Soon after her nomination, it was reported that as a law student in 1996, Judge Ketanji Brown Jackson wrote a Harvard Law Review note analyzing the constitutionality of sex offense registries and that during her judicial career she did not always give the maximum sentence in child pornography cases. Unsurprisingly, she was immediately accused by Sen. Josh Hawley of “endangering our children” and not “protecting the most vulnerable.”
These entirely meritless allegations show the extreme risks of speaking the truth about our disastrous and cruel sex offense legal regime. While even conservatives defended her moderate and even “mainstream” child pornography sentencing history, calling the attack a “smear” that “appears meritless to the point of demagoguery,” others said it’s fair to “criticize her for giving too little weight to the public interest in protecting children from sexual predators” because of her early writing analyzing registries.
While it’s political par for the course for judges who don’t dole out the harshest imaginable prison terms to face allegations they are “soft on crime,” there’s a profound and substantive difference in kind when facing the toxic charge of being “soft on child predators” and not caring about children.
Hawley has long fought for increasingly harsh sex offense laws because he understands the politics of fear and the power of these claims. Even as evidence mounts that Jackson’s rulings on child pornography possession are unexceptional, Hawley and others have doubled down and continue to argue Jackson’s sentencing is too lenient — even claiming her decisions could harm his own children.
Child pornography elicits extreme disgust, for good reason, but the wildly excessive sentencing guidelines now on the books are rooted in emotion and junk science. Judges have routinely questioned these sentencing recommendations, with critics on both sides of the political aisle arguing correctly that sentencing should be individualized, proportionate and based on the specific facts and nuances of each case.
In 2008, Federal Judge Robert Pratt noted that sentencing guidelines in these cases “do not appear to be based on any sort of [science] and the court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.” In 2010, Brooklyn Judge Jack Weinstein told the New York Times that the mandatory sentences for viewers of child pornography (as opposed to those who produce the pornography) are “misapplied” and “we’re destroying lives unnecessarily.”
And though Jackson’s law school note questioning registries has elicited less public support, that shouldn’t be the case. Decades of research have debunked the idea that those who commit sex offenses, including those who consume child pornography, can’t stop and won’t stop and therefore any punishment is justified.
In 1996, when Jackson wrote her critique, she was one of the few who foresaw that a new web of laws banishing sex offenders from society would create a banished class of nearly one million, forced to regularly register with police and have their personal information publicly posted for decades and often life. That’s something for which she should get credit, not scorn.
These post-release consequences have been upheld as constitutional by the Supreme Court on the erroneous grounds that sex offenders have a “frightening and high” recidivism rate. In 2015, legal scholar Ira Ellman found the court relied on a comment from a treatment provider in Psychology Today as their sole source for this assertion. Notwithstanding these shallow underpinnings, those branded “sex offenders” — including all those Jackson sentenced to supposedly too little prison time — are subject to a lifetime of endless regulations and public shaming that makes it nearly impossible to get jobs, find housing or support their families and re-integrate into society. These consequences never end, and are not considered punishment but merely administrative, civil regulations to protect the public because of the myth of high recidivism.
Those on registries are even largely excluded from the growing opportunities available to other formerly incarcerated populations. New York’s pending “Clean Slate” bill seals and expunges conviction records after a certain period of time for those who’ve “paid their debt to society”; it summarily excludes those on sex offender registries, probably based on the political judgment that giving this population a shot at rebuilding their lives is a bridge too far.
Jackson’s willingness to write and rule based on reason and principle demonstrates both courage and foresight, and shows the extraordinary personal and professional risks of asking that our legal system treat sex crime in an objective, just and rational manner consistent with basic constitutional and legal principles. Instead of lobbing the lazy trope that she doesn’t care about children, we should embrace her commitment to justice even when it’s hard.
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ABOUT THE WRITER
Emily Horowitz is professor of sociology and criminal justice at St. Francis College and author of “Protecting Our Kids? How Sex Offender Laws Are Failing Us” and “From Rage to Reason: Why We Need Sex Crime Laws Based on Facts, Not Fear.”
