Scant attention was paid to Jacob Wetterling’s criminal justice legacy at a recent hometown memorial service for the Minnesota adolescent who became an iconic American crime victim after he disappeared in the clutches of a masked kidnapper 27 years ago.
The boy was 11 in 1989 when he was snatched in St. Joseph, Minn. His loved ones got a small measure of peace this month when his killer, Danny Heinrich, confessed and led authorities to the spot where he buried Jacob all those years ago after he molested and shot the boy.
The Wetterling case helped incite the country’s fixation with sex offender registries when a cop complained to the boy’s mother that investigators needed a clearinghouse of perverts to properly begin their search. Minnesota and Washington soon created state registries of convicted sex offenders, and the trend quickly went national. Today, about 806,000 men, women and children (some as young as 9) are registered as sex offenders in the United States.
But here’s the thing: Sex registries have been an expensive failure, like so many politicized crime laws enacted in response to one atrocity or another.
“The way this has played out is almost always to name and enact a law in honor of a young white female victim, or occasionally a white male,” says Marc Mauer, executive director of the Sentencing Project, a Washington, D.C., advocacy group.
Mauer has spent 30 years observing the enactment of ripped-from-the-headlines laws and their lasting impact. He says adding a victim’s name and face as a true-crime mascot to a law adds drama, not reason, to the lawmaking process.
“It's theoretically possible that certain single events could serve as the basis for a crime law, but the potential for overreach and excessive punishment in these situations is far more of a concern,” Mauer tells me. “When we consider that we're a nation of 300 million people…why would we assume that a single incident highlights a problem that no one has been aware of? It's also the case, of course, that all of these behaviors were already criminalized, so the attention given to what is often an anomalous case only serves to ratchet up the scale of punishment for all.”
Registries raise nettling civil liberty issues, including whether it is rational public policy to shame and sanction children caught making out with a schoolmate. The registries have created expensive back-office bureaucracies coast to coast, including the federal Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking.
Emily Horowitz, a Brooklyn criminologist, writes in her book Protecting Our Kids? How Sex Offender Laws Are Failing Us that rates of sexual abuse have held steady since the sex registry era began 25 years ago.
The registries also help misinform our understanding of child sex abuse.
Public angst is focused on “stranger danger.” But most child molestations take place at home. As Horowitz and many other experts have pointed out, the perpetrators in nine out of 10 child sex abuse cases are family members or trusted friends.
Yet as Horowitz told a reporter last year, it is “political suicide” for a politician to oppose the registry.
Here’s a look at a handful of other laws (and one policy) enacted amid a wave of political expedience born of human tragedy.
9/11 and the Patriot Act
Jingoism can blur your vision.
That was one of the lessons when Congress rushed through (and President Bush quickly signed) sweeping legislation in 2001 that was sold to Americans as an urgently needed response to terrorism. The Senate voted 98-1 and the House 357-66 in favor, even though not a single member of Congress is believed to have read the seminal (and most controversial) law of the post-9/11 era.
The title of the legislation was the USA PATRIOT Act: Preserving Life and Liberty, with the acronym helpfully spelled out in a parenthetical subhead: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.”
If all that legislated patriotism motivates you to don your tricorne and whistle “Yankee Doodle,” consider the ACLU’s estimation of the law and its impact:
Hastily passed 45 days after 9/11 in the name of national security, the Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet. While most Americans think it was created to catch terrorists, the Patriot Act actually turns regular citizens into suspects.
Among other things, the act led to vast expansion of the issuance of “national security letters,” a form of administrative subpoena used by the feds (especially the FBI) to collect information deemed urgent to protect national security. NSLs do not require a judge’s approval. They have been used perhaps 500,000 times since the act was signed, mostly for non-terrorism cases involving drugs, money and immigration.
The act has been amended, but its blanket authorization of spying on citizens is largely intact.
Polly Klaas and Three Strikes
On Oct. 1, 1993, a sociopathic California parolee named Richard Allen Davis kidnapped Polly Klaas, 11, from her home in Petaluma. He sexually abused and strangled the child, was caught, convicted and sent to Death Row, where he remains.
Davis had a long, violent rap sheet, dating to burglary arrests as a 12-year-old. When Polly was killed, the country was at the tail end of crime’s ascendancy, much of it driven by a crack epidemic. Yet Californians were feeling retributive, inspired in part by the Klaas case. In 1994, nearly three-quarters of California voters approved Proposition 184, which mandated life imprisonment for anyone convicted of three felonies.
It was another bad idea whose time had come. And the bad idea spread like a contagious disease from one statehouse to the next as politicians sought to burnish their tough-on-crime credibility. Three strikes and other draconian forms of mandatory sentencing became the American standard. (Although, as Sen. George Mitchell, the Maine Democrat, once admitted, these tough laws had “little to do with reducing crime and everything to do with increasing votes.”)
The politicians, both Democrats and Republicans, created a beast of a penal system with an inexhaustible appetite for human beings, especially those with pigmented skin. Prisons sprouted like anthills and were quickly filled.
So as crime took its historic nosedive in the U.S., the total state and federal prison population went from 909,000 in 1993, the year Polly was murdered, to a peak of 1.6 million just 15 years later, in 2008.
A Los Angeles Times reporter spoke with Petaluma residents on the day of the girl’s funeral, trying to measure the zeitgest.
“They want something done,” a misty-eyed man named George Hobbie said of his fellow townspeople, “to prevent this from ever happening again."
In other words, they were searching for unicorns.
What they got was a state prison system packed with 40,000 lifers by 2012, nearly a quarter of the total U.S. prison lifer population. In 2014, California voters approved Proposition 47, which skinned back many provisions of Prop 184.
Len Bias and the Crack Cocaine Crackdown
Len Bias was the exception to the little white girl crime-law rule. He was a black man, but got a national spotlight because he was a talented basketball player.
After starring at the University of Maryland, he was the second player selected in the NBA draft on June 17, 1986. Two days later, Bias died of a cocaine overdose. He had been drafted by the Boston Celtics, so his death riled Tip O’Neill, the legendary Beantown congressman and speaker of the U.S. House of Representatives.
O’Neill and his cronies decided they ought to do something about the headline demon drug of the moment, crack cocaine (never mind that Bias had died while freebasing the powdered form of cocaine). The federal legislation O’Neill et al. cooked up caused crack and the name of Len Bias to be wed forever.
The law established mandatory prison terms of five years for possession or sale of just five grams of crack cocaine, about a teaspoonful. The law mandated five years in prison for sale of powder cocaine, but at a threshold of 500 grams, or 100 times the quantity of crack. The U.S. Sentencing Commission later noted that adoption of the 1986 Anti-Drug Abuse Act “was notable for the speed of its development and enactment.”
Good job, Congress? Not exactly. Crack was a drug of choice among blacks, and powder cocaine was preferred by whites.
As law professor Kenneth B. Nunn wrote in the Journal of Gender Race and Justice, “Perhaps no aspect of the drug war has contributed to the rapid increase of African American prisoners in federal prisons more than the federal cocaine sentencing scheme.”
The racial bias seemed clear, and the fix was simple: equalize the weights and penalties. But it took decades for Congress to act, finally eliminating the disparity in 2010.
Mauer of the Sentencing Project says lawmakers frequently act with a stunning lack of forethought when approving complicated crime proposals.
“Far too often when punitive sentencing legislation is adopted there is little attention paid to its impact,” he says. “Given that there are finite resources in the justice system, legislators would do well to consider the tradeoffs that are created.”
For example, he says, legislation that is certain to increase the prison population, like the Len Bias law, ought to be vetted for racial disparities and projected increases in prison costs. These should be weighed against countervailing resource reductions for such things as community supervision and treatment programs.
Nancy Reagan and the War on Drugs
Drug war chroniclers want to blame Richard Nixon for ruining the ‘60s buzz by siccing the feds on dopers. But Nancy Reagan’s infamous slogan, "Just Say No" (created in New York by Needham, Harper & Steers Advertising) sidetracked any possible serious treatment of America’s narco problem on a long, strange trip for much of the '80s and '90s.
Just Say No was a public service campaign, not a law. But it had the force of policy for the entirety of Ronald Reagan’s eight years in the White House.
My guess is that Nancy Reagan’s wide-eyed nudge toward abstinence inspired more teens to toke up than a midnight viewing of Fast Times at Ridgemont High.
Imagine how the drug dilemma might have played out differently over the past two generations if Reagan had been sold on drug treatment instead: "Just Get Help."
Prohibition and Killer Booze
It’s hard to screw up a shot and a beer. But America managed to do just that with its non compos mentis experiment with legislated morality. As Prohibition approaches its 100-year anniversary, it stands as the ur-trailblazer of ill-considered laws that carry dire consequences.
By enacting Prohibition, in effect from 1920 to 1933, politicians created a petri dish for corruption. And it nurtured many virulent strains—organized crime, myriad forms of criminal justice bribe-taking and more.
But the singular unforgivable consequence of Prohibition was its deleterious effect on the wellbeing of citizens, particularly the poor, who could not afford top-shelf booze. Many resorted to consumption of deadly wood alcohol, a toxic industrial compound that the U.S. government spiked with poisons to discourage its use as an intoxicant. Many didn’t heed the warnings or were hoodwinked by unscrupulous suppliers. As many as 10,000 drinkers died and multitudes more were blinded or otherwise disabled, according to Deborah Blum’s book The Poisoner’s Handbook.
The deaths continued well into Prohibition, even after the feds were made aware that thousands were dying as a result of the spiking policy. But morality was at stake.
"Normally, no American government would engage in such business,” the Chicago Tribune said in 1927, according to Blum. “It is only in the curious fanaticism of Prohibition that any means, however barbarous, are considered justified."