Here Is What Ketanji Brown Jackson Said in the Harvard Law Review Article That Josh Hawley Found 'Alarming'

The Supreme Court nominee raised serious constitutional concerns about laws that punish sex offenders after they complete their sentences.

Sen. Josh Hawley (R–Mo.) last week presented a highly misleading summary of Supreme Court nominee Kentanji Brown Jackson's sentencing practices in child pornography cases. Hawley claimed that Jackson, whose confirmation hearing began today, had shown an "alarming pattern" of "sentencing leniency for sex criminals" who are "preying on children." But the cases he cited actually involved defendants convicted of possessing or sharing child pornography rather than defendants convicted of sexually abusing children. Furthermore, Jackson's downward departures from the penalties recommended by federal sentencing guidelines are the norm among federal judges, who have long criticized those penalties as excessive—with good reason.

To reinforce his portrait of Jackson as soft on "child predators," Hawley also cited a 1996 Harvard Law Review article that she wrote when she was in law school. His characterization of that article, which was unsigned but subsequently appeared on Jackson's lists of her publications, is just as demagogic and acontextual as his description of her sentencing decisions.

"As far back as her time in law school," Hawley tweeted, "Judge Jackson has questioned making convicts register as sex offenders—saying it leads to 'stigmatization and ostracism.' She's suggested public policy is driven by a 'climate of fear, hatred & revenge' against sex offenders." He added that "Judge Jackson has also questioned sending dangerous sex offenders to civil commitment."

Hawley said the Harvard Law Review article showed that Jackson has been "letting child porn offenders off the hook for their appalling crimes" and "advocating for it since law school." Here, again, Hawley ignores the crucial distinction between people who produce child pornography, which necessarily entails abuse of children, and people who merely look at the resulting images. He also equates sending them to prison for, say, five years rather than 15 with "letting [them] off the hook." According to Hawley, the 1996 article is part of "an alarming pattern," exemplifying "a record that endangers our children."

Hawley implies that anyone who questions the highly dubious rationale for publicly accessible sex offender registries or the equally problematic justification for indefinite civil commitment of sex offenders must be blind to the damage done by sexual abuse of children. In his view, any policy that purports to protect children is obviously good, regardless of whether it works as advertised or whether it is consistent with the Constitution. He therefore has no patience with the concerns that Jackson raised about laws that impose restrictions on people convicted of sex offenses—a very broad category that is not limited to "child predators"—long after they have completed their sentences.

Jackson's Harvard Law Review article focuses on the legally crucial distinction between "prevention" and "punishment" in the context of policies aimed at sex offenders. Broadly speaking, policies that courts deem preventive are subject to undemanding standards and are likely to be upheld, while policies they deem punitive must comply with stricter constitutional limits, including due process requirements and the bans on double jeopardy, ex post facto laws, and "cruel and unusual" punishment.

Based on the limited number of cases addressing that distinction at the time, Jackson argued that courts were taking misguided approaches to the issue. "Courts have been unable to devise a consistent, coherent, and principled means of making this determination," she wrote.

In assessing the constitutionality of laws aimed at sex offenders, Jackson argued, courts should not focus on the intent of legislators, which may be indeterminate, disingenuous, or self-deceptive. She also thought it was a mistake to focus on the factors that the Supreme Court had said may indicate whether a statute is "penal or regulatory in character," such as the question of whether a law's punitive impact is "excessive" when weighed against its regulatory rationale. Instead, she said, courts should consider "the impact of sex offender statutes" and deem laws "punitive" when "they operate to deprive sex criminals of a legal right in a manner that primarily has retributive or general-deterrent effects."

Jackson also offered this warning: "In the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments that 'use public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.'" Although that observation is consistent with the way debates about sex offender laws typically proceed, it clearly offended Hawley, possibly because he epitomizes the overheated, irrational attitude that Jackson was describing.

The year after Jackson's article appeared, the Supreme Court upheld a Kansas law authorizing indefinite detention of sex offenders who otherwise would have been released from prison. The Court deemed that system civil rather than criminal and appropriate for offenders who "suffer from a volitional impairment rendering them dangerous beyond their control."

The logic was puzzling. The state punishes people who commit sex crimes based on the assumption that they could and should have controlled themselves. But when it is time for them to be released after completing the punishment prescribed by law, the state says that was not actually true; now they must be locked up precisely because they can't control themselves.

If the government decided to retroactively increase an offender's penalty, it would be clearly unconstitutional, amounting to double jeopardy or an ex post facto law. The trick is to cast continued confinement as treatment rather than punishment.

Notably, Jackson's analysis did not preclude that end run. "Commitment legislation must be examined carefully," she wrote, "for although it clearly sacrifices the offender's fundamental right to freedom, courts must determine whether its primary effect is treatment of the affected individual, or satisfaction of the societal interest in locking sex offenders up and throwing away the key." Under that standard, a civil commitment program in which "treatment" is rarely or never successful enough to allow a detainee's release might be deemed punishment by another name. But a program with a better track record might pass constitutional muster.

Seven years after Jackson published her Harvard Law Review article, the Supreme Court upheld the retroactive application of Alaska's sex offender registration requirements. Because that system was "nonpunitive," the Court said, it did not violate the constitutional ban on ex post facto laws.

It is fair to infer from Jackson's article that she might have disagreed with that conclusion. "Community notification subjects ex-convicts to stigmatization and ostracism, and puts them at the mercy of a public that is outraged by sex crimes," she noted. As JoAnn Wypijewski points out in The Nation, registration requirements and related restrictions today impose many additional burdens on many more people:

In the intervening years, many more people who had completed their sentences had been forced to register as sex offenders with local police and have their faces, names, aliases, addresses, workplaces, etc. published on the Internet. Regimens controlling their freedom to move about, to work, get an education, reside in their own homes or with their own families—simply to live—had grown more byzantine, and by 2006 applied to certain juveniles 14 or older at the time of the offense. Courts had, on the whole, taken limited interest in the human impact of these restrictions…

In 1996, state and DC registries listed 185,393 names; the last count, in 2018, was 912,643. There may be overcounts, and registry rules vary from place to place, but this picture is uncontested: a great mass of people who've already "paid their debt to society" reporting to law enforcement, on pain of criminal penalty, sometimes every three months, and every time they travel, or move, or change jobs; every time they dye their hair, or grow a beard, or get a tattoo or a new car or a different parking space; often prevented from taking their children to school, or watching them play sports; forced sometimes to take and pay for lie detector tests, sometimes penile plethysmographs; forced to disclose their status to potential employers, sometimes to deliverymen, in some places to anyone who sees their driver's license stamped SEX OFFENDER—for 10 years, 25 years, life. People across the ideological spectrum call them predators. Registrants and their families speak of "social death." The law says this isn't punitive. All of which makes Jackson's youthful writing piercingly relevant.

The standard that Jackson recommended in 1996 suggests that the "nonpunitive" description of these rules should not be taken at face value. If "a community notification statute deprives the 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," she said, "then it should be considered 'punishment.'"

Although Hawley suggests such concerns reflect an "alarming" disregard for the welfare of children, registries include many people who have never victimized children or committed contact offenses of any kind. Furthermore, the policy is based on the myth that recidivism rates among sex offenders are "frightening and high," as Justice Anthony Kennedy famously declared, when in fact they are relatively low and fall steadily with age. And there is little evidence that registries actually protect children or anyone else.

While publicly accessible registries "may have helped parents rest easier," the Detroit Free Press noted in 2015, "there is no evidence that they stopped sexual predators." There was never much reason to think they would, especially since the vast majority of sexual assaults on minors are committed by people without prior convictions who know their victims well, as opposed to strangers who might be flagged by an online database.

Reviewing the evidence in a 2016 National Affairs article, Eli Lehrer found that "virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst." While "the practice of requiring sex offenders to register with law-enforcement officials is effective," he concluded, "notifying the public of sex offenders…is ineffective and should be limited if not eliminated."

In a 2017 report, the Justice Department noted that there is "no empirical support for the effectiveness of residence restrictions." It added that the policy may cause "a number of negative unintended consequences" that "aggravate rather than mitigate offender risk."

Given the lack of evidence that registration and its attendant restrictions actually promote public safety, it is hard to see how their preventive benefits can outweigh their punitive effects. In 2016, the U.S. Court of Appeals for the 6th Circuit concluded that they do not. The unanimous three-judge panel ruled that Michigan's Sex Offender Registration Act was primarily punitive, meaning its requirements could not be imposed retroactively.

As Wypijewski notes, that decision is especially striking because it was written by Judge Alice Batchelder, "a conservative jurist" appointed to the U.S. District Court for the Northern District of Ohio by Ronald Reagan and to the 6th Circuit by George H.W. Bush. The supreme courts of several states, including Alaska, New Hampshire, and Pennsylvania, have reached conclusions regarding sex offender registries similar to the 6th Circuit's, deeming these schemes punitive rather than regulatory.

Hawley wants us to believe that Jackson's reservations about sex offender registries mark her as weirdly tolerant of "sex criminals" who "are preying on children." Maybe all these judges are likewise soft on "child predators." Or maybe Hawley, for crass political reasons, is elevating emotion above logic and deliberately obscuring important constitutional issues.