There is a new and compelling law review article that provides a new tool for anyone who is considering a challenge to a sex offender law. That article, Panicked Legislation, is written by law professor and ACSOL vice president Catherine Carpenter who will speak about the article on October 1 during ACSOL’s annual conference.
The tool described in the law review article is the Irrebuttable Presumption Doctrine which can be used “to combat false presumptions in legislation that masquerade as universal truths.” For example, many courts have falsely stated that the rate of re-offense for a person convicted of a sex offense is “frightening and high.”
In addition to providing a new tool, the law review article provides a rich background of information regarding past moral panics. For example, the article states that all moral panics have the same cycle: cultivation, operation and dissipation.
During the cultivation phase, persistent and repetitive messaging is used until the public comes to believe the messaging is true. That phase is followed by the operation phase during which legislatures feel compelled to act and the public assumes an outsized obligation to partner with government in order to protect the community. Also during this phase, there are often incidents of violence and vigilantism against the targeted group. During the final phase, dissipation, the moral panic is diminished but does not vanish because it can leave behind a lingering and negative impact.
In all three phases of a moral panic, there are key actors. One key group in every moral panic is state and federal legislators which keeps the public alarmed by an endless series of hobgoblins, most of them imaginary. In the context of registration laws, this had led to “communities…pitted against each other to create increasingly harsher registration and residency laws to chill registrants from moving to their jurisdiction.”
Another key group in every moral panic is the media which has repeated the myth that all registrants pose a current danger to society. Media messaging has led to registration schemes which “assume that past offenders will be future offenders” despite “several decades of research (that) prove otherwise.”
According to the law review article, the cycle of moral panic often leads to Crime Control Theater which has four criteria: a reactionary response to the moral panic, unquestioned acceptance and promotion, appeal to mythic narratives and abject empirical failure. In the context of registrants, this has led to registration and notification schemes that “come with a hefty price tag” and “that is hard to sustain.”
“There is much more to be learned by reading the entire law review article and the time you spend reading it will be worthwhile,” stated ACSOL Executive Director Janice Bellucci. “For example, the law review article provides examples of courts applying the Irrebuttable Presumption Doctrine to overturn laws that previously determined that unwed biological fathers were unfit parents and pregnant women were unfit to serve as teachers.”
Janice,
Have you read Newman or more recently Michael H. v. Gerald D? In Michael H. v. Gerald D the Supreme Court of the United States once again squarely held that a party adversely affected by a presumption is not denied due process of law merely because the presumption is conclusive or irrebuttable.
In Weinberger v. Salfi(1975) the Court considered an antifraud provision of the social security act allowing death benefits to a surviving spouse only when the couple had been married nine months before the decedent’s death. A widow claimed benefits even though she had been married a shorter time, noting that her husband had died of a sudden, unexpected heart attack. The law was an excellent candidate for irrebuttable presumptions reasoning, but the Court blandly upheld it on grounds of administrative convenience. The whole doctrinal development had run its course in four terms of court.
Scalia and Rehnquist both were not fans, which doesn’t bode well in the current makeup of SCOTUS in my opinion. I obviously have not studied it to the extent of this review, nor am I a lawyer!
Love the idea but is this really a viable option to utilize in your opinion?
Appreciate.
Now we’re on the right track.
Perhaps the biggest persuader is the statement so often justifying these fear-based laws is the [false] claim that these people (registrants) can’t be cured.
[The false claim that] they will remain dangerous for the rest of their lives because they can’t control their deviant behavior.
This exaggeration needs to be exposed as the lie it is.
Most people can learn from their mistakes given the right opportunities.
Facts support this premise.
Janice-
I’ve read only halfway through this article so far – but I’m loving its concise thoroughness of this problem that we all face as Registrants. I love the term “sex panic” being used to describe our current legislative, judicial, and societal illness that grips this country.
I love how this article points out and condemns the actors that has started and perpetuated this “stranger danger” myth based on events that got exaggerated beyond reality. The tactics that are used to perpetuate these harmful myths were very educational and in looking back I could see that now.
Janice, how will this article be applied to our situation? What I mean to ask is will it be disseminated to lawmakers and judicial alike for their information? Will it be used in court to challenge cases? Or is it a launching point for something larger?
Take a good hard look at politicians who were formerly prosecutors or State’s Attorney General. Our current VP or several serving governors. A lot of prosecutions for sex crimes are “POLITICAL PROSECUTIONS” just like drug prosecutions were in the late 90s to 2014. Any prosecutorial record created to get votes is a crime of moral turpitude that you might see in a 3rd world country. Sadly, we have been allowing this to go on for decades and the laws should be made to prevent prosecutors from seeking higher office for 10 years after they leave their prosecutorial position.
Just one dummy’s opinion
“They gotta be lucky all the time we just gotta be lucky once”
It’s funny because, that’s one of the FBI’s Fugitive task force favorite sayings
Gee, the three phases sounds like … Actually, it’s the oldest tactic in the book. The Catholic Church used it, Nazis used it and anti gay groups still use it. Only problem with presenting this as an argument is that it uses logic and fact, neither of which are recognized publicly by most judges or lawmakers. Besides the fact that most legit arguments have become white noise to those that refuse to acknowledge them.
In a Sex-aholics support group (my god, what a waste of time)I told a participant that I had been charged with a misdemeanor CP offense. I was confronted with the statement, “ So, I thought all pedophiles were charged as felons”. When I responded that I was in fact NOT a pedophile and attempted to correct their definition, they got irritated and walked away. I was asked not to attend the mtg again on that night. And this was a SEX SUPPORT GROUP!, you know, the non judgmental side.
Point is, perceptions here are ingrained through a bigger system than we could ever overcome. My goal is to just get beyond this without incident and then disappear into a population that ISN’T jaded or judgmental, i.e. , anywhere besides an English speaking country.
Call me a pessimist if you want, but I prefer realist.
Now Catherine are you getting into hobgoblins, bed knobs and broomsticks dear. I think I should of studied law in school. Sure its scary this sex offender issue once one gets wrapped up into it but many of the statics were wrong such as re-offending rates, the frightening and high issues. I even got tired of giving my fingerprint or thumbprint every four months. Sure probation officers are only doing their duty or what they are told to do by their court systems. Still many probation officers want to make a name for themselves as well. Call it some prudish type of vain glory with much of these scare tactics. I also think what saved me more from a lot of this is I didnt’ have any nude videos” or porno on my computer from what the detective said.
As a matter of fact the PO I just had quite his job and moved on. Guess he couldn’t take the preaching I was inducing on him at times. Hey someone’s got to be mad or angry as hell over much of this registry. Yes one may want to rethink the D.C march for Justice again…. Just a thought. Now I love this “Irrebutteable Presumption Doctrine” That is a sense cracks me up but it does have meaning. While we all can Presume a lot of things a lot of things. To me the registry is more of a pressurized though pump of an evil flavor by authorities and when its all said and done… You made a choice or you thought you were talking to a teenage girl. Question did one make a choice to go down there or a decision?
See the decision is to prove when one gets entangled in this web of deceit. Its like your perceiving their thought while they are perceiving your thoughts. Even the bible says who knows the thoughts and intents of another…. That was when the dective said , IHe’d better come up with something to charge me with and it was traveling. I remember the look on his face from 10 yrs ago and he was even dumbfounded. Catherine I have to give you a thumbs up on this Doctrine.. may it help in many ways. A lot of this registry is a bluffing game tug of war. Hey if a bit of my ordeal can help some of you all.. than its all good.
I have yet to read the piece but I like how it sounds to go. I’ve read a number of things about irrebuttable presumption and have long thought it could be an avenue. For some time, SCOTUS liked it. Then, I believe during the Burger Court, it got away from it because of the risk it could paralyze government (my art of phrasing, nobody else’s). More recently, it seemed the Roberts Court has been more open to the concept. As with everything, the proper balance is somewhere in between–and may never be found!
I like it. I really like Ms. Carpenter’s papers and writing. Thank you, Catherine!
Was doing my shopping when I heard over the radio that there was a massive sex offender sweep as a result of a 16-year-old girl who went missing during or after a party in Truckee, CA. Instead of looking at the scene of where he was, the cops decided to go full military mode and arrest some sex offenders for compliance issues and making a big scene of it. Had the investigators actually taken some time to look at the scene, they would have found the car with her body in it, not far from where she was last seen. Somehow, we’re the ones to blame when a child or teen goes missing instead of looking at the people who partied with her that day with drugs and alcohol with no parents around.
Carpenter’s irrebuttable presumption doctrine is mostly overrun where state’s have in possession the usual standardized waiver with defendants signature. More importantly, States each ( 50) all bit on the presumption that ” A database” or “the infrastructure” could circumvent crime and or recidivism rates in addressing the moral panic. This is the magical thinking at hand. A database cannot save you.
How can I download this?