The Supreme Court nominee’s critics say she clearly did, but several federal appeals courts disagree.
Discussing Ketanji Brown Jackson’s Supreme Court nomination today, Sen. Charles Grassley (R–Iowa) brought up her resentencing of a heroin dealer named Keith Young—a case that Sen. Tom Cotton (R–Ark.) grilled her about during her confirmation hearing last month. Grassley, like Cotton, suggested that Jackson had flouted federal law by retroactively applying a sentencing reform that Congress had chosen not to make retroactive. But the issue is not so straightforward, since federal appeals courts have disagreed about the legality of Jackson’s rationale for shortening Young’s sentence. In July 2018, Jackson, then a judge on the U.S. District Court for the District of Columbia, sentenced Young, who had been convicted of possessing with intent to distribute one kilogram or more of heroin, to 20 years in federal prison. That penalty was mandatory once prosecutors invoked 21 USC 851, which applies to defendants with certain prior drug convictions. Two years later, Young filed a motion for “compassionate release” under 18 USC 3582(c)(1)(A), which allows judges to shorten sentences for “extraordinary and compelling reasons.” The FIRST STEP Act, a package of criminal justice reforms that Congress enacted in December 2018 (five months after Young was sentenced), allowed prisoners to file such motions directly after exhausting administrative remedies. Previously, requests for sentence reductions under the compassionate release provision had to come from the Bureau of Prisons. Young, like many other prisoners who filed such motions during the pandemic, argued that he should be released in light of the danger posed by COVID-19, citing his asthma and smoking history as factors that made him especially vulnerable to the disease. Although Jackson rejected that request, she shortened Young’s sentence from 20 years to 10, which is the term he would have received without the Section 851 enhancement. During her confirmation hearing, she noted that the FIRST STEP Act had tightened the requirements for such enhancements so that Young’s prior conviction would not have triggered Section 851 had he been sentenced after the law took effect on December 21,2018. While that change was not retroactive, it meant that Young’s prison term would have been half as long had he been sentenced five months later. Jackson viewed that fact as an “extraordinary and compelling” reason to shorten his sentence. As Grassley sees it, Jackson improperly substituted her policy judgment for the one reflected in the FIRST STEP Act. “Judge Jackson said she based her ‘extraordinary [and] compelling’ finding on the nonretroactive change in the law,” he said during a meeting of the Senate Judiciary Committee today. “This is a terrible and dangerous interpretation. Congress chose…which provisions of the FIRST STEP Act would apply retroactively… The Senate is currently considering legislation that I cosponsored with [Senate Judiciary Committee Chairman Richard Durbin (D–Ill.)] that makes some of the FIRST STEP Act retroactive. But Congress must make that change.” It makes little sense for Congress to decide that penalties for certain drug offenses are excessively severe while forcing current prisoners to continue serving sentences it now considers unjust. Yet that is what Congress did, and Grassley argues that such inconsistency was the price of winning approval for the FIRST STEP Act. “The compromise that I brokered with Sen. Durbin on the FIRST STEP Act,” he said, “wouldn’t have been possible if we thought that the activist judge would insert their own views into the law. Decisions like this represent serious separation-of-powers concerns and will make bipartisan work harder in the future.
