“Justice demands this result.” That’s what Ketanji Brown Jackson said in 2011 after the U.S. Sentencing Commission knocked as much as three years off the prison terms of crack-cocaine convicts. As vice chair of the commission, Jackson believed the nation’s drug laws were overly harsh and especially “unfair” to blacks.
A month earlier, Jackson had shrugged off Justice Department warnings that the decision—which made more than 12,000 federal crack inmates eligible for early release—could flood the streets with dangerous criminals who would likely reoffend.
“[B]y keeping them in longer, it doesn’t seem to make a difference with regard to whether or not they recidivate,” Jackson reasoned in a June 2011 commission hearing in Washington, according to transcripts reviewed by RealClearInvestigations.
Then-U.S. Attorney Stephanie Rose objected: “It does protect the safety of the public, though, when they’re not present to recidivate.”
Unpersuaded, Jackson countered: “But the amount of time in jail doesn’t affect that because there’s no difference. If we keep them in jail for the extra 36 months, or whatever, they’re going to recidivate at the same rate as if we released them early. So I don’t see how public protection is being affected one way or the other in that scenario.”
“Because during the three years they are in prison, they are not out committing new crimes—that’s the difference,” Rose replied, adding that the department had “public safety concerns” over cutting prison terms for so many felons at once.
Now vying for a spot on the U.S. Supreme Court, Jackson has struggled to fend off accusations that she is soft on crime. The Senate confirmation hearings have exposed a pattern: whether as a lawyer, sentencing commissioner or judge, she has disregarded the warnings or recommendations of prosecutors and investigators while advocating or easing the punishment not just for drug dealers but also child porn offenders and even accused terrorists.
Jackson argues courts should have empathy for all people, no matter how egregious their behavior, and look to rehabilitate them and not just “lock them up and throw away the key.”
Her supporters say she would bring a fresh new perspective to the high bench, which has been dominated by former prosecutors trained to keep criminals in prison, not out of it. If confirmed, Jackson would be the modern court’s first public defender. No sitting justice has such experience.
But Republicans and other critics contend her compassion has come at a price. They say she’s tended to cut criminals too much slack, putting them back on the street where they can repeat their crimes—and in many cases, some of them have reoffended and found new victims, records examined by RCI reveal.
Detractors say such leniency raises concerns about how, if confirmed, she would handle cases that may come before the high bench involving terrorism, child pornography, drug trafficking and other serious crimes.
More Than 31,000 Drug-Traffickers Granted Early Release
While guiding the sentencing commission, Jackson didn’t just resist federal prosecutors’ warnings that granting crack dealers early release would merely put them back in action faster. She also ignored their advice to exclude from eligibility those with firearms in their records. In the end, she sided with NAACP official Hilary O. Shelton, who called crack sentences “racially discriminatory” and demanded the commission “correct this injustice.”“People of color are being put in prison at much higher rates than their Caucasian counterparts,” Shelton asserted, testifying before the commission alongside Rose.
But Jackson wasn’t satisfied with releasing only inmates locked up for dealing crack. In 2014, she helped push a proposal to slash sentencing guidelines for the full array of drug offenses. Several months later, the commission voted to let such inmates apply for the sweeping reductions retroactively—a move that sped the release of tens of thousands more prisoners. Since drug felons make up roughly half the federal prison population, it was arguably the most consequential decision the panel has made in its 38-year history.
All told, more than 31,000 drug-traffickers were granted early release, and most are now back on the streets. Studies show many of them are career criminals whose drug crimes involved guns—like Jackson’s own uncle, Thomas Brown Jr., whose life prison sentence she helped get commuted around the same time.
Jackson assured the public that judges wouldn’t just dump prisoners into communities without first assessing their risk on a case-by-case basis. “Each drug offender is going to have to be evaluated individually in order to determine whether or not, as a result of dangerousness or otherwise, his or her sentence should be reduced,” she said on NPR in July 2014.
Federal probation officers told RCI that the releases happened so fast that their offices were overwhelmed and most of the parolees went straight to the streets without transitioning through halfway houses, which didn’t have bed space for them. They say the mass release has helped drive up crime rates across the country.
“Police worked hard to put these folks away, and because of that, crime rates dropped,” said Greg Forest, chief U.S. probation officer for the Western District of North Carolina.
Those rearrested after incarceration didn’t just get prosecuted for drug offenses. A large share also committed violent crimes, including child abuse, rape, aggravated assault, kidnapping, weapons offenses, robbery and even murder.
Jackson was carrying out President Obama’s race-based “de-incarceration” agenda. A two-time Obama appointee, she worked on Obama’s 2008 campaign and also donated to it, federal campaign records show. The next year, Obama appointed her to the influential sentencing commission.
Then in 2012, he named her to the D.C. District Court bench. Four years later, Obama commuted the sentence of Jackson’s uncle, Thomas Brown, who’d been serving time in Florida since 1989 for a three-strikes drug crime involving cocaine possession and trafficking, records show. (For his two earlier drug felonies, the state of Florida had given him probation, even though he also pleaded guilty to a gun charge in one of the cases.)
While sitting on the D.C. bench for eight years, Jackson personally granted a number of dangerous convicts immediate release from prison or reduced their sentences retroactively.
In order to grant a compassionate release or reduction, a court must find that the defendant “is not a danger to the safety of any other person or to the community.” Prosecutors advised Jackson that Young still posed a threat. But she nonetheless slashed his term from 20 years to 12 years, while transferring him to a lower-security facility due to “medical conditions.”
When originally sentencing him in 2018, Jackson told Young she regretted the mandatory 20-year term she was forced to give him under federal law. She hoped to give him half that time. She told him that she shared his “frustration” with the law, which she found “quite frankly, upsetting,” and apologized for having to follow it.
“I am sorry, mostly because I believe in second chances and because a person with your characteristics and family support would have had a real shot at turning your life around,” she told the career criminal, who had a prior cocaine-distribution conviction on his record and had taken videos and selfies posing with his guns and bragging about being a drug “kingpin.” She said she wanted him to be “there for your kids.”
In addition to the stiff sentence, prosecutors had also wanted the judge to seize $180,000 from the drug dealer, but Jackson strenuously objected to the forfeiture. She even waived any fines in his case.
“Mr. Young, good luck,” the judge said. “Thank you, your honor,” he replied.
At her confirmation hearing, Senate Judiciary Committee member Sen. Tom Cotton accused Jackson of refusing to follow sentencing laws, which do not allow her to retroactively resentence convicts like Young to serving less time. He said she misused the compassionate-release option to sidestep the mandatory sentence she never wanted to give the drug dealer back in 2018.
“You chose to rewrite the law because you were sympathetic to a fentanyl drug kingpin whom you had expressed frustration at having to sentence him to his 20-year sentence in the first place,” the Arkansas Republican said. “It was a blatant rewrite of the law so you could reduce the sentence.”
“Respectfully, senator, I disagree,” Jackson replied, though she admitted she had “policy disagreements” with sentencing guidelines set by Congress.
Early last year, the judge granted a “compassionate release” for LaVance Greene, who was serving a life sentence for fatally shooting a U.S. marshal in 1971 while helping his bank robber half-brother escape custody in Washington. She made the decision over the objections of the U.S. Marshals Service and federal prosecutors. Jackson argued that the 72-year-old Greene, whose release had been rejected several times by the parole board, no longer posed a “significant risk of danger,” even though authorities pointed out that Greene had recently threatened prison staff with a weapon. The judge cited other evidence that Greene was a “model prisoner” who took numerous prison educational classes, including drug abuse and treatment programs.
“[T]o the extent the Government suggests that some crimes are just too egregious to warrant granting a defendant’s request for compassionate release, this Court disagrees,” Jackson argued in her ruling to put a murderer back on the street.
Jackson has softened sentencing for other inmates convicted of attacking law enforcement personnel. Take the D.C. case of David Jenkins. After the defendant was convicted for a third time of assaulting a police officer, who was trying to arrest him on a warrant for assault with a deadly weapon, prosecutors requested he be locked up for 30 months. His defense attorney pleaded for 21 months. In her 2015 sentencing, Jackson gave him only 18 months.
In another window into her thinking on crime and punishment, in April 2020 Jackson wrote a memo opinion addressing Sean Ray Higgins and other D.C. criminal defendants who asked for early release to home confinement due to the COVID outbreak. Higgins had pleaded guilty to a large heroin trafficking conspiracy involving high-powered weapons and was awaiting sentencing while in jail. Jackson said it was a “close call” to ever detain him in the first place. She revealed that she regretted that she couldn’t release him, along with “each and every” other inmate in district custody. She lamented that her hands were tied by the bureaucracy.
“The obvious increased risk of harm that the COVID-19 pandemic poses to individuals who have been detained in the District’s correctional facilities reasonably suggests that each and every criminal defendant who is currently in D.C. DOC [Department of Corrections] custody—and who thus cannot take independent measures to control their own hygiene and distance themselves from others—should be released,” Jackson said. “But the unfortunate current state of affairs is that the judiciary is limited in the steps that it can take to respond to the legitimate and pressing COVID-19-related concerns.”
Going Easy on Pedophiles
When she was getting her law degree at Harvard, Jackson wrote a brief in the Harvard Law Review arguing that the judicial system was unfair to people who sexually prey on children, because it sentences them to monitoring and treatment after prison, which she viewed as additional “punishment” masquerading as prevention. Although the Supreme Court has upheld such requirements, she complained that “community notification subjects ex-convicts to stigmatization and ostracism, and puts them at the mercy of a public that is outraged by sex crimes.” She further worried that ordering offenders to enter mental health facilities deprives them of their “fundamental right to freedom,” and she suggested that its real purpose is satisfying “the societal interest in locking sex offenders up and throwing away the key.”Her apparent empathy for such offenders has carried over into her years on the sentencing commission and federal bench.
On the commission, Jackson took a special interest in federal sentencing guidelines for child pornography, which makes up less than 2 percent of cases on the federal docket. She stated in hearings that she did not “necessarily” view child pornography offenders as pedophiles, and suggested that federal sentencing guidelines mandating they be locked up for a minimum of five years “may be excessively severe”—a view that once again was seemingly at odds with the Obama Justice Department, which advised the commission to “ensure that the sentences for child exploitation offenses adequately reflect the seriousness of the crimes and the offenders.”
As a result of the proposed new guidelines, critics say many judges across the country have found ways to avoid giving felons who receive or solicit child porn the mandatory minimum prison sentence. In addition, the report that Jackson spearheaded also questioned the “collateral issues” of federal courts ordering child pornographers to register as sex offenders and commit to treatment, echoing the concerns she raised in her 1996 Harvard Law Review paper.
Later, as a D.C. judge, Jackson under-sentenced defendants in every single child porn case in which she had discretion to mete out punishment, court records show, even though some were caught with thousands of illegal images and videos of minors and one was busted with images of naked toddlers tortured by adults in sadomasochistic acts. She not only departed from federal sentencing guidelines, but in many cases eschewed the recommendations of prosecutors and sometimes even probation departments, leaning instead in favor of the lighter punishments suggested by the child porn offenders and their lawyers, many of whom worked in the same federal public defender office where she once worked. In some cases, court filings show she cited U.S. Sentencing Commission statistics gathered during her tenure there to back her rulings from the bench.
Her treatment of child pornographers is troubling to observers who worry about high recidivism rates among offenders as the amount of child porn on the Internet explodes. They say her record endangered children.
“We need more deterrence, not less,” said Mike Davis, president of the Article III Project, a Washington advocacy group for constitutional judges and the rule of law. “Yet Judge Jackson has gone out of her way as a law student, lawyer, commissioner and judge to advocate for more leniency for people who possess and distribute child porn.”
Added Davis: “She’s been on a 25-year crusade to coddle them.”
A 2003 Justice Department study found that 43 percent of sex offenders, including child pornographers and child molesters, were rearrested for the same or other crimes after release from custody. Three-fourths of the rearrests involved felonies.
Senators grilled Jackson for days last week about her record in this area. Jackson responded that she considered the cases she presided over “heinous” and “egregious” and imposed lengthy probation terms requiring supervision of the offenders, including monitoring their computer use. She noted she'd also ordered them to undergo treatment for porn addiction.
However, such alternatives to lengthy prison terms have failed to stop some from reoffending—including child porn convict Wesley Keith Hawkins, a young gay black man whom Jackson sentenced to just three months in prison despite the prosecution asking for two years.
In 2013, Hawkins was busted posting videos on YouTube of “prepubescent boys engaged in sexual activity with each other, including oral and anal penetration,” according to court documents. He told an undercover officer that he preferred children as young as 11 and sent him a video of a “prepubescent male masturbating.” Investigators recovered 17 videos from his phone and laptop, which showed, among other things, “an approximately 11-year-old male being anally penetrated by an adult male.”
In her sentencing, Jackson ruled she didn’t think the volume and content of porn he had was particularly egregious and she gave Hawkins essentially a slap on the wrist—and then apologized to him for it.
“This is a truly difficult situation,” she told Hawkins at sentencing. “I appreciate that your family is in the audience. I feel so sorry for them and for you and for the anguish that this has caused all of you.”
Jackson then expressed sorrow over even the light sentence she handed down. “I feel terrible about the collateral consequences of this conviction,” she said, explaining that “sex offenders are truly shunned in our society, but I have no control over the collateral consequences.”
The sympathetic tone of her remarks again echoed those she made in her Harvard Law brief decades earlier. Senate Republicans said Jackson made it sound like Hawkins was more a victim than the children he exploited.
Unfortunately, her words of kindness did not dissuade Hawkins from continuing with his obsession.
In 2019, long after Hawkins had served his short stint in prison but while he was still under a six-year supervised release, the U.S. attorney who prosecuted him alerted Jackson that despite treatment and monitoring, Hawkins continued to seek out sexually arousing images of underage boys. Expressing concerns that Hawkins might reoffend, his probation officer recommended that he be confined to a “residential reentry center” for six months—double Jackson’s original prison sentence—and subject himself to “periodic unannounced searches of any computers” he uses. Jackson concurred and signed an order toughening the terms of his probation, according to her court filing. Asked about Hawkins’ relapse at her Senate hearing, she testified she could not recall the matter.
A more serious example of recidivism involved another case Jackson heard with a compassionate ear. In 2015, Neil Alexander Stewart, 31, was caught with more than 600 child sex images and videos. He confided to an undercover officer posing as a fellow predator that he was interested in “willing” children between the ages “5–11” and sought to meet at the D.C. zoo with the agent’s fictional 9-year-old daughter.
In one text cited by prosecutors, Stewart advised the undercover officer how to groom a child to have sexual intercourse, which they could later videotape. “The trick is starting with really small toys and gradually moving up until something is the same size,” he texted. “And vibration.”
“The public does not need to be protected from Mr. Stewart,” the defense argued in a presentencing memo to Jackson, which extolled his interests in hobbies including: “Physics, Cooking, Reading, Self-Help books, Science and Gardening.” “Mr. Stewart’s character and attitude indicates that he is unlikely to commit another offense.”
In her 2017 sentencing, Jackson gave Stewart 57 months in jail—well short of the 97 months prosecutors had asked for. The judge also waived a $5,000 fine. Jackson set aside prosecutors’ warnings that Stewart was a risk for “hands-on” sexual abuse of children and posed a “continuing” threat to the community. At her Senate confirmation hearing, Jackson was asked if she was aware that Stewart had allegedly reoffended.
“Would it surprise you to learn that Mr. Stewart is a recidivist?” asked Sen. Josh Hawley, a Missouri Republican. “He [has] warrants issued again for his arrest, just three years after your sentencing.”
Replied Jackson: “You know, Senator, there is data in the Sentencing Commission and elsewhere that indicates that there are serious recidivism issues. And so among the various people that I’ve sentenced, I’m not surprised that there are people who reoffend, and it is a terrible thing that happens in our system.”
Volunteering for the ‘Gitmo Bar’
While serving as an assistant federal public defender in D.C. from 2005 to 2007, Jackson defended four suspected terrorist detainees captured after 9/11 on the battlefield in Afghanistan and locked up at the Guantanamo Bay, Cuba, prison. Among other things, she filed habeas corpus appeals to try to compel their release and transfer from Gitmo, where they were held by the U.S. military as enemy combatants, to the U.S. court system, where they could avail themselves of all the legal rights afforded American citizens.In her petitions, Jackson argued that the suspected terrorists had been forced to suffer “abuse and agony” at the hands of their guards and that such “torture,” in addition to their indefinite confinement, constituted “war crimes.” She also wrote briefs challenging their classification as enemy combatants.
Strikingly, Jackson omitted the full extent of her defense of Gitmo detainees from her Senate confirmation questionnaire. She claimed she represented only a single detainee—Khiali Gul—while working at the public defender office. In fact, she also represented detainees Tariq al-Sawah, Kudai Dad, and Jabran al-Qahtani during her tenure there, according to documents reviewed by RCI.
Although Jackson did not travel to Gitmo to personally meet with the detainees, she corresponded with them and reviewed classified dossiers and other documents concerning the suspects in a secure facility in Washington after applying for and receiving security clearance at the SECRET level. She knew, therefore, that U.S. intelligence had determined that all four of her pro bono clients were too dangerous to release.
Gul was classified “HIGH risk, as he is likely to pose a threat to the U.S.,” according to his Gitmo dossier. “Detainee was an intelligence officer for the Taliban” and the leader of a “terrorist cell” who had “planned and executed an attack on a U.S. [base]” in Afghanistan before he was captured.
Dad was assessed to “having direct ties to Taliban leadership” and had been arrested at an Afghan compound where Taliban commanders met, his Gitmo dossier warned.
Al-Sawah, an al-Qaeda bomb expert, also was assessed as high-risk. His military dossier said he admitted he was a member of al-Qaeda. It also said he attended terrorist training camps in Afghanistan and once met Osama bin Laden.
Al-Qahtani was viewed as a continuing threat as well: “This detainee is a member of al-Qaeda [and] has demonstrated a commitment to jihad [and] has participated in terrorist training against the U.S,” according to a 2004 intelligence report on him. In fact, al-Qahtani was arrested at al-Qaeda leader Abu Zubaydah’s safehouse in Pakistan in 2002. Described as “aggressive,” the Saudi national told Gitmo interrogators that if he were released, he’d return to Afghanistan and fight Americans. In 2016, military authorities warned that as a “skilled bomb maker,” al-Qahtani and his electronics expertise would be in demand by terrorist organizations. They determined that he was still a threat to “reengage in hostilities.”
Jackson testified she was assigned the terror cases and had a duty as a public defender to represent her clients “zealously,” even though she did not necessarily agree with what she was arguing on their behalf. However, she continued to advocate for at least al-Qahtani after she left the public defender office and took a job in private practice.
In 2007, she kept representing al-Qahtani free of charge when she moved on to Morrison & Foerster LLP, a liberal San Francisco-based law firm that crusaded against Gitmo. Though Jackson left the firm in 2010, Morrison Foerster eventually succeeded in getting her client released from Gitmo.
In a 2016 detention review hearing, records show, Judson Lobdell of Morrison Foerster argued that although al-Qahtani admitted having received “weapons instruction [at] a training camp north of Kabul,” he “never fired a shot in anger.” And though he also admitted building bombs at the al-Qaeda “safehouse” in Pakistan, the attorney assured the Gitmo review board hearing his case that “nobody was ever harmed by a device made directly or indirectly by Mr. al-Qahtani.”
Lobdell assured board members that he no longer had any “desire to be a bomb maker.” All he wanted to do, the lawyer said, was to “start a family and live a quiet life” back in Saudi Arabia.
“Mr. al-Qahtani poses no threat to the security of the United States,” Lobdell argued. In fact, “[he] bears no ill will towards anyone.”
The Gitmo board, then comprising several Obama administration agencies, agreed to transfer him to Saudi Arabia under the condition he go through a terrorist rehabilitation program. In November 2016, he was sent to the Mohammed bin Nayef Counseling and Care Center, which has the trappings of a five-star resort along with a questionable track record for reforming jihadists.
Jackson’s other three terrorist clients have also been released from Gitmo. While there’s no clear evidence any of them have returned to jihad, there’s a 1 in 3 chance they might, based on recidivism rates for former Gitmo detainees.
According to a declassified 2020 Office of National Intelligence report, a total of 229 of the 729 detainees released from Gitmo have reengaged in terrorist activities, including conducting and planning attacks and recruiting and funding terrorists. That’s a recidivism rate of more than 31 percent. Some of the repeat offenders have American blood on their hands: at least 12 former detainees launched attacks on U.S. forces in Afghanistan and killed about a half-dozen American soldiers and civilians. The exact figure remains classified, along with the identities of most of the recidivists.
Jackson sounded oblivious about Gitmo recidivism rates when asked about them last week: “I’m not aware,” she told senators.
Jackson claims she was “assigned” these cases and didn’t necessarily support the positions she was arguing. But clearly she was proud of the work she did for Gitmo detainees. In her questionnaire prepared ahead of the Senate hearings, Jackson listed her representation of former Gitmo detainee Gul as one of the 10 “most significant” cases she’s personally handled as an attorney. Of her work before the Supreme Court, she cited additional Gitmo cases in which she filed friend-of-the-court briefs on behalf of anti-Gitmo lobby groups supporting challenges to Bush-era detention policies. She did that work pro bono as well.
“When she left the D.C. office as a public defender, she didn’t have to take on any more detainees as clients. But then she went over to Morrison Foerster and went out of her way to work on more pro bono Gitmo cases,” noted Davis, who previously served as chief counsel for nominations to former Senate Judiciary Committee chairman Chuck Grassley .
Jackson testified that what happened on 9/11 was “terrible.” She said she has no doubt such terrorists pose a danger to the U.S., but she asserted that “I was also among the many lawyers who were keenly aware of the threat that the [response to the] 9/11 attacks had posed to foundational constitutional principles.”
Brian Sullivan, a former FAA supervisory special agent who warned of holes in airport security before 9/11 and who now advocates on behalf of 9/11 families, said that Jackson’s actions were a “slap in the face to those who lost loved ones on 9/11.”
A Vow to Limit Government ‘Overreach’ in Punishing Criminals
Jackson insisted she couldn’t possibly be soft on violent criminals when “I have law enforcement in my family.” One of her uncles, Harold Ross, was a sex crimes detective in Miami, while another uncle, Calvin Ross, served as police chief of Miami. Her brother, Ketajh Brown, worked undercover for the Baltimore police on drug strings and was even shot at once while chasing a suspect through an inner-city neighborhood.Jackson denies that she is against incarcerating or punishing terrorists and criminals. But in her testimony, she explained that incarceration is not always the best deterrent and that slapping criminals with harsh prison terms can make them feel “bitter” and “victimized” by the system, which could make them more likely to return to a life of crime when they get out. She said other judges are too quick to send defendants to the slammer—“locking people up and throwing away the key”—rather than helping them understand the consequences of their actions and treating them “fairly,” no matter how bad their behavior. She said that as a judge, she has taken the time during sentencing to explain to them why their crimes hurt people. In a word, Jackson’s judicial philosophy is empathy—she believes it’s better counseling crooks straight than scaring them straight.
If confirmed as a Supreme Court justice, she vowed to limit the government’s “overreach” in punishing criminals and enforce the guarantees offered the accused under the Bill of Rights.
That said, Jackson testified, “It’s very important that people be held accountable for their crimes, so if they’re not, then it would be a problem for the rule of law.”
Her idea of the best way to hold criminals “accountable” is a key issue the Senate will have to weigh as it votes to confirm her confirmation early next month.
As the count stands now, it appears she has enough votes to squeeze past an evenly divided Senate. But Republicans are pressuring Democrats on the Judiciary Committee to release documents they say shed more light on Jackson’s record on the bench, as well as the sentencing commission. Democratic Senate Judiciary Chairman Dick Durbin refuses to turn over even redacted copies of the presentencing reports generated in the child sex offender cases Jackson presided over. He also will not release her emails and other internal correspondence from her time on the commission. The White House, moreover, is withholding an additional 48,000 pages of documents that likely include some of her commission emails.
“Why are Democrats hiding her record? What is Judge Jackson hiding?” Davis asked.
