John Fritze, USA TODAYThu, March 17, 2022, 12:33 PM
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.
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.”
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