The Article III Project has compiled an opposition report on Ketanji Brown Jackson’s views on how the criminal-justice system handles pedophiles and child pornography. There has been a lot of mock horror on the left about this line of criticism. Not all of the punches land. Some of A3P’s citations are to things only tenuously connected to Jackson. Moreover, Andy McCarthy argues, in criticizing Josh Hawley for raising this line of attack, that there are some aspects of our current sentencing regime that should be questioned.
All of that being said, the A3P does raise one item of Judge Jackson’s written views that is genuinely controversial. Her Harvard Law Review note in 1996 chose to focus on statutes that impose registration and community-notification requirements for sex offenders. Jackson argued for “deeming the laws ‘punitive’ to the extent that they operate to deprive sex criminals of a legal right” — rather than treating those laws as protective of communities — and argued, “if . . . a community notification statute deprives the [sex] offender of his right to mobility or bodily integrity and if it makes him the ‘target of widespread community rejection, antipathy, and scorn’ in a manner that is more retributive than rehabilitative, then it should be considered ‘punishment’” and therefore apt to be found unconstitutional under the analytical frameworks of “the Eighth Amendment, Ex Post Facto Clause, Double Jeopardy Clause, and Bill of Attainder Clause.” Jackson complained that “state legislators these days have little tolerance for sex convicts.”
As A3P notes, this is not just an argument for better due process before conviction, or for the application of separation of powers or federalism in enacting such rules. It is a different question from the argument that sentences are disproportionate for certain classes of offenders. And it has been rejected by the courts. Judge Patti Saris, for whom Jackson clerked, rejected that very argument in 1996, writing that “virtually every court that has considered the issue of whether registration is punishment for purposes of the Ex Post Facto Clause has held that it is not.” In Smith v. Doe (2003), the Supreme Court rejected it as well, ruling 6–3 that Alaska’s sex-offender-registry statute serves “a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community.” Justices Stephen Breyer and Ruth Bader Ginsburg were two of the dissenters in Smith, but a decade later, Ginsburg joined Breyer’s opinion in United States v. Kebodeaux (2013), which upheld federal power to pass such laws on the grounds that “Congress could reasonably conclude that registration requirements applied to federal sex offenders after their release can help protect the public from those federal sex offenders and alleviate public safety concerns.”
In short: Jackson took a particular interest in arguing that sex-offender-registry statutes were unconstitutional. Her view was roundly rejected by the courts. It may well be that she no longer believes in the position she took in 1996, but it is completely fair to ask her about it and criticize her for giving too little weight to the public interest in protecting children from sexual predators.
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