When Congress acted in 2010 to reduce the massive sentencing disparity between crack and powder cocaine, it sidestepped a critical question: whether to make the change retroactive, applying to thousands of prisoners already serving lengthy terms.
Opinion Jackson will bring perspective to a court too often removed from real life
By Ruth Marcus
February 25, 2022 at 9:06 a.m. EST
Jackson didn’t mince words — and her passion then offers a glimpse of the kind of Supreme Court justice she could be in the years to come.
“My vote today does not resemble any caricature of a policymaker intent on freeing violent felons without authorization and against congressional will,” Jackson said. “If ever the day should come when the retroactive application of a guideline … furthers our societal interests in equitable sentencing and the avoidance of unwarranted disparity,” she continued — and here she paused to emphasize every word — “this is that day.”
Now, 11 years later, Jackson is President Biden’s nominee to replace retiring Justice Stephen G. Breyer. And while Jackson, assuming she is confirmed, will be in the history books as the first Black woman justice, the more immediate significance of her arrival at the Supreme Court may be as only serving justice — and the first in decades — with significant experience representing criminal defendants and grappling with the consequences of the criminal justice system on communities of color.
Breyer, for whom Jackson clerked during the Supreme Court’s 1999 term, was the intellectual godfather of the Sentencing Commission, designed to make federal sentences fairer and more uniform. But Breyer came at the issue from the lofty perch of a Senate aide (he helped write the legislation that created the Sentencing Commission) and later as a federal judge.
Others on the court have varying experience as federal prosecutors — Justice Samuel A. Alito Jr. as U.S. attorney for New Jersey; Sonia Sotomayor as an assistant in the Manhattan U.S. attorney’s office; Brett M. Kavanaugh in the office of independent counsel Kenneth Starr.
Jackson brings a different perspective. She would be the first justice to have served as a federal public defender, two years in the appellate office of the D.C. public defender service. Not since Thurgood Marshall has a justice had such extensive experience representing criminal defendants.
During her confirmation hearings for the appeals court last year, Jackson explained that she was inspired to work as a public defender after serving as a staff lawyer for the sentencing commission. “I lacked a practical understanding of the actual workings of the federal criminal justice system” and wanted to spend some time “serving ‘in the trenches,’” Jackson wrote in answers to questions from Sen. Ben Sasse (R-Neb.).
Sasse, who should know better, sought to weaponize her time as a public defender: Did Jackson ever worry about “violent criminals — including gun criminals — being put back on the streets?” Why did she represent a Guantánamo detainee — and if she didn’t have a choice, “did you ever consider resigning from your position?” This suggestion is antithetical to the constitutional vision that every person accused of a crime has the right to the zealous assistance of counsel.
Jackson pushed back with polite forcefulness. “Having lawyers who can set aside their own personal beliefs about their client’s alleged behavior or their client’s propensity to commit crimes benefits all persons in the United States,” she wrote, “because it incentivizes the government to investigate accusations thoroughly and to protect the rights of the accused during the criminal justice process, which, in the aggregate, reduces the threat of arbitrary or unfounded deprivations of individual liberty.”
Jackson explained during her hearing that “there is a direct line from my defender service to what I do on the bench.” As she searched for grounds on which to appeal convictions, she recalled, “Most of my clients didn’t really understand what had happened to them. They had just been through the most consequential proceeding in their lives and no one really explained to them what they were supposed to expect.”
As a trial judge, “I take extra care to communicate with the defendants who come before me in the courtroom,” she explained of her eight years as a district court judge. “I speak to them directly, and not just to their lawyers. I use their names. I explain every stage of the proceedings, because I want them to know what’s going on.”
Having a justice who has presided over actual trials, not simply occupied the arid confines of an appeals court, is another plus. But does any of this matter? Given the six-justice, conservative majority on the court, is Jackson apt to change any minds if confirmed? The court grapples regularly with complicated issues of federal sentencing policy, with the rights of criminal defendants, and with when to apply its criminal law rulings retroactively. Expertise in these areas helps, but it would be naive to hope that a Justice Jackson’s arguments will hold much sway with her conservative colleagues.
Still, if at least for the foreseeable future, the liberal justices are destined to be in the minority in divided cases, Jackson could add a potent third voice to the increasingly anguished dissents issued by Sotomayor and Justice Elena Kagan. You don’t need to have served in the trenches of the criminal justice system to call out injustice, but an argument amplified by experience is that much more compelling.