Perpetual Panic

March 10, 2009 Perpetual Panic
Associate Dean for Research & Professor of Law, Marquette University Law School
Editor, Federal Sentencing Reporter

During a panic, “concern over sexual abuse provides a basis for extravagant claims making by professionals, the media, and assorted interest groups, who argue that the problem is quantitatively and qualitatively far more severe than anyone could reasonably suppose.” Fear-mongering, in turn, produces excessive and ill-considered legislative responses, with lawmakers adopting new policies that “may cause harm in areas having nothing to do with the original problem and that divert resources away from measures which might genuinely assist in protecting children.”Whatever the strength of their furor, however, the American sex crime panics have always been temporary. Thus, Jenkins observed a series of thirty-five-year cycles across the twentieth century. Legislative efforts to control or punish sex offenders peaked in roughly 1915, 1950, and 1985, with public interest in the issue declining markedly in the 1920s and 1960s. Through the first eight decades of the century, panics came and went in a predictable pattern. But then something new happened: the 1990s did not bring a period of relative indifference to sex crimes, as was seen in the wake of earlier peaks of interest, but rather a continued spirit of public alarm, which was exemplified by a proliferation of new civil commitment statutes for so-called sexually violent predators. In retrospect, it seems that we did not hit a true peak in 1985, but a plateau. “The cycle has been broken,” Jenkins concluded in 1998, and “the sexual threat to children will likely remain a central social issue.”

Truly,we seem to be in a state of perpetual panic, with an endless supply of new laws intended to control or punish sex offenders in new and harsher ways. Within just the past few months, for instance, Congress has enacted the Keeping the Internet Devoid of Sexual Predators Act, which expands sex offender registration and notification requirements, while Missouri adopted a controversial new law that requires sex offenders to “[a]void all Halloween-related contact with children.” These statutes follow in the wake of another recent election-year enactment, the 2006 Adam Walsh Child Protection and Safety Act, which adopted new mandatory minimum sentences and restructured many existing federal laws relating to sex offenders. Meanwhile, law enforcement agencies have devoted increasing resources to Internet sting operations intended to catch adults seeking underage sex partners, resulting in several high-profile prosecutions, while possession of child pornography also remains a matter of great law enforcement interest.

In any event, the current flowering of legislative activity around the sex offense issue provides a good opportunity to develop and study new mechanisms to achieve a better balance between the need for legislative responsiveness to public outrage and the need for a humane and cost-effective criminal justice system.

When an issue becomes a matter of intense public concern, it is unrealistic to expect legislators to await definitive analysis by experts and lengthy deliberative processes. Laws will be adopted, and some of them will eventually appear excessive or misdirected. Most troubling, given the nature of the liberty interests at stake, is the over-hasty creation of new felony-level crimes and mandatory minimum sentences. Once enacted, it is difficult to repeal such criminal laws, as demonstrated by the stubborn persistence of the 1986 and 1988 crack mandatory minimums against both the great weight of expert opinion and a widespread public recognition of the laws’ pernicious racial effects. Getting rid of a bad law normally requires passage of a new statute, and, as scholars of the American legislative process have long recognized, in the absence of inflamed public opinion, it is generally easier for a minority to kill a new legislative proposal than for a majority to secure its adoption. In light of their particular visibility and symbolic importance, it may be even harder to repeal criminal laws than most other types of statutes.

Legislators who wish to respond to strong public sentiment but who are troubled by the track record of statutes adopted in times of panic should consider a legislative device that reverses the forces of legislative inertia: the sunset provision. When adopted, new criminal penalties can be set to expire within a given period of time. The history of the crack panic, as well as the earlier sex crime panics, suggests that ten years may be an ideal period of time to permit public passions to subside. A decade should also be a good amount of time to permit rigorous evaluation of the effectiveness of new laws. For instance, as Janus and Prentky point out in this issue, the spread of civil commitment laws was rapid in the 1990s but slowed dramatically this decade as the fiscal burdens of commitment became clearer. In the current budgetary climate, one wonders how many state legislatures would now be happy to see civil commitments die out quietly under the terms of a judicious sunset provision.

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