Ketanji Brown Jackson Wanted to Empty Jails at Start of Pandemic

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April 4, 2022

Supreme Court nominee Judge Ketanji Brown Jackson said in the early days of the pandemic it would be "reasonable" to release "each and every" person in District of Columbia jails, and she went on to grant COVID-related releases to defendants and inmates implicated in serious crimes.

In the early days of the pandemic, Judge Jackson made a passionate appeal on behalf of inmates in Washington, D.C., jails and said pandemic conditions could justify releasing them.

"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," she wrote. She went on to urge Congress to take action to help.

In one instance, Jackson granted pretrial release to a defendant allegedly involved in a deadly fentanyl-trafficking ring, requiring only that he comply with a 10 p.m. curfew. In another case, she released an inmate with multiple bank robbery convictions. Prosecutors opposed both moves.

COVID outbreaks were common in prisons across the country and prompted authorities to reduce jail populations to slow transmission. As of this writing, 292 inmates have died of COVID out of 135,000 in the federal system—less than one quarter of one percent—according to the Bureau of Prisons. Some researchers suggest this move contributed to the late spike in violent crime.

Republican opposition to Jackson during her confirmation hearing was pinned to her lenient sentencing, particularly to individuals convicted on charges related to child pornography. In many cases, she imposed sentences far below sentencing guidelines and the recommendations of prosecutors. Her call to release dangerous criminals back onto the streets due to the pandemic could further those concerns.

Jackson made the remark on COVID releases in the course of denying a request for release from a defendant named Sean Ray Wiggins, a high-level heroin dealer. But her pro-inmate appeal was the opening passage of the decision, apparently serving as the frame for all that followed. And she urged Congress to take steps to facilitate release of inmates.

"It is crystal clear that the dangers of the moment call for more systematic action than a judge can grant in any one case," she wrote.

Jackson sprung several inmates from jail due to COVID despite serious underlying offenses.

One such defendant was Devon Dabney, who was arrested for distribution of fentanyl in Washington, D.C., on Jan. 28, 2020. Dabney was allegedly part of a drug ring based in an area of Washington, D.C., that authorities were surveilling and pursuing. At least one fentanyl overdose was connected to the ring.

Fentanyl is an extremely dangerous opioid that is often fatal above the very smallest doses. There were 56,516 overdose deaths reported in the United States in 2020, primarily the result of fentanyl, according to the National Institute on Drug Abuse.

Dabney asked Jackson to release him on March 27, 2020, because of the pandemic. Dabney provided medical records showing he had asthma. The jail infirmary issued him an inhaler for the condition, but they had trouble keeping it full.

Jackson granted Dabney’s request in an April 13 ruling and released him to home detention, citing his condition as well as the fact that Dabney had been a secondary target in the investigation. An associate was the primary target.

Despite his stated fear of contracting COVID, Dabney then asked Jackson to relax the conditions of his house arrest and replace it with a nightly curfew of 10 p.m. Jackson granted that request on Aug, 4, 2020.

Prosecutors believed Dabney was a flight risk and emphasized he had a pending firearms charge at the time of his arrest for fentanyl distribution.

The weight of evidence against Dabney was overwhelming. Two undercover police officers were prepared to testify that he sold almost $500 worth of fentanyl to them, with audio and video of the transaction captured by hidden camera. Given the evidence, and the fact he was facing upwards of a decade in prison, prosecutors believed Dabney was at higher risk of becoming a fugitive.

At the time of his arrest—which took place during a traffic stop shortly after the alleged sale to undercover officers—Dabney was on release from a Washington, D.C., case in which he was charged with carrying a pistol without a license and possession of a large capacity ammunition feeding device. And when he was arrested on the fentanyl charge, police found a handgun at his feet. He was also carrying two cell phones and $700 in cash.

"The defendant has now been arrested twice for serious charges—weapons and narcotics related—both within a fairly short time period and one while he was under pretrial supervision by another court," prosecutors wrote.

Once Dabney provided medical records to the court, prosecutors didn’t take affirmative steps to keep him in jail. But they opposed his requests—which Jackson granted—to relax the terms of his release, citing his growing rap sheet and the seriousness of the offense. The case is ongoing as of this writing.

In another case, Judge Jackson granted early release to a defendant, D’Angelo Dunlap, who pled guilty to robbing two banks and who had three years yet to serve on his prison sentence when Jackson sent him home.

Dunlap robbed two Washington-area banks, one in 2015 and another in 2017, to fund his addiction to heroin. He pled guilty to both crimes and Jackson sentenced him to just under five years in prison, followed by three years of supervised release. He was incarcerated at a medium-security federal prison in Pennsylvania.

Almost two years into his sentence, Dunlap requested "compassionate release," claiming he was at heightened risk of a serious COVID infection due to obesity and comorbidities like heart disease.

Prosecutors strongly opposed his request, and suggested his request was based on misrepresentations. In court papers, they said Dunlap’s height was "mistakenly listed" as 5’5 on some forms, when his actual height is 5’9 according to intake photos and other records. Correctly accounting for his height indicates he was not obese. Similarly, prosecutors said his medical records showed his cardiac health was sound overall.

Authorities also warned he was a danger to the community, citing a Bureau of Prisons assessment that he was a "medium risk" of recidivism and the need to complete a more extensive drug treatment program.

Jackson granted Dunlap’s request and reduced his sentence to time served, but maintained the three-year supervised release requirement. She justified her decision by noting that Dunlap had repeatedly complained of chest pains while incarcerated, had some damage to a heart valve, and had elevated levels of calcium in his heart, which is sometimes a precursor to a heart attack.

As of August 2020, when Dunlap’s release was under consideration, the Pennsylvania jail housing him reported just one positive COVID case. Jackson acknowledged as much in her ruling, but said close quarters in prisons pose inherent and continuing risks of transmission.

The Senate Judiciary Committee is set to consider Jackson’s nomination on Monday morning. She is expected to receive near unanimous opposition from Republican Senators, but has already won the support from at least one, Sen. Susan Collins (R., Maine), clearing the path towards her confirmation.

Published under: Ketanji Brown Jackson