Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.
Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture.
The crisis is our national moral panic about sexuality, especially sexuality involving children. Corey Rayburn Yung has written several doctrinal articles on this topic, and he also writes a blog on sex crimes. In a forthcoming article, The Emerging Criminal War Against Sex Offenders, Yung pulls together developments in a number of doctrinal areas and concludes that the United States is in the process of launching a “war against sex offenders,” similar to the War on Drugs (or the War on Terror, for that matter, but Yung does not discuss this point). Criminal justice policy becomes “war,” he argues, when several conditions are met. First (this point is only implicit in Yung’s argument), it becomes a national political and social issue, instead of being left to state and local governments. The federalization of sex offender law began, Yung argued, in 2006 when President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act, which among other things made it a crime to fail to register as a sex offender and created a new federal apparatus, SMART, to enforce the statute.
Two other conditions that distinguish a criminal “war” from ordinary criminal justice policy, for Yung, are the marshaling of extraordinary resources to pursue the campaign and an investment in what he calls “myth creation” (others might call it “ideology”). Yung runs the numbers and asserts that to date, federal resources allocated to the crackdown on sex offenders exceed those allocated to drug enforcement just before President Richard M. Nixon formally announced a War on Drugs. He also points out the most striking characteristic of the national panic about sex offenders – our extraordinary cultural interest in them, represented in everything from long-running and popular television dramas like Law and Order: SVU, to television talk shows (Oprah alone has devoted countless hours to the harms of child sexual abuse), to the many state criminal statutes named after individual child victims. This intense interest, moreover, is sutured to widespread misconceptions, such as the assumption that strangers luring children over the Internet pose a significant danger; that “child molesters” are hopeless recidivists who can never be successfully rehabilitated but only incapacitated by long prison offenses and continuous post-prison surveillance; and that “sex offenders” constitute a homogenous category of people. Most of all, the war on sex offenders is fed by the belief that the sexual abuse of children is not only morally reprehensible but irreparable: Destroying innocence, it destroys lives. Being sexually abused is not only bad but sinister, a “fate worse than death” as Yung puts it. This predominance of fantasy over reality creates the problem of good money thrown after bad. Scholars use the pejorative term “moral panic” precisely because such outbreaks of anxiety do more harm than good; public policy based on wrong assumptions is pretty much guaranteed to be both extraordinarily expensive and largely ineffective as millions of dollars are thrown at the wrong target.
Perhaps the most important indicator of when a criminal justice policy initiative has become a full-scale war, however, is when what Giorgio Agamben, following Carl Schmitt, calls a “state of exception” is created: the lifting of normal prohibitions on state power in the name of protecting the state. A nation at war is assumed to be in a state of emergency, and ordinary civil liberties, it is argued, must be curtailed for the sake of national survival. Yung argues that the constitutional victims of the war on sex offenders so far have included the Ex Post Facto clause, the Commerce Clause, the Sixth Amendment right to confront witnesses, and the Due Process Clause right to notice of criminal regulation. This aspect of criminal wars is the most worrying for people who care about the rule of law. The power of the state, not only to take lives but to destroy them (as in the many sex offenders who have been effectively “banished” from their communities), is immense. Once rolled back, civil rights and liberties are difficult to restore. And “mission creep” is endemic to large-scale, well-funded, and popular institutional initiatives. Pretty soon, teenagers “sexting” one another are going to find themselves prosecuted as sex offenders. Oops! That’s already happened.
Yung adroitly synthesizes recent doctrinal and political developments, bringing us news from the front lines of the war. To truly get a handle on the war against sex offenders, however, even more background is necessary. Polemicist Laura Kipnis examines the strange convergence of interest between law enforcement and child pornographers in her 1999 book Bound and Gagged: Pornography and the Politics of Fantasy in America. For deeper historical context, read Philip Jenkins, whose 1998 book Moral Panic: Changing Concepts of the Child Molester in Modern America identifies three distinct twentieth-century panics over child sexual abuse, peaking in 1915, 1950, and 1985. At the conclusion of his book, Jenkins suggests that the most recent panic, rather than ebbing, has become “perpetual.” Taking “perpetual panic” as the title for his “editor’s observations” on a Federal Sentencing Reporter issue on sex crimes, Michael O’Hear has argued that one reason the cultural hysteria over child sexual abuse and thus the war on sex offenders has endured, while the war on drugs seems to be slowly winding down, is the intertwining of concern about child sexual abuse with the victims’ rights movement. The victims’ rights movement, in turn, has borrowed moral credibility and the language of therapy from the feminist movement. O’Hear’s provocative suggestion takes us to another article I love but have no room to discuss here: Aya Gruber’s Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581 (2009). Just trust me: You should read it.
Yung brings us an important update and some historical perspective on a troubling development in contemporary American criminal justice. His article leads me to wonder what a critical legal scholar might ask. Is the condition of “moral panic” an exception in criminal justice? Or, as my colleague Jonathan Simon suggests, is governing through crime – or “criminal wars” – the new normal? Yung’s article also leads me to wonder, once again, about the meaning of our national obsession with child sexuality. Is it just me, or is there something a little weird going on? Yung reminds us, finally, that the most interesting work in criminal law and procedure does not stay doctrinal, but probes the connections among law, politics, and culture.