0 recommendations, whether they're in congress, they're not the kinds of things that i can opine about. >> so you don't want to opine whether 17 years is too long or too short a sentence for murder? >> senator cotton, the congress has prescribed a number of factors that judges look at when they sentence. it may in many cases not be. i can't answer in the abstract in the way that you -- >> these are very concrete. let's turn to rape. do you know how long the average inmate convicted of rape serves in prison in america? >> well, senator rape is not a crime in the federal system that i'm familiar with working with, so i don't know. >> it's 7.2 months. do you think 7.2 months is too long or too short for someone convicted of rape to be sentenced to prison? >> senator, that's a policy question about the egregious crime of rape and congress has said that the court is supposed to take into a number -- take into account a number of factors when sentencing. >> okay. >> i can't answer in the abstract. >> judge, these are not abstract, these are very concrete. remember, these are just the length of sentence. if you're caught convicted and sentenced, let's look at cases in which people are never caught. in 2020 murders increased by the fastest rate ever. do you know what percentage of murders are solve d in america? >> i don't. >> 50%. should we catch more murders or fewer murderers? >> it's very important people be held accountable for their crimes so that is a fundamental tenant of the rule of law. >> is that a yes, we should catch more murderers, specifically the 46% of murderers that get away with it? >> senator, i'm not -- you're asking about enforcement or law enforcement, those -- >> judge, it's a very simple and common sense question. 46% of all murders go unsolved. should we catch more of those murderers or catch fewer of them? >> senator, we should hold people accountable for their crimes and so if people are not being held accountable, than that is a problem. >> let's turn to assaults. do you know how many assaults were solved in this country in 2020? >> no, senator. >> 44%. so 56% of all assault victims did not receive justice. do you think we should catch and imprison more criminals who commit assault against innocent people or fewer? >> senator, it's very important people be held accountable for their crimes so if they're not, then it would be a problem for the rule of law. >> let's look at sexual assault and rape. do you know what percentage of sexual assault and rapes go unsolved in this country? >> i do not, senator. >> 77%. more than three quarters go unsolved. should we catch and imprison more rapists and sex criminals or fewer? >> senator, one of my two uncles was a detective in the sexual crimes and battery unit so i'm very familiar with that type of crime. it's a horrible type of crime as are all of these you are artic -- articlating. it's fundamental to the rule of law. >> so in 2020 alone, well over 1 million, 1 million violent crimes went unsolved in america. do we think we imprison too many violent criminals or not enough? >> senator, it's important for our rule of law to ensure that people are held accountable who are breaking the law in the ways that you mention and otherwise. >> where do you think the families of all those victims think? do you think we should arrest and convict and sentence all these criminals who get away with it? >> senator, i know what the families of law enforcement think because i'm one of them. i know what crime does to our society. i care deeply about public safety and as a judge, it my duty at the trial level. i'm no longer there. at the trial level to ensure that people are held accountable for their crimes. >> let's turn to child pornography. there is a lot of talk about it today. a lot of people have tried to explain the various differences in the cases and presentencing reports and sentences they got so let me just ask you a simple question about it. should the united states strengthen or weaken sentences for child pornographers? >> senator, that's not a simple question. the reason is because what this country does is in your province. you decide what the personalities are. you decide what the factors are that judges use to sentence if you determine any set of penalties is in sufficient then it is in your perview to make that determination. there are many crimes congress termed warrant, mandatory minimum penalties, warrant other kinds of penalties and that's in your per view to determine. >> whether we should strengthen or weaken child pornography sentences, we'll move on. whether public defenders, think that sentences for child pornography are too hash. i don't. i bet a lot of normal americans don't, either. you've said repeatedly that sentence something a discretionary act and i understand that and agree with it. but you always seem to use discretion in child pornography cases to reduce sentences. if i have that discretion, i'd throw the book at child pornographers. maybe that's me. let's turn to drug crime. last year more than 100,000 americans died from drug overdose, drug overdose deaths and gang crime have both skyrockets in recent years at the same time a lot of sentences have been advocated for sentences from judges like yourself. should you strengthen or weaken fentanyl traffickers, not users? >> senator, whether or not congress chooses to strengthen or weaken personalities for any crime is a determination of this body, which is ordinary made after study and review determination that is in the province of congress. >> judge, you've said before sentencing is a discretionary act. it's the judge's decision to have a shorter or longer sentence. >> the judge makes that determination not based on one data point in general, which is what you asked me in general should we lower or heighten sentences, a judge is making a determination in a particular case looking at all of the factors. it's discretionary for sure but we do so within the bounds of a sentencing range that congress prescribes and at times in which congress decides a personality needs to be heightened, they impose a mandatory minimum and our range is shorter. and when looking at the crime, we're not looking at a policy matter across all fentanyl crimes and determining whether the penalty should be increased as a judge, we are asked in the context of a single prosecution regarding a particular person who has committed a horrible crime but also says congress is a person who has a life, who has a job, who has all of the other factors that congress has told judges they have to look at when they decide what penalty to impose in that particular case between the range that congress sets so it's not a situation in which i can in my role as a judge tell you in a general matter whether penalties should be increased or decreased. >> i have to say, i think that not many americans especially not 100,000 americans that lost someone to drug overdose think these are tough questions but let's move on. let's talk about retro activity. when you were on the sentencing commission you were retroactively reducing drug trafficking sentences. this is a case where a drug king pen dreaming fentanyl gets a sentence and next time gets in front of a judge who thinks he had a raw deal and maybe in front of the same judge, a few years from seeing the faces of the victims of this crime. do you believe that resentencing years after a conviction tends to reduce sentence lengths? >> senator, respectfully, i wanted to remark on your previous question and your statement that these are not difficult questions. it's not that they're deaf cult questions, they're not questions for me. i am not the congress. i am not taking policies around sentencing. my job is to look in a particular case and decide what the penalty should be within the range that congress prescribes. >> i understand. you were making policy, though at the sentencing commission and you're implementing changes to sentencing guidelines so my question again is do you believe resentening after a conviction tends to reduce sentence lengths? >> i'm not sure i understand your question. obviously, if you resentence, you're giving the judge another opportunity to look at the circumstance in light of the changed penalties. sometimes the judge in that new situation will keep the same penalty. a resentencing is just an opportunity for the judge to reevaluate in light of the change circumstances. >> okay. almost without exception retroactively weakening sentencing laws and guidelines, lets hardened criminals out early. i always hear the argument. i hear from senators on this panel and a version of you each case will go before a judge and it won't be an automatic release because each judge will assess the facts and hear the arguments. in 2014, you said that judges would not, would not likely reduce the sentences in the vast majority, vast majority of cases if sentencing guidelines for drug trafficking were reduced. i think you missed that one, judge. since 2014 retroactive reduction took effect, approximately two-thirds of all convicted drug traffickers who asked for early release got it. that's 31,614 drug traffickers back on the streets and 7,500 of those use weapons in their crimes. so that means that only one-third of these drug traffickers who sought to have retroactive reduction of their sentence were denied one-third a vast majority? >> senator, it's hard for me to answer questions about these numbers because i'm trying to decide if this is a retroactive of congress. congress made a decision about retroactive reductions in drug penalties so i'm not sure what -- >> but judge in both cases we hear the argument from members of congress or the sentencing commission we shouldn't worry, there is individualized case by case determinations. >> and that is my experience. that's -- when there is a retroactive change, what happens is that whether it's the guidelines that are changed or the laws that are changed, which happens in congress there is a sure kwenlt determination whether or not to apply that reto actively, apply the change so those convicted of that personality moving forward and the people already convicted, both of them get the benefit of the change if the determination is made to make it retroactive. under that circumstance where you're talking about a penalty change applied to prior people, each one of those prior people goes back before a judge and a judge usually the sentencing judge in the first instance will reevaluate whether or not to -- this is generally. there is some exceptions but generally speaking, the judge will reevaluate whether or not to give that person the benefit of the change. this is an individual assessment. that's what congress requires in every sentence and ultimately one that benefits all of us under the law because judges are being asked to look at these cases and not make generalized determinations. >> so the 2014 comment was specifically about the sentencing commission but generally whether in front of the commission or congress, we hear the argument judges will make individualized cases and not many people will be released. of the one-third that were not reduced, the vast majority of those were not eligible. the percentage of cases in which a sentence is not reduced for public safety reasons because someone is viewed as too dangerous is 1%. 1%. judge, do you remember a man named keith young? >> yes. >> good. for the benefit of my colleagues, let me quickly cover the basics of his case. you sentenced him in 2018. he was a career criminal that had previously been convicted of trafficking cocaine. in 2017 he was running a drug business in his house where his children lived and was found with 2 1 kilogram bricks of heroin worth hundreds of thousands of dollars with a gun, ammunition, thousands of dollars in cash and equipment to cut and package heroin for retail sale. the drug lab confirmed there was fentanyl in both bricks of heroin and one of the bricks there was more fentanyl than heroin. at the d.c. jail awaiting trial, he bragged about his arrest and how he was a kingpin. his words, not mine. kingpin. he was even recorded calling his wife and mother giving them instructions on collecting drug money from people for him. the prosecutors filed a notice of young's criminal history which meant he faced a mandatory minimum of 20 years. you didn't like that. at his sentencing this is a quote you shared his frustration that you couldn't give him a lighter sentence. i was shocked to see this in the transcript and shocked that you apologized to this drug kingpin for having to follow the law. you literally said you didn't think 20 years is fair. this is the quote and for this i am sorry. mostly because i believe in second chances. you apologized to this career criminal, a drug kingpin in his own words. he's not a low level drug offender that made a bad choice. that was in 2018. in 2020 he got a second chance. after young's sentence, congress passed the first step act that reduced sentences for drug traffickers with lengthily criminal records. during the pandemic, lots of criminals tried to twist the passionate release provision which was intended for terminally ill elderly inmates to get early release and blame it on covid. you had none of that and that's good you said covid isn't only present in prisons and you said that young's past as a smoker and his claim of various other health issues did not entitle him to early release. if you stopped there i would have cited that as a great example. you didn't stop there. you said in the resentencing quote congress did not make their changes under the first step act retroactive. that if they had you could have given him a reduced sentence but then you said no matter what the law says and this is a quote, judge, the court feels as though in this moment per mr. young's compassionate release, the court is being called upon to evaluate the length of his sentence under the revised sex of law so it's almost as if i'm sentencing him today and if i were to do so, he would face a sentence well below the 240 months mr. young received and so for that reason, i will grant mr. young's motion. judge jackson, before you granted this fentanyl kingpin's motion, did you contact victims from his case? >> senator, thank you for allowing me to address mr. young's situation. >> i asked a simple question, did you contact the victims in his case or not? >> senator, mr. young was not released. his sentence was reduced and i did not contact the victims in the case because there were no victims. he committed a crime, a drug crime. there were no identifiable victims in his case. >> drug crime is not a victimless crime. 100,000 americans were killed by overdoses. >> understood, senator but there was no one to contact because there were no identifiable -- >> do you acknowledge you did not release him. you're right. he filed a motion for compassionate release. you denied that rightly but you reduced his sentence. he didn't file a motion to reduce his sentence. he wasn't eligible because it wasn't retroactive towards him. you took a motion for compassionate release to get out of prison and turn it into a motion to reduce the sentence so he'll be released seven and a half years earlier years from now. last week, judge, when we talked in our office, you talk about judicial restraint. is transforming his motion for compassionate release into a motion to reduce sentence for this drug trafficking kingpin and example of judicial restraint, judge? >> yes, senator, it is and i'll explain how. mr. young as you say was facing originally a sentence of 20 years in prison which i imposed. i tried mr. young who went to trial primarily because he was facing such a long penalty. i looked at the evidence in his case. he was absolutely the kingpin that you're talking about but the way that our laws work the 20-year sentence that he received for the amount of heroin that he had was increased based on a sentence he received i believe 10 or 15 years before. he had no criminal history between the already, already sentence -- forgive me, i can't remember exactly. i'm sure people will look it up. ten, 15 years before he has some minor sentence then he had this really obviously serious terrible sentence and the government filed what is called an 851 which is an enhancement based on his really, really old prior criminal history. i followed the law which said that he had to go to jail for 20 years. it would have been more like ten years if the government hadn't taken into account his very old criminal history but i said fine, this is the law. i'm following it. you're going to jail for 20 years. in the interim, covid happens. we get lots of compassionate release motions and there is a statute that congress has enacted which allows defendants to seek compassionate release, to seek reduction of their sentence, not just release, reduction, release, some adjustment to their personality -- penalty under the law if there are extraordinary and compelling reasons to do so. that's the quote. extraordinary and compelling reasons. it doesn't say anything more narrow than that although you have to look at the guidelines related to compassionate release, which i did related to his motion and he argued several things. he argued his smoking, his asthma, these were reasons he said for compassionate release and i disagreed. what i did find extraordinary and compelling is the fact between the 20-year sentence that i gave him originally and the compassionate release motion that he filed, congress changed the law. congress decided that the old penalty, the old crime was no longer eligible for the increase so a person who was convicted at the time of his compassionate release motion for doing exactly what mr. young had done would not get a 20 year sentence. that would not be lawful for a person at that moment and one of the things that congress says to the judges is care about unwarranted sentencing disparity. care about the fact that the person you're sentencing is being treated differently than someone else who committed exactly the same crime. and i understand it wasn't retroactive in the sense that everybody absent to compelling, absent to compassionate release motion wouldn't have been eligible for resentencing but here i have a defendant before me and all of the factors that congress has asked me to take into account and a compelling argument that there were extraordinary and compelling circumstances that is a change in the law that would create unwarranted sentencing disparity if i didn't take account of it. what i determined under those circumstances is i would sentence, resentence mr. young to the penalty that congress had decided was the appropriate penalty for the conduct he committed as of the time of his motion. >> judge,, congress did change law in the first step act. congress specifically did not make that change retroactively. you saw that and thought it was extraordinary and compelling even though congress specifically did not make it retroactive. you chose to rewrite the law because you were sympathetic to a fentanyl drug kingpin whom you had expressed frustration at having sentenced him to his 20-year sentence in the first place. you twisted the law and you rewrote it to cut the sentence of a drug kingpin. >> respectfully, senator, i disagree. congress provided judges through the compassionate release motion mechanism with the opportunity to review sentences. congress -- prior to the compassionate release mechanism being enacted, a judge who imposed a sentence would have no opportunity to revisit. in mr. young's case, the question is with this compassionate release motion under a circumstance congress changed the law was that an extraordinary and compelling circumstance to revisit his sentence and i made a determination that it was. >> i suppose if you're confirmed, we can count on