Fact Check: Did Ketanji Brown Jackson Want to Release Inmates During the Pandemic?

Republican senators raised the question during Jackson’s confirmation hearing.

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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[.]”

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  1. ExploreOK

    "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..."

    Although I don't disagree with the fact check, does anyone else find the reasoning "deadly pandemic, therefore release the inmates" an absurd line of reasoning unless made as a joke?

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      Mike B

      Not at all. Covid IS a deadly pandemic. Nearly a million have died of it in the US alone.

      (PS - Greetings from a fellow Okie!)

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      JohnF

      I read it differently. Try this instead:
      "If we were only concerned about the potential effects of the pandemic on the prison population, then it would be reasonable to think that we should release everyone. However, there are many other factors that we need to consider when we are determining whether or not someone should remain in jail."
      She then considered these other factors in that case to rule that, although Covid was a notable concern, it wasn't enough to justify releasing that particular inmate.
      The defendant in this case was trying to argue that he should be released because the chance that he might get Covid in prison put his life in danger, which is why she had to address the issue in her ruling.

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      1. Sir Van Meulen

        Thank you for that, John! Your revision helped me to better understand her point and allowed me to connect the missing dots.

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          Scarlette Tarte

          I am glad that helped you. But can you see, perhaps, how frustrated so many on the left can get, with a populace who cannot understand writing at this level? Why we get so upset when they are so easily mislead by grifters like Tucker Carlson and others who take words like this and then make those people believe she said something she did not say?

          Can you see how much of a danger that is to our country? That so many can be so easily mislead?

          This is what we refer to when we say "misinformation". The right is awash in misinformation, and they will not listen to reason (unlike yourself) when someone explains it to them.

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    3. GregS

      She isn't espousing the reasoning you think she is.

      In her opinion, after the "reasonably suggest" sentence, she said that there are constraints that prevent such a release:

      "the constraints on judicial authority derive both from... existing statutes ... 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..."

      Her argument is not that it *is* reasonable to release everyone, but that it *may seem* reasonable, but is not.

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      1. ExploreOK

        Yes, that is my point. In no circumstance does the phrase "may seem reasonable" apply, in my mind, to releasing 1000+ inmates in the midst of pandemic, much less in the absence of a pandemic!

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        1. GregS

          Why not?
          The argument is that in a pandemic, having a large population of people stuck together in close quarters may be a bad idea. And therefore it may seem reasonable to not have people stuck together in close quarters. But that there are other considerations that make this not a good idea - viz, that these people are convicted criminals and could pose a danger to society if released.

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          1. ExploreOK

            The context is a criminal population, not just any population.

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    Show Jay Janney the 🚪!

    It depends on how a person defines the term advocacy. "reasonably suggest" sounds like advocacy to me. Her later statements suggest there are other elements at work in her decision, but are stated that she may have believed her discretion was constrained in the final decision she made.

    Definitions matter.

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      Mike B

      I took "may reasonably suggest", in the context of the full opinion, to be equivalent to "it might seem like we must, under the circumstances, but..." So I don't think that qualifies as "advocating" for mass release, especially given that she in fact ruled against the defendent.

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        Show Jay Janney the 🚪!

        I think that is a reasonable interpretation. But I think it is open to interpretation. This is not one I as an editor would have my team do. Interpretations come off as spin.

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    2. GregS

      1) I don't think you are correct to think she is advocating for release. After the "reasonably suggest" sentence, she says that there are constraints that prevent such a release:
      "the constraints on judicial authority derive both from... existing statutes ... 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..."
      It is clear therefore that she is not advocating for release- she is saying that she is sympathetic to the concern of the prisoners, but that she thinks releasing them is risky and therefore cannot be done willy nilly.

      2) even if you *are* correct that she is advocating for their release, she is saying that she will set aside her personal views and follow the constraints of the law. Which is exactly what one should want in a justice.

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        Show Jay Janney the 🚪!

        So are you arguing that definitions do not matter, or that only your definition matters?

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        1. GregS

          Neither.
          If you'd like to define what "advocacy" means and then make an argument for why you think KBJs opinion qualifies under this definition as advocating for release, in light of the additional context I provided, please do so.

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            Show Jay Janney the 🚪!

            No thank you. My critique was that different definitions will lead to different results. Nothing you wrote disputes that, you merely disagreed with an alternative definition.

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  3. Emma

    These two senators specifically should know better. They run their mouth about rule of law and then use this obvious transparent back and forth balance of the values/issues at risk before ruling the exact way the senators hope she would. This is called, "I'm trying to attack her but really can't, so I'll play games and my base emotional supporters will love it without ever considering her actual decision."

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    Aylene Wright

    This line of questioning reminds me of when some conservative Christians accused JKR of promoting a message that "there is no good and evil, only power", even though it's quite obvious in context that it's an evil character (Quirrell under possession by Voldemort) saying it, and JKR's message is actually the opposite of it.

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    The Bell Tower

    This fact check raises an important question: Can Senators read or do they just regurgitate the words they see on the script written for them?

    How can two different Senators so dismally fail to comprehend written words? How many staffers, handlers and other chair sniffers were paid to make this mistake?

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      Scarlette Tarte

      They can't read well and neither can their staffers. Also, they know most American's don't sit around reading judicial opinions all day, so they can easily mislead them by saying "see, she wrote it right there".

      Yes they are that depraved.

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        The Bell Tower

        Our representatives are ostensibly a reflection of us but it more commonly seems like the people generally choose the better of several very bad options. Good people do not seem to pursue political careers very often.

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      Mike B

      I would bet the farm that some staffer was told to dig up some "soft on crime" sound bite and that Marsha herself never read the full opinion or even asked the staffer if it was taken out of context.

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        The Bell Tower

        Indeed.

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      JohnF

      The really sad part is that whatever she said in her responses was always going to be irrelevant to the two Senators. Their goal was to get on the TV and to appear to be "tough on crime". Despite the fact that she clarified the remark by putting it in context (as well as the fact that she ultimately ruled against releasing the guy), both Senators will vote against her because they will say that she's "soft on crime."

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        The Bell Tower

        Exactly, and how can we as Republicans then complain about the Kavanaugh stuff? The scale of that reprehensible episode was worse but how we corrupt the public perception of the institution is truly troubling. I’m constantly reminded of Franklin’s warning:

        “…and can only end in Despotism as other Forms have done before it, when the People shall become so corrupted as to need Despotic Government, being incapable of any other."

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    KB

    I cannot believe Marsha Blackburn is my Senator. It's so embarrassing on a number of levels.

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    1. Fudrock

      Agreed. She makes me want to bang my head against the desk until I lose consciousness.

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    2. Beth

      While I lived in Tennessee (which was until December, 2020) I wrote her several e-mails regarding her stance on some issues, and her attachment to Trump's rump. I'm thankful she's no longer my senator, but alas - Mike Kelly is now my Congressional Representative, and he's no better.

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    Frank Lee

    Great fact-check. Not an opinion that I support, but far short of the attempted smear by Blackburn and Tillis.

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    Adamlevick

    Excellent fact-check. But, for some comedy, check out this AP tweet. https://twitter.com/AP/status/1507343486097543186

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      The Bell Tower

      Sometimes, AP stands for the Alleged Press.

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        Scarlette Tarte

        My favorite tweet from that page..."Donald Trump said in a statement today "I have no idea what a burner phone is, and, to the best of my knowledge have never even heard of the term".

        Yet, in his lawsuit against Mary Trump and the NY Times, he used the phrase "burner phone" (in correct context, lol) THREE times.

        Busted again. Trump is a liar. LIAR. LIAR.

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  9. Brett

    Good fact check thank you! I'm extremely critical of these and have problems with them like 2 out of 3 times so this is high praise.

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