During Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing this week, Republican Sen. Marsha Blackburn claimed Jackson “consistently called for greater freedom for hardened criminals.” More specifically, Blackburn, of Tennessee, said: “At the start of the COVID-19 pandemic. You advocated—again I quote—‘for each and every criminal defendant in D.C. Department of Corrections custody to be released.’ That would have been 1,500 criminals back on the street if you had had your way.”
This isn’t an accurate statement.
The basis for the claim comes from Jackson’s April 10, 2020, ruling in United States v. Wiggins. Jackson wrote about the pandemic’s impact on inmates in custody, saying the risk of COVID-19 could “reasonably” suggest that “each and every criminal defendant in D.C. DOC custody” should be released.
The ruling centered on the defendant, Sean Ray Wiggins, who argued in a motion for release that “the existence of the COVID-19 pandemic, and its effects on our communities, including the jail community, constitutes new information sufficient for emergency reconsideration of [Wiggins’s] continued detention in this case[.]”
Jackson wrote in her ruling that “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 custody—and who thus cannot take independent measures to control their own hygiene and distance themselves from others—should be released.”
But Jackson also acknowledged the dangers of potentially releasing non-compliant criminal defendants:
“[I]n this Court’s view, the constraints on judicial authority derive both from the fact that existing statutes mandate an individualized assessment of a detained person’s flight risk and dangerousness prior to such person’s release into the community, and also from the recognition that the act of releasing dangerous and/or potentially non-compliant criminal defendants into the community itself poses substantial risks to probation officers, law enforcement, and the public at large.”
Jackson denied Wiggins’ emergency motion for release, noting that he had not yet “met conditions of release.”
Jackson herself clarified her ruling during the third day of the confirmation hearing after North Carolina Republican Sen. Thom Tillis asked Jackson about the same quote.
Tillis quoted Jackson during the hearing: “You said, ‘the obvious increased risk of harm that the COVID-19 pandemic poses to individuals who have been detained and the district’s’—that’s the District of Columbia’s—’correctional facilities reasonably suggest that each and every defendant who is currently in the D.C. Department of Corrections custody and who thus cannot take independent measures to control their own hygiene and distance themselves from others should be released.’”
Tillis continued: “There were 1,200 or 1,600—let’s call it 1,200, I’ll be conservative—people in the department of corrections.” He then asked Jackson if her statement had meant that all of the 1,200 defendants in D.C. Department of Corrections custody should be released.
Jackson clarified that Tillis had “not read it correctly,” noting that “it was not a statement, it was a line in an opinion.”
Jackson added: “What I said in that statement that you read was that it would seem as though something like a deadly pandemic, rampant in the jails, would justify releasing everyone, but I go on to say in that very opinion, Congress has indicated that we have to take each case individually. We have to look at the harm to the community that might be caused by the release of individual people. We can’t just release everybody I said in that opinion.”
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