Portside

When she was but a young woman, a law student, Ketanji Brown Jackson did something few serving jurists have found themselves brave enough or principled enough to do. The year was 1996. The country was in one of its serial spasms over crime. A year earlier, a Princeton professor, working off what turned out to be junk science, pronounced that the country was destined to be overrun by a generation of soulless youth—vicious beasts whom he, and hundreds of media reports, called superpredators. Americans had become accustomed by then to seeing monsters, and accustomed to regarding punishment as a social good.

The hysteria over youthful killers was the inverse of a longer-standing alarm over childhood innocence imperiled by “stranger danger,” which would continue to spur laws named for children who were victims of egregious, wildly publicized, and rare crimes. (Overwhelmingly, children are harmed by people they know, often in their family.) By the time bipartisan majorities in Congress passed Bill Clinton’s notorious 1994 crime bill (whose principal sponsor in the Senate was Joe Biden), states and localities across the land had fortified their law and order infrastructure: expanding police powers and lethality; ratcheting up surveillance; hardening sentences and conditions of confinement and release for juveniles and adults. The punitive state was entrenched.

This is all well known today, with a movement for criminal legal reform afoot. What makes the young Ketanji Brown Jackson remarkable is her challenge to legal interpretations of a system of control over people who were not only made a separate category of human being then but are still largely shunned by reformers now. In a Harvard Law Review Student Note titled “Prevention versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders,” she placed the humanity of a despised class of people at center stage. Where might justice be, she asked in effect, if we begin by considering how state power affects the life and liberty of society’s most hated individuals?

She did so carefully. And, in the tradition of the Law Review’s student articles, anonymously. Because those are understood to be collective enterprises involving editors and law students, they are unsigned, and writers rarely claim them. We know about this one only because Jackson listed it among her publications in 2012, when she was first nominated to the federal bench and was anticipating Senate hearings.

That was another remarkable action, gutsy—and no one has rushed forward to claim co-authorship. 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; and the Supreme Court had weighed in, blessing the registries in 2003, applying the same muddled reasoning that Jackson had critiqued, and introducing a poisonous falsehood—declaring that re-offense rates for people convicted of sex crimes were “frightening and high” when actually they are among the lowest. Here was another bit of junk science, since debunked, but widely repeated and never recanted.

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. As so often in the past, as with the specter of “wilding” black youth in the case of the Central Park Five, emotion has made law a runaway train. Jackson calls upon reason.

Her Note addresses a question still at the core of legal challenges: Are the registries civil regulations in the interest of public safety—as the boilerplate of every law establishing them asserts—or do they constitute punishment?

The distinction is critical. Although anyone of common sentiments might conclude from the list of fetters above that, why yes, of course these are punishments, courts have considered even the most extreme effect—say, having no choice but to live under a bridge—a minor restraint if judges find the law to be merely administrative, regulatory.

 Like every court that had taken up the issue, the Note considers the intent of legislators. Unlike the jurists, Jackson does not sanctify intent, observing, rationally, “Although the legislature may announce that its intent is merely to protect the community, the actual motivations of elected officials who enact burdensome provisions may be difficult to ascertain. Moreover,…savvy politicians may ‘inject statements intended solely to influence later interpretations of the statute.’” Remember, this is being written at a time when anyone astute about the real world would have recognized the influence that a media-fueled politics of fear had on lawmaking and law enforcement.

The Note reviews court rulings upholding registry laws and emphasizing the state’s interest in regulation. Jackson finds their legal analyses “incoherent and unprincipled,” obsessed with what might or might not be “excessive” when “the real issue is whether a particular provision can rightly be deemed ‘regulation’ at all.” She rejects their pirouettes over whether the laws’ punitive effects on individuals result from the laws themselves or are what the Supreme Court would later euphemize as “collateral consequence[s]”—that is, everything “from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson,” as cited by dissenting justices.

The Note’s language is measured. In seeking a principled criterion for deciding whether a law is preventive or punitive, Jackson invokes the Constitution “as a bulwark against government encroachment on individual liberty” and concludes: “This Note argues that ‘[i]n a democracy, where safeguards are built in to protect human dignity, the effect of the sanction rather than the reason for imposing it must necessarily be [that] criterion.’”

The internal quote there comes from a 1959 University of Kansas City Law Review article by Victor Navasky, who would later be The Nation’s longtime editor and publisher. Titled “Deportation as Punishment,” that article concerns compulsory registration under the McCarran Act: the purported intent, to regulate resident aliens presumed subversive; the effect, “uprooting, separation from family, loss of job, degradation.” Communists were the target then. Banishment was the price. Virtually every challenge that had reached the Supreme Court was “a case-study in human suffering,” Navasky writes, yet jurists focused on legislators’ reasons for inflicting it: Were they good enough reasons? Navasky began with suffering.

This is more than a curiosity of history and coincidence. Communists were feared then; most people didn’t care if deportees suffered. The Red Scare was a national purification rite. Its chief enforcer, J. Edgar Hoover, had simultaneously called for another kind of purification: public mobilization against “degenerate sex offenders” aka “sexual psychopaths” aka “wild beasts.” The Lavender Scare was on. California answered Hoover’s call the year he made it, 1947, establishing the first state sex offense registry in the country. Oral and anal sex were registerable crimes; lewd vagrancy was soon added. The registry brimmed with homosexuals. (Famed civil rights organizer Bayard Rustin served time for lewd vagrancy in LA in 1953.) Homosexuals were feared then; most people didn’t care if the perverts suffered.

Readers may object that those were prejudicial categorizations, but definitions of crime, of dangerousness, are often subjective; and it would take volumes to enumerate all the grand and petty offenses, all the (mis)calculations of risk, all the human experiences, in all states and localities, and every intricate restriction and variation, to portray the full madness of the registry system. We either accept the logic of state cruelty or, at a time when every other aspect of the criminal legal system is being challenged, we oppose it.

Jackson’s stance for principle and for focusing on the effects of state power on the hated individual has had some echoes in the courts. In 2016, Judge Alice Batchelder, a conservative jurist writing for a unanimous panel of the US Circuit Court of Appeals for the Sixth Circuit, compared the effects of Michigan’s sex offense registry to banishment and traditional shaming punishments: “It marks registrants as ones who cannot be fully admitted into the community” and “brands [them] as moral lepers solely on the basis of a prior conviction.” The court struck down retroactive provisions of the law as violations of the Constitution’s ex post facto clause, but in her final paragraph Batchelder seemed to invite a broader challenge.

This is the only standing federal ruling that labels the registry punitive. (Another conservative federal judge declared Colorado’s registry cruel and unusual punishment, but the decision was reversed in 2020.) It is a crack in the machinery of suffering. Like Justice Sonia Sotomayor’s recent statement accompanying the Supreme Court’s refusal to hear the case of a New York City man who lost two years of freedom because the state rejected every place he proposed to live after having completed his sentence, it signifies division at the highest echelons of law. “It seems only a matter of time until this court will come to address the question presented in this case,” Sotomayor wrote. Indeed. But for the cracks to disable the machinery and bring it to halt—that is, to get rid of the registry—more is needed.

Where Ketanji Brown Jackson’s anonymous, then claimed, though largely unnoticed document may be most inspiring is in the picture it conjures of its creation. A young woman, working with a collective, thinking about power and suffering, about justice, and standing for principle when that was not easy.

JoAnn Wypijewski is the author of What We Don’t Talk About: Sex and the Mess of Life, now in paperback from Verso.

Copyright c 2022 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.

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