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January 31, 2022
Judge Ketanji Brown Jackson's distinct criminal justice background garnering attention as she tops SCOTUS short list
Long-time readers may recall that, six years ago after the surprise death of Justice Antonin Scalia, I started to talk up then-US District Judge Ketanji Brown Jackson as my favorite SCOTUS short-lister. Though Judge Jackson was only 45 years old back in 2016 and had then served only three years as a federal district judge, I felt that her impressive professional history and especially her criminal justice experiences — as a federal public defender, as a member of the US Sentencing Commission, and as a sentencing judges — would make her an especially valuable addition to the Supreme Court.
Fast forward six years, and I still think now-US Circuit Judge Ketanji Brown Jackson would be a great pick for an open seat on the Supreme Court. And because Judge Jackson now is on the very top of nearly every SCOTUS short list, major papers are already robustly covering her criminal justice experiences. Specifically, this past weekend brought these two notable pieces:
From the New York Times, "For Ketanji Brown Jackson, View of Criminal Justice Was Shaped by Family; The story of an uncle’s cocaine conviction formed only part of Judge Jackson’s understanding of the system’s complexities; She is now seen as a contender to be President Biden’s Supreme Court pick"
From the Washington Post, "Possible Supreme Court nominee, former defender, saw impact of harsh drug sentence firsthand"
Both of these pieces focus a bit more on the personal than on the professional, but I suppose that is inevitably the main currency in these sorts of pieces. I will be interested to see, in the weeks leading up to Prez Biden's selection and especially if Judge Jackson gets the nomination, how her professional history as a federal public defender and as a member of the US Sentencing Commission garners additional attention. Interesting times.
January 31, 2022 at 10:20 AM | Permalink
Comments
The question a GOO Senator should ask:
“Judge Jackson: During a recent oral argument, Justice Sotomayor misstated a fact relating to the pandemic—something the AmericaN people have suffered for over two years now. Do you think it’s disrespectful to the litigants and the American people for a Supreme Court Justice to have such a weak command of the facts in such a case?”
Posted by: Federalist | Jan 31, 2022 4:37:04 PM
One other question worth asking: "Judge Jackson, when then-Solicitor General Elena Kagan was sitting where you're sitting, she was asked about the constitutional status of the death penalty. Her answer was that the death penalty is settled law going forward. Is that your view as well?"
And one more: "It used to be said that the criminal owes a debt to society. Now, we often hear, especially from public defenders -- a job you held for years -- that society owes a debt to the criminal, because it failed him by racism, economic oppression, deficient education, and other factors. In your view, which is closer to the truth -- that the criminal owes a debt to society, or that it owes a debt to him?"
Posted by: Bill Otis | Jan 31, 2022 11:14:53 PM
Bill: You claim that "we often hear, especially from public defenders ... that society owes a debt to the criminal." But a quick google and Westlaw search did not turn up for me any examples of this claim (save for the context in which someone is discussing a person wrongly convicted or excessively punished).
Can you cite/link to a couple examples of this claim that you "often hear ... that society owes a debt to the criminal"? I would like to see the context in which this claim is being made.
Posted by: Doug B. | Feb 1, 2022 12:10:50 AM
Doug --
Check your own blog and you will see dozens if not (over the years) hundreds of posts with articles, op-eds, essays, etc. the thrust of which (even if not in the exact wording) is that we should replace the punitive model of criminal justice with the medical model. In other words, society should move away from punishment (the "criminal owes a debt" theory) and toward treatment, rehab, education, scholarships, jobs, counseling, housing, and on and on. All of this will, as its proponents know and intend, involve the taxpayers footing the bill for these items -- items that in justice and fairness (so it is proposed) are owed to the criminal.
That is a more than amply clear statement that society owes a debt to the criminal. I've been around the track too many times to think this is even arguable.
Posted by: Bill Otis | Feb 1, 2022 2:29:13 AM
Doug --
I might add that your qualifying language ("save for the context in which someone is discussing a person wrongly convicted or excessively punished") essentially swallows your objection, since the comments on this blog alone, not to mention dozens of others, amount to little BUT claims that defendants "are wrongly convicted or excessively punished." To concede that, in such instances -- numbering in the zillions -- the defense side is indeed claiming that society owes a debt to the criminal is to concede that the defense is making that claim all the freakin' time.
Posted by: Bill Otis | Feb 1, 2022 4:14:23 AM
Right on Bill.
Posted by: Federalist | Feb 1, 2022 5:14:46 AM
Colleagues, greetings and salutations! I have practiced criminal defense for more than 40 years in many jurisdictions. I have never argued, nor have I have heard argued by my fellow defense attorneys, that society owes a debt to the criminal defendant.
Posted by: Michael Levine | Feb 1, 2022 11:22:18 AM
Bill, favoring utilitarian approaches at sentencing over retributive ones is not a "thrust" (let alone a statement) that society "owes a debt to the criminal." That is what you claim we often "hear," but then you completely change the tune when I asked for examples of someone asserting there is a "debt to the criminal." Indeed, given that federal law tells judges to consider at sentencing the need to "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," I suppose you are claiming that Congress has long ordered federal judges to embrace the view "that society owes a debt to the criminal." Is that your claim about federal law?
I agree that we often hear people say it wiser and more cost-effective for the state to seek to rehabilitate rather than to punish some offenders --- though it is worth noting, of course, that punishment also involves "the taxpayers footing the bill" for prisons and other tools of punishment. Notably, Kant claimed punishment "must always be inflicted upon the criminal because he has committed a crime." Are you arguing that Kant and others that view punishment as morally obligatory are also claiming "society owes a debt to the criminal" in the form of punishment? I doubt this is what you mean, which is why your linguistic game here falls flat and is a misrepresentation of what rehabilitative theorists are generally claiming.
I know you know the difference between claiming, say, we ought not incarcerate people convicted of trespassing on Capitol grounds on Jan 6 (as I think Federalist has) and claiming that society "owes a debt" to those who broke the law that day. I specifically continue to want to see any supposed "clear statement" that shows we "often hear" that "society owes a debt to the criminal." I have never actually heard that so I continue to want to see what you consider a "clear statement" here.
If you cannot provide some direct cites/links, I will conclude that you cannot actually back up your statement that "we often hear, especially from public defenders ... that society owes a debt to the criminal." What it seems you mean --- and it would be accurate to say --- is that "we often hear, especially from public defenders ... that society' ought to invest more in rehabilitating criminals than in punishment them." Words matter, Bill, and you rightly express concern when other try to put words in your mouth. But here you are seeking to do just that and seemingly cannot support your claims when pressed.
Relatedly, while hoping you will keep trying to support your claim, I will ask you: Do you think a society owes anything to persons wrongfully convicted or illegally/excessively punished? Or are you a monarchy guy who thinks the government/king never can do wrong and so can never owe anything to the citizenry?
Posted by: Doug B. | Feb 1, 2022 11:33:35 AM
Doug --
My best source is you, right here on this thread!
I will quote you verbatim, addressing me: "You claim that 'we often hear, especially from public defenders ... that society owes a debt to the criminal.' But a quick google and Westlaw search did not turn up for me any examples of this claim (save for the context in which someone is discussing a person wrongly convicted or excessively punished)."
So you have acknowledged that we DO hear exactly that claim in "the context in which someone is discussing a person wrongly convicted or excessively punished." But claims of wrongful conviction and excessive punishment are legion, on this blog and throughout hundreds of writings favorable to the defense. Indeed the claim of excessive punishment is by a huge margin the Number One claim on this forum. Since you concede that the claim of society owing a debt to the criminal is indeed made in the discussions this (leading defense-oriented) blog features, I rest my case, with thanks for your characteristic honesty.
Posted by: Bill Otis | Feb 1, 2022 1:37:51 PM
So, Bill, do you now completely disavow any claim that anyone ever actually says "that society owes a debt to the criminal" who has been properly convicted and punished? If you are honest, please admit that your original statement seems to make a much broader claim. But I am happy to hear that, when questioned, you will now candidly admit that you no longer are making such a broad claim (which you seemingly cannot back up). Instead, you now admit that this sort of claim is only really ever made (if at all) in conjunction with claims about wrongful convictions and/or excessive punishment.
Indeed, I would expect most everyone would say that society does owe something to persons who have been wrongfully convicted and/or illegally/excessively punished. But I am still looking to hear your answer on this front. If that is all you want to discuss here now --- because you cannot back up your original broad claim --- then we may have even reached a consensus (though perhaps you may actually think the government/king can never owe a debt to anyone).
Posted by: Doug B. | Feb 1, 2022 2:26:50 PM
Doug --
Have I awakened this morning in Alice's Wonderland?
"So, Bill, do you now completely disavow any claim that anyone ever actually says 'that society owes a debt to the criminal" who has been properly convicted and punished?'"
Ummmmm, well let's see. How many times have I seen here, or on any other pro-defense source, the following: HEY LISTEN UP PEOPLE, THE DEFENDANT HAS BEEN PROPERLY CONVICTED AND PUNISHED. QUIT CARPING.
Righto -- zip. The only exception has been the recent convictions of the Jan 6 defendants, who compromise -- what? -- one one-zillionth of criminal defendants?
"Instead, you now admit that this sort of claim is only really ever made (if at all) in conjunction with claims about wrongful convictions and/or excessive punishment."
Translation: I now admit that the claim is only really ever made with respect to essentially the entire universe of criminal justice as portrayed day after day after day for years by defense lawyers: That the system is basically NOTHING BUT a steaming mess of "wrongful convictions and/or excessive punishment."
Really, just read your own blog.
Posted by: Bill Otis | Feb 1, 2022 3:01:55 PM
Bill, I have read my blog and comments thereto, and cannot ever recall seeing anyone assert "that society owes a debt to the criminal." That is exactly why I asked you to provide some cites/links to examples in support of your statement that "we often hear, especially from public defenders ... that society owes a debt to the criminal." You have now posted four responses and still are yet to provide a single cite/link to any example of anyone saying anything close to something like "society owes a debt to the criminal."
If you are "often" hearing something that nobody actually says, maybe you are spending time in Alice's Wonderland. But, to help me better understand your perceptions of reality, perhaps you can try yet again to either (a) provide cites/links to a couple examples of someone/anyone asserting "that society owes a debt to the criminal" or (b) admit that you cannot actually find any examples of persons claiming "that society owes a debt to the criminal." If it is all over this blog and elsewhere in the criminal defense universe, it ought not be so hard to find real-world examples to back up your claims about what we supposedly "often hear." So can you point me to some/any real support for your claim?
Posted by: Doug B. | Feb 1, 2022 4:42:27 PM
