Making the Case for Megan's Law: A Study in Legislative Rhetoric

Indiana Law Journal

Volumn 76, Issue 1-2, 2001, Pages 313-365

  Filler, Daniel M ^a  

^a NONE

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EID: 0347870080     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (462)

1. John J. Goldman, Sex Offender Guilty of Killing Megan Kanka, L.A. TIMES, May 31, 1997, at A1. The best available proof of Timmendequas's actual guilt is that he was convicted of the crime. The evidence establishing that he committed these crimes was substantial, and it seems exceedingly likely that he is factually guilty. Nonetheless, a criminal conviction is not irrefutable proof of guilt and must be viewed with at least some skepticism. We learn again and again that innocent people are convicted of crimes. See generally JIM DWYER, PETER NEUFELD, & BARRY SCHECK, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2000). Indeed, the issue of erroneous conviction surfaced in one of the cases discussed in this Article. Michael Blair was convicted of killing Ashley Estell in Plano, Texas. He was sentenced to death. Recent DNA tests suggest, however, that a hair sample used to tie him to the murder did not come from Blair. Jim Henderson, DNA Tests Raise Questions About Murder Case, Hous. CHRON., July 3, 2000, at 1, LEXIS, News Library, HCHRN File. His attorneys are currently seeking to have his conviction, and death sentence, overturned. Id.
2. John J. Goldman, Sex Offender Guilty of Killing Megan Kanka, L.A. TIMES, May 31, 1997, at A1. The best available proof of Timmendequas's actual guilt is that he was convicted of the crime. The evidence establishing that he committed these crimes was substantial, and it seems exceedingly likely that he is factually guilty. Nonetheless, a criminal conviction is not irrefutable proof of guilt and must be viewed with at least some skepticism. We learn again and again that innocent people are convicted of crimes. See generally JIM DWYER, PETER NEUFELD, & BARRY SCHECK, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2000). Indeed, the issue of erroneous conviction surfaced in one of the cases discussed in this Article. Michael Blair was convicted of killing Ashley Estell in Plano, Texas. He was sentenced to death. Recent DNA tests suggest, however, that a hair sample used to tie him to the murder did not come from Blair. Jim Henderson, DNA Tests Raise Questions About Murder Case, Hous. CHRON., July 3, 2000, at 1, LEXIS, News Library, HCHRN File. His attorneys are currently seeking to have his conviction, and death sentence, overturned. Id.
3. John J. Goldman, Sex Offender Guilty of Killing Megan Kanka, L.A. TIMES, May 31, 1997, at A1. The best available proof of Timmendequas's actual guilt is that he was convicted of the crime. The evidence establishing that he committed these crimes was substantial, and it seems exceedingly likely that he is factually guilty. Nonetheless, a criminal conviction is not irrefutable proof of guilt and must be viewed with at least some skepticism. We learn again and again that innocent people are convicted of crimes. See generally JIM DWYER, PETER NEUFELD, & BARRY SCHECK, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2000). Indeed, the issue of erroneous conviction surfaced in one of the cases discussed in this Article. Michael Blair was convicted of killing Ashley Estell in Plano, Texas. He was sentenced to death. Recent DNA tests suggest, however, that a hair sample used to tie him to the murder did not come from Blair. Jim Henderson, DNA Tests Raise Questions About Murder Case, Hous. CHRON., July 3, 2000, at 1, LEXIS, News Library, HCHRN File. His attorneys are currently seeking to have his conviction, and death sentence, overturned. Id.
4. Thomas Zambito, New Hearings Will Determine if Wyckoff Rapist Can Be Freed, RECORD (Bergen County, N.J.), Aug. 4, 1994, at A3, LEXIS, News Library, NJREC File.
5. A search of the LEXIS, News Library, ALLNWS File (Megan w/sent Kanka) between August 1, 1994 (the day after Timmendequas's arrest) and August 10, 1994 produced sixty-four hits, reflecting articles in twenty-one different newspapers, representing eighteen cities and one national publication. Given the limited scope of the LEXIS database, as well as both the textual and date limits of the search, this number grossly underestimates the total extent of the incident's coverage.
6. Steven W. Dill, Pink Ribbons Symbolize Drive for Megan's Law, RECORD (Bergen County, N.J.), Aug. 3, 1994, at A3, available at LEXIS, News Library, NJREC File.
7. Id.
8. Joseph F. Sullivan, Whitman Approves Stringent Restrictions on Sex Criminals, N.Y. TIMES, Nov. 1, 1994, at B1.
9. Registration laws require certain convicted offenders to register with state authorities, providing them with a current address. Notification laws allow, or require, dissemination of the registration information to the public at large. In some notification systems, only citizens with an interest in a particular person will be notified; typically, notification is provided within certain geographic areas. In more aggressive jurisdictions, the identity of offenders is widely publicized, frequently via the Internet.
10. The first sex-offender community-notification law actually predated the Megan Kanka incident. As a result of its own high-profile case of child sexual assault and murder, the state of Washington adopted the Community Protection Act in 1990. WASH. REV. CODE ANN. §§ 4.24.550, 9A.44.130-.140 (West 2000). State adoption of these laws greatly accelerated after Kanka's murder. Alan R. Kabat, Note, Scarlet Letter Sex Offender Databases and Community Notification: Sacrificing Personal Privacy for a Symbol's Sake, 35 AM. CRIM. L. REV. 333, 334-35 (1998).
11. The first sex-offender community-notification law actually predated the Megan Kanka incident. As a result of its own high-profile case of child sexual assault and murder, the state of Washington adopted the Community Protection Act in 1990. WASH. REV. CODE ANN. §§ 4.24.550, 9A.44.130-.140 (West 2000). State adoption of these laws greatly accelerated after Kanka's murder. Alan R. Kabat, Note, Scarlet Letter Sex Offender Databases and Community Notification: Sacrificing Personal Privacy for a Symbol's Sake, 35 AM. CRIM. L. REV. 333, 334-35 (1998).
12. The Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act, Pub. L. No. 103-322, tit. XVII, § 170101, 108 Stat. 1796, 2038 (1994) (codified as amended at 42 U.S.C. § 14071 (1994 & Supp. IV 1998)), did not actually require states to adopt registration provisions. States that did not comply with this federal mandate were to lose ten percent of their "Byrne Program" criminal justice grants. Id. § 170101(f)(2)(a), 108 Stat. at 2042.
13. See Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (amending 42 U.S.C. § 14071(d) (1994)). This provision stated that state law enforcement agencies "shall release relevant information that is necessary to protect the public." Id.
14. Linda Greenhouse, Justices Consider Remedy for Government Grudges, N.Y. TIMES, Jan. 11, 2000, at A16. For a comprehensive list of state registration and notification laws, see Kabat, supra note 8, at 365-70. Several states have adopted their own local "brand name" sex- offender laws. These include Indiana's Zachary's Law, IND. CODE ANN. § 5-2-12-11 (West 2000); North Carolina's Amy Jackson Law, N.C. GEN. STAT. § 14-208.5 (2000); and Texas's Ashley's Law, TEX. CRIM. PROC. CODE ANN. art. 62.01-.12 (Vernon 2001).
15. Linda Greenhouse, Justices Consider Remedy for Government Grudges, N.Y. TIMES, Jan. 11, 2000, at A16. For a comprehensive list of state registration and notification laws, see Kabat, supra note 8, at 365-70. Several states have adopted their own local "brand name" sex-offender laws. These include Indiana's Zachary's Law, IND. CODE ANN. § 5-2-12-11 (West 2000); North Carolina's Amy Jackson Law, N.C. GEN. STAT. § 14-208.5 (2000); and Texas's Ashley's Law, TEX. CRIM. PROC. CODE ANN. art. 62.01-.12 (Vernon 2001).
16. Linda Greenhouse, Justices Consider Remedy for Government Grudges, N.Y. TIMES, Jan. 11, 2000, at A16. For a comprehensive list of state registration and notification laws, see Kabat, supra note 8, at 365-70. Several states have adopted their own local "brand name" sex- offender laws. These include Indiana's Zachary's Law, IND. CODE ANN. § 5-2-12-11 (West 2000); North Carolina's Amy Jackson Law, N.C. GEN. STAT. § 14-208.5 (2000); and Texas's Ashley's Law, TEX. CRIM. PROC. CODE ANN. art. 62.01-.12 (Vernon 2001).
17. Linda Greenhouse, Justices Consider Remedy for Government Grudges, N.Y. TIMES, Jan. 11, 2000, at A16. For a comprehensive list of state registration and notification laws, see Kabat, supra note 8, at 365-70. Several states have adopted their own local "brand name" sex- offender laws. These include Indiana's Zachary's Law, IND. CODE ANN. § 5-2-12-11 (West 2000); North Carolina's Amy Jackson Law, N.C. GEN. STAT. § 14-208.5 (2000); and Texas's Ashley's Law, TEX. CRIM. PROC. CODE ANN. art. 62.01-.12 (Vernon 2001).
18. Linda Greenhouse, Justices Consider Remedy for Government Grudges, N.Y. TIMES, Jan. 11, 2000, at A16. For a comprehensive list of state registration and notification laws, see Kabat, supra note 8, at 365-70. Several states have adopted their own local "brand name" sex- offender laws. These include Indiana's Zachary's Law, IND. CODE ANN. § 5-2-12-11 (West 2000); North Carolina's Amy Jackson Law, N.C. GEN. STAT. § 14-208.5 (2000); and Texas's Ashley's Law, TEX. CRIM. PROC. CODE ANN. art. 62.01-.12 (Vernon 2001).
19. See infra text accompanying note 177.
20. See 142 CONG. REC. 10,354 (1996).
21. Audio tape: Debate and Vote on H.R. 1665, held by the Florida House of Representatives (April 2, 1993) (on file with author); Audio tape: Debate and Vote on S. 56, held by the Florida Senate (May 1, 1995) (on file with author).
22. The General Assembly 1998 Session, VIRGINIAN-PILOT (Norfolk, Va.), Mar. 4, 1998, at B4, LEXIS, News Library, VAPILT File.
23. David Heckelman, House OKs Notice Law Covering Sex Offenders, CHI. DAILY LAW BULL., Nov. 3, 1995, at 1, LEXIS, News Library, CHIDLB File; David Heckelman, Senate OKs Bill Linking Crime Measures, Storage-Tank Repairs, CHI. DAILY LAW BULL., Nov. 16, 1995, at 1, LEXIS, News Library, CHIDLB File.
24. David Heckelman, House OKs Notice Law Covering Sex Offenders, CHI. DAILY LAW BULL., Nov. 3, 1995, at 1, LEXIS, News Library, CHIDLB File; David Heckelman, Senate OKs Bill Linking Crime Measures, Storage-Tank Repairs, CHI. DAILY LAW BULL., Nov. 16, 1995, at 1, LEXIS, News Library, CHIDLB File.
25. Debera Carlton Harrell, Sex-Offender Notification Guidelines Set; Police Can Defer in Some Cases, SEATTLE POST-INTELLIGENCER, May 30, 1990, at B1, LEXIS, News Library, SEAPIN File.
26. See, e.g., E.B. v. Verniero, 119 F.3d 1077, 1107-09 (3d Cir. 1997) (striking down provision that placed burden on offender to show he was not sexually violent predator); Roe v. Farwell, 999 F. Supp. 174, 192 (D. Mass. 1998) (striking down notification as violation of double jeopardy and ex post facto clauses); Kansas v. Meyers, 923 P.2d 1024, 1030 (Kan. 1996) (striking down notification as ex post facto law); Louisiana v. Babin, 637 So. 2d 814, 817 (La. Ct. App. 1994) (same); Pennsylvania v. Williams, 733 A.2d 593, 607 (Pa. 1999) (striking down provision that placed burden on offender to show he was not sexually violent predator).
27. See, e.g., Community Quandary, PROVIDENCE J.-BULL., Apr. 15, 1996, at 4B, LEXIS, News Library, PRVJNL File (encouraging states to focus on rehabilitation); Suzanne Fields, Worrying About the Monster in Our Midst, DALLAS MORNING NEWS, Mar. 3, 1995, at 25A, LEXIS, News Library, DALNWS File (arguing that only life sentences for sex offenders provide safety); Good Intentions Can Lead to Bad Laws, HARTFORD COURANT, Jan. 20, 1995, at A12, LEXIS, News Library, HTCOUR File (suggesting such laws are unconstitutional); John Q. LaFond, Beware Illusory Remedies, USA TODAY, Aug. 11, 1994, at 12A (arguing laws will not make communities safer); Cathy Young, Look Before Leaping on Megan's Law, DETROIT NEWS, May 21, 1996, at 12, LEXIS, News Library, DTNEWS File (claiming that rehabilitation and appropriately longer sentences are better solutions to sex crimes).
28. See, e.g., Community Quandary, PROVIDENCE J.-BULL., Apr. 15, 1996, at 4B, LEXIS, News Library, PRVJNL File (encouraging states to focus on rehabilitation); Suzanne Fields, Worrying About the Monster in Our Midst, DALLAS MORNING NEWS, Mar. 3, 1995, at 25A, LEXIS, News Library, DALNWS File (arguing that only life sentences for sex offenders provide safety); Good Intentions Can Lead to Bad Laws, HARTFORD COURANT, Jan. 20, 1995, at A12, LEXIS, News Library, HTCOUR File (suggesting such laws are unconstitutional); John Q. LaFond, Beware Illusory Remedies, USA TODAY, Aug. 11, 1994, at 12A (arguing laws will not make communities safer); Cathy Young, Look Before Leaping on Megan's Law, DETROIT NEWS, May 21, 1996, at 12, LEXIS, News Library, DTNEWS File (claiming that rehabilitation and appropriately longer sentences are better solutions to sex crimes).
29. See, e.g., Community Quandary, PROVIDENCE J.-BULL., Apr. 15, 1996, at 4B, LEXIS, News Library, PRVJNL File (encouraging states to focus on rehabilitation); Suzanne Fields, Worrying About the Monster in Our Midst, DALLAS MORNING NEWS, Mar. 3, 1995, at 25A, LEXIS, News Library, DALNWS File (arguing that only life sentences for sex offenders provide safety); Good Intentions Can Lead to Bad Laws, HARTFORD COURANT, Jan. 20, 1995, at A12, LEXIS, News Library, HTCOUR File (suggesting such laws are unconstitutional); John Q. LaFond, Beware Illusory Remedies, USA TODAY, Aug. 11, 1994, at 12A (arguing laws will not make communities safer); Cathy Young, Look Before Leaping on Megan's Law, DETROIT NEWS, May 21, 1996, at 12, LEXIS, News Library, DTNEWS File (claiming that rehabilitation and appropriately longer sentences are better solutions to sex crimes).
30. See, e.g., Community Quandary, PROVIDENCE J.-BULL., Apr. 15, 1996, at 4B, LEXIS, News Library, PRVJNL File (encouraging states to focus on rehabilitation); Suzanne Fields, Worrying About the Monster in Our Midst, DALLAS MORNING NEWS, Mar. 3, 1995, at 25A, LEXIS, News Library, DALNWS File (arguing that only life sentences for sex offenders provide safety); Good Intentions Can Lead to Bad Laws, HARTFORD COURANT, Jan. 20, 1995, at A12, LEXIS, News Library, HTCOUR File (suggesting such laws are unconstitutional); John Q. LaFond, Beware Illusory Remedies, USA TODAY, Aug. 11, 1994, at 12A (arguing laws will not make communities safer); Cathy Young, Look Before Leaping on Megan's Law, DETROIT NEWS, May 21, 1996, at 12, LEXIS, News Library, DTNEWS File (claiming that rehabilitation and appropriately longer sentences are better solutions to sex crimes).
31. See, e.g., Community Quandary, PROVIDENCE J.-BULL., Apr. 15, 1996, at 4B, LEXIS, News Library, PRVJNL File (encouraging states to focus on rehabilitation); Suzanne Fields, Worrying About the Monster in Our Midst, DALLAS MORNING NEWS, Mar. 3, 1995, at 25A, LEXIS, News Library, DALNWS File (arguing that only life sentences for sex offenders provide safety); Good Intentions Can Lead to Bad Laws, HARTFORD COURANT, Jan. 20, 1995, at A12, LEXIS, News Library, HTCOUR File (suggesting such laws are unconstitutional); John Q. LaFond, Beware Illusory Remedies, USA TODAY, Aug. 11, 1994, at 12A (arguing laws will not make communities safer); Cathy Young, Look Before Leaping on Megan's Law, DETROIT NEWS, May 21, 1996, at 12, LEXIS, News Library, DTNEWS File (claiming that rehabilitation and appropriately longer sentences are better solutions to sex crimes).
32. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
33. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
34. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
35. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
36. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl-Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
37. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
38. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
39. See, e.g., Caroline Louise Lewis, The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act: An Unconstitutional Deprivation of the Right to Privacy and Substantive Due Process, 31 HARV. C.R.-C.L. L. REV. 89 (1996); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991); Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. SCH. J. HUM. RTS. 1 (1996) [hereinafter Symposium] (including critical comments from Hon. John J. Gibbons, Ronald K. Chen, Eric Janus, and others); Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885 (1995); Michelle L. Earl- Hubbard, Comment, The Child Sex Offender Registration Laws: The Punishment, Liberty, Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990's, 90 Nw. U. L. REV. 788 (1996); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J.L. & POL'Y 569 (1995); G. Scott Rafshoon, Comment, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995); Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999).
40. See, e.g., PHILIP JENKINS, MORAL PANIC: CHANGING CONCEPTS OF THE CHILD MOLESTER IN MODERN AMERICA 6-7, 196-206 (1998). The term was coined by British sociologists during the early 1970s. See, e.g., STANLEY COHEN, FOLK DEVILS AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS 191-98 (1972).
41. See, e.g., PHILIP JENKINS, MORAL PANIC: CHANGING CONCEPTS OF THE CHILD MOLESTER IN MODERN AMERICA 6-7, 196-206 (1998). The term was coined by British sociologists during the early 1970s. See, e.g., STANLEY COHEN, FOLK DEVILS AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS 191-98 (1972).
42. E.g., Maggie Haberman & Susan Edelman, Queens Schools to Post Pix of Sex Offenders, N.Y. POST, Nov. 15, 1998, at 6 (stating that one New York City school district would send pictures of local sex offenders home with 36,000 students).
43. One Web site, www.sexoffender.com, provides links to a number of different states' sexual-offender postings. At the time of this writing, a visitor to this site could find links to over twenty different state registries. See http://www.sexoffender.com (last visited Oct. 16, 2000).
44. See 142 CONG. REC. 10,313 (1996) (statement of Rep. Cunningham).
45. See, e.g., Kabat, supra note 8; Brian J. Telpner, Note, Constructing Safe Communities: Megan's Laws and the Purposes of Punishment, 85 GEO. L.J. 2039 (1997); Ellen Liberman, Megan's Law's Unintended Result: Hysteria, PROVIDENCE J.-BULL., Oct. 17, 1999, at 1A, LEXIS, News Library, PRVJNL File; see also supra note 20 and accompanying text.
46. See, e.g., Kabat, supra note 8; Brian J. Telpner, Note, Constructing Safe Communities: Megan's Laws and the Purposes of Punishment, 85 GEO. L.J. 2039 (1997); Ellen Liberman, Megan's Law's Unintended Result: Hysteria, PROVIDENCE J.-BULL., Oct. 17, 1999, at 1A, LEXIS, News Library, PRVJNL File; see also supra note 20 and accompanying text.
47. See, e.g., Kabat, supra note 8; Brian J. Telpner, Note, Constructing Safe Communities: Megan's Laws and the Purposes of Punishment, 85 GEO. L.J. 2039 (1997); Ellen Liberman, Megan's Law's Unintended Result: Hysteria, PROVIDENCE J.-BULL., Oct. 17, 1999, at 1A, LEXIS, News Library, PRVJNL File; see also supra note 20 and accompanying text.
48. The term rhetoric is used here to refer to "the conventions of discourse and argument." Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 VA. L. REV. 1545, 1546 (1990). Plato's Gorgias argued that rhetoric included "power to persuade by speech jurymen in the jury-court, council-men in the Council Chamber, assembly-men in the Assembly, and in every other gathering, whatever political gathering there may be." PLATO, GORGIAS § 452e, at 19 (Terence Irwin trans., Clarendon Press 1979)). For an extensive discussion of the rhetorical tradition, see GEORGE A. KENNEDY, CLASSICAL RHETORIC AND ITS CHRISTIAN AND SECULAR TRADITION FROM ANCIENT TO MODERN TIMES (2d ed., rev. & enl. 1999).
49. The term rhetoric is used here to refer to "the conventions of discourse and argument." Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 VA. L. REV. 1545, 1546 (1990). Plato's Gorgias argued that rhetoric included "power to persuade by speech jurymen in the jury-court, council-men in the Council Chamber, assembly-men in the Assembly, and in every other gathering, whatever political gathering there may be." PLATO, GORGIAS § 452e, at 19 (Terence Irwin trans., Clarendon Press 1979)). For an extensive discussion of the rhetorical tradition, see GEORGE A. KENNEDY, CLASSICAL RHETORIC AND ITS CHRISTIAN AND SECULAR TRADITION FROM ANCIENT TO MODERN TIMES (2d ed., rev. & enl. 1999).
50. As one commentator noted, "law is the very profession of rhetoric." Wetlaufer, supra note 26, at 1554.
51. Id. at 1555 ("[I]f law is, at its core, the practice of rhetoric, the particular rhetoric that law embraces is the rhetoric of foundations and logical deductions. And that particular rhetoric is one that relies, above all else, upon the denial that it is rhetoric that is being done.") (emphasis in original); James Boyd White, Law As Rhetoric, Rhetoric As Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 685 (1985) ("[T]he law is at present usually spoken of (by academics at least) as if it were a body of more or less determinate rules, or rules and principles, that are more or less perfectly intelligible to the trained reader."). This is not to suggest that words are inconsequential. Their interpretation can have dramatic tangible consequences. As Robert Cover explained, "Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life." Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986).
52. Id. at 1555 ("[I]f law is, at its core, the practice of rhetoric, the particular rhetoric that law embraces is the rhetoric of foundations and logical deductions. And that particular rhetoric is one that relies, above all else, upon the denial that it is rhetoric that is being done.") (emphasis in original); James Boyd White, Law As Rhetoric, Rhetoric As Law: The Arts of Cultural and Communal Life, 52 U. CHI. L. REV. 684, 685 (1985) ("[T]he law is at present usually spoken of (by academics at least) as if it were a body of more or less determinate rules, or rules and principles, that are more or less perfectly intelligible to the trained reader."). This is not to suggest that words are inconsequential. Their interpretation can have dramatic tangible consequences. As Robert Cover explained, "Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life." Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986).
53. See, e.g., Daniel M. Filler, Random Violence and the Transformation of the Juvenile Justice Debate, 86 VA. L. REV. 1095, 1109-16 (2000) (discussing the role of activist, media, and legislative rhetoric in transforming juvenile justice debate into a campaign for gun control).
54. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
55. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
56. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
57. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
58. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
59. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
60. See, e.g., Martha C. Nussbaum, Poets as Judges: Judicial Rhetoric and the Literary Imagination, 62 U. CHI. L. REV. 1477 (1995); David Ray Papke & Kathleen H. McManus, Narrative and the Appellate Opinion, 23 LEGAL STUD. F. 449 (1999); Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421 (1995); Frederick Schauer, Opinions as Rules, 62 U. CHI. L. REV. 1455 (1995); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 (1995); Wetlaufer, supra note 26, at 1560-64; James Boyd White, What's an Opinion For?, 62 U. CHI. L. REV. 1363 (1995).
61. See, e.g., Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, 47 STAN. L. REV. 39, 45-47 (1994); Wetlaufer, supra note 26, at 1557-60.
62. See, e.g., Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, 47 STAN. L. REV. 39, 45-47 (1994); Wetlaufer, supra note 26, at 1557-60.
63. See, e.g., Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 703-11 (1999) (arguing that because of human cognitive processes, rhetoric can have a powerful effect on how individuals perceive and calculate risks).
64. For an important early and legitimizing contribution to this literature, see Symposium, Legal Storytelling, 87 MICH. L. REV. 2073 (1989).
65. See, e.g., BRYAN K. FAIR, NOTES OF A RACIAL CASTE BABY: COLOR BLINDNESS AND THE END OF AFFIRMATIVE ACTION 1-65 (1997); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Marie Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduction" and the Law, 13 NOVA L. REV. 355 (1989); Susan Estrich, Rape, 95 YALE L.J. 1087, 1087-89 (1986).
66. See, e.g., BRYAN K. FAIR, NOTES OF A RACIAL CASTE BABY: COLOR BLINDNESS AND THE END OF AFFIRMATIVE ACTION 1-65 (1997); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Marie Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduction" and the Law, 13 NOVA L. REV. 355 (1989); Susan Estrich, Rape, 95 YALE L.J. 1087, 1087-89 (1986).
67. See, e.g., BRYAN K. FAIR, NOTES OF A RACIAL CASTE BABY: COLOR BLINDNESS AND THE END OF AFFIRMATIVE ACTION 1-65 (1997); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Marie Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduction" and the Law, 13 NOVA L. REV. 355 (1989); Susan Estrich, Rape, 95 YALE L.J. 1087, 1087-89 (1986).
68. See, e.g., BRYAN K. FAIR, NOTES OF A RACIAL CASTE BABY: COLOR BLINDNESS AND THE END OF AFFIRMATIVE ACTION 1-65 (1997); PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); Marie Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduction" and the Law, 13 NOVA L. REV. 355 (1989); Susan Estrich, Rape, 95 YALE L.J. 1087, 1087-89 (1986).
69. See, e.g., DERRICK A. BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Richard Delgado, Storytellingfor Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2418-26 (1989) (offering hypothetical story of an African-American lawyer denied law teaching job).
70. See, e.g., DERRICK A. BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Richard Delgado, Storytellingfor Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2418-26 (1989) (offering hypothetical story of an African-American lawyer denied law teaching job).
71. SEE, E.G., RICHARD DELGADO, THE RODRIGO CHRONICLES: CONVERSATIONS ABOUT AMERICA AND RACE (1995).
72. See, e.g., David Dante Troutt, Screws, Koon, and Routine Aberrations: The Use of Fictional Narratives in Federal Police Brutality Prosecutions, 74 N.Y.U. L. REV. 18, 27-52 (1999) (presenting fictional narration of events leading to important police brutality prosecution).
73. See Carolyn C. Jones, Mapping Tax Narratives, 73 TUL. L. REV. 653, 659-63 (1998).
74. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
75. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
76. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
77. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
78. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
79. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
80. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
81. Among those supporting narrative scholarship, see, for example, Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 279-80 (1994); William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994); George A. Martinez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS L.J. 683 (1999). Examples of articles critical of narrative scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993); Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992). The debate has continued, and even heated up, over time. In 1997, Farber and Sherry published a book crystallizing their critiques of narrative scholarship, and what they termed "radical multiculturalism." DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997). This book triggered vitriolic criticism from a variety of commentators. Indeed, the Minnesota Law Review dedicated an entire (angry) volume to criticism of this single book. See generally, Symposium, Essays in Response to Beyond All Reason, 83 MINN. L. REV. 1589 (1999).
82. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
83. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
84. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia
85. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
86. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
87. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
88. Although there are no comprehensive studies of the rhetoric of a bill's legislative debate, a few scholars have discussed legislative rhetoric. E.g., Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REV. 992 (1997) (recounting subcommittee conversation about morality during consideration of Employment Nondiscrimination Act of 1997); David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (criticizing role of patient-dumping stories in Congress's adoption of Emergency Medical Treatment and Active Labor Act); J. Christopher Rideout, So What's in a Name?: A Rhetorical Reading of Washington's Sexually Violent Predator's Act, 15 U. PUGET SOUND L. REV. 781 (1991) (discussing rhetoric presented to, and used by, Washington Governor's Task Force on Community Prevention); Charles J. Butler, Note, The Defense of Marriage Act: Congress's Use of Narrative in the Debate over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998) (discussing use of narrative at various points in legislative history of Defense of Marriage Act). Scholars in disciplines outside law have also looked at legislative rhetoric, although to somewhat different ends. E.g. David Austen-Smith, Information Transmission in Debate, 34 AM. J. POL. SCI. 124 (1990) (studying role of legislative debate on committee decisions); Carrie Crenshaw, Resisting Whiteness' Rhetorical Silence, 61 W.J. COMM. 253 (1997) (analyzing role of whiteness as explicit issue in U.S. Senate debate over reauthorization of United Daughters of the Confederacy insignia patent); Nancy A. Naples, The "New Consensus" on the "Gendered Social Contract": The 1987-1988 U.S. Congressional Hearings on Welfare Reform, 22 SIGNS 907 (1997) (analyzing "discursive frames" of welfare reform within Congressional hearings).
89. Indeed, scholars debating the appropriate judicial use of legislative history implicitly concede the importance of legislative rhetoric. Their work has typically focused on the singular problem of divining legislative intent, however, rather than on broader questions about the role and impact of legislative rhetoric.
90. See, e.g., Richard A. Smith, Advocacy, Interpretation, and Influence in the U.S. Congress, 78 AM. POL SCI. REV. 44, 46 (1984) (arguing that a legislator's public comments are designed to show how a legislator's voting choice is consistent with existing preferences of audiences).
91. Assemblyman Spano in the New York Megan's Law debate, for instance, dedicated several minutes to a detailed description of his own childhood abduction at the hands of a man who wanted to make "dirty movies." N.Y. Assembly Minutes of A1059C, at 342-46 (June 28, 1995) [hereinafter N.Y. Assembly] (statement of Mr. Spano) (copy on file with the Indiana Law Journal).
92. For a discussion about the use of legislative debate in judicial interpretation, see infra note 66-69 and accompanying text.
93. In the Clinton impeachment debate, for instance, legislators looked to the Watergate investigation to determine which sorts of claims were "legitimate" bases upon which to argue for impeachment.
94. Although some scholars discount legislative debate, and legislative history generally, for the purposes of judicial interpretation, see infra text accompanying note 66, the rhetorical choices made by legislators nonetheless show us how they sought to publicly frame the new law. That information, in turn, tells us something about both the bill and the society into which the bill was born.
95. The Congressional Record is available from the Library of Congress through THOMAS: Legislative Information on the Internet, at http://thomas.loc.gov (last visited Feb. 9, 2001).
96. STEVEN FRANTZICH & JOHN SULLIVAN, THE C-SPAN REVOLUTION 124 (1996).
97. The meaning of a law is not fixed, of course. A given law may serve different functions and may represent different things to different people. By studying legislative speeches, however, we can discover how legislators may have understood these laws, how courts are likely to apply them, and how society was convinced to accept their adoption.
98. "Criminal law" is used here in its broad sense, including not only criminal offenses and punishments, but also law collaterally regulating offenders. Other good examples of formally civil "criminal laws" are qui tam and civil forfeiture actions. Qui tam, or "private attorney general," provisions were created to allow citizen enforcement of criminal law. Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 297 (1989). Civil forfeiture provisions allow government seizure "of a man's property by reason of offences committed by him." Boyd v. United States, 116 U.S. 616, 634 (1886).
99. "Criminal law" is used here in its broad sense, including not only criminal offenses and punishments, but also law collaterally regulating offenders. Other good examples of formally civil "criminal laws" are qui tam and civil forfeiture actions. Qui tam, or "private attorney general," provisions were created to allow citizen enforcement of criminal law. Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 297 (1989). Civil forfeiture provisions allow government seizure "of a man's property by reason of offences committed by him." Boyd v. United States, 116 U.S. 616, 634 (1886).
100. Some criminal laws, such as those that regulate guns, pollution, and other well-funded interests, are the subject of significant dispute. Debate about criminal laws dealing with "blue-collar crime" - violence, theft, sex offenses, for example - might be expected to be more one-sided.
101. The legislative debate in the Congress was an example of virtually one-sided dialogue; only one person spoke against any portion of Megan's Law, and even he ultimately voted for it. The debate in New York, while reflecting strong support for the bill, also included substantial and sharp criticism from a small cadre of opponents. For a further discussion of the reasons for studying these two debates, see infra text accompanying note 70.
102. See, e.g., Ronald D. Elving, Brighter Lights, Wider Windows: Presenting Congress in the 1990s, in CONGRESS, THE PRESS, AND THE PUBLIC 171, 171-74 (Thomas E. Mann & Norman J. Ornstein eds., 1994) (discussing Congress's history of private deal making and anonymity).
103. See, e.g., JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT 166 (1997).
104. Many commentators argue that the goal of reelection is the leading force in legislative decisionmaking. See, e.g., Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. CHI. L. REV. 63, 88 (1990). Others, however, argue that ideology may trump the desire for reelection, or may shape legislators' understandings of the best way to be reelected. See, e.g., Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 57 (1991).
105. Many commentators argue that the goal of reelection is the leading force in legislative decisionmaking. See, e.g., Herbert Hovenkamp, Legislation, Well-Being, and Public Choice, 57 U. CHI. L. REV. 63, 88 (1990). Others, however, argue that ideology may trump the desire for reelection, or may shape legislators' understandings of the best way to be reelected. See, e.g., Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 57 (1991).
106. Political scientist R. Douglas Arnold argues that voters can be divided into "attentive publics" and "inattentive publics." R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-71 (1990). Arnold argues that legislators "feel electorally pressured to serve inattentive citizens only if an issue is salient or potentially salient to substantial numbers of those citizens." Id. at 128. Legislators must therefore watch debate carefully to see if it is likely to activate these otherwise inattentive citizens. Arnold contends that congressional leaders can use public procedures, like legislative debate, to force legislators to "stand up and be counted." Id. at 130.
107. Political scientist R. Douglas Arnold argues that voters can be divided into "attentive publics" and "inattentive publics." R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-71 (1990). Arnold argues that legislators "feel electorally pressured to serve inattentive citizens only if an issue is salient or potentially salient to substantial numbers of those citizens." Id. at 128. Legislators must therefore watch debate carefully to see if it is likely to activate these otherwise inattentive citizens. Arnold contends that congressional leaders can use public procedures, like legislative debate, to force legislators to "stand up and be counted." Id. at 130.
108. Political scientist R. Douglas Arnold argues that voters can be divided into "attentive publics" and "inattentive publics." R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 64-71 (1990). Arnold argues that legislators "feel electorally pressured to serve inattentive citizens only if an issue is salient or potentially salient to substantial numbers of those citizens." Id. at 128. Legislators must therefore watch debate carefully to see if it is likely to activate these otherwise inattentive citizens. Arnold contends that congressional leaders can use public procedures, like legislative debate, to force legislators to "stand up and be counted." Id. at 130.
109. See infra note 62 and accompanying text. Arguably, C-SPAN viewers are the public segment least likely to have been inattentive in the first place. Studies show they are a particularly politically engaged group. See infra note 62.
110. See KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 77 (1997) (indicating that crime news stories rely heavily on "official sources"); JOEL BEST, THREATENED CHILDREN: RHETORIC AND CONCERN ABOUT CHILD VICTIMS 89, 95 (1990) (noting that the press relies on comments of political leaders and showing example of legislative floor speech used as a news peg).
111. See KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 77 (1997) (indicating that crime news stories rely heavily on "official sources"); JOEL BEST, THREATENED CHILDREN: RHETORIC AND CONCERN ABOUT CHILD VICTIMS 89, 95 (1990) (noting that the press relies on comments of political leaders and showing example of legislative floor speech used as a news peg).
112. See N.Y. Assembly, supra note 43, at 312-13 (statement of Ms. John).
113. C-SPAN is watched by disproportionate numbers of state-level politicians and government officials, CEO's, and newspaper editors. Not only do these influential individuals watch C-SPAN, providing a particularly influential target population for legislative floor speeches, a remarkable thirty-three percent of this group "credit C-SPAN with causing them to change their minds on a public issue." FRANTZICH & SULLIVAN, supra note 48, at 243-44. Frantzich and Sullivan also found that "journalists report an increasing use of C-SPAN for monitoring the political process." Id. at 243.
114. C-SPAN permits the media to use up to three minutes of television coverage for free. Hoping to take advantage of free press during the evening news, legislators will contact local media to let them know when they are scheduled to make floor speeches. Id. at 46. Not surprisingly, local stations take advantage of the free material, and show C-SPAN clips on their news programs. Forrest Maltzman & Lee Sigelman, The Politics of Talk: Unconstrained Floor Time in the U.S. House of Representatives, 58 J. POL. 819, 820 (1996).
115. Brian Lamb, the creator of C-SPAN and current Chairman and CEO, estimated that the viewership of the network is typically between 50,000 and 100,000; however, at peak times, it can reach about three million. FRANTZICH & SULLIVAN, supra note 48, at 226-28. Viewership is relatively broad. A 1994 survey showed that "8.6% of the U.S. population had watched C-SPAN 'during the last week,'" and a 1992 study indicated that the average viewer who watched C-SPAN watched it for twenty-one hours per month. Id.
116. The most remarkable aspect of the C-SPAN viewership is its level of political engagement. In The C-SPAN Revolution, Frantzich and Sullivan suggest that C-SPAN viewers vote much more frequently than the rest of America; they indicate that these viewers vote "at rates 25-35 percentage points above the national averages in both presidential and off year elections." Id. at 236. In fact, even this estimate may be conservative; a 1988 University of Maryland survey showed that "84% of C-SPAN viewers were registered to vote" and, of these, 92% actually voted. Id. at 234, 236.
117. See 142 CONG. REC. 17,114 (1996) (statement of Rep. Doman) (recommending that viewers obtain an informative magazine article).
118. Cf. BECKETT, supra note 58, at 24-25 (concluding that public fears about crime are shaped more by comments of political leaders than actual crime rates).
119. See, e.g., N.Y. Assembly, supra note 43, at 395 (statement of Ms. Katz) (warning listeners that bill will not be panacea).
120. Justice Scalia, for instance, argues that reliance on legislative history is almost always improper. E.g., Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279-83 (1996) (Scalia, J., concurring in part) (making the case against interpretation with legislative history). For a more thorough discussion of what he terms this "new textualism," see William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990). Others argue that use of such legislative materials is wholly appropriate.
121. Justice Scalia, for instance, argues that reliance on legislative history is almost always improper. E.g., Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279-83 (1996) (Scalia, J., concurring in part) (making the case against interpretation with legislative history). For a more thorough discussion of what he terms this "new textualism," see William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990). Others argue that use of such legislative materials is wholly appropriate.
122. E.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992).
123. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
124. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
125. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
126. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
127. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
128. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
129. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
130. Indeed, a trial court - though later reversed - relied on New York's legislative debates to strike down New York's Megan's Law. Doe v. Pataki, 940 F. Supp. 603, 621-22 (S.D.N.Y. 1996), rev'd in relevant part, 120 F.3d 1263 (2d Cir. 1997). A majority of the Supreme Court relies upon legislative materials to interpret statutes. See, e.g., Holloway v. United States, 526 U.S. 1, 9 (1999) (using congressional floor speeches to interpret meaning of federal carjacking statute). Some commentators criticize legislative debate as a less reliable form of legislative history. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 304 (2000) (arguing that courts are more likely to rely only on committee reports and statements of supporters because "[t]here is less reason to think that . . . [other legislative] material reflects the views of the enacting coalition and more reason to worry that it might have been strategically planted in the record"). Nonetheless, many courts rely on these sorts of floor remarks when interpreting statutes. E.g., Holloway, 526 U.S. at 9 n.7 (relying on remarks of two supporters of carjacking bill to prove law's "broad deterrent purpose"); In re G.O., 710 N.E.2d 140, 144, 146 (Ill. App. Ct. 1999) (interpreting intent of juvenile justice statute through extensive citation to state legislative debate); Dillehey v. Texas, 815 S.W.2d 623, 624-26 (Tex. Crim. App. 1991) (citing text of the legislative debate and claiming that the court has long honored "as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate"); see also United Steelworkers v. Weber, 443 U.S. 193 (1979) (citing, in both majority and dissent, comments from a variety of different legislators).
131. See, e.g., Holloway, 526 U.S. at 9.
132. The Supreme Court has held that statements by legislators are particularly valuable for establishing a legislature's discriminatory intent. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (relying in part on city council speeches to strike down regulation on Santeria practice); Hunter v. Underwood, 471 U.S. 222, 228-29 (1985) (citing statements at Alabama constitutional convention to establish racially neutral law was motivated by racial animus).
133. The Supreme Court has held that statements by legislators are particularly valuable for establishing a legislature's discriminatory intent. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (relying in part on city council speeches to strike down regulation on Santeria practice); Hunter v. Underwood, 471 U.S. 222, 228-29 (1985) (citing statements at Alabama constitutional convention to establish racially neutral law was motivated by racial animus).
134. The Supreme Court has held that statements by legislators are particularly valuable for establishing a legislature's discriminatory intent. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (relying in part on city council speeches to strike down regulation on Santeria practice); Hunter v. Underwood, 471 U.S. 222, 228-29 (1985) (citing statements at Alabama constitutional convention to establish racially neutral law was motivated by racial animus).
135. This study relied entirely on written transcripts of both the federal and New York debates. Compared to the New York debates, congressional debate, documented in the Congressional Record, was easy to secure. State legislative debate is often more difficult to exhume, but transcripts of the New York debate were obtained upon written request. The decision to make use of written transcripts is not necessarily without consequence. First, there is a risk of inaccurate documentation. Studies have shown that the Congressional Record is, in the main, accurate. See J.A. Hendrix, A New Look at the Textual Authenticity of Speeches in the Congressional Record, 31 S. SPEECH J. 153, 159 (1965). The accuracy of New York's transcription, on the other hand, is not known. Nonetheless, because this study does not focus on microscopic aspects of rhetoric - verb choice, for instance, or the use of alliteration - it is unlikely that transcription errors would alter this Article's conclusions. A second drawback to reliance on a written record is that important aspects of oratory, such as tone and cadence, are lost. Although this infirmity limits, to some extent, the scope of this Article, it again seems unlikely that the absence of this detail would alter any of the broader conclusions here. In the next section, then, this Article sets out the results of the study; it provides an account of the Megan's Law debate as it unfolded in each of these two jurisdictions.
136. See infra text accompanying notes 190-206.
137. See infra text accompanying notes 190-206.
138. The decision to refer to these laws as "Megan's Laws" within the text of this Article reflects a decision to allow the powerful story of Megan Kanka to inform every reference to these provisions. It was a practical decision, one designed to aid a reader's understanding of this piece. This footnote is designed, however, to alert readers to the potential emotional impact of this editorial choice.
139. Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act, Pub. L. No. 103-322, 108 Stat. 2038 (1994) (codified as amended at 42 U.S.C. § 14071 (1994 & Supp. IV 1998)).
140. Failure to comply with this regulation would have subjected a state to criminal-justice-funding cuts. Id.
141. The exclusion of parental kidnapping and false imprisonment probably was an acknowledgment of the complicated motivations that might cause a noncustodial parent to take physical custody of her child.
142. Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (amending 42 U.S.C. § 14071(d) (1994)).
143. 42 U.S.C. § 14071(d) (1994).
144. Lyncher Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104-236, 110 Stat. 3093 (codified as amended at 42 U.S.C. § 14072 (Supp. IV 1998)).
145. 42 U.S.C. § 14072 (Supp. IV 1998).
146. N.Y. CORRECT. LAW § 168 (McKinney Supp. 1999).
147. Id.
148. Id. §§ 168-192
149. Id.
150. Id.
151. The House, for instance, provides for one- and five-minute speeches and "extended remarks," allowing opportunities for legislators to speak out publicly on any topic they choose. Forrest Maltzman & Lee Sigelman, The Politics of Talk: Unconstrained Floor Time in the U.S. House of Representatives, 58 J. POL. 819, 819 (1996); see also Committee on Rules, U.S. House of Representatives, Floor Procedure in the U.S. House of Representatives, at http://www.house.gov/rules/floor_man.htm (last visited Jan. 9, 2001). These types of speeches were included within the debate studied here.
152. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified at 42 U.S.C. § 13701 (1994)).
153. The first floor discussion of registration came in the context of the freestanding Jacob Wetterling Crimes Against Children Act, H.R. REP. No. 103-324 (1993), reprinted in 1994 U.S.C.C.A.N. 1801. E.g., 139 CONG. REC. 10,998 (1993) (statement of Rep. Ramstad). The Wetterling Act was ultimately incorporated into the Violent Crime Control and Law Enforcement Act, and debate continued until August 25, 1994, the date that the Senate agreed to the conference report of the bill. E.g., 140 CONG. REC. 24,005-06 (1994) (statement of Sen. Lautenberg).
154. The first floor discussion of registration came in the context of the freestanding Jacob Wetterling Crimes Against Children Act, H.R. REP. No. 103-324 (1993), reprinted in 1994 U.S.C.C.A.N. 1801. E.g., 139 CONG. REC. 10,998 (1993) (statement of Rep. Ramstad). The Wetterling Act was ultimately incorporated into the Violent Crime Control and Law Enforcement Act, and debate continued until August 25, 1994, the date that the Senate agreed to the conference report of the bill. E.g., 140 CONG. REC. 24,005-06 (1994) (statement of Sen. Lautenberg).
155. The first floor discussion of registration came in the context of the freestanding Jacob Wetterling Crimes Against Children Act, H.R. REP. No. 103-324 (1993), reprinted in 1994 U.S.C.C.A.N. 1801. E.g., 139 CONG. REC. 10,998 (1993) (statement of Rep. Ramstad). The Wetterling Act was ultimately incorporated into the Violent Crime Control and Law Enforcement Act, and debate continued until August 25, 1994, the date that the Senate agreed to the conference report of the bill. E.g., 140 CONG. REC. 24,005-06 (1994) (statement of Sen. Lautenberg).
156. The first floor discussion of registration came in the context of the freestanding Jacob Wetterling Crimes Against Children Act, H.R. REP. No. 103-324 (1993), reprinted in 1994 U.S.C.C.A.N. 1801. E.g., 139 CONG. REC. 10,998 (1993) (statement of Rep. Ramstad). The Wetterling Act was ultimately incorporated into the Violent Crime Control and Law Enforcement Act, and debate continued until August 25, 1994, the date that the Senate agreed to the conference report of the bill. E.g., 140 CONG. REC. 24,005-06 (1994) (statement of Sen. Lautenberg).
157. Initial discussion about community notification occurred during consideration of the more limited Wetterling Act. E.g., 140 CONG. REC. 10,638 (1994) (statement of Sen. Gorton) (arguing in favor of S.2363, a bill that would have required states to create both registration and notification procedures). Debate continued until May 7, 1996, two days before the bill passed. E.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee). Indeed, discussion of these sex-offense issues continued until adoption of the Lyncher Act on September 26, 1996. E.g., 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Zimmer).
158. Initial discussion about community notification occurred during consideration of the more limited Wetterling Act. E.g., 140 CONG. REC. 10,638 (1994) (statement of Sen. Gorton) (arguing in favor of S.2363, a bill that would have required states to create both registration and notification procedures). Debate continued until May 7, 1996, two days before the bill passed. E.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee). Indeed, discussion of these sex-offense issues continued until adoption of the Lyncher Act on September 26, 1996. E.g., 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Zimmer).
159. Initial discussion about community notification occurred during consideration of the more limited Wetterling Act. E.g., 140 CONG. REC. 10,638 (1994) (statement of Sen. Gorton) (arguing in favor of S.2363, a bill that would have required states to create both registration and notification procedures). Debate continued until May 7, 1996, two days before the bill passed. E.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee). Indeed, discussion of these sex-offense issues continued until adoption of the Lyncher Act on September 26, 1996. E.g., 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Zimmer).
160. See infra text accompanying note 177. Ironically, Representative Watt must have been sufficiently concerned about the political consequences of opposing this legislation that, despite his public complaints on the House floor, including a claim that the bill was "un-American," Watt ultimately voted in favor of the legislation. See infra text accompanying note 181.
161. The final New York Senate tally was 54 to 1; in the Assembly, supporters prevailed 140 to 9.
162. Both debates featured some discussion of federalism-related issues. See infra text accompanying notes 186, 197.
163. While the provisions of Megan's Law were not limited to sex offenders, see supra text accompanying note 76, arguments about the law focused almost exclusively on this population.
164. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
165. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
166. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
167. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
168. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
169. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
170. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
171. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3;
172. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
173. Articles discussing Megan Kanka included Girl's Killing Sparks Call for New Laws, S.F. EXAMINER, Aug. 3, 1994, at A10, LEXIS, News Library, SFEXAM File; Man Charged in 7-Year-Old Neighbor's Killing, N.Y. TIMES, Aug. 1, 1994, at B5; Anna Quindlen, So What if Law Isn't Fair to Sex Offenders? Children Come First, CHI. TRIB., Aug. 8, 1994, at 13. Coverage of the Polly Klaas incident included Michelle Locke, Paroled Kidnapper Held in California Girl's Abduction, CHI. SUN-TIMES, Dec. 2, 1993, at 56, LEXIS, News Library, CHISUN File; Richard C. Paddock, All-Out Search for Missing Girl, L.A. TIMES, Oct. 6, 1993, at A3; Witnesses Identify Suspect in California Girl's Abduction, ATL. J.-CONST., Dec. 3, 1993, at A4, LEXIS, News Library, ATLJNL File. Stories about Amber Hagerman included Search for Girl Ends, CHI. TRIB., Jan. 18, 1996 (Evening Update ed.), at 2, LEXIS, News Library, CHTRIB File; Shannon Tangonan, "Brutal" End to Kidnapping, USA TODAY, Jan. 19, 1996, at 3A, LEXIS, News Library, USATDY File. Articles about Ashley Estell included Kevin Caston, Searchers Find Body of Child, DALLAS MORNING NEWS, Sept. 6, 1993, at 1A, LEXIS, News Library, DALNWS File; Child Molester Is Charged in Killing, S.F. EXAMINER, Sept. 16, 1993, at A6, LEXIS, News Library, SFEXAM File.
174. According to news accounts, Jacob Wetterling, ten, was abducted at gunpoint by a masked man on October 22, 1989. After One Week, No Kidnap Clues, CHI. TRIB., Oct. 29, 1989, at 16. He had been walking with his brother and another friend in their small town, St. Josephs, Minnesota. Id. The perpetrator allegedly fled with Wetterling on foot. He has never been found. Id. Megan Kanka, a seven year old, was invited to the home of her neighbor, Jesse Timmendequas, to look at his puppy. Dale Russakoff, Case Driving 'Megan's Law' Results in Murder Conviction: Jury to Decide Whether to Seek Execution, WASH. POST, May 31, 1997, at A1. There, according to the evidence at trial, he raped and murdered her. Id. According to initial press accounts, neither Richard and Maureen Kanka - Megan's parents - nor the rest of the neighborhood was aware that Timmendequas, and his housemates, had previously been convicted of sexual offenses. Anna Quindlen, Editorial, The Passion to Keep Them Safe, N.Y. TIMES, Aug. 6, 1994, at 19. Later accounts cast doubt on the veracity of this claim. See infra text accompanying notes 246-49. The third federal law was named after Pam Lyncher, a Texas anticrime activist killed in a plane crash. Prison May Be Named After Lyncher, DALLAS MORNING NEWS, July 27, 1996, at 22 A (describing Lyncher as a victims'-rights leader), LEXIS, News Library, DALNWS File.
175. According to news accounts, Jacob Wetterling, ten, was abducted at gunpoint by a masked man on October 22, 1989. After One Week, No Kidnap Clues, CHI. TRIB., Oct. 29, 1989, at 16. He had been walking with his brother and another friend in their small town, St. Josephs, Minnesota. Id. The perpetrator allegedly fled with Wetterling on foot. He has never been found. Id. Megan Kanka, a seven year old, was invited to the home of her neighbor, Jesse Timmendequas, to look at his puppy. Dale Russakoff, Case Driving 'Megan's Law' Results in Murder Conviction: Jury to Decide Whether to Seek Execution, WASH. POST, May 31, 1997, at A1. There, according to the evidence at trial, he raped and murdered her. Id. According to initial press accounts, neither Richard and Maureen Kanka - Megan's parents - nor the rest of the neighborhood was aware that Timmendequas, and his housemates, had previously been convicted of sexual offenses. Anna Quindlen, Editorial, The Passion to Keep Them Safe, N.Y. TIMES, Aug. 6, 1994, at 19. Later accounts cast doubt on the veracity of this claim. See infra text accompanying notes 246-49. The third federal law was named after Pam Lyncher, a Texas anticrime activist killed in a plane crash. Prison May Be Named After Lyncher, DALLAS MORNING NEWS, July 27, 1996, at 22 A (describing Lyncher as a victims'-rights leader), LEXIS, News Library, DALNWS File.
176. According to news accounts, Jacob Wetterling, ten, was abducted at gunpoint by a masked man on October 22, 1989. After One Week, No Kidnap Clues, CHI. TRIB., Oct. 29, 1989, at 16. He had been walking with his brother and another friend in their small town, St. Josephs, Minnesota. Id. The perpetrator allegedly fled with Wetterling on foot. He has never been found. Id. Megan Kanka, a seven year old, was invited to the home of her neighbor, Jesse Timmendequas, to look at his puppy. Dale Russakoff, Case Driving 'Megan's Law' Results in Murder Conviction: Jury to Decide Whether to Seek Execution, WASH. POST, May 31, 1997, at A1. There, according to the evidence at trial, he raped and murdered her. Id. According to initial press accounts, neither Richard and Maureen Kanka - Megan's parents - nor the rest of the neighborhood was aware that Timmendequas, and his housemates, had previously been convicted of sexual offenses. Anna Quindlen, Editorial, The Passion to Keep Them Safe, N.Y. TIMES, Aug. 6, 1994, at 19. Later accounts cast doubt on the veracity of this claim. See infra text accompanying notes 246-49. The third federal law was named after Pam Lyncher, a Texas anticrime activist killed in a plane crash. Prison May Be Named After Lyncher, DALLAS MORNING NEWS, July 27, 1996, at 22 A (describing Lyncher as a victims'-rights leader), LEXIS, News Library, DALNWS File.
177. According to news accounts, Jacob Wetterling, ten, was abducted at gunpoint by a masked man on October 22, 1989. After One Week, No Kidnap Clues, CHI. TRIB., Oct. 29, 1989, at 16. He had been walking with his brother and another friend in their small town, St. Josephs, Minnesota. Id. The perpetrator allegedly fled with Wetterling on foot. He has never been found. Id. Megan Kanka, a seven year old, was invited to the home of her neighbor, Jesse Timmendequas, to look at his puppy. Dale Russakoff, Case Driving 'Megan's Law' Results in Murder Conviction: Jury to Decide Whether to Seek Execution, WASH. POST, May 31, 1997, at A1. There, according to the evidence at trial, he raped and murdered her. Id. According to initial press accounts, neither Richard and Maureen Kanka - Megan's parents - nor the rest of the neighborhood was aware that Timmendequas, and his housemates, had previously been convicted of sexual offenses. Anna Quindlen, Editorial, The Passion to Keep Them Safe, N.Y. TIMES, Aug. 6, 1994, at 19. Later accounts cast doubt on the veracity of this claim. See infra text accompanying notes 246-49. The third federal law was named after Pam Lyncher, a Texas anticrime activist killed in a plane crash. Prison May Be Named After Lyncher, DALLAS MORNING NEWS, July 27, 1996, at 22 A (describing Lyncher as a victims'-rights leader), LEXIS, News Library, DALNWS File.
178. 142 CONG. REC. 10,311 (1996) (statement of Rep. Zimmer).
179. Id. at 10,313 (statement of Rep. Jackson-Lee).
180. E.g., id. at 10,664-65 (statement of Sen. Gorton); id. at 10,312 (statement of Rep. Smith); id. at 10,361 (statement of Rep. Fox).
181. E.g., id. at 10,664-65 (statement of Sen. Gorton); id. at 10,312 (statement of Rep. Smith); id. at 10,361 (statement of Rep. Fox).
182. E.g., id. at 10,664-65 (statement of Sen. Gorton); id. at 10,312 (statement of Rep. Smith); id. at 10,361 (statement of Rep. Fox).
183. Id. at 10,315 (statement of Rep. Upton).
184. Id. at 18,764 (statement of Sen. Feinstein).
185. Id.
186. Id.
187. Moments later, Senator Hutchison also mentioned the Hagerman story, saying that "[s]he was kept alive for at least 48 hours before being murdered. Her nude, slashed body was found in a creek bed . . . ." Id. at 18,765 (statement of Sen. Hutchison).
188. Id. at 7747 (statement of Sen. Gramm).
189. Indeed one legislator, Senator Leichter, expressly cautioned about excessive reliance on the emotionally powerful Megan Kanka story to the exclusion of logic and reason. See N.Y. Senate Minutes of S-11-B, at 6624 (May 24, 1995) [hereinafter N.Y. Senate] (statement of Sen. Leichter) (copy on file with the Indiana Law Journal).
190. See id. at 6583 (statement of Sen. Rath).
191. Id. at 6571 (statement of Sen. Skelos).
192. See, e.g., id. at 6565 (statement of Sen. Skelos).
193. Id. at 6620 (statement of Sen. Skelos); see also id. at 6645 (statement of Sen. Libous) (referring to "a young lady from Binghamton who was raped and murdered").
194. Id. at 6620 (statement of Sen. Skelos); see also id. at 6645 (statement of Sen. Libous) (referring to "a young lady from Binghamton who was raped and murdered").
195. N.Y. Assembly, supra note 43, at 394 (statement of Mr. Warner).
196. Id. at 324-25 (statement of Mr. Tedisco).
197. Id. at 341 (statement of Mr. Spano).
198. Id. at 342.
199. Id. at 343.
200. Id.
201. Id. at 346.
202. Because this study was based on a transcribed record, the actual response of fellow legislators cannot be established. This shortfall evidences some costs associated with studying legislative rhetoric in its written form.
203. Id. at 294 (statement of Mr. Sullivan).
204. N.Y. Senate, supra note 105, at 6586 (statement of Sen. Marcellino).
205. N.Y. Assembly, supra note 43, at 370 (statement of Mr. Robach).
206. N.Y. Senate, supra note 105, at 6659-60 (statement of Sen. Jones).
207. 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee).
208. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad).
209. 142 CONG. REC. 18,765-66 (1996) (statement of Sen. Hutchison).
210. 140 CONG. REC. 22,520 (1994) (statement of Rep. Dunn) (referring apparently to "sexual predators" generally).
211. 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. McCollum) (referring apparently to sexual offenses generally).
212. 142 CONG. REC. 18,766 (1996) (statement of Sen. Hutchison).
213. 139 CONG. REC. 31,252 (1993) (statement of Rep. Grams). Presumably, Representative Grams was saying that the recidivism rate of child sex offenders is notoriously high. It might be more consistent with the general tone of the debate, with its focus on famous cases, if Grams meant that most notorious repeat criminal offenders are sex offenders.
214. 142 CONG. REC. 10,335 (1996) (statement of Rep. Lofgren).
215. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad). A few minutes after the statement of Representative Ramstad, Representative Fish repeated the same recidivism rate of seventy-four percent. Id. at 31,252 (statement of Rep. Fish).
216. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad). A few minutes after the statement of Representative Ramstad, Representative Fish repeated the same recidivism rate of seventy-four percent. Id. at 31,252 (statement of Rep. Fish).
217. 142 CONG. REC. 7748 (1996) (statement of Sen. Gramm).
218. 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. Jackson-Lee). Representative Jackson-Lee presumably believed that through hard spiritual work, some pedophiles could control themselves. She stated that the bill would not hurt those who had "made amends, someone who has sought forgiveness and repentance, someone who is born again." Id. Pedophilia is thus treated as a sinful sexual choice that religion could address. This perspective appears similar to the view of homosexuality held by many modern institutional religious groups. E.g., Jeffrey L. Sheler, Homosexuality Doctrines, U.S. NEWS & WORLD REP., July 16, 1990, at 55 (stating that Southern Baptists view homosexuality as a sin, and that homosexuals can "receive forgiveness and victory through personal faith in Jesus Christ"). Not surprisingly, then, one representative explicitly linked pedophilia with male homosexuality. See infra text accompanying note 133.
219. 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. Jackson-Lee). Representative Jackson-Lee presumably believed that through hard spiritual work, some pedophiles could control themselves. She stated that the bill would not hurt those who had "made amends, someone who has sought forgiveness and repentance, someone who is born again." Id. Pedophilia is thus treated as a sinful sexual choice that religion could address. This perspective appears similar to the view of homosexuality held by many modern institutional religious groups. E.g., Jeffrey L. Sheler, Homosexuality Doctrines, U.S. NEWS & WORLD REP., July 16, 1990, at 55 (stating that Southern Baptists view homosexuality as a sin, and that homosexuals can "receive forgiveness and victory through personal faith in Jesus Christ"). Not surprisingly, then, one representative explicitly linked pedophilia with male homosexuality. See infra text accompanying note 133.
220. 142 CONG. REC. 17,114 (1996) (statement of Rep. Dornan).
221. N.Y. Senate, supra note 105, at 6573 (statement of Sen. Paterson).
222. N.Y. Assembly, supra note 43, at 347-48 (statement of Mr. Spano).
223. Id. at 304 (statement of Mr. Feldman).
224. Id.
225. N.Y. Senate, supra note 105, at 6616 (statement of Sen. Skelos) (asserting that forty percent of pedophiles recidivate and that, unlike other offenders, the desire to commit the crime does not diminish with age).
226. See id. at 6616-17 (statement of Sen. Leichter).
227. See id.
228. N.Y. Assembly, supra note 43, at 370 (statement of Mr. Robach). This assertion, backed with no evidence, was notable principally because nobody had suggested that the increase was just reporting.
229. Id. at 398 (statement of Ms. Clark).
230. N.Y. Senate, supra note 105, at 6572-73 (statement of Sen. Paterson).
231. Id. at 6572.
232. Use of this term is by no means limited to sex offenders. Juvenile delinquents, for instance, are frequently referred to as "superpredators." E.g., PETER ELIKANN, SUPERPREDATORS: THE DEMONIZATION OF OUR CHILDREN BY THE LAW 10 (1999). Before 1990, the term "predator," in a sexual sense, was typically found "in the literature of crime fiction and true crime, where it appeared extensively in book titles and blurbs, alongside phrases implying primitivism, animal savagery, and hunting." JENKINS, supra note 21, at 193- 94.
233. Use of this term is by no means limited to sex offenders. Juvenile delinquents, for instance, are frequently referred to as "superpredators." E.g., PETER ELIKANN, SUPERPREDATORS: THE DEMONIZATION OF OUR CHILDREN BY THE LAW 10 (1999). Before 1990, the term "predator," in a sexual sense, was typically found "in the literature of crime fiction and true crime, where it appeared extensively in book titles and blurbs, alongside phrases implying primitivism, animal savagery, and hunting." JENKINS, supra note 21, at 193-94.
234. JENKINS, supra note 21, at 193.
235. Sexually Violent Predators Act, S. 2363, 103d Cong. (1994).
236. Id.
237. Legislative rhetoric can have consequences that ripple well beyond the legislature itself. For instance, Kansas's decision to name their sexual offender commitment bill the Sexually Violent Predator Act, resulted in the U.S. Supreme Court using the terms "predator" and "predatory" thirty-two times in its review of the law. See Kansas v. Hendricks, 521 U.S. 346 (1997).
238. E.g., 142 CONG. REC. 10,312 (1996) (statement of Rep. Schumer) (declaring that "we need to do all we can to stop these predators"); id. at 7747-48 (statement of Sen. Gramm); 140 CONG. REC. 22,700 (1994) (statement of Sen. Lautenberg).
239. E.g., 142 CONG. REC. 10,312 (1996) (statement of Rep. Schumer) (declaring that "we need to do all we can to stop these predators"); id. at 7747-48 (statement of Sen. Gramm); 140 CONG. REC. 22,700 (1994) (statement of Sen. Lautenberg).
240. E.g., 142 CONG. REC. 10,312 (1996) (statement of Rep. Schumer) (declaring that "we need to do all we can to stop these predators"); id. at 7747-48 (statement of Sen. Gramm); 140 CONG. REC. 22,700 (1994) (statement of Sen. Lautenberg).
241. 140 CONG. REC. 21,448 (1994) (statement of Sen. Dole).
242. 142 CONG. REC. 18,766 (1996) (statement of Sen. Hutchison).
243. Id. at 10,312 (statement of Rep. Schumer). In a similar vein, Representative McCollum suggested that "sexual predators are remarkably clever and persistently transient." 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. McCollum).
244. Id. at 10,312 (statement of Rep. Schumer). In a similar vein, Representative McCollum suggested that "sexual predators are remarkably clever and persistently transient." 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. McCollum).
245. Assemblywoman John offered an example of a kinder, gentler hostility, calling sex offenders "dangerous and terrible people." N.Y. Assembly, supra note 43, at 310 (statement of Ms. John).
246. Id. at 417 (statement of Mr. Tedisco).
247. Id. at 360-61 (statement of Mr. Healey).
248. Legislators in Congress, at least, might have discussed a 1995 study by the Washington State Institute for Public Policy. This report indicated that the state's community-notification law helped the police track sexual offenders but did not significantly reduce recidivism within this group. Eric Houston, Law Is Helping Police Track Sex Offenders, SEATTLE POST-INTELLIGENCER, Oct. 5, 1995, at B2, LEXIS, News Library, SEAPIN File.
249. E.g., 140 CONG. REC. 24,005 (1994) (statement of Sen. Lautenberg) (arguing that if there had been community notification, "just perhaps, just perhaps, Megan Kanka would be alive today").
250. Id. at 22,786 (statement of Sen. Biden).
251. E.g., id. at 21,448 (statement of Sen. Dole) ("[I]f [the Kanka family] had known about the criminal history of Megan's killer, there's a good chance that Megan would still have a childhood and a future.").
252. Id. at 22,699 (statement of Sen. Gorton).
253. 142 CONG. REC. 10,311 (1996) (statement of Rep. Zimmer).
254. 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Zimmer).
255. 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee) (suggesting that school officials, community groups, and others will benefit from dissemination of information).
256. 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. Jackson-Lee).
257. 139 CONG. REC. 31,252 (1993) (statement of Rep. Fish) (regarding child care jobs); 142 CONG. REC. 7747 (1996) (statement of Sen. Gramm) (regarding scoutmaster positions).
258. 139 CONG. REC. 31,252 (1993) (statement of Rep. Fish) (regarding child care jobs); 142 CONG. REC. 7747 (1996) (statement of Sen. Gramm) (regarding scoutmaster positions).
259. N.Y. Senate, supra note 105, at 6571 (statement of Sen. Skelos).
260. N.Y. Assembly, supra note 43, at 394 (statement of Mr. Warner).
261. See id. at 363 (statement of Mr. Polonetsky).
262. See id. at 300 (statement of Mr. Feldman).
263. Id. at 370 (statement of Mr. Robach).
264. Id. at 358 (statement of Ms. Glick).
265. 142 CONG. REC. 10,311 (1996) (statement of Rep. Zimmer).
266. Id. at 10,361 (statement of Rep. Fox); see also id. at 8600 (statement of Rep. Jackson- Lee) ("We owe it to Jennifer, Elizabeth, Monique and Megan and all of the others whose lives have been snuffed out as a result of violent crimes.").
267. Id. at 10,361 (statement of Rep. Fox); see also id. at 8600 (statement of Rep. Jackson-Lee) ("We owe it to Jennifer, Elizabeth, Monique and Megan and all of the others whose lives have been snuffed out as a result of violent crimes.").
268. N.Y. Senate, supra note 105, at 6644 (statement of Sen. Leibell).
269. Id. at 6647 (statement of Sen. Libous).
270. Representative Watt only spoke out against the 1996 Megan's Law provisions.
271. 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Watt). Indeed, some media commentators have vilified those who questioned Megan's Law. The New York Daily News, for instance, referred to Judge Denny Chin, who struck down New York's Megan's Law, as "the pervert's pal." Rogue's Gallery of Junk Judges, N.Y. DAILY NEWS, Mar. 31, 1996, at 40.
272. 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Watt). Indeed, some media commentators have vilified those who questioned Megan's Law. The New York Daily News, for instance, referred to Judge Denny Chin, who struck down New York's Megan's Law, as "the pervert's pal." Rogue's Gallery of Junk Judges, N.Y. DAILY NEWS, Mar. 31, 1996, at 40.
273. 142 CONG. REC. 10,315 (1996) (statement of Rep. Watt).
274. 142 CONG. REC. H11,133 (daily ed. Sept. 25, 1996) (statement of Rep. Watt).
275. Id.
276. Id. (statement of Rep. McCollum). Representative Lofgren, who followed Representative McCollum, concurred with McCollum, stating that "the presumption of innocence ends when the conviction is obtained." Id. at H11,134 (statement of Rep. Lofgren). Lofgren, showing solidarity with her Democratic colleague Watt, did concede that "it cannot be a popular position to stand up and speak what you think the Constitution calls out for. . . . [T]he gentleman from North Carolina [Mr. Watt], although I do not agree with him on this issue, has certainly shown integrity in standing up for what he believes the Constitution requires." Id. (alteration in original).
277. Id. (statement of Rep. McCollum). Representative Lofgren, who followed Representative McCollum, concurred with McCollum, stating that "the presumption of innocence ends when the conviction is obtained." Id. at H11,134 (statement of Rep. Lofgren). Lofgren, showing solidarity with her Democratic colleague Watt, did concede that "it cannot be a popular position to stand up and speak what you think the Constitution calls out for. . . . [T]he gentleman from North Carolina [Mr. Watt], although I do not agree with him on this issue, has certainly shown integrity in standing up for what he believes the Constitution requires." Id. (alteration in original).
278. Id. (statement of Rep. McCollum). Representative Lofgren, who followed Representative McCollum, concurred with McCollum, stating that "the presumption of innocence ends when the conviction is obtained." Id. at H11,134 (statement of Rep. Lofgren). Lofgren, showing solidarity with her Democratic colleague Watt, did concede that "it cannot be a popular position to stand up and speak what you think the Constitution calls out for. . . . [T]he gentleman from North Carolina [Mr. Watt], although I do not agree with him on this issue, has certainly shown integrity in standing up for what he believes the Constitution requires." Id. (alteration in original).
279. 142 CONG. REC. 10,311 (1996) (statement of Rep. Zimmer).
280. Id. at 10,314 (statement of Rep. Lofgren).
281. 142 CONG. REC. H11,134 (daily ed. Sept. 25, 1996) (statement of Rep. Jackson-Lee).
282. 142 CONG. REC. 10,315 (1996) (statement of Rep. McCollum).
283. See id. at 7748 (statement of Sen. Biden). Biden's argument about the need for a nationwide system of registration was a rare occasion in which congressional rhetoric was used in ways that might specifically assist a court reviewing the federal Megan's Law. Although it is unlikely that the courts would question the power of Congress to create standardized data collection given the Supreme Court's reading of the Constitution's spending power in South Dakota v. Dole, 483 U.S. 203 (1987), W. Paul Koenig's discussion of the need for a national database might provide sufficient basis to uphold the law even under the Commerce Clause. W. Paul Koenig, Does Congress Abuse Its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State's Compliance with "Megan's Law"?, 88 J. CRIM. L. & CRIMINOLOGY 721 (1998).
284. See id. at 7748 (statement of Sen. Biden). Biden's argument about the need for a nationwide system of registration was a rare occasion in which congressional rhetoric was used in ways that might specifically assist a court reviewing the federal Megan's Law. Although it is unlikely that the courts would question the power of Congress to create standardized data collection given the Supreme Court's reading of the Constitution's spending power in South Dakota v. Dole, 483 U.S. 203 (1987), W. Paul Koenig's discussion of the need for a national database might provide sufficient basis to uphold the law even under the Commerce Clause. W. Paul Koenig, Does Congress Abuse Its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State's Compliance with "Megan's Law"?, 88 J. CRIM. L. & CRIMINOLOGY 721 (1998).
285. See id. at 7748 (statement of Sen. Biden). Biden's argument about the need for a nationwide system of registration was a rare occasion in which congressional rhetoric was used in ways that might specifically assist a court reviewing the federal Megan's Law. Although it is unlikely that the courts would question the power of Congress to create standardized data collection given the Supreme Court's reading of the Constitution's spending power in South Dakota v. Dole, 483 U.S. 203 (1987), W. Paul Koenig's discussion of the need for a national database might provide sufficient basis to uphold the law even under the Commerce Clause. W. Paul Koenig, Does Congress Abuse Its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State's Compliance with "Megan's Law"?, 88 J. CRIM. L. & CRIMINOLOGY 721 (1998).
286. See 142 CONG. REC. 10,314 (1996) (statement of Rep. Lofgren).
287. Id. Representative Cunningham was not explicitly endorsing vigilantism, and the phrase could be seen simply to suggest that community opprobrium was an acceptable punishment for sex offenders. Nonetheless, his rhetoric does suggest, at minimum, a lack of concern about this bill's impact on the life of a sex offender. At most, it is open tolerance for vigilantism.
288. See N.Y. Senate, supra note 105, at 6572 (statement of Sen. Patterson).
289. N.Y. Assembly, supra note 43, at 311 (statement of Ms. John).
290. Id. at 397 (statement of Mr. Sullivan); id. at 358 (statement of Ms. Glick).
291. Id. at 397 (statement of Mr. Sullivan); id. at 358 (statement of Ms. Glick).
292. See N.Y. Senate, supra note 105, at 6621 (statement of Sen. Leichter).
293. See, e.g., N.Y. Assembly, supra note 43, at 309-10 (statement of Ms. John) (questioning bill's constitutionality); id. at 384-86 (statement of Mr. Feldman) (asserting bill was constitutional).
294. See, e.g., N.Y. Assembly, supra note 43, at 309-10 (statement of Ms. John) (questioning bill's constitutionality); id. at 384-86 (statement of Mr. Feldman) (asserting bill was constitutional).
295. N.Y. Senate, supra note 105, at 6612 (statement of Sen. Skelos).
296. See id. at 6605-08 (statement of Sen. Marchi).
297. See, e.g., id. at 6588 (statement of Sen. Nozzolino).
298. Id.
299. See id.
300. N.Y. Assembly, supra note 43, at 397 (statement of Mr. Sullivan).
301. Id. at 407-08 (statement of Mr. Towns).
302. See, e.g., id. at 297 (statement of Mr. Sullivan); N.Y. Senate, supra note 105, at 6618 (statement of Sen. Leichter).
303. See, e.g., id. at 297 (statement of Mr. Sullivan); N.Y. Senate, supra note 105, at 6618 (statement of Sen. Leichter).
304. N.Y. Assembly, supra note 43, at 357 (statement of Ms. Click).
305. N.Y. Senate, supra note 105, at 6618 (statement of Sen. Leichter).
306. N.Y. Assembly, supra note 43, at 359 (statement of Ms. Click).
307. See id. at 371-80 (various statements of Mr. Grannis).
308. See N.Y. Senate, supra note 105, at 6619 (statement of Sen. Skelos).
309. N.Y. Assembly, supra note 43, at 301 (statement of Mr. Feldman).
310. Id. at 390 (statement of Ms. Wirth).
311. See, e.g., id. at 384 (statement of Mr. Feldman).
312. Supra text accompanying notes 100-02.
313. Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 383 (1996) ("We make sense of the world by ordering it into metaphors, and ultimately into narratives with familiar structures and conventions - plot, beginning and end, major and minor characters, heroes and villains, motives, a moral.").
314. Marc A. Fajer, Authority, Credibility, and Pre-understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 GEO. L.J. 1845, 1857 (1994) ("Narrative can create empathy that helps listeners to understand concepts that might be difficult for them to grasp when conveyed as abstractions.").
315. See, e.g., Abrams, supra note 39, at 1006-07 (describing one law scholar's narrative as "pungen[t]" and "jarring").
316. See Delgado, supra note 35, at 2440; Gerald P. López, Lay Lawyering, 32 UCLA L. REV. 1, 10 (1984).
317. See Delgado, supra note 35, at 2440; Gerald P. López, Lay Lawyering, 32 UCLA L. REV. 1, 10 (1984).
318. See RICHARD E. NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 45-61, 123-25 (1980). Timur Kuran and Cass Sunstein pay particular attention to this "availability heuristic," by which individuals estimate the probability of an event based on how easily it is recalled. Because people can recall vivid stories particularly easily, Kuran and Sunstein contend that arguments grounded in such story-based claims are unusually effective at swaying citizens. See Kuran & Sunstein, supra note 32, at 706.
319. See RICHARD E. NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 45-61, 123-25 (1980). Timur Kuran and Cass Sunstein pay particular attention to this "availability heuristic," by which individuals estimate the probability of an event based on how easily it is recalled. Because people can recall vivid stories particularly easily, Kuran and Sunstein contend that arguments grounded in such story- based claims are unusually effective at swaying citizens. See Kuran & Sunstein, supra note 32, at 706.
320. See Wald, supra note 30, at 1386-89 (arguing that ajudge "consciously relates a 'story' that will convince the reader [the case] has come out right").
321. See id. at 1386, 1389.
322. Id. at 1386.
323. 468 U.S. 517 (1984).
324. Nussbaum, supra note 30, at 1501.
325. Patricia M. Wald, A Reply to Judge Posner, 62 U. CHI. L. REV. 1451, 1453 (1995).
326. Wald, supra note 30, at 1389.
327. See RICHARD K. SHERWIN, WHEN LAW GOES POP: THE VANISHING LINE BETWEEN LAW AND POPULAR CULTURE 41 (2000); MICHAEL E. TIGAR, EXAMINING WITNESSES 5 (1993).
328. See RICHARD K. SHERWIN, WHEN LAW GOES POP: THE VANISHING LINE BETWEEN LAW AND POPULAR CULTURE 41 (2000); MICHAEL E. TIGAR, EXAMINING WITNESSES 5 (1993).
329. Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. & CRIMINOLOGY 118, 120 (1987).
330. Strickler v. Greene, 527 U.S. 263, 307 (1999) (Souter, J., dissenting) (quoting ELIZABETH F. LOFTUS & JAMES M. DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL 5 (3d ed. 1997)).
331. Strickler v. Greene, 527 U.S. 263, 307 (1999) (Souter, J., dissenting) (quoting ELIZABETH F. LOFTUS & JAMES M. DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL 5 (3d ed. 1997)).
332. See BEST, supra note 58, at 88.
333. See Gary W. Potter & Victor E. Kappeler, Introduction to CONSTRUCTING CRIME: PERSPECTIVES ON MAKING NEWS AND SOCIAL PROBLEMS 2-3 (Gary W. Potter & Victor E. Kappeler eds., 1998).
334. See BEST, supra note 58, at 88.
335. Potter & Kappeler, supra note 228, at 4.
336. A search of the LEXIS, News Library, ALLNWS File on November 5, 2000, seeking all documents since July 29, 1997, that included "Megan Kanka" produced over 1000 stories.
337. U.S. CONST. art. I, §10, cl. 1.
338. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (holding that the Ex Post Facto Clause prohibits enactment of law that "aggravates a crime" or "changes the punishment, and inflicts a greater punishment").
339. U.S. CONST, art. I, §10, cl. 1.
340. United States v. Lovett, 328 U.S. 303, 315 (1946).
341. E.g., Roe v. Office of Adult Prob., 125 F.3d 47 (2d Cir. 1997); Doe v. Poritz, 662 A.2d 367 (N.J. 1995). A minority of courts have held that it is punishment.
342. E.g., Roe v. Office of Adult Prob., 125 F.3d 47 (2d Cir. 1997); Doe v. Poritz, 662 A.2d 367 (N.J. 1995). A minority of courts have held that it is punishment.
343. E.g., Kansas v. Myers, 923 P.2d 1024, 1043 (Kan. 1996). Courts have also held that Megan's Law is not an
344. unconstitutional bill of attainder. See, e.g., Roe v. Farwell, 999 F. Supp. 174, 192 (D. Mass. 1998). For an extensive list of court decisions evaluating the constitutionality of state Megan's Laws,
345. see Carol Schultz Vento, Annotation, Validity, Construction, and Application of State Statutes Authorizing Community Notification of Release of Convicted Sex Offender, 78 A.L.R.5TH 489 (2000).
346. Symposium, supra note 20, at 65-66 (1997) (comments of Hon. John J. Gibbons, former Third Circuit judge) (arguing that notification is punishment because it "will affect a person's ability to find a job, meet a companion and establish a stable relationship, and initiate membership in a church"); Telpner, supra note 25, at 2055 (arguing that Megan's Law is punishment under a "broad, common-sense meaning of the term").
347. Timmendequas was convicted on May 30, 1997. William Glaberson, Man at Heart of Megan's Law Convicted of Her Grisly Murder, N.Y. TIMES, May 31, 1997, at A1. He was sentenced to death on June 20, 1997. William Glaberson, Killer in 'Megan' Case Sentenced to Death, N.Y. TIMES, June 21, 1997, at A1.
348. Timmendequas was convicted on May 30, 1997. William Glaberson, Man at Heart of Megan's Law Convicted of Her Grisly Murder, N.Y. TIMES, May 31, 1997, at A1. He was sentenced to death on June 20, 1997. William Glaberson, Killer in 'Megan' Case Sentenced to Death, N.Y. TIMES, June 21, 1997, at A1.
349. Almost twice as many children are in poverty, as a percentage matter, as the nation's population as a whole. See America's Unfinished Agenda: The Poor Are Still There, and Need Helping, ECONOMIST, May 20, 2000, at 24.
350. Gayla Margolin & Elana B. Gordis, The Effects of Family and Community Violence on Children, 51 ANN. REV. PSYCH. 445, 446 (2000).
351. Jerome McCristal Culp, Jr., Telling a Black Legal Story: Privilege, Authenticity, "Blunders," and Transformation in Outsider Narratives, 82 VA. L. REV. 69, 88 (1996) ("Stories can alter public debate by attacking and questioning the underlying stories that we tell about public policy and the law. Stories can alter public policy by adding aspects to the stories currently being told, or by introducing questions that are not being discussed.").
352. Delgado, supra note 35, at 2412.
353. Cf. Bandes, supra note 212, at 410-11 (suggesting that both rapist and rape victim are "outsiders"). One could even make the argument that use of the child's story is a form of theft, the appropriation of a few families' pain in the aid of a tough crime ideology. Cf. Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The Implication of Making Comparisons Between Racism and Sexism (or Other-Isms), 1991 DUKE L.J. 397, 405-10 (discussing how some African-Americans may hear whites discussing the power of racism and feel that this is an appropriation of pain).
354. Cf. Bandes, supra note 212, at 410-11 (suggesting that both rapist and rape victim are "outsiders"). One could even make the argument that use of the child's story is a form of theft, the appropriation of a few families' pain in the aid of a tough crime ideology. Cf. Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The Implication of Making Comparisons Between Racism and Sexism (or Other-Isms), 1991 DUKE L.J. 397, 405-10 (discussing how some African-Americans may hear whites discussing the power of racism and feel that this is an appropriation of pain).
355. In a similar vein, Farber and Sherry argue that it is difficult to disagree with personal stories because "it's hard to say anything critical about the story without implicating the storyteller." FARBER & SHERRY, supra note 39, at 89.
356. See note 105.
357. Tim O'Brien, Would Megan's Law Have Saved Megan?, 145 N.J. L.J. 109 (1996). The person who lived in the home, Joey Cifelli, had been previously convicted of carnal abuse, sodomy, and impairing the morals of a nine-year-old girl. Id.
358. Id.
359. Donna Murphy Weston, Megan's Law Based on Fallacy: Did Parents Know About a Molester?, RECORD (Bergen County, N.J.), July 9,1996, at A1, LEXIS, News Library, NJREC File. Richard Kanka responded that the New Jersey Law Journal wanted to "undermine what me [sic] and Maureen have been doing all these years." Id.
360. O'Brien, supra note 246, at 109.
361. The Megan Kanka narrative was a particularly powerful and troubling story. It is certainly possible that some narratives - those involving less emotionally charged themes, or those that did not benefit from extensive media attention - could be effectively refuted within a political debate. In the case of Megan Kanka, for instance, the counternarrative of the Kankas' neighbors might have had greater impact had it surfaced in the first weeks after the incident.
362. See, e.g., 142 CONG. REC. 10,314 (1996) (statement of Rep. Lofgren).
363. Even at the time of these debates, legislators could have found cases of offenders victimized as the result of community-notification laws. A 1993 study of Washington's notification law showed that twenty-six percent of sex offenders covered by the law suffered harassment. Katherine Seligman, Sex Offender Branding: Bad, Good, or Ugly? Public Notification Alerts Public, Hounds Ex-Cons, PHOENIX GAZETTE, Mar. 9, 1994, at A1, LEXIS, News Library, PHNXGZ File. One early example of vigilante activity involved the well publicized case of Joseph Gallardo, whose family's home was burned by angry neighbors. Karen Alexander et al., Child Rapist Says He'll Return to Home Despite Arson, SEATTLE TIMES, July 13, 1993, at A1, LEXIS, News Library, SEATTM File. Legislators also declined to tell stories of "collateral damage," cases where innocent victims were beaten because angry neighbors mistook them for convicted offenders. See, e.g., Barry Meier, 'Sexual Predators' Find Sentence May Last Past Jail, N.Y. TIMES, Feb. 27, 1995, at A1.
364. Even at the time of these debates, legislators could have found cases of offenders victimized as the result of community-notification laws. A 1993 study of Washington's notification law showed that twenty-six percent of sex offenders covered by the law suffered harassment. Katherine Seligman, Sex Offender Branding: Bad, Good, or Ugly? Public Notification Alerts Public, Hounds Ex-Cons, PHOENIX GAZETTE, Mar. 9, 1994, at A1, LEXIS, News Library, PHNXGZ File. One early example of vigilante activity involved the well publicized case of Joseph Gallardo, whose family's home was burned by angry neighbors. Karen Alexander et al., Child Rapist Says He'll Return to Home Despite Arson, SEATTLE TIMES, July 13, 1993, at A1, LEXIS, News Library, SEATTM File. Legislators also declined to tell stories of "collateral damage," cases where innocent victims were beaten because angry neighbors mistook them for convicted offenders. See, e.g., Barry Meier, 'Sexual Predators' Find Sentence May Last Past Jail, N.Y. TIMES, Feb. 27, 1995, at A1.
365. Even at the time of these debates, legislators could have found cases of offenders victimized as the result of community-notification laws. A 1993 study of Washington's notification law showed that twenty-six percent of sex offenders covered by the law suffered harassment. Katherine Seligman, Sex Offender Branding: Bad, Good, or Ugly? Public Notification Alerts Public, Hounds Ex-Cons, PHOENIX GAZETTE, Mar. 9, 1994, at A1, LEXIS, News Library, PHNXGZ File. One early example of vigilante activity involved the well publicized case of Joseph Gallardo, whose family's home was burned by angry neighbors. Karen Alexander et al., Child Rapist Says He'll Return to Home Despite Arson, SEATTLE TIMES, July 13, 1993, at A1, LEXIS, News Library, SEATTM File. Legislators also declined to tell stories of "collateral damage," cases where innocent victims were beaten because angry neighbors mistook them for convicted offenders. See, e.g., Barry Meier, 'Sexual Predators' Find Sentence May Last Past Jail, N.Y. TIMES, Feb. 27, 1995, at A1.
366. Identifying a statistical "reality" is an impossible task. Different studies, asking different questions, can produce different results. Also, it is difficult to evaluate the success of nonstandardized processes like rehabilitation of sex offenders, since these processes will vary based on the type of rehabilitation used, and the nature of the sex offenders' pathologies. Similarly, it is hard to quantify broad categories of crime like "abuse" or even "sexual abuse." As Joel Best establishes, there is no agreed-upon definition of "child sex abuse." BEST, supra note 58, at 83-85. While some believe it includes offenses like the seduction of a fourteen-year-old girl by a fourteen-year-old boy, others limit the categories to adults seducing children, or adults producing child pornography. Id. What is certain, however, is that statistics relating to abduction, pedophilia, and sex offenses are both plentiful and contradictory. See, e.g., id.; R. Karl Hanson, The Science of Sex Offenders: Risk Assessment. Treatment and Prevention, 4 PSYCHOL. PUB. POL'Y & L. 50 (1998).
367. Identifying a statistical "reality" is an impossible task. Different studies, asking different questions, can produce different results. Also, it is difficult to evaluate the success of nonstandardized processes like rehabilitation of sex offenders, since these processes will vary based on the type of rehabilitation used, and the nature of the sex offenders' pathologies. Similarly, it is hard to quantify broad categories of crime like "abuse" or even "sexual abuse." As Joel Best establishes, there is no agreed-upon definition of "child sex abuse." BEST, supra note 58, at 83-85. While some believe it includes offenses like the seduction of a fourteen-year- old girl by a fourteen-year-old boy, others limit the categories to adults seducing children, or adults producing child pornography. Id. What is certain, however, is that statistics relating to abduction, pedophilia, and sex offenses are both plentiful and contradictory. See, e.g., id.; R. Karl Hanson, The Science of Sex Offenders: Risk Assessment. Treatment and Prevention, 4 PSYCHOL. PUB. POL'Y & L. 50 (1998).
368. Identifying a statistical "reality" is an impossible task. Different studies, asking different questions, can produce different results. Also, it is difficult to evaluate the success of nonstandardized processes like rehabilitation of sex offenders, since these processes will vary based on the type of rehabilitation used, and the nature of the sex offenders' pathologies. Similarly, it is hard to quantify broad categories of crime like "abuse" or even "sexual abuse." As Joel Best establishes, there is no agreed-upon definition of "child sex abuse." BEST, supra note 58, at 83-85. While some believe it includes offenses like the seduction of a fourteen-year- old girl by a fourteen-year-old boy, others limit the categories to adults seducing children, or adults producing child pornography. Id. What is certain, however, is that statistics relating to abduction, pedophilia, and sex offenses are both plentiful and contradictory. See, e.g., id.; R. Karl Hanson, The Science of Sex Offenders: Risk Assessment. Treatment and Prevention, 4 PSYCHOL. PUB. POL'Y & L. 50 (1998).
369. See supra text accompanying note 122.
370. See supra text accompanying note 123.
371. See supra text accompanying note 122.
372. TEX. A&M UNIV. PUB. POLICY RESEARCH INST., 1995 STATEWIDE CHILD SURVEY EXECUTIVE SUMMARY, http://www.ctf.state.tx.us/html (last visited Feb. 9, 2001).
373. See supra text accompanying note 123.
374. DAVID FINKELHOR ET AL., MISSING, ABDUCTED, RUNAWAY, AND THROWNAWAY CHILDREN IN AMERICA: FIRST REPORT: NUMBERS AND CHARACTERISTICS NATIONAL INCIDENCE STUDIES 4, 10 (1990).
375. Id. at 66 (emphasis omitted).
376. Id.
377. Id. at 67.
378. See id. at xii.
379. See text accompanying notes 125-27.
380. See text accompanying notes 128-32.
381. Alabama's Megan's Law, for instance, includes individuals convicted of promoting prostitution in the second degree. ALA. CODE § 13A-11-200 (1994). That prostitution provision, in turn, covers any individual who runs a prostitution operation with two or more employees. ALA. CODE § 13A-12-112 (1994 & Supp. 1999).
382. The parallel between the problem of child sexual assaults and the Holocaust was drawn implicitly in the New York Senate where one Senator invoked the phrase, oft used about the Holocaust, "We must never forget." N.Y. Senate, supra note 105, at 6588 (statement of Sen. Nozzolio).
383. See supra text accompanying note 135.
384. See supra text accompanying note 190.
385. See supra text accompanying note 190.
386. N.Y. Assembly, supra note 43, at 367-68 (statement of Ms. Destito). Similarly, Assemblywoman Clark noted that Megan's Law would not solve the larger problem of family sexual abuse and assault but nonetheless supported the bill. Id. at 398 (statement of Ms. Clark).
387. N.Y. Assembly, supra note 43, at 367-68 (statement of Ms. Destito). Similarly, Assemblywoman Clark noted that Megan's Law would not solve the larger problem of family sexual abuse and assault but nonetheless supported the bill. Id. at 398 (statement of Ms. Clark).
388. See supra text accompanying note 266.
389. It is, of course, possible that none of the representatives debating the laws actually knew their scope. Since the bills' sponsors participated in the debates, however, it begs credulity to suggest that nobody was aware of the unjustifiably narrow discussion frame.
390. See generally, Hanson, supra note 253.
391. Perhaps one reason why legislators eschewed real adult-victim narratives was that victims did not want their stories publicized. One New York state senator implied as much, stating that "this bill does protect as well the many women out there who maybe did not appear on the front page of a paper nor would they have wanted their name or face there but, nonetheless, have been a victim of these sexual predators." N.Y. Senate, supra note 105, at 6660 (statement of Sen. Jones). This fear for reputation, however, did not stop legislators' graphic descriptions of child rape and murder.
392. There was one exception to this focus on child-victim stories in New York. Several legislators mentioned the case of Arthur Shawcross who, on parole
393. It appears that Sherry Lindsay was a child. She was described as a daughter of a police officer, thus establishing her in her child context. N.Y. Senate, supra note 105, at 6620 (statement of Sen. Skelos). She also was described as delivering papers, which invoked images of the traditional childhood paper route. Id. Descriptions of Lindsay, however, did not reveal her age. E.g., id.; N.Y. Senate, supra note 105, at 6645 (statement of Sen. Libous). A search of the LEXIS, News Library, ALLNWS File did not reveal any additional information on this person.
394. It appears that Sherry Lindsay was a child. She was described as a daughter of a police officer, thus establishing her in her child context. N.Y. Senate, supra note 105, at 6620 (statement of Sen. Skelos). She also was described as delivering papers, which invoked images of the traditional childhood paper route. Id. Descriptions of Lindsay, however, did not reveal her age. E.g., id.; N.Y. Senate, supra note 105, at 6645 (statement of Sen. Libous). A search of the LEXIS, News Library, ALLNWS File did not reveal any additional information on this person.
395. It appears that Sherry Lindsay was a child. She was described as a daughter of a police officer, thus establishing her in her child context. N.Y. Senate, supra note 105, at 6620 (statement of Sen. Skelos). She also was described as delivering papers, which invoked images of the traditional childhood paper route. Id. Descriptions of Lindsay, however, did not reveal her age. E.g., id.; N.Y. Senate, supra note 105, at 6645 (statement of Sen. Libous). A search of the LEXIS, News Library, ALLNWS File did not reveal any additional information on this person.
396. See supra text accompanying notes 113-16.
397. See supra text accompanying notes 167-72.
398. See, e.g., N.Y. Senate, supra note 105, at 6580 (statement of Sen. DiCarlo) (stating "we've got to protect the women and children of this state"); id. at 6660 (statement of Sen. Jones) (noting that bill also protects women).
399. See, e.g., N.Y. Senate, supra note 105, at 6580 (statement of Sen. DiCarlo) (stating "we've got to protect the women and children of this state"); id. at 6660 (statement of Sen. Jones) (noting that bill also protects women).
400. Donald R. Kinder & Thomas E. Nelson, Issue Frames and Group-Centrism in American Public Opinion, 58 J. POL. 1055, 1057 (1996).
401. Id.
402. Id. at 1057-58.
403. Several commentators have documented the centrality of child protection as an issue frame. See, e.g., BEST, supra note 58, at 3-8; JENKINS, supra note 21.
404. Several commentators have documented the centrality of child protection as an issue frame. See, e.g., BEST, supra note 58, at 3-8; JENKINS, supra note 21.
405. C. Henry Kempe et al., The Battered-Child Syndrome, 181 JAMA 17 (1962).
406. BEST, supra note 58, at 66-67.
407. See JENKINS, supra note 21, at 146-54.
408. BEST, supra note 58, at 22-24.
409. See JENKINS, supra note 21, at 164-88.
410. Id. at 146.
411. See William S. Lofquist, Constructing "Crime": Media Coverage of Individual and Organizational Wrongdoing, in CONSTRUCTING CRIME: PERSPECTIVE ON MAKING NEWS & SOCIAL PROBLEMS, supra note 228, at 241,243. One commentator has argued that media news is framed in such a way as to create a "discourse of fear." David L. Altheide, The News Media, the Problem Frame, and the Production of Fear, 38 SOC. Q. 647, 648 (1997).
412. See William S. Lofquist, Constructing "Crime": Media Coverage of Individual and Organizational Wrongdoing, in CONSTRUCTING CRIME: PERSPECTIVE ON MAKING NEWS & SOCIAL PROBLEMS, supra note 228, at 241,243. One commentator has argued that media news is framed in such a way as to create a "discourse of fear." David L. Altheide, The News Media, the Problem Frame, and the Production of Fear, 38 SOC. Q. 647, 648 (1997).
413. The concept of "date rape," for example, has been repeatedly challenged on the grounds that the victims are partially culpable for their victimization. See, e.g., Twenty Questions: Camille Paglia, PLAYBOY, Oct. 1991, at 132. Paglia, a bete noire of the women's movement, argues women must bear some responsibility for sexual assault: Have twelve tequilas at a fraternity party and a guy asks you to go up to his room, and then you're surprised when he assaults you? Most women want to be seduced or lured. . . . Pursuit and seduction are the essence of sexuality. It's part of the sizzle. Girls hurl themselves at guitarists, right down to the lowest bar band here. The guys are strutting. If you live in rock and roll, as I do, you see the reality of sex, of male lust and women being aroused by male lust. It attracts women. It doesn't repel them. Women have the right to freely choose and to say yes or no. Everyone should be personally responsible for what happens in life. I see the sexual impulse as egotistical and dominating, and therefore I have no problem understanding rape. Women have to understand this correctly and they'll protect themselves better. Id. at 170; see also KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON CAMPUS 17-21 (1993).
414. The concept of "date rape," for example, has been repeatedly challenged on the grounds that the victims are partially culpable for their victimization. See, e.g., Twenty Questions: Camille Paglia, PLAYBOY, Oct. 1991, at 132. Paglia, a bete noire of the women's movement, argues women must bear some responsibility for sexual assault: Have twelve tequilas at a fraternity party and a guy asks you to go up to his room, and then you're surprised when he assaults you? Most women want to be seduced or lured. . . . Pursuit and seduction are the essence of sexuality. It's part of the sizzle. Girls hurl themselves at guitarists, right down to the lowest bar band here. The guys are strutting. If you live in rock and roll, as I do, you see the reality of sex, of male lust and women being aroused by male lust. It attracts women. It doesn't repel them. Women have the right to freely choose and to say yes or no. Everyone should be personally responsible for what happens in life. I see the sexual impulse as egotistical and dominating, and therefore I have no problem understanding rape. Women have to understand this correctly and they'll protect themselves better. Id. at 170; see also KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON CAMPUS 17-21 (1993).
415. The concept of "date rape," for example, has been repeatedly challenged on the grounds that the victims are partially culpable for their victimization. See, e.g., Twenty Questions: Camille Paglia, PLAYBOY, Oct. 1991, at 132. Paglia, a bete noire of the women's movement, argues women must bear some responsibility for sexual assault: Have twelve tequilas at a fraternity party and a guy asks you to go up to his room, and then you're surprised when he assaults you? Most women want to be seduced or lured. . . . Pursuit and seduction are the essence of sexuality. It's part of the sizzle. Girls hurl themselves at guitarists, right down to the lowest bar band here. The guys are strutting. If you live in rock and roll, as I do, you see the reality of sex, of male lust and women being aroused by male lust. It attracts women. It doesn't repel them. Women have the right to freely choose and to say yes or no. Everyone should be personally responsible for what happens in life. I see the sexual impulse as egotistical and dominating, and therefore I have no problem understanding rape. Women have to understand this correctly and they'll protect themselves better. Id. at 170; see also KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON CAMPUS 17-21 (1993).
416. See supra text accompanying note 133.
417. See supra text accompanying note 200-01.
418. The only possible exceptions are one case involving the child of migrant workers, see supra text accompanying note 99, and several children of unidentified race mentioned by Rep. Jackson-Lee, see, e.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee) (mentioning Monique Miller); id. at 8599 (mentioning Monique Miller, Elizabeth Pena, and Jennifer Ertman). Rhetoreticians have noted that silence about race is an active, interpretable event. Crenshaw, supra note 40, at 260.
419. The only possible exceptions are one case involving the child of migrant workers, see supra text accompanying note 99, and several children of unidentified race mentioned by Rep. Jackson-Lee, see, e.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee) (mentioning Monique Miller); id. at 8599 (mentioning Monique Miller, Elizabeth Pena, and Jennifer Ertman). Rhetoreticians have noted that silence about race is an active, interpretable event. Crenshaw, supra note 40, at 260.
420. The only possible exceptions are one case involving the child of migrant workers, see supra text accompanying note 99, and several children of unidentified race mentioned by Rep. Jackson-Lee, see, e.g., 142 CONG. REC. 10,313 (1996) (statement of Rep. Jackson-Lee) (mentioning Monique Miller); id. at 8599 (mentioning Monique Miller, Elizabeth Pena, and Jennifer Ertman). Rhetoreticians have noted that silence about race is an active, interpretable event. Crenshaw, supra note 40, at 260.
421. Interestingly, despite the fact that race was an issue in the New Jersey Supreme Court's review of Timmendequas's conviction, the court declined to state the race of either Kanka or Timmendequas. It merely noted that they "were of the same race." New Jersey v. Timmendequas, 737 A.2d 55, 79 (N.J. 1999). For whatever reasons, the LEXIS online editors were more blunt. The LEXIS syllabus of the case explicitly states that both parties were white. New Jersey v. Timmendequas, 1999 N.J. LEXIS 1007, at *7 (N.J. Aug. 11, 1999).
422. Interestingly, despite the fact that race was an issue in the New Jersey Supreme Court's review of Timmendequas's conviction, the court declined to state the race of either Kanka or Timmendequas. It merely noted that they "were of the same race." New Jersey v. Timmendequas, 737 A.2d 55, 79 (N.J. 1999). For whatever reasons, the LEXIS online editors were more blunt. The LEXIS syllabus of the case explicitly states that both parties were white. New Jersey v. Timmendequas, 1999 N.J. LEXIS 1007, at *7 (N.J. Aug. 11, 1999).
423. Hamilton Township covers 115 square miles yet has a total population of approximately 17,000 people. Of this group, almost 13,000 residents are white and about 2360 are African-American. The overall density is approximately 147 persons per square mile. It is solidly middle class; the median family income is slightly over $44,000 per year. County Seat of Atl. County, Statistics and Demographics of Hamilton Township, at http://www.algorithms.com/users/davies2/stats.html (last visited Feb. 9, 2001).
424. Hamilton Township is located outside of Atlantic City, New Jersey.
425. Petaluma is located about thirty miles from San Francisco, California.
426. Richard Allen Davis, who was convicted of Polly Klaas's murder, was white. Klaas Jury Hears Taped Confession, at http://www.cnn.com/US/9605/01/klaas (May 1, 1996).
427. Supra text accompanying note 104. Both Estell and the man convicted of her murder were white. Robert Riggs, DNA Tests Stir Emotions in Child Murder Case, at http://wfaa.com/wfaa/articledisplay/0,1002,11473,00.html (June 21, 2000).
428. N.Y. Senate, supra note 105, at 6605-08 (statement of Sen. Marchi).
429. Id. at 6606.
430. Although complaints about the relevance of Megan's Law to city dwellers were never couched in racial terms, one legislator commented that the legislature's failure to consider high-density areas was "a little offensive to me." N.Y. Assembly, supra note 43, at 397 (statement of Mr. Sullivan).
431. See, e.g., Cynthia Tucker, At the Fringes of Justice, ATLANTA J.-CONST., Aug. 13, 1995, at C7, LEXIS, News Library, ATLJNL File (citing the Mumia Abu-Jamal case as reason blacks see the system as racist). Paul Butler, a law professor, made the controversial suggestion that, in order to fight racism in the criminal system, African-American jurors should vote to acquit all black defendants in certain types of cases. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995). Because of his provocative suggestion, Butler's essay received attention in the popular media. See, e.g., Ellen Hale, Juries, SAN ANTONIO EXPRESS-NEWS, Jan. 28, 1996, at A9, 1996 WL 2818955; Frank Santiago, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, 1995 WL 7224642.
432. See, e.g., Cynthia Tucker, At the Fringes of Justice, ATLANTA J.-CONST., Aug. 13, 1995, at C7, LEXIS, News Library, ATLJNL File (citing the Mumia Abu-Jamal case as reason blacks see the system as racist). Paul Butler, a law professor, made the controversial suggestion that, in order to fight racism in the criminal system, African-American jurors should vote to acquit all black defendants in certain types of cases. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995). Because of his provocative suggestion, Butler's essay received attention in the popular media. See, e.g., Ellen Hale, Juries, SAN ANTONIO EXPRESS-NEWS, Jan. 28, 1996, at A9, 1996 WL 2818955; Frank Santiago, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, 1995 WL 7224642.
433. See, e.g., Cynthia Tucker, At the Fringes of Justice, ATLANTA J.-CONST., Aug. 13, 1995, at C7, LEXIS, News Library, ATLJNL File (citing the Mumia Abu-Jamal case as reason blacks see the system as racist). Paul Butler, a law professor, made the controversial suggestion that, in order to fight racism in the criminal system, African-American jurors should vote to acquit all black defendants in certain types of cases. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995). Because of his provocative suggestion, Butler's essay received attention in the popular media. See, e.g., Ellen Hale, Juries, SAN ANTONIO EXPRESS-NEWS, Jan. 28, 1996, at A9, 1996 WL 2818955; Frank Santiago, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, 1995 WL 7224642.
434. See, e.g., Cynthia Tucker, At the Fringes of Justice, ATLANTA J.-CONST., Aug. 13, 1995, at C7, LEXIS, News Library, ATLJNL File (citing the Mumia Abu-Jamal case as reason blacks see the system as racist). Paul Butler, a law professor, made the controversial suggestion that, in order to fight racism in the criminal system, African-American jurors should vote to acquit all black defendants in certain types of cases. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995). Because of his provocative suggestion, Butler's essay received attention in the popular media. See, e.g., Ellen Hale, Juries, SAN ANTONIO EXPRESS-NEWS, Jan. 28, 1996, at A9, 1996 WL 2818955; Frank Santiago, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, 1995 WL 7224642.
435. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A; see also Editorial, The Fuhrman Tapes, BALT. SUN, Sept. 1, 1995, at 18A, LEXIS, News Library, BALSUN File (suggesting that the Furman tapes confirmed African-Americans' view that the criminal system was racist).
436. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A; see also Editorial, The Fuhrman Tapes, BALT. SUN, Sept. 1, 1995, at 18A, LEXIS, News Library, BALSUN File (suggesting that the Furman tapes confirmed African-Americans' view that the criminal system was racist).
437. Carl T. Rowan, Atrocious Crime Bill Must Die, CHI. SUN-TIMES, July 29, 1994, at 29 (suggesting that death penalty provisions would have disparate racial impact).
438. In 1995, for instance, 42.4% of all individuals arrested for forcible rape and 22.6% of all individuals arrested for sex charges other than forcible rape and prostitution were black. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUST., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1996, at 3 83 (Kathleen Maguire & Ann L. Pastore, eds. 1996). African-Americans make up only thirteen percent of the nation's total population. JESSE MCKINNON & KAREN HUMES, THE BLACK POPULATION IN THE UNITED STATES 1 (U.S. Census Bureau, Current Populations Report Series P20-530, 1999), available at http://www.census.gov/prod/ 2000pubs/p20-530.pdf.
439. In 1995, for instance, 42.4% of all individuals arrested for forcible rape and 22.6% of all individuals arrested for sex charges other than forcible rape and prostitution were black. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUST., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1996, at 3 83 (Kathleen Maguire & Ann L. Pastore, eds. 1996). African-Americans make up only thirteen percent of the nation's total population. JESSE MCKINNON & KAREN HUMES, THE BLACK POPULATION IN THE UNITED STATES 1 (U.S. Census Bureau, Current Populations Report Series P20-530, 1999), available at http://www.census.gov/prod/ 2000pubs/p20-530.pdf.
440. William Schneider, The Suburban Century Begins: The Real Meaning of the 1992 Election, ATLANTIC, July 1992, at 33.
441. Id.
442. The 1992 election featured a fight for suburban voters. Id. Because of the larger size of their electoral districts, a larger portion of federal legislators probably relied on suburban votes than did their New York counterparts.
443. Indeed, federal legislators clearly believed they were being watched. In the course of the U.S. congressional debate over Megan's Law, legislators made several references to the viewing audience. In one case, a congressman showed a photo of Jacob Wetterling - a boy who was missing from Minnesota and after whom the first federal Megan's Law bill was named - in case any viewers might have seen him. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad) ("Next to me are two photographs . . . of Jacob, which I hope the camera will capture . . . . I hope if anyone watching recognizes Jacob they will call 1-800-843-5678."). On another occasion, Representative Dornan implored viewers to get copies of the day's Congressional Record so they could see an article, included in the Record, entitled Pedophilia Chic. 142 CONG. REC. 17,114 (1996) (statement of Rep. Dornan). In some cases, legislators did not attempt to take advantage of the likely viewership, but acknowledged it nonetheless. See, e.g., 142 CONG. REC. 24,846 (1996) (statement of Rep. Watt) (noting that his comments would engender many phone calls).
444. Indeed, federal legislators clearly believed they were being watched. In the course of the U.S. congressional debate over Megan's Law, legislators made several references to the viewing audience. In one case, a congressman showed a photo of Jacob Wetterling - a boy who was missing from Minnesota and after whom the first federal Megan's Law bill was named - in case any viewers might have seen him. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad) ("Next to me are two photographs . . . of Jacob, which I hope the camera will capture . . . . I hope if anyone watching recognizes Jacob they will call 1-800-843-5678."). On another occasion, Representative Dornan implored viewers to get copies of the day's Congressional Record so they could see an article, included in the Record, entitled Pedophilia Chic. 142 CONG. REC. 17,114 (1996) (statement of Rep. Dornan). In some cases, legislators did not attempt to take advantage of the likely viewership, but acknowledged it nonetheless. See, e.g., 142 CONG. REC. 24,846 (1996) (statement of Rep. Watt) (noting that his comments would engender many phone calls).
445. Indeed, federal legislators clearly believed they were being watched. In the course of the U.S. congressional debate over Megan's Law, legislators made several references to the viewing audience. In one case, a congressman showed a photo of Jacob Wetterling - a boy who was missing from Minnesota and after whom the first federal Megan's Law bill was named - in case any viewers might have seen him. 139 CONG. REC. 31,251 (1993) (statement of Rep. Ramstad) ("Next to me are two photographs . . . of Jacob, which I hope the camera will capture . . . . I hope if anyone watching recognizes Jacob they will call 1-800-843-5678."). On another occasion, Representative Dornan implored viewers to get copies of the day's Congressional Record so they could see an article, included in the Record, entitled Pedophilia Chic. 142 CONG. REC. 17,114 (1996) (statement of Rep. Dornan). In some cases, legislators did not attempt to take advantage of the likely viewership, but acknowledged it nonetheless. See, e.g., 142 CONG. REC. 24,846 (1996) (statement of Rep. Watt) (noting that his comments would engender many phone calls).
446. The New York State Assembly, controlled by Democrats, was typically seen as liberal while the state's senate was viewed as conservative. Symposium, supra note 20, at 39 (comments of Robert T. Farley).
447. See supra Part I.A.
448. See supra note 13 and accompanying text.
449. BEST, supra note 58, at 71.
450. Id. at 46-50, 59.
451. See JOEL BEST, RANDOM VIOLENCE: HOW WE TALK ABOUT NEW CRIMES AND NEW VICTIMS 89-90 (1999); BEST, supra note 58, at 5-6.
452. See JOEL BEST, RANDOM VIOLENCE: HOW WE TALK ABOUT NEW CRIMES AND NEW VICTIMS 89-90 (1999); BEST, supra note 58, at 5-6.
453. BEST, supra note 58, at 151-75.
454. See supra text accompanying notes 258-63.
455. Roxanne Lieb et al., Sexual Predators and Social Policy, 23 CRIME & JUST. 43, 50 (1998).
456. Koenig, supra note 187, at 763.
457. N.Y. Assembly, supra note 43, at 331-37 (back-and-forth discussion).
458. Id. at 327-29 (back-and-forth discussion).
459. N.Y. Senate, supra note 105, at 6632-33 (back-and-forth discussion).
460. Doe v. Pataki, 940 F. Supp. 603, 605, 621-22 (S.D.N.Y. 1996), aff'd in part and rev'd in part, 120 F.3d 1263 (2d Cir. 1997).
461. Doe v. Pataki, 940 F. Supp. 603, 605, 621-22 (S.D.N.Y. 1996), aff'd in part and rev'd in part, 120 F.3d 1263 (2d Cir. 1997).
462. Troutt, supra note 37, at 96.