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Sentencing-Commission Years Prepped Jackson for High-Court Job

March 17, 2022, 8:45 AM

Ketanji Brown Jackson’s work on the U.S. Sentencing Commission led her and members of different ideologies to reach consensus on hot-button issues.

Consensus in contentious matters on the Supreme Court can be more elusive, but Jackson’s experience on the sentencing commission at a pivotal moment in its history will help her and the court if she’s confirmed, according to lawyers with commission experience and scholars who’ve studied the organization.

“It’s a space where you just have to work with people who don’t think the same way you do,” said Rachel Barkow, an NYU law professor and former Supreme Court clerk who served with Jackson on the commission.

Congress established the commission in the mid-1980s, with the goal of reducing disparities and promoting transparency. It’s known for issuing the sentencing guidelines, the formula federal judges look to when imposing prison terms. Housed in the judiciary, the agency also collects, analyzes, and distributes sentencing data and helps other branches on crime policy.

Nominated by Barack Obama, Jackson was a commissioner from 2010-14—a peak time for addressing “the extremes of drug-sentencing law,” said Kara Gotsch, deputy director of The Sentencing Project.

One of the two biggest moves of her tenure came in 2011, just after Obama signed into law the 2010 Fair Sentencing Act, which reduced the Reagan-era 100:1 punishment disparity between crack- and powder-cocaine crimes to 18:1. The commission applied that reduction to the guidelines and was considering whether to do so retroactively.

Historic Votes

Mary Price, general counsel of sentencing-reform group FAMM, recalled being in the room in June 2011, when the commission met publicly on the measure while advocates anxiously awaited the outcome.

In a nearly 10-minute statement, Jackson laid out the technical legal background that led to that moment, before quoting Dr. Martin Luther King, Jr. on the arc of the moral universe.

“Today the Commission completes the arc that began with its first recognition of the inherent unfairness of the 100:1 crack/powder disparity all those years ago,” Jackson said of the agency’s retroactivity decision. “I say justice demands this result.”

Those words stuck with Price a decade later.

“It told us a lot about who she was,” Price said. “She is a jurist who has her feet squarely in the law but her heart is also pointed towards justice.”

The other major action from Jackson’s commission term is known as Drugs Minus Two, which reduced guidelines ranges for drug offenses. Like the crack-disparity amendment, the commission applied it retroactively, in 2014.

“Those were the two most important things that have happened in the recent history of the U.S. sentencing commission, and she was there for both,” Gotsch said of Jackson. “I remember her having a really strong voice and perspective on the urgency of doing both of those things.”

Practical Understanding

Both the crack/powder and broader drug measures were approved unanimously on the commission which, by law, requires bipartisan balance. Of its seven voting members, no more than four can be of the same political party, and at least three must be judges.

Congress can override the agency’s actions, so the prospect of divided votes, which can raise red flags for lawmakers, encourages agreement.

“She was dealing with some pretty strong-willed Republicans,” said Jim Felman, former co-chair of the Practitioners’ Advisory Group to the commission, and a partner at Kynes, Markman & Felman in Tampa, Fla.

Jackson had earlier served the commission as an assistant special counsel from 2003-05. That first round led her to public-defense work, she told senators considering her D.C. Circuit confirmation last year.

“I served as a staff attorney at the Sentencing Commission in a legislative drafting and policymaking role,” Jackson said in her judiciary-committee questionnaire response. “I soon discovered that I lacked a practical understanding of the actual workings of the federal criminal justice system, and I decided that serving ‘in the trenches,’ so to speak, would be helpful.”

Familiar Path

Jackson would be the high court’s second ex-commissioner. The first was Justice Stephen Breyer, who Jackson clerked for and hopes to replace. Breyer’s brother, Charles, a district-court judge, is currently the lone commissioner on the body that lacks a quorum, an issue that some justices have lamented recently.

At her high-court hearings set to start March 21, the commission could surface in the same breath as her defense work. Republicans have gone after judicial nominees with defense and civil-rights experience, a trend that may continue with Jackson’s hearings ahead of the midterm elections, as Minority Leader Mitch McConnell (R-Ky.) said in a March 15 floor speech that “soft-on-crime” progressives backed her because of her defense and commission work.

Jackson pointed to the bipartisan nature of her commission work in her Senate questionnaire last year, saying it “routinely required me to consider, assess, and incorporate the views and concerns of brilliant lawyers and judges with different backgrounds and perspectives.”

Still, the commission had a 4-3 Democratic majority, said NYU’s Barkow of the time in which it voted for Drugs Minus Two. Jackson would be headed to a much different makeup at the Supreme Court.

“The six more-conservative justices don’t have to get the other three on board,” she said. “They can just plow ahead, 6-3. They don’t need the extra votes.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com