criminal justice

Ketanji Brown Jackson Played a Part in Fighting Racist Drug Laws. What Does This Mean for the Future of SCOTUS?

Between 1986 and 2010, the U.S. justice system punished crack cocaine 100 times more than powder cocaine, despite them being two forms of the same drug. Supreme Court nominee Ketanji Brown Jackson was part of a group that worked to address the disparity.

In Ketanji Brown Jackson's confirmation hearings this week, the Supreme Court nominee will talk about her legal background, which includes stints as a public defender and in private practice, along with multiple judgeships.

But one of Jackson's most important impacts on the legal system came from her time on the U.S. Sentencing Commission. She helped the U.S. take an important step toward ending a glaring criminal justice disparity that has taken generations to undo.

Since the 1980s, American courts have handed out harsher punishments for crack cocaine versus powder cocaine, even though they're the same drug. Crack was seen as a driver of violence in America's cities, and politicians on both sides of the aisle wanted to make an example by punishing it harshly. But because police arrest Black people for drugs at a higher rate than white people, harsh penalties on small amounts of crack sent a disproportionately high number of Black people to prison. One example: In 2007, 81% of people convicted for crack offenses were Black, but only 25% of crack users were Black, according to a Senate hearing.

"We have let two generations of overwhelmingly young Black men be thrown away long after we knew there was no difference between these two [drugs]," Ekow Yankah, professor at Yeshiva University's Cardozo School of Law, told NBCLX.

What is the history that led to crack laws getting passed in the first place?

During President Ronald Reagan's administration and some 15 years into the war on drugs, the U.S. House of Representatives and Senate passed the Anti-Drug Abuse Act of 1986 amid mass media coverage of crack and its effect on poor communities of color.

Under the act, a defendant convicted of possessing 5 grams of crack would have to be sentenced to a mandatory minimum of five years in prison. But a defendant convicted of possessing powdered cocaine would only get the mandatory minimum sentence if they possessed 100 times as much: more than 500 grams. (Five grams is about one-eighth of an ounce; 500 grams is about 1.1 pounds.)

Until the passage of the 1994 Crime Bill, there was no “safety valve” to let judges make exceptions to the mandatory minimums, said Kevin Ring, president of Families Against Mandatory Minimums. Many people received long, mandatory sentences for crack cases, even if they were small-time dealers or addicts. "Those first years were brutal," Ring added.

Looking back on this time period, “We’ve come to understand that this was hysterical, unjust and racialized," Yankah said. “It took years and years and years to roll those back despite the fact that we knew these things.”

How did Jackson play a role in easing the crack and powder cocaine disparity?

Recognizing the disproportionate impact that drug laws were having on Black Americans, Congress passed the Fair Sentencing Act in 2010. The act bumped up the amount of crack that would trigger a mandatory minimum sentence to 28 grams. That reduced the disparity from 100:1 to 18:1.

Then, the U.S. Sentencing Commission took on the issue. Jackson was vice chair when the Commission ruled to make the Fair Sentencing Act retroactive.

This means that if someone had been convicted of possessing fewer than 28 grams of crack and was still in prison, the commission made them eligible to apply for a reduced sentence. Think of it like this: People convicted in the '80s, '90s and '00s were serving sentences that they wouldn’t have received if the Fair Sentencing Act had been in effect. It made about 12,000 people eligible to seek a sentence reduction.

In 2018, the First Step Act let prisoners petition courts directly for the sentence reductions.

“It took decades to slowly reduce the disproportionate punishment for crack cocaine versus powdered cocaine,” Yankah said. "They had to go back and continue to reduce those differences for years and years and years. Because frankly, the first set of differences weren’t reaching very many people.”

What does this say about how Jackson might rule as a Supreme Court justice?

Not as much as one would think, experts said. The Supreme Court makes a lot of rulings that don’t cover criminal law, which is mostly left up to state courts to handle, Yankah explained.

Although the Fair Sentencing Act was passed with bipartisan support, as was a 2018 act that further reduced sentences, Yankah worries that Jackson’s time on the Sentencing Commission could be brought up against her in the confirmation process. For example, Republicans might cast her as having set criminals free, he said.

In confirmation hearings, Supreme Court nominee Ketanji Brown Jackson has been asked about her views on several contentious topics, and repeatedly stated she views her responsibility as a judge is to stay within her Constitutionally prescribed duties. "Her job is to get through this without a viral moment. And if she continues to do that ... it's hard not to imagine she'll be confirmed," said Ekow Yankah, a professor at Yeshiva University's Cardozo School of Law.

That’s why context is important: U.S. courts sent small-time crack users and dealers to prison for long periods of time, then Congress said it was time to address the error after decades, and Jackson was part of a group of judges tasked with figuring out the nitty-gritty details of how to make it all happen.

“Her service to roll back our unbelievable hunger to just keep punishing is now being painted as ‘soft on crime,’” Yankah said.

“Even after a generation or two of people [largely agreeing] that we went too far, there are still political moments when it’s very expedient for a small group of people to use fear-mongering, soft-on-crime talk,” he added.

Still, Ring and Yankah said if Jackson were confirmed, having someone with a defense background on the court could help broaden its perspectives. The Supreme Court and many other courts are largely full of former prosecutors.

“It can’t just be from the point of view of ‘I locked people up,’” Yankah said. “It has to also be from the point of view [of] ‘I’ve seen the people who needed to get out. I’ve seen the people who should never go to jail and needed a better defense, and I’ve even seen the people we rightfully punished who have served their time, and now it’s time for them to come back to us.’”

The amount of powder cocaine needed to trigger a mandatory minimum sentence is still 18 times the amount of crack that would lead to the same minimum sentence.

Last fall, the House passed the EQUAL Act, which would eliminate the disparity entirely. The bill would still need to pass the Senate and then be signed into law. According to the Department of Justice, Attorney General Merrick Garland has expressed support for the legislation.

“We know that this is an unwarranted disparity, that it has enormous implications for Black Americans. To not fix it is to perpetuate it,” Ring said.