The Sex Crimes Panic

I have a new paper on SSRN regarding the seemingly endless fascination of American legislators with sex crimes.  Here is the abstract:

Sex crimes continue to be a matter of intense legislative interest at both state and federal levels of government, as evidenced by a flurry of recent enactments expanding sex offender registration requirements, prohibiting sex offenders from participating in “Halloween-related” activities, and facilitating the exclusion of sex offenders from social networking websites. Although legislative activity in the area of sex crimes has gone through regular phases of high and low intensity across the past century, the current high-intensity phase, dating from the 1980s, has lasted an unusually long time. Moreover, this high-intensity period displays the characteristics of what historians and sociologists have termed a “moral panic,” marked particularly by the rapid adoption of many new laws that seem poorly designed to achieve their community-protection aims. This Essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to recent developments in the punishment and management of sex offenders (Vol. 21, Issue 2), offers a critical overview of the new laws and considers why the sex crimes panic has proven so much more durable than the crack cocaine panic, which also arose in the 1980s.

Laws aimed at controlling sex offenders are invariably couched as child-protection measures — and, really, who can vote against protecting children? — but pay little attention either to the social scientific evidence regarding the greatest threats of sexual violence to children (family members and acquaintances, not the random strangers caught in the ever-widening web of sex-offender registration laws) or to the possibility that scarce criminal justice resources are being increasingly diverted from more productive uses to dubious new social control measures.  Sex offenders, of course, will draw no public sympathy when it comes to legislative overreaching, but in the current fiscal climate all taxpayers have an interest in ensuring that new laws are cost-effective responses to serious social problems.  And, as the New York Times recently reported, fiscal concerns seem to be driving a backlash against one of the more misguided recent enactments in this area, the so-called Adam Walsh Act.

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Seventh Circuit Week in Review: Can a Defendant Waive the Right to an Impartial Jury?

The Seventh Circuit had three new opinions in criminal cases in the past week.  The court also withdrew, without explanation, its opinion in United States v. Dunson (No. 08-1691), which I blogged about last week.

In United States v. Brazelton (No. 07-2488), the defendant was convicted by a jury of various drug and gun offenses.  The jury included the second cousin of a man who had once been shot by the defendant.  Voir dire indicated no actual bias on the part of the juror — or even that the juror knew of the shooting — and no motion was made to strike him for cause.  On appeal, however, Brazelton argued that he was entitled to a new trial under the implied bias doctrine, which indicates that close relatives of people with actual bias must be automatically excluded.  The Seventh Circuit (per Judge Coffey) rejected this claim.  After noting uncertainty in the law as to whether second cousins are closely enough related to fall within the scope of the implied bias rule, the court instead decided the case on the basis of Brazelton’s failure to seek removal of the juror at trial.  The court concluded that Brazelton thereby waived any right he had to raise the implied bias claim later.  Along the way, the court noted a Sixth Circuit case indicating that defendants may not waive their right to an impartial jury, thus suggesting the existence of a circuit split on the question.

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Justice Involves Communities

This past week, the 2009 Marquette Law School Public Service Conference focused on the efforts of communities across the nation to rethink criminal justice policy with a greater emphasis on community involvement in both planning and implementation.  Over the past two decades, Wisconsin has more than quintupled its public expenditures for corrections. At the same time, local communities have struggled with increasing jail populations and declining resources for treatment and reentry services.  At the core of this challenge is the desire to keep communities safe while providing more effective alternatives to long term incarceration.

These challenges are not unique to Wisconsin.  As keynote speaker Jeremy Travis pointed out,

As our nation has reacted to rising crime rates over the years, the response of many elected officials has been to turn to the funnel [arrest, prosecution and incarceration,] as a crime control strategy. . . . We have invested enormous sums of money in these crime control strategies, with profound consequences. . . . Most strikingly, the national rate of incarceration has more than quadrupled over the past generation so that America now has the highest rate of incarceration in the world.

This approach has been accompanied by a drop in the crime rate.  It also has had other sociological consequences which are not as easily quantifiable. 

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