Ketanji Brown Jackson’s criminal sentencing work would make her distinct on the Supreme Court – Grid News

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Ketanji Brown Jackson’s criminal sentencing work would make her distinct on the Supreme Court

Judge Ketanji Brown Jackson will bring a new perspective to the criminal justice docket before the Supreme Court should the Senate confirm her after next week’s confirmation hearings. Jackson would come to the court with an extensive amount of experience working on criminal sentencing issues — and unique insights into mass incarceration.

Jackson, President Joe Biden’s first nominee to the high court, spent more than eight years as a district court judge before Biden nominated her to the U.S. Court of Appeals for the D.C. Circuit last year. Before becoming a judge, however, Jackson spent more of her legal career working at the U.S. Sentencing Commission than anywhere else, in addition to two years spent as a public defender.

A lesser-known agency outside of legal — or even criminal law — circles, the Sentencing Commission was created under the Sentencing Reform Act of 1984 to address the extreme disparity in federal criminal sentencing through a body that was singularly focused on the growing federal criminal legal landscape. The commission aimed both to set guidelines to be used by federal judges in sentencing and to keep track of data about sentencing for use by lawmakers and others. One of the original commissioners was Justice Stephen Breyer, the justice for whom Jackson clerked after law school and would replace if confirmed.

In 2004 and 2005, a series of Supreme Court rulings changed sentencing rules across the nation, which in turn altered the way the commission and its guidelines worked in the federal system. When the commission was formed, its guidelines were treated as having the force of law, meaning judges had to follow them. In United States v. Booker, however, the Supreme Court held that the new limits on sentencing systems meant that the federal guidelines could not be mandatory, but would merely be “advisory” going forward.

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When that landmark ruling came down, Jackson was a lawyer with the commission. As she told the Senate Judiciary Committee when she was nominated to be a federal judge, she worked at the commission “on the development of various guideline-sentencing proposals prior to, and in anticipation of, Booker.” Her experience with the commission didn’t end there. Four years later, then-President Barack Obama nominated Jackson as one of the seven commissioners. After being confirmed on a voice vote, she served for four years, including for a period after she was nominated and confirmed as a federal judge. (The bipartisan commission is required to have no more than four members of any party and to include at least three judges.)

In order to understand how Jackson’s time at the commission might affect her decision-making as a judge, Grid spoke with Douglas Berman, a law professor at Ohio State University’s Moritz College of Law and a sentencing law expert who has been an editor for the Federal Sentencing Reporter for more than a decade. [Disclosure: The author worked for Berman as a research assistant during the time of the Booker decision.]

Saying that federal criminal cases are “deeply underrepresented in both the work of the Supreme Court and, I think, in the public consciousness,” Berman explained that Jackson’s experience at the commission and, more broadly, engaging with criminal legal issues, makes him believe that she is “going to bring a light to [the criminal case docket] and do so in a way that builds on this history.”

This interview has been edited for length and clarity.

Grid: So, for those who don’t know, why does the Sentencing Commission matter?

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Douglas Berman: It’s a massive system, our federal criminal justice system. It always amazes me when I even think about it — 250 people are being sentenced every single workday. And it’s their job to both gather the data that is the product of those sentences — decision-making by individual judges in individual cases — but also to put forward policies, typically in the form of the guidelines, that help those judges do their job well.

G: Over time, the role of the commission has changed. What has that change meant for its members?

DB: In the early days of the commission, when Justice Breyer was on it, they had the incredibly challenging responsibility of writing the initial guidelines. That was so hard and so fundamental to setting federal sentencing on a path that’s still ongoing, almost 40 years later.

[After Booker was decided], that shifted the commission’s role, I think, rightly so, into even more of a policymaking body than a “write the day-to-day rules that courts enforce” body. And to the commission’s credit they — and this is part of the era when Judge Jackson served on it — they started to take a step back and ask themselves, “OK, how can this entire structure function better?” And they took a hard look at the white-collar guidelines, they took a hard look at the drug guidelines, they looked at the big sets of cases that are out there and ultimately concluded that they ought to do something pretty significant from a policy perspective, which was to reduce the drug guidelines across the board. [Reporter’s note: In 2014, the commission, with Jackson as a member, approved amendments to the guidelines that reduced the offense level for federal drug trafficking sentences, a decision that the commission estimated would reduce affected sentences by nearly a year.]

I think there’s been a growing understanding that the commission functions best when it is gathering data effectively and conveying that data for all to see. Advocates, policymakers, judges, litigants in court can then use that data to try to make better decisions.

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G: Now, Jackson had two roles on the commission. First, she was a lawyer with the commission from 2003 to 2005; then, she was a commissioner from 2010 to 2014. What can you tell me about her role that first time she was with the commission?

DB: So, the commission is made up of seven commissioners. They are the ones who get to decide what the commission is doing. And once they make those decisions, they have a staff — which includes lawyers and data analysts and the like — who help them do the analysis about where the commission should be heading, what policies would make sense. The lawyers and other staffers play a critical role both in helping to alert commissioners — “Hey, here are issues that are bubbling up in the courts or that have these different legal elements to it, we should make that one of our yearly priorities, think about an amendment or think about doing the report on this topic,” something along those lines. And then once the commissioners say, “Oh, yeah, we should be focusing on that,” or “We should do more about that,” then the staff and the lawyers help to write that report and put the pieces together. And so, she was part of the critical infrastructure of this agency.

G: You talked about the Supreme Court rulings that led to changes at the commission. Jackson was there as a staff attorney when those decisions, Blakely v. Washington and United States v. Booker, came down. So, what would that have been like? What potential lessons would that have taught her?

DB: Part of it is being a witness to history and being on the front lines. It was the June 2004 Blakely ruling that then kicked off lower-court disruptions that were all over the map. I’m sure she worked a lot of late nights because the whole commission was constantly in this incredible state of uncertainty, and then the Supreme Court ruling [in Booker] comes down, and it just becomes a whole new wave of uncertainty because the Supreme Court blesses one particular path in a very unusual set of opinions, and then they gotta figure out, “OK, where does that path take us?”

I think this was a moment in which the commission particularly realized getting out good data, in real time, was critically important to the work of other branches. Individual judges wanted to know what their colleagues were doing. Congress, which was basically invited by Justice Breyer to change the system, [needed to] know what this system was.


G: So, during that period, not only was Jackson working with the commission as a body, but several of the commissioners at the time were judges, as they have to be under law. What would that have possibly taught her about judges and judging?

DB: The commission has had a very strong consensus philosophy. One part of the challenge of building consensus is that some of these folks are judges, so for them this matters to them tomorrow in the courtroom. Other members of the commission, sometimes they’re academics, sometimes they have been on the Hill in various ways. And so it’s an interesting sort of group. Then in addition, obviously, it’s bipartisan. And so, not just when she’s a commissioner and having to work with how to build consensus, to move forward with whatever policy goals they have, but even as a staffer, as a lawyer, watching that process, seeing a judge react to this in real time — that looks different than somebody who had been on the Hill. All of that is part and parcel of where I’m sure she got incredible insight, not just on the substantive issues, but on how a multimember body like this deals with challenging issues, that I think will serve her well in what I expect to be her next job.

G: So, she’s a staffer for the commission, then she works in the public defender’s office for two years, works at Morrison & Foerster, and then Obama nominates her and she becomes a commissioner. What does having been a commissioner, like her old boss from clerking, Justice Breyer, give her that even a former judge coming to the bench wouldn’t necessarily have?

DB: I’ll particularly contrast her time on the commission with Breyer’s time on the commission.

Breyer’s there when they’re building the guidelines — and we actually see in Breyer’s work throughout — he’s constantly attentive to protecting the commission as an entity. And I think he’s right to think the commission has this unique responsibility to attend to federal sentencing in a way that no other body does. But he never had to deal with watching the system churn out 50,000, 75,000 cases a year, with all the uglinesses, and all the disparity and all the differences, etc.

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That’s what she’s seen. She’s seen this entity, later in its history, functioning — needing to function — in a variety of different ways and in an era of mass incarceration. 1985 [when the commission, with Breyer as a commissioner, began its work] is not an era of mass incarceration. We’re starting there, we’re getting there, we’re moving there. But Jackson is there from the get-go. And, in fact, you can even go back to her college thesis on plea bargaining; she was attuned to the modern functioning of our system, and I think that ensures that she has a salience for the details.

[Reporter’s note: This fact from the Sentencing Project provides just one stark example of Berman’s point: “In 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.”]

G: How will this experience matter if Judge Jackson is confirmed as a justice?

DB: I think there are two layers in which that’s going to matter a lot. One is she’s just going to notice things that somebody without that experience wouldn’t notice. Whether it’s, “It seems like it’s just this one case, this one issue, but I know this affects tens of thousands of people every year.” And so that I think is going to be profoundly important, and profoundly important that she talks to her colleagues, too.

The other is, I think she may be particularly invested in looking for ways to use the court’s soft power. … She may understand, in a way that other people couldn’t, “Hey, you know what, we could just [send] this case that nobody else is paying attention to [back to the lower court in a brief order], and that’s going to convince the commission to put it on their priority list.” Or “that’s going to lead judges to notice that a little bit more,” or “that’s going to lead the press” … whatever the case may be.

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I just think her history means that she just is going to see this stuff differently and care about it differently.

G: I think there’s somewhat of an effort to set her up as a successor to Breyer, since she was his clerk, but you’ve pointed out that there is a distinction when it comes to criminal law, at least as to when she came of age in the federal judicial system and sentencing commission system. How relevant is that?

DB: My sense is, in the criminal justice space, generational change has been particularly profound. The criminal justice concerns of the Warren Court were different than the criminal justice concerns of, obviously, the Burger and Rehnquist courts. And, the Roberts Court, in many respects, Breyer is still a holdover [from the Rehnquist Court]. And, in fact, you could say … that he is of an earlier generation, an earlier generation that was concerned about disparity and making sure we gave judges the means to figure sentencing out right without really much of a concern for sentencing rights. And so, there’s the doctrinal piece of that, that each generation has engaged with doctrine in different ways and has grown up with a different set of jurisprudential histories.

But I think there’s also then the very practical story. There wasn’t mass incarceration when Justice Breyer was either a law student or even a junior lawyer trying to fix the problems in the criminal justice system. The problems weren’t a massive number of people in prison, they were different problems. And then Judge Jackson is the complete opposite in that respect. When she goes to law school, people are starting to talk about mass incarceration, the realities of mass incarceration are kicking into high gear, and then through her professional career in a way that makes her different in kind, even if she and Breyer share the same jurisprudential philosophy.

  • Chris Geidner
    Chris Geidner

    Contributing Editor, Legal Affairs

    Chris Geidner is a contributing editor for legal affairs at Grid. He focuses on national legal issues, including coverage of the Supreme Court.