Source: thepostmillennial.com 2/28/21
President Joe Biden’s Supreme Court nominee Judge Ketanji Brown Jackson once authored an unsigned “Note” in the Harvard Law Review arguing that America’s judicial system is “unfair” to sexual predators, according to findings discovered by an American Accountability Foundation investigation.
Jackson argued the unconstitutionality of certain preventative measures adopted as common practices by state governments and applied to confirmed sex offenders.
Per the Harvard Law Review article “Prevention Versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders,” she argued that America’s judicial approaches might be unfair to sex offenders.
“This Note critiques current judicial approaches to characterizing sex offender statutes and suggests a more principled framework for making the distinction between prevention and punishment,” Jackson wrote in the piece.
Jackson maintained that “even in the face of understandable public outrage over repeat sexual predators, a principled prevention/punishment analysis evaluates the effect of the challenged legislation in a manner that reinforces constitutional safeguards against unfair and unnecessarily burdensome legislative action.”
…
However, her reasoning isn’t one of legal precedent however—state governments have been using these practices for decades. She argued from a position that looks to protect offenders from what she described as a cultural atmosphere of hate.
“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,” Jackson wrote.
Judge Brown gets it. She articulates and frames the argument (registry, etc. as punishment v prevention/regulation) brilliantly. In this debate, to have her voice added to the Sup. Court’s current composition will be a godsend. I envision that those on the Court who take the view of “it’s not punishment”, will then be challenged to defend their positions objectively, logically and ON THE RECORD in the face of Judge Brown’s logical and legal analysis – absent emotion and prejudice (if that’s at all possible). We should all pray that she is confirmed as quickly as possible. And thank Pres. Biden.
This is encouraging. I’m sure Faux News will be all over this (in a bad way). But maybe she may be a nail in the coffin that will one day bury Smith v. Doe.
Sounds like she knows what she is talking about on this particular topic and encouraging to read her thought process. I can see her butting heads with CJ Roberts on this topic.
I find it ironic that the American Accountability Foundation (AAF) which published the original article is not holding itself accountable for its inflamatory and misleading headline. This characterizes Judge Jackson as arguing for fairness for “sexual predators”, which it does not. Use of the reference to sexual predators was entirely gratuitous and intended to emotionally influence the reader. Nor does the note argue for fairness, but rather for constitutional principles. Those are two entirely different things. More precisely, the note directly addresses mechanisms courts employ to categorize statutes as either punishment or as mere regulatory necessities.
This is the essential issue that organizations such as FAC, ACSOL, NARSOL and others have recognized in the many ex post facto arguments. Although I doubt that this note will gain much traction in the upcoming Senate hearings, I hope that it at least comes up.
This punishment vs regulation argument is largely invisible to the American public. Addressing the issue in a Senate confirmation hearing will give it more visibility than all the comments ever printed in these registrant advocacy blogs. If this visibility does occur, it will be a wonderful prelude to the ACSOL-sponsored event to be held in Washington just a year from now.
Veritas.
Here is the AAF’s media release on this matter: AAF INVESTIGATION UNCOVERS SCOTUS NOMINEE ARGUED THE JUDICIAL SYSTEM IS “UNFAIR” TO SEXUAL PREDATORS
“”In the article, Judge Ketanji Brown Jackson writes:
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. Judges should abandon the prevention/punishment analyses that rely on legislative intent, that routinely apply the Kennedy factors, and that assess the “excessiveness” of a sex offender statute’s punitive effects in favor of a more principled approach to characterization. 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.””
Here is the full 18 pg “Note” (PDF) she published in the Harvard Law Review: Prevention vs Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders
AAF sounds like a scorched earth policy place of thought. I’ll reserve judgement.
I’m just going to throw this in here too for reading as you see fit: The Other First What it means to nominate a veteran public defender. (25 Feb 2022, New York, Intelligencer)
Well, the sex offense registry disproportionately affects black Americans. So it’s no wonder someone like her would be more inclined to call the system unfair.
I understand she was a federal public defender at one time, so perhaps she has some experience defending people charged with sex offenses.
I agree that would be a much welcome perspective on the Supreme Court.
If Judge Brown does become a SCOTUS member, then things are aligning to help with a future case with the registry.
The quote above is exactly what ACSOL’s Janice has been sharing. Also it will put on blast all the current SCOTUS members who thought the registry was simply statutory that was based upon false facts as well as reveal just how bloated the registry is today to what it was in 2003. What a shame on those justices!
Go get ’em, Janice!
“sexual predators” I cant stand when they use those words. It sounds like someone who has been repeatedly arrested for sexual crimes, when most people have only one conviction. It should be banned to use such language unless a person has multiple victims or been to prison multiple times for sex crimes.
Artical comments disappeared. That’s a surrender.
Probably will be used against her! When Trump was debating Dr. Carson the brain surgeon Trump called the Doctor pathological because of some violent episode in his youth. What he said was Dr Carson was pathological like a pedophile. I believe were his exact words which Dr. Benjiman Carson countered with something only a brain specialist could say and a specialist in a children’s hospital! he pointed out that Trumps facts were wrong not true! They were treatable This was on TV and i have tried to find that debate or any transcripts and i cannot find a single piece of anything as if it was totally erased.
Indeed this is a nice check box for the registrant. However, will she still stand up and speak up for the registrant now that she holds the position she is in and will be more scrutinized and pressured. One would hope so but only time will tell.
And now Fox News is getting in on this topic. (March 17th 2022)
Hawley raises concerns over Biden’s Supreme Court justice pick giving sex offenders ‘lenient sentences’ | Fox News
I guess any justice who believes that the constitution should be followed is not a good pick for SCOTUS.