Did Ketanji Brown Jackson Flout the Law When She Reduced a Drug Dealer's Sentence?
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."
Grassley noted that neither the compassionate release provision nor the U.S. Sentencing Commission's guidelines mention nonretroactive penalty changes as an "extraordinary and compelling" reason for reducing a prison term. "It's a radical position," he said, "and it's outside of the confines of law."
Not according to several federal appeals courts, which have held that the phrase "extraordinary and compelling reasons" is broad enough to encompass Jackson's rationale for shortening Young's sentence. In the 2020 case United States v. McCoy, for example, the U.S. Court of Appeals for the 4th Circuit upheld "compassionate release" reductions for several defendants who had been sentenced under 18 USC 924(c), which prescribes a five-year mandatory minimum for anyone who possesses a firearm "in furtherance of" a drug trafficking offense, whether or not he actually used it. The gun sentence, which must be served in addition to the sentence for the underlying offense, rises to 25 years for each subsequent violation.
Prior to the FIRST STEP Act, first-time offenders who owned guns and were convicted of multiple drug charges could receive draconian sentences under 18 USC 924(c). One notorious case involved Weldon Angelos, a 24-year-old Utah record producer who received a 55-year mandatory minimum sentence in 2004 based on three eight-ounce marijuana sales to a government informant. Angelos, who was released in 2016 after prosecutors declined to oppose his petition for resentencing, never threatened or harmed anyone with a gun. But the fact that he possessed one was enough to trigger what could have amounted to a life sentence.
Outrageous cases like that persuaded Congress to prohibit the sort of "stacking" that prosecutors used against Angelos. Under the FIRST STEP Act, the 25-year mandatory minimum applies only to defendants with prior convictions for possessing a gun "in furtherance of" drug trafficking. But that change was not retroactive. The question for the 4th Circuit was whether it could nevertheless be considered in the context of a compassionate release motion. The appeals court said it could.
"Today, the defendants' sentences would be dramatically shorter—in most cases, by 30 years—than the ones they received," the court noted. While the compassionate release provision prohibits "sentence reductions that are not consistent with 'applicable policy statements issued by the Sentencing Commission,'" the 4th Circuit said, the commission had not addressed the issue of what counts as "extraordinary and compelling reasons" when prisoners file the motions authorized by the FIRST STEP Act. "Nor was it otherwise improper," the appeals court said, "for the district courts to consider the First Step Act's declaration of the appropriate level of punishment under § 924(c) in assessing the defendants' cases, on an individualized basis, for compassionate release."
The government argued that sentencing commission guidelines issued before the FIRST STEP Act precluded consideration of nonretroactive reforms. Those guidelines said the justification for a reduced sentence could include a prisoner's health, age, or family circumstances, along with "other reasons" that the Bureau of Prisons deemed "extraordinary and compelling." But that "policy statement," the prisoners successfully argued in McCoy, had plainly been superseded by the FIRST STEP Act: It was based on the assumption that only the Bureau of Prisons could file a "compassionate release" motion.
In the absence of an "applicable policy statement" from the sentencing commission, can the contrast between current penalties and the ones they replaced count as an "extraordinary and compelling" reason? The 4th Circuit thought so.
"Multiple district courts have concluded that the severity of a § 924(c) sentence, combined with the enormous disparity between that sentence and the sentence a defendant would receive today, can constitute an 'extraordinary and compelling' reason for relief under § 3582(c)(1)(A)," the 4th Circuit said. "We find their reasoning persuasive….We think courts legitimately may consider, under the 'extraordinary and compelling reasons' inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair."
The U.S. Court of Appeals for the 10th Circuit reached the same conclusion in the 2021 case United States v. Maumau, which involved the same sentencing provision. In the 2022 case United States v. Ruvalcaba, which involved the 25-year mandatory minimum for defendants with two or more prior convictions for a "serious drug felony," the 1st Circuit likewise held that a court "may consider the [FIRST STEP Act's] non-retroactive changes in sentencing law on an individualized basis, grounded in a defendant's particular circumstances, to determine whether an extraordinary and compelling reason exists for compassionate release."
In the 2020 case United States v. Brooker, the U.S. Court of Appeals for the 2nd Circuit agreed that "the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release." It noted that the authority granted by that provision is "broad" and that federal judges had cited "overly long" sentences as a reason for granting relief. "Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984," the 2nd Circuit said, citing the Senate report on the bill, which said relief might be appropriate when "other extraordinary and compelling circumstances justify a reduction of an unusually long sentence."
In the 2021 case United States v. Andrews, the U.S. Court of Appeals for the 3rd Circuit agreed that judges are not bound by the sentencing commission's outdated compassionate release guidance. But it held that neither "the duration of a lawfully imposed sentence" nor "nonretroactive changes to the § 924(c) mandatory minimums" qualify as an "extraordinary and compelling" reason for granting a compassionate release motion.
Agreeing with Grassley's take on the issue, the 3rd Circuit said "considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress's authority to set penalties." And it noted that "Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced."
The 6th Circuit and the 7th Circuit have taken a similar view. The 8th Circuit this year agreed that "a non-retroactive change in the law…cannot constitute an extraordinary and compelling reason for reducing a sentence."
Grassley, in other words, is hardly alone in thinking that Jackson exceeded her statutory authority when she shortened Keith Young's sentence. But given the circuit split and the ambiguity of "extraordinary and compelling reasons," it goes too far to describe Jackson's view as "a radical position" that is clearly "outside of the confines of law."
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What Sullum really cares about is whether or not this pedo enabler pisses off Republicans, well and probably being able to apply her pedo stance to Biden’s actions for cover.
Elon Musk owns 9 % of twitter now, single biggest owner.
https://www.cnbc.com/2022/04/04/elon-musk-thumbs-his-nose-at-the-sec-again-with-twitter-stake.html
How long before the B-team here change their tune about private companies and telling us 230 needs to go?
It’s more of a guideline, actually.
Done. Out. ‘Nuff said.
She apparently does not think anything is natural and not open to constructionist redefinitions on the fly…. like her take on biology.
Either she rejects rights in total or believes they are mere social constructions/conventions and can (and I would guess she may say “should” be changed in some cases). But there is a word for thar concept already… it is called a privilege (and not necessarily the SJW twisting of that word). In either case… it is a rejection of innate ethical placements of individuals outside the control of others.
That is definitionally an anti-American viewpoint.
…except she was proud to be one of six women nominated to the Supreme Court.
Except she would be the 7th.
There are many folks, even “intellectuals,” who don’t hold a position on whether or not individuals possess natural rights. That’s fine, but not one of these such individuals deserves to be a justice on the Supreme Court of the United States.
What if they were a woman of color?
Nominee Jackson: With regard to your answer to question 16, clarify the implication that you hold the position that African Americans have no natural rights, or that you don’t hold the position that they do.
Reason’s entire coverage of her has read like OBL created his own website.
And called it Reason.com
The Declaration is not the law of the land, the Constitution is. It does not mention natural rights, a creator, or unalienable rights. Someone who thinks those types of rights are established by law are confused about what the law is.
The Declaration of Independence is the document that created the United States. The Constitution provided for a government. The DoI was put into the Constitution by the 9th Amendment stating that there were, in fact, rights not enumerated in the Constitution that were of equal importance to those rights that were enumerated. What were these rights? The only source had to be in the DoI.
This understanding was further elucidated by the Civil Rights Act of 1868 and the 14th Amendment.
Neither of these two amendments make sense without a theory of natural rights as the underlying principle of justice.
IANAL and IIRC…
When asked by Cotton about this case it was brought up that Yound did not ask for relief under a disparity of sentencing. Judge Brown inserted that into the case in her deliberations and ruled on it in reducing the sentencing.
EVEN IF we accept that judges may ignore black letter law (it is fairly clear and agreed upon what Congress said and ment by not retroactive… the argument is can judges ethically not give a flip about that) isn’t it problematic that a judge introduced arguments not made by either party?
Now… if I remember this incorrectly I am open to correction… but I am pretty sure that stuck out to me when I watched this exchange sometime last week.
If we were talking about any post other than the Supreme Court, I would agree. However, the Supremes have more than once created their own arguments in order to rule on a bigger issue than asked in the case. Most notably, in Marbury vs Madison.
Additionally, I have a strong concern about any inconsistency in law that leads to absurd results. The reason that we have judges is to ensure that we don’t interpret laws ridiculously.
Additionally, it isn’t like she let a murderer walk free because she liked his politics. She gave a drug dealer a heavy sentence that is the same as he would have gotten if he had been sentenced at a later date. That’s a fundamentally reasonable ruling.
The phrase “In the interest of justice” isn’t just words.
But this action was NOT in the capacity of a SCOTUS Justice.
And while I may agree on moral grounds that the guy got screwed… her job is to uphold the Constitution and the law. And the law was justly created and passed and expressly denied being retroactive thereby negating any “extreme” circumstance. A circumstance that was considered and deliberated by the legislature who then ruled knowingly on it precludes interpretation. There is no ambiguity or conflict between two wishes of Congress. They said what they wanted and they clarified it further… and she said “Yeah… but I am going to do what I want despite black letter law anyhow.”
Bigger question.
Seeing as she doesn’t believe in natural rights, such as the right to life
Is it immoral to kill her?
Based on her own beliefs the answer is no
Kill one person? Small potatoes. “Nobody has any natural rights.” is slave talk.
Bingo. Sadly, the irony is lost on her.
“The death of one person is a tragedy, the death of a million people is a statistic” — Joseph Stalin, not known as a staunch advocate of natural rights.
She is a threat to liberty…should not be confirmed. I’m sure that is a good Irish or Italian lawyer from a State College who we can trust to ensure the Bill of Rights is not cut apart. Hell..put Ron Paul on the court…he will probably outlive the “Wise Latina” and ensure our liberty…
“Liberty” is something only anti-MaskVaxxers screech.
There has been government enforced vaccine mandates in the interests of public health since Washington, and it was approved by the SC in 1905.
I think you are confused about what constitutes “liberty” Diane, or Washington and every president and leader since are what you call fascists.
A lot of people in the comments don’t venture out of their own heads for facts, it’s nice to see someone who actually knows a bit about history and perspective.
Republicans are really stretching here for a reason. Why not just admit you will not vote for her because a Democrat nominated her to SCOTUS. We all know that is the case and Senators are looking silly just trying to come up with a cover justification.
I would like to see rules developed where candidates could only be rejected based on qualifications. I would hope this would end the confirmation BS we so regularly see by both parties.
Republicans are really stretching here for a reason. Why not just admit you will not vote for her because a Democrat nominated her to SCOTUS. We all know that is the case and Senators are looking silly just trying to come up with a cover justification.
This is fair, but all you really did was describe the political process.
I would like to see rules developed where candidates could only be rejected based on qualifications. I would hope this would end the confirmation BS we so regularly see by both parties.
It would be nice to see candidates accepted based on qualifications. But before you’ve even started your national search and you publicly announce you “will only accept a woman of color”, that kind of… colors the process, no?
Prior to the rise of “originalism” all judges and political parties agreed that interpreting the Constitution was conditioned by pragmatic considerations. Therefore, anyone competent to find a way around the Constitution that would enable the legislature to manifest its will over the people was “qualified”.
Now there is a strong ideological divide over the nature and purpose of the Constitution which is why “qualifications” have developed a completely different meaning – qualified to implement a set of laws desired by a political party.
Would you prefer they claim she raped multiple people in high school?
Without the legally required constitutional-amendment process, starting in the 1960’s the so-called “War on Drugs” illegally amended the 4th Amendment and other constitutional due process (ie: “Terry v. Ohio” U.S. Supreme Court ruling).
In short, the “War on Drugs” that cost taxpayers more than $1.5 trillion and produced more illegal drugs, fundamentally and unconstitutionally (illegally) took authority away from Judicial Branch judges. There was never a constitutional-amendment passed that changed the letter & spirit of the 4th Amendment and other constitutional due process.
Maybe the greatest dissent came from Justice Douglas in 1968’s “Terry v. Ohio” U.S. Supreme Court case, where Douglas explicitly warned by stripping judges of authority would lead to “totalitarianism” in the USA.
In 2001, the “War on a Tactic” after 9/11 proved Justice Douglas was 100% correct. America now has totalitarianism. We have “preemption” searches similar the Orwell novel “1984” (21st Century Best Seller List) and the movie “Minority Report”.
U.S. Republican Sens. Lisa Murkowski and Mitt Romney announced Monday night they will vote to confirm Judge Ketanji Brown Jackson’s historic elevation to the Supreme Court, giving President Joe Biden’s nominee a burst of bipartisan support and all but assuring she’ll become the first Black female justice. The senators from Alaska and Utah announced their decisions ahead of a procedural vote to advance the nomination and as Democrats pressed to confirm Jackson by the end of the week. Republican Sen. Susan Collins of Maine announced last week that she would back Jackson.
All three Republicans said they did not expect to agree with all of Jackson’s decisions, but that they found her well qualified. Romney said she “more than meets the standard of excellence and integrity.”
https://worldabcnews.com/u-s-supreme-court-nominee-ketanji-brown-jackson-wins-more-republican-support-ahead-of-vote/
Weird given that Romney opposed her nomination to a lower court. Just a few years ago.
I guess her takes on pedos really works with Mitt.
Given that neither Utah or Alaska have significant numbers of black voters and Murkowski is up for reelection with MAGA opposition, the support of both was an act of principle and courage.
Now watch the rest of the GOP refuse to take the off ramp from the road to permanent white guys minority party. Not only is it free – she will be appointed and they can’t stop it, 2/3 of Americans want her confirmed, and her likeability quotient is through the roof – but the reaction to a no vote by blacks, especially women, will be visceral and not easily changed. Can’t help stupid, but this is the party that still can’t shake Fatso.
They are probably the only 3 republicans with a shred of decency and/or morality left in the entire bunch lol. The rest seek the approval of his Führer von Trump
Grassley is a Chud, no one takes him seriously any more.
Valid question. Sullum thinks disagreements over an ACTUAL record are not serious…but allegations of multiple rapes in high school with zero evidence behind them ARE serious.
Dizzle, neither the Covid vaccine or those we all took to get into public school were “forced” on anyone, but the consequences for not getting them was upheld by the court.
You don’t understand what you are talking about.