×

Please verify

Watch LIVE

Biden's pick for Supreme Court, Ketanji Brown Jackson, once argued judicial system is 'unfair' to sex offenders

News
Tom Williams/CQ-Roll Call, Inc via Getty Images/POOL

Judge Ketanji Brown Jackson once argued in an article that the judicial system in America is "unfair" to sexual predators.

Jackson, whom President Joe Biden has nominated for the U.S. Supreme Court, authored an unsigned "Note" for the Harvard Law Review in 1996 calling for judges to change their analytical framework for evaluating the constitutionality of certain state sex offender statutes. She disclosed authorship of the article to the Senate Judiciary Committee after she was nominated to serve as U.S. district judge for the District of Columbia by President Barack Obama in 2012.

In the article, Jackson wrote, "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.'"

Her article took issue with how some state legislatures at the time enacted laws to regulate the release of sex offenders. Examples she cited include requirements for sex offenders to register with local law enforcement officials, notify community members of their presence, undergo DNA testing, and submit to civil confinement for an indefinite term.

"Although many courts and commentators herald these laws as valid regulatory measures, others reject them as punitive enactments that violate the rights of individuals who already have been sanctioned for their crimes," Jackson wrote. "Under existing doctrine, the constitutionality of sex offender statutes depends upon their characterization as essentially 'preventive' rather than 'punitive,' yet courts have been unable to devise a consistent, coherent, and principled means of making this determination."

The article discusses this distinction between "preventive" and "punitive" legislation and criticizes how judges have previously approached the constitutionality of certain sex offender statutes.

"This Note maintains that, even in the face of understandable public outrage over repeat sexual predators, a principled prevention/punishment analysis evaluates the effect of challenged legislation in a manner that reinforces constitutional safeguards against unfair and unnecessarily burdensome legislative action," Jackson wrote.

She argued that judges should not "rely on legislative intent" to determine whether a state sex offender statute violates the Constitution, and she rejected other analytical frameworks established by court precedent at the time.

"Although '[a precise] analytical solution is almost impossible to construct,' this Note suggests that such a principled approach in­volves assessing the impact of sex offender statutes and deeming the laws 'punitive' to the extent that they operate to deprive sex criminals of a legal right in a manner that primarily has retributive or general­ deterrent effects," she wrote in her conclusion.

The note authored by Jackson was unearthed by the American Accountability Foundation, a conservative nonprofit watchdog group that has scrutinized several of Biden's nominees.

“Once again, Joe Biden’s White House has failed in the vetting process by nominating a radical Leftist like Judge Brown Jackson to the highest court in the land,” AAF founder Tom Jones said in a statement. “Americans want our judicial system to protect children and citizens from sexual predators. Judge Brown Jackson’s radical position raises questions on her suitability to serve on the court. Is she more interested in social justice engineering or administering justice?”

President Joe Biden on Friday announced that Jackson will be his nominee to serve on the United States Supreme Court after Justice Stephen Breyer retires this year.

Most recent
All Articles