2008 – about 3.9 grams – and was sentenced to more than 15 years in prison.

But the real area where Jackson may be able to wield influence, Berman and other experts said, is in deciding which cases the high court will hear in the first place. Dozens of appeals to the Supreme Court are denied every week, many of them dealing with sentencing. Four justices must agree in order for the court to take a case, and Jackson, Berman speculated, may be able to convince her colleagues of the importance of resolving some of the outstanding legal questions that have been languishing for years.

Kevin Ring, president of the criminal justice advocacy group FAMM, said Jackson would bring a different perspective to the court given her background as a former federal public defender who had actually represented clients caught up in the legal system. One of the outstanding questions is how courts should deal with compassionate release, or early release for prisoners who are terminally ill or elderly. 

"People are suffering under some of these urgent matters but they don't get the courts' attention," Ring said. "To have someone whose passion seems to be these issues might be helpful in getting more of these cases heard." 

Another place where Jackson may have an impact, advocates say, is in raising the broader concerns with the criminal justice system in opinions and speeches. Despite the changes made by the Sentencing Commission and Congress in recent years, low-level drug crimes continue to fill federal court dockets – and prisons. 

"It's because it makes us look like we're winning, and that we're being tough on crime," said Kara Gotsch, deputy director of the Sentencing Project. "In reality, we're just locking up lots of brown and Black kids who are selling drugs on the street."

Others on the court have raised those issues, including Associate Justices Sonia Sotomayor, Breyer and Anthony Kennedy, who retired in 2018. But having another voice, Gotsch said, would be a help. 

"It would be nice for someone like Judge Jackson – who I know gets it because of her experience, both on the commission and as a federal defender – to say 'this has gone on too long.'"