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As a law student in 1996, Jackson wrote an article for the Harvard Law Review questioning the legality of sex offender registries. In the article, she did not come out explicitly against the registries. Larson did not provide recent evidence of Jackson’s stance on this issue.
Larson excluded the context of Jackson’s argument and conflated a question of legality with a relaxed attitude toward sexual offenders.
Critics of Judge Ketanji Brown Jackson have portrayed her as too lenient on sex offenders, drawing in part of a law review article she wrote decades ago as a student.
"All 50 states have sex offender registries but Judge Jackson doesn’t think perverts should have to register. She says it ‘stigmatizes’ THEM," Lars Larson, a conservative radio host, said in a Facebook post on March 21.
President Joe Biden nominated Jackson to the U.S. Supreme Court, to replace retiring Justice Stephen Breyer. Jackson currently serves on the U.S. Court of Appeals for the D.C. Circuit.
The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)
Larson directed us to a tweet by Sen. Josh Hawley, R-Mo., who wrote that "as far back as her time in law school, Jackson has questioned making convicts register as sex offenders."
The Facebook post by Larson went further than Hawley’s remarks.
While Hawley said Jackson "questioned" making offenders register, Larson said Jackson "doesn’t think perverts should have to register." And Larson did not provide any indication that Jackson made the comment about sex offender registries decades ago.
The claim stems from an 18-page article Jackson wrote for the Harvard Law review in 1996. Though the article is unsigned, Jackson listed the work as being among her published writings in response to a previous questionnaire for judicial nominees.
During her Supreme Court confirmation hearing, Sen. Ted Cruz, R-Texas, referenced the article and said Jackson argued that "civil commitment for sexual predators is unconstitutional." Civil commitment laws enable states to retain custody of individuals convicted of a sex crime and who are deemed likely to re-offend.
Jackson pushed back against that characterization.
"Senator, my note wasn't advocating for the striking down of those laws," Jackson said during the March 22 hearing. "My note was trying to identify criteria that I thought could be applied consistently to determine whether the laws were punitive or preventative."
When Jackson’s article published, sex offender registration and notification systems were still a relatively new construct. The practice was largely adopted throughout the U.S. between 1984 and 1996, with each system varying by state.
The Violent Crime Control and Law Enforcement Act, enacted by Congress in 1994, served to establish a baseline standard for existing state programs and to encourage remaining states to implement registries. States had three years to do so or face a reduction of federal funding.
Jackson’s Harvard Law article examined whether directing released sex offenders to register with local law enforcement (and other measures, like DNA testing and community notifications) would serve as punishment or as a measure to prevent more crimes.
Her primary argument rested on the intent of the registry. If the sole objective of such requirements were to "make an example" out of the offender, Jackson argued that it would be punitive and therefore in violation of the Constitution.
"In 1996, while most challenges to the registries had been rejected, it was still not settled whether registries were legal in the first place," Melissa Hamilton, professor of law and criminal justice at the University of Surrey in England, told PolitiFact.
The excerpt that inspired Hawley’s tweet derived from a section of Jackson’s article titled, "The Critics." Jackson at the time noted that opponents of sex offender registries argue that "community notification subjects ex-convicts to stigmatization and ostracism, and puts them at the mercy of a public that is outraged by sex crimes."
Jackson did not directly come out against the registries, but suggested that courts establish a framework to evaluate such requirements.
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.’"
Hamilton told PolitiFact that it was not unusual for people to question the constitutionality of the registries and that such discussion does not necessarily indicate a relaxed attitude toward the offender. Debate on the issues Jackson raised in 1996 is ongoing.
"Arguing against registries is not akin to being an apologist for sexual offenders," Hamilton said. "It can be a pragmatic argument that other laws, policies, and cultural changes are needed to better protect children."
Larson said Jackson "doesn’t think perverts should have to register (as sex offenders). She says it ‘stigmatizes’ THEM."
This is misleading. Larson’s claim is based on an article Jackson wrote decades ago — in 1996 as a law student. He did not provide recent evidence of Jackson’s stance on this issue.
Larson also conflated Jackson’s questioning of the legality and intent of sex offender registries with a relaxed attitude toward sex offenders. Jackson did not explicitly advocate against them, rather questioned whether they were punitive and therefore in violation of the Constitution. In her article, she mentioned that opponents of sex offender registries argue that "community notification subjects ex-convicts to stigmatization."
Larson’s claim contains an element of truth but is missing important details and ultimately takes Jackson’s article out of context. We rate it Mostly False.
Facebook post, March 21, 2022
Tweet, March 16, 2022
Harvard Law Review, "Prevention Versus Punishment: Toward a Principled Distinction in the Restraint of Release Sex Offenders," May 1996
U.S. Senate Committee on the Judiciary, Questionnaire for Judicial Nominees
Email interview with Melissa Hamilton, professor of law and criminal justice at the University of Surrey, March 23, 2022
Email interview with Lars Larson, radio host, March 23, 2022
U.S. Court of Appeals for the Sixth Circuit, Doe V. Snyder, Aug. 25, 2016
Detroit Free Press, Michigan lawmakers ordered to revise the Sex Offender Registry Act, May 24, 2019
Committee on the Judiciary, The Nomination of Ketanji Brown Jackson to be an Associate Justice of the Supreme Court of the United States, March 22, 2022
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