Republican Sen. Tom Cotton (Ark.) drilled into Judge Ketanji Brown Jackson's record Tuesday, questioning why the judge reduced the sentence of a convicted drug dealer.
During Jackson's Supreme Court confirmation hearing, Cotton brought up the case of Keith Young, a Washington, D.C., man who was convicted in 2018 on federal drug trafficking and firearms charges. Police discovered more than two kilograms of heroin laced with fentanyl, a loaded firearm, 170 rounds of ammunition, and multiple extended magazines when they searched his residence in 2017. Judge Jackson presided over the case and sentenced Young to what was then the mandatory minimum of 20 years in prison because he had a previous felony drug conviction, according to the Department of Justice.
According to Cotton, at Young's sentencing, Jackson said she "shared his frustration that you couldn't give him a lighter sentence."
However, in December 2018 Congress passed and President Donald Trump signed into law the First Step Act, a sweeping criminal justice reform bill. The new law reduced the length of mandatory minimum sentences and gave judges more discretion to ignore those requirements in certain circumstances.
In 2020, Young applied for compassionate release from prison because of the COVID-19 pandemic, and while Jackson rejected his request for release, she used the opportunity to revisit her previous sentence and reduce Young's prison time by seven and a half years.
Cotton was deeply critical of her decision. He asked if Jackson contacted the "victims" of Young's crimes before reducing his sentence and she said that there "were no victims."
"He committed a drug crime, there were no identifiable victims in his case," she said.
Cotton rebuked her, saying that "drug crime is not a victimless crime," citing overdose deaths, but Jackson replied that there was no one to contact because there were no identifiable victims in Young's case.
She went on to explain why she handed down Young's original 20-year sentence and why she revisited that decision after Congress changed the law.
"What I did find extraordinary and compelling," Jackson said, quoting federal law that permits judges to reconsider a convict's sentence, "is the fact that between the 20-year sentence that I gave him originally and the compassionate release motion that he filed, Congress changed the law. Congress decided that the old penalty, the old crime, was no longer eligible for the increased, so that a person who was convicted at the time of his compassionate release motion for doing exactly what Mr. Young had done would not get a 20-year sentence. That would not be lawful for a person at that moment," Jackson said.
"And one of the things that Congress says to the judges is care about unwarranted sentencing disparity," she continued. "Care about the fact that the person you're sentencing is being treated differently than someone else who committed exactly the same crime. And I understand it wasn't retroactive in the sense that everybody, absent a compelling — absent a compassionate release motion, wouldn't have been eligible for resentencing, but here I have a defendant before me, and all of the factors that Congress has asked me to take into account, and a compelling argument that there were extraordinary and compelling circumstances that is a change in the law that would create unwarranted sentencing disparity if I didn't take account of it."
"And so what I determined under those circumstances is that I would sentence — resentence Mr. Young to the penalty that Congress had decided was the appropriate penalty for the conduct that he committed as of the time of his motion," she concluded.
In response, Cotton — who vehemently opposed the First Step Act — called Congress' action a "mistake" and said that Jackson had acted wrongly by retroactively changing Young's sentence.
"Judge, Congress did change the law after a sentencing in the First Step Act. That was a terrible mistake. Congress specifically did not make that change retroactively," Cotton said.
"And you saw that, and you thought it was extraordinary and compelling. Even though Congress specifically did not make it retroactive, you chose to rewrite the law because you were sympathetic to a fentanyl drug kingpin whom you had expressed frustration at having sentenced him to his 20-year sentence in the first place. You twisted the law and you rewrote it, so you could cut the sentence of a drug kingpin. That's what you did, Judge."
"Respectfully senator, I disagree," Jackson replied.
March 22, 2022: Senator Cotton Questions Judge Ketanji Brown Jackson youtu.be