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 country 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 byzantines, 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 criticized, 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 sciencesince debunked, but widely repeated and never recanted.