Legislative epidemics: A cautionary tale of criminal laws that have swept the country

Buffalo Law Review

Volumn 58, Issue 1, 2010, Pages 1-67

  Carpenter, Catherine L ^a  

^a Southwestern Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77649320277     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (435)

1. MALCOLM GLADWELL, THE TIPPING POINT (2000). This bestselling work on social phenomena has been cited in other legally-related topics. See, e.g., Mary Jane Angelo, Harnessing the Power of Science in Environmental Law: Why We Should, Why We Don't, and How We Can, 86 TEX. L. REV. 1527, 1552-69 (2008) (employing "tipping point" analysis to explain why some scientific ideas catch on and others do not);
2. Jean M. Holcomb, Got Ideas? 100 LAW LIBR. J. 587, 588-91 (2008) (discussing the "stickiness" of ideas);
3. Leo Martinez, Tax Policy, Rational Actors, and Other Myths, 40 LOY. U. CHI. L.J. 297, 318 (2009) (using "tipping point" analysis to discuss whether the public is properly informed about overarching tax policies);
4. Jed S. Ela, Comment, Law and Norms in Collective Action: Maximizing Social Influence to Minimize Carbon Emissions, 27 UCLA J. ENVTL. L. & POL'Y 93, 109 nn.56-57 (2009) (using "tipping point" analysis to argue that social norms can shape group behaviors).
5. See, e.g., GLADWELL, supra note 1, at 15-19 (examining the syphilis epidemic in Baltimore); AIDS Educational Global Information System, Timeline: A Brief History of AIDS/HIV, http://www.aegis.com/ topics/timeline (last visited Dec. 6, 2009) [hereinafter AEGIS] (providing the historical development of the outbreak of HIV/AIDS); see also infra notes 15-21 and accompanying text (analyzing the 2009 H1N1 medical epidemic).
6. The prominent example Gladwell raises concerns Hush Puppies, a brand of shoes, which increased sales from 30,000 to 430,000 pairs in one year. See GLADWELL, supra note 1, at 3-5. For discussion of other "must-have" items, see, for example, Beanie Babies, Bad Fads, http://www.badfads.com/pages/collectibles/beanie-babies.html (last visited Dec. 6, 2009), for details of the dramatic rise in sales in the 1990s of "beanie babies," small stuffed animals; and infra note 43, for sources that describe the frenzy connected to Tickle Me Elmo, the "must-have" toy of 1996.
7. See infra Part II (exploring the impetus for passage of laws on drinking and drunk-driving, Three Strikes, the duty to rescue, and sex offender registration).
8. See infra Part II (examining legislative epidemics in drunk driving, three strikes, and sex offender registration); see also Sana Loue, Elder Abuse and Neglect in Medicine and Law, 22 J. LEGAL MED. 159, 172-86 (2001) (tracking the various criminal statutes enacted to combat elder abuse);
9. J. Kelly Strader, Criminalization as a Policy Response to a Public Health Crisis, 27 J. MARSHALL L. REV. 435 (1994) (reviewing the HIV/AIDS criminal transmission statutes that were enacted in response to the AIDS crisis).
10. See infra Part II (portraying the forces responsible for the change in the laws); see also infra notes 65-76 and accompanying text (discussing the changes in laws).
11. Called "Distracted Driving" Laws, fourteen states prohibit texting while driving and other states require "hands-free" use of cell phones while driving. See DrivingLaws.org, Hands Free, Text Messaging, and Cell Phone Driving Laws, http://www.drivinglaws.org/indexhf.php (last visited Dec. 6, 2009).
12. Interestingly, there has already been a backlash to the recent spate of "distracted driving" laws. See, e.g., Feds Look to Curb Texting While Driving, COLUMBIA MISSOURIAN, Aug. 14, 2009, at 4A (arguing that Distracted Driving Laws are a "cause célè bre");
13. Myron Levin, Cellphone Law May Not Make Roads Safer, L.A. TIMES, Mar. 25, 2008, at A1.
14. GLADWELL, supra note 1.
15. Id. at 7. The author identifies three other elements that comprise an epidemic: contagiousness, the big effect of little causes, and a dramatic moment. Id. at 9.
16. Id. at 18.
17. See id. at 17-18 (identifying the following simultaneous environmental behaviors: (1) the increase in the use of crack cocaine that led to riskier sexual behaviors; (2) a breakdown of medical services for the poor; and (3) the migration of the poor to other parts of town because of limited housing options).
18. Id. at 15-19.
19. Id. at 9.
20. Initially referred to as the "swine flu" because it was similar to the virus that originated in pigs, this pandemic began in Mexico and spread throughout the world in a relatively short time. See Ctrs. for Disease Control & Prevention, H1N1 Flu (Swine Flu) and You, http://www.cdc.gov/ h1n1flu/general-info.htm (last visited Dec. 6, 2009) [hereinafter CDC] (describing generally the virus).
21. See Caleb Hellerman, Swine Flu 'Not Stoppable,' World Health Organization says, CNN, June 10, 2009, http://www.cnn.com/2009/HEALTH/06/11/ swine.flu.who (reporting that the World Health Organization officially declared the novel H1N1 influenza a global pandemic in June 2009).
22. Id. (stating that as of summer 2009 there had been 13,217 confirmed cases and 27 deaths in the United States).
23. See CDC, supra note 15 (describing how the virus is transmitted).
24. See id. (urging people to stay home if there is a belief they may be infected).
25. Proof that travel increases the likelihood of an epidemic includes multiple community outbreaks and the fact that over seventy countries had registered H1N1 cases by June. See Ctrs. for Disease Control & Prevention, Novel H1N1 Flu: Background on the Situation, http://www.cdc.gov/ h1n1flu/background.htm (last visited Dec. 6, 2009) (providing a daily diary of the progress of the outbreaks throughout the world).
26. See Swine Flu: H1N1 Virus More Dangerous than Suspected, Except to Survivors of the 1918 Pandemic Flu Virus, SCIENCE DAILY, July 14, 2009, http://www.sciencedaily.com/releases/2009/07/090713212231.htm (arguing that there may be a misunderstanding about the deadliness of this virus);
27. see also Ctrs. for Disease Control and Prevention, 2009 H1N1 Flu: Situation Update, http://www.cdc.gov/h1n1flu/update.htm (last visited Dec. 6, 2009) (reporting that as of fall 2009, twenty-fives states reported "widespread" outbreaks of the H1N1 virus with increases in resulting deaths and doctors' visits).
28. Posting of Lauren Finley to The Aids Pandemic, http://the-aids-pandemic. blogspot.com/2007/02/history-of-hivaids-in-united-states.html (Feb. 2, 2007) (writing that the apex of the epidemic was in the 1980s).
29. See AEGIS, supra note 2 (noting that known deaths from AIDS increased from 31 to 5636 between 1980 and 1986).
30. See Finley, supra note 22 (reporting on reasons for the increase in deaths in the 1980s).
31. See generally JAAP GOUDSMIT, VIRAL SEX: THE NATURE OF AIDS (1997) (illuminating the nature and origin of this lethal disease).
32. Id. at 37-42 (tracking the change in the virus).
33. See GLADWELL, supra note 1, at 22.
34. GOUDSMIT, supra note 25.
35. Id. at 37. The same concern was expressed with respect to the H5N1 strain of avian flu. See Carl H. Coleman, Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic, 94 IOWA L. REV. 1, 6-7 (2008) (warning that the flu has the capacity to change with each transmission). Today, researchers report that the H1N1 virus has similarly mutated into a more severe strain that attacks the lungs in young people.
36. See WHO Warns of Severe Form of H1N1 Virus, FOX NEWS, Aug. 29, 2009, http://www.foxnews.com/story/0,2933,544262,00. html.
37. GLADWELL, supra note 1, at 7.
38. Id. at 12. (providing historical context for the origin of the term "tipping point," which first came into use in the 1970s to describe whites leaving for the suburbs when twenty percent or more African Americans had moved into the neighborhood).
39. See id. at 18-19 (describing the factors that tip an epidemic).
40. Id. (defining a tipping point as a sudden change in behavior); accord Kevin Werbach, The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart, 42 U.C. DAVIS L. REV. 343, 410 (2008) (observing that tipping points are "where change suddenly accelerates and becomes difficult to stop").
41. GLADWELL, supra note 1, at 9.
42. See Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 77 (2000) (depicting the wave of social action as a cascade);
43. see also David Hirshleifer, The Blind Leading the Blind: Social Influence, Fads, and Informational Cascades (UC L.A.: Anderson Graduate Sch. of Mgmt. 1993), available at http://repositories.cdlib.org/anderson/fin/24- 93. "An informational cascade occurs when it is optimal for an individual, having observed the actions of those ahead of him, to follow the behavior of the preceding person without regard to his own information." Id. at abstract.
44. Sunstein, supra note 35, at 77 (analyzing group deliberations and the resulting polarization).
45. See, e.g., Hirshleifer, supra note 35, at 5 (recognizing the precarious nature of cascades because they are based on so little information).
46. GLADWELL, supra note 1, at 19.
47. Id. at 30-88. Other legal academics have used the "Law of the Few" to inform their own work. See, e.g., Eleanor Marie Lawrence Brown, Outsourcing Immigration Compliance, 77 FORDHAM L. REV. 2475, 2516-17 (2009) (referring to intermediaries who shape norms as "mavens");
48. Dennis A. Kaufman, The Tipping Point on the Scales of Civil Justice, 25 TOURO L. REV. 347, 426-31 (2009)
49. theorizing that Lawrence v. Texas, 539 U.S. 558 (2003), which held unconstitutional the criminalization of sodomy, was shaped by "the Law of the Few".
50. GLADWELL, supra note 1, at 89-132. The term "stickiness" was later the subject of a very interesting book written as a follow-up to The Tipping Point. See CHIP HEATH & DAN HEATH, MADE TO STICK: WHY SOME IDEAS SURVIVE AND OTHERS DIE (2007) (explaining six principles that make some ideas "stick"); see also infra notes 131-72 and accompanying text (reviewing these six principles).
51. See GLADWELL, supra note 1, at 133-92. Commentators have used the Power of Context in their own work. See Kaufman, supra note 39, at 435 (arguing that a changed environment helped the United States Supreme Court to craft new law in Lawrence v. Texas, 539 U.S. 558);
52. Kimberly Jade Norwood, Blackthink's Acting White Stigma in Education And How It Fosters Academic Paralysis in Black Youth, 50 HOW. L.J. 711, 734 & n.95 (2007) (contending that, under the Power of Context, children are shaped by the physicality of their environment).
53. See GLADWELL, supra note 1, at 19.
54. Id. at 3-5 (tracing the dramatic rise of the Hush Puppy).
55. See Olivia Barker, Meet Top Secret Elmo, USA TODAY, Feb. 2, 2006, at 6D (describing the pandemonium in 1996 when demand far exceeded the supply of the Tickle Me Elmo, the "must-have" toy that Christmas season). Fast forward to 2006 and the same sense of heightened expectation was brewing over the release of a new Elmo.
56. See Kelly B. Grant, Desperate for TMX Elmo?, SMART MONEY, Oct. 20, 2006, http://www.smartmoney.com/spending/deals/ desperate-for-tmx-elmo-20254) (detailing the reasons for the public's desire for the doll).
57. GLADWELL, supra note 1, at 22.
58. Id.
59. Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 YALE L.J. 1579, 1580 (1989);
60. see also Russell D. Covey, Criminal Madness: Cultural Iconography and Insanity, 61 STAN. L. REV. 1375, 1376 (2009) (contending that changes in law and popular culture are informed by each other).
61. Friedman, supra note 47, at 1581.
62. For a corroborating take on this phenomenon, see ED KELLER & JON BERRY, THE INFLUENTIALS: ONE AMERICAN IN TEN TELLS THE OTHER NINE HOW TO VOTE, WHERE TO EAT AND WHAT TO BUY 29 (2003), who claim that Influentials, because of their strategic placement at the center of the conversation, can accelerate trends.
63. GLADWELL, supra note 1, at 33 (noting that social epidemics are heavily dependent on these people); see id. at 19 (referencing the 80/20 Principle, where "roughly 80% of the work will be done by 20% of the participants").
64. See KELLER & BERRY, supra note 49, at 31-32 (describing the demographics of influential trendsetters).
65. GLADWELL, supra note 1, at 30-59. Legal scholars have also recognized the value of Connectors. See, e.g., Kyle Graham, Why Torts Die, 35 FLA. ST. U. L. REV. 359, 387 (2008) (employing the term 'Connector' to define those people who are better able to gather opposition to a stated position);
66. Mary Kreiner Ramirez, Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing, 57 DRAKE L. REV. 591, 638-39 (2009) (acknowledging the role that Connectors play in the spread of ideas).
67. GLADWELL, supra note 1, at 59-69 (acknowledging that the term "maven" is derived from Yiddish and means "one who accumulates knowledge"). One of the best known Mavens of recent era is Oprah Winfrey, whose social recommendations - from books to clothing to diet tips - cause those items to skyrocket in popularity. Oprah has been named by Time as one of the 100 most influential people of the year for six straight years. See Oprah Winfrey's Biography, http://www.oprah.com/ article/pressroom/oprahsbio/20080602-orig-oprahsbio/10 (last visited Dec. 6, 2009) (describing Oprah Winfrey's honorary achievements).
68. See GLADWELL, supra note 1, at 69-74.
69. Id. at 19-20 (referencing the small core of infected people who spread gonorrhea in Colorado Springs).
70. Id. at 67-68 (theorizing about those responsible for the dramatic rise in the sales of Hush Puppies).
71. See Grant, supra note 44 (reporting that only fifty people had seen the new version of the doll and the well-placed quotes of merchandizing experts were designed to generate the buzz about the toy); see also Barker, supra note 44 (publishing the reviewers' statement).
72. See infra notes 65-110 and accompanying text (describing those intimately connected with the passage of stricter drunk driving laws, three strikes laws, and sex offender registration schemes).
73. See GLADWELL, supra note 1, at 31-33.
74. Id. at 30-34, 56-59 (distinguishing between Paul Revere and William Dawes).
75. Id. at 58 (citing DAVID HACKETT FISCHER, PAUL REVERE'S RIDE passim (1994) (describing what transpired that evening)).
76. Id. at 56-58. There are Paul Reveres among us. See, e.g., KELLER & BERRY, supra note 49, at 27-28 (showcasing Isabel Milano as a leader in her community to whom people turned).
77. GLADWELL, supra note 1, at 59.
78. In an interesting note of political trivia, Assembly Bill 971, a version of the Three Strikes Law, was originally introduced by Bill Jones and Jim Costa, two California state legislators. See JENNIFER E. WALSH, THREE STRIKES LAWS 38 (2007) (tracing the evolution of Three Strikes Law). However, Bill Jones and Jim Costa were not associated with the legislation that ultimately passed. Rather, as seen later in this Article, non-politicians became closely identified with its passage. See infra notes 77-96.
79. See Mike Drummond, What Ever Happened to the 3 Martini Lunch?, CHARLOTTE OBSERVER, Mar. 14, 2005, at 3D.
80. Dean Martin, a crooner during the 50s and 60s, centered his lounge act on jokes on being drunk. See Dean Martin Biography, http://www.ratpack.biz/ dean-martin/biography.htm (last visited Dec. 6, 2009) (describing Dean Martin with highball always in hand). Foster Brooks, a comedian from that era, also gained notoriety with his drunk routines.
81. See Doug Sanders, Tombstone Tributes: Foster Brooks, http://www.wildestwesterns.com/no-4/tributes/foster-brooks.htm (last visited Dec. 6, 2009) (discussing his famed comedy sketches).
82. See Mothers Against Drunk Driving, History, http://www.madd.org/ About-us/About-us/History.aspx (last visited Dec. 6, 2009) (recounting the beginnings of the organization).
83. Mothers Against Drunk Driving, Cari Lightner's Story, http://www.madd.org/getattachment/ce0aa0e2-82d7-4a79-8a2d-3d20a2ab6a42/ Cari-Lightner-s-and-Laura-Lamb-s-Story.aspx (last visited Dec. 6, 2009).
84. Id.
85. Id.
86. See People v. Watson, 637 P.2d 279, 290 (Cal. 1981) (Bird, J., dissenting) ("The fact that the Legislature adopted a vehicular manslaughter statute indicates that the Legislature intended that statute to cover these situations." (citation omitted)).
87. Id. at 286 (majority opinion) (concluding that a charge of vehicular manslaughter does not preclude a charge of second degree murder on the same facts).
88. Id. at 281-82.
89. See Biography of Candy Lightner, http://www.answers.com/topic/ candy-lightner (last visited Dec. 6, 2009).
90. GLADWELL, supra note 1, at 85 (portraying these type of persuaders as highly expressive).
91. See 23 U.S.C. § 158 (2006); see also Mothers Against Drunk Drivers, MADD Milestones, http://www.madd.org/getattachment/4067cd97-6b8c- 40b8-a767-dc26ba74036d/MADD-Milestones.aspx (reporting MADD's accomplishments).
92. Named for the law that dramatically lengthens prison sentences upon conviction of a third felony, the Three Strikes Law was upheld by the United States Supreme Court in a 5-4 vote in the companion cases of Ewing v. California, 538 U.S. 11 (2003)
93. and Lockyer v. Andrade, 538 U.S. 63 (2003). The law was later scaled back by The Substance Abuse and Crime Prevention Act of 2000. See CAL. PENAL CODE § 1210.1 (West Supp. 2009) (providing treatment, rather than prison, to nonviolent drug re-offenders).
94. See The Disaster Ctr., California Crime Rates 1960-2008, http://www.disastercenter.com/crime/cacrime.htm (last visited Dec. 6, 2009) (reporting crime statistics for the years 1960-2008).
95. See Michael Baker, 'Three Strikes' Convict Charged with Theft, FRESNO BEE, Dec. 13, 2003, at B1 (detailing the events surrounding the murder of Kimber Reynolds).
96. See Three Strikes and You're Out: Stop Repeat Offenders, http://www.threestrikes.org/index.html (last visited Dec. 6, 2009) (discussing the motivation of Mike Reynolds). The slogan "Three Strikes and You're Out" was coined to summarize in a sticky, yet simple way, this complex set of laws. See infra notes 111-72 (describing the Stickiness Factor).
97. See Baker, supra note 79 (reporting the plea agreement that the shooter received).
98. See WALSH, supra note 64, at 38 (describing the early efforts of Mike Reynolds).
99. For an excellent recitation of behind-the-scenes politics of Reynolds's failed initial attempts to pass Three Strikes legislation, see Michael Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. CRIM. L. & CRIMINOLOGY 395, 409-18 (1997).
100. See WALSH, supra note 64, at 38 (portraying the initial efforts to pass Three Strikes Law as "destined for failure").
101. Id. (reporting that initial attempts to gather signatures fell far short of the 400,000 required).
102. See Vitiello, supra note 83, at 411 (reporting that, despite the impassioned pleas of Mike Reynolds, the State Legislative Committee soundly rejected the proposed legislation). Even Mike Reynolds recognized that he had not gained the attention of the legislature. See id. at 411 n.87 ("They figured they'd listen to me, pat me on the head, say I'm sorry about your daughter, and send me home.").
103. See Polly Klaas Found., Polly's Abduction, http://www.pollyklaas. org/about/pollys-story.html (last visited Dec. 6, 2009) (providing a complete description of events the evening that Polly was kidnapped from her home).
104. See Biographicon.com, Richard Allen Davis, http://www.biograpicon. com/view/kh54e (last visited Dec. 6 2009) (reporting Davis's extensive encounters with law enforcement, including arrests and convictions).
105. See Elizabeth Gleick & Tom Cunneff, America's Child, PEOPLE MAG., Dec. 20, 1993, at 84 (airing the details of Polly's death and the background of her assailant). The moniker "America's child" was also used as the title of a book.
106. See BARRY BORTNICK, POLLY KLAAS: THE MURDER OF AMERICA'S CHILD (1995).
107. Polly's kidnapping and murder was the subject of numerous media reports. See C-SPAN, Congressional Chronicle (Nov. 21, 1993), http://www.c- spanarchives.org/congress/?q=node/77531&id=7880451 (quoting Representative Woolsey's representation of the number of national news stories that had appeared on the crime);
108. Notorious Episode Guide on Biography.com, Free to Kill: The Polly Klaas Murder, http://www.biography.com/notorious/episodeguide.do?episodeid=167075 (last visited Dec. 6, 2009).
109. C-SPAN, supra note 90 (transcribing Representative Woolsey's statement). For a discussion of the public's strong reaction to the kidnapping and murder of Polly Klaas, see Vitiello, supra note 83, at 410, who writes, "[The] Three Strikes Law passed without serious rational discourse or legislative compromise because of public panic."
110. See Biographicon.com, supra note 88.
111. Following his daughter's death, Marc Klaas became a child rights advocate, first with the Polly Klaas Foundation and later with KlaasKids which seeks to work for "stronger sentencing for violent criminals." See KlaasKids Foundation for Children, Our Story, http://www.klaaskids. org/pg-ourstory.htm (Last visited Dec. 6, 2009).
112. Greg Cahill, The Longest Year, http://www.metroactive.com/sonoma/klaas95. html (last visited Dec. 6, 2009) (showcasing Marc Klaas's efforts in the aftermath of Polly's murder).
113. See WALSH, supra note 64, at 39-40 (describing a press conference shortly after Davis's arrest where then Attorney General Dan Lungren appeared with Mike Reynolds to endorse the effort to reform the sentencing guidelines).
114. Entitled Proposition 184, voters overwhelmingly approved the law by seventy-two percent in 1994. See Dan Morain & Virginia Ellis, Tobacco Industry Power May Go Up in Smoke, Foes Say, L.A. TIMES, Nov. 10, 1994, at A3 (comparing the successful Three Strikes Proposition to the failed Proposition 188, which would have repealed the indoor smoking ban in California). The new law was later codified in CAL. PENAL CODE §§ 667, 1170.12 (West 2008). By many accounts, it was a short-lived union as the Klaas family later appeared to be uncomfortable with the breadth of some provisions in the law. See infra note 256 and accompanying text.
115. See National Center for Missing and Exploited Children, The Adam Walsh Story, http://www.missingkids.com/missingkids/servlet/PageServlet?PageId= 1156 (last visited Dec. 6, 2009) (offering the account of Adam's abduction in 1981);
116. see also Rich Phillips, Police: Drifter Killed Adam Walsh in 1981, CNN, Dec. 16, 2008, http://edition.cnn.com/2008/CRIME/12/16/walsh. case.closed (reporting in 2008 that police have finally closed the case on Adam Walsh's abduction and murder, believing that a drifter, now deceased, was Adam Walsh's killer).
117. See generally Jacob Wetterling Res. Ctr., History, http://www.jwrc.org/Default.aspx?tabid=128 (last visited Dec. 6, 2009) (describing the abduction of Jacob Wetterling as well as the history and programs of the Jacob Wetterling Foundation).
118. See State v. Timmendequas, 737 A.2d 55, 68-69 (N.J. 1999) (recounting the tragic killing of Megan Kanka).
119. For scholarship that tracks the various legislative actions, see, for example, Catherine L. Carpenter's, The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 B.U. L. REV. 295, 324-38 (2006), which reviews categories of sex offender registration laws in the country;
120. and Asmara Teckle-Johnson, In the Zone: Sex Offenders and the Ten Percent Solution, 94 IOWA L. REV. 607, 617-20 (2009), for a detailed description of state and local laws.
121. See 42 U.S.C. § 14071 (2006) (establishing federal guidelines for state sex offender registration laws).
122. See id. § 14071(g). States that did not comply were faced with decreased funding. See id. § 14071(g)(2). Although congressional action provided the final impetus for these laws, a few states had passed sex offender registration laws much earlier. See Abril R. Bedarf, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885, 887 n.4 (1995) (noting that Alabama, Arizona, California, Illinois, and Nevada were the first to introduce sex offender registration laws).
123. See 42 U.S.C. § 14071(e)(2) (mandating that the designated state law enforcement agency "shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section"). Indeed, so strong was the public's reaction to the Kanka's call for reform, that within three months of the petition's creation, New Jersey passed the first Megan's Law. See E.B. v. Verniero, 119 F.3d 1077, 1081-82 (3d Cir. 1997) (describing the frantic pace at which the New Jersey legislature passed Megan's Law).
124. See 42 U.S.C. §§ 16901-16991 (2006). The Act has been the subject of considerable controversy, with some courts dismissing indictments under it. See Emily A. White, Note, Prosecutions Under the Adam Walsh Act: Is America Keeping Its Promise?, 65 WASH. & LEE L. REV. 1783, 1792 nn.64-66 (2008) (collecting cases); see also infra Part III (discussing the inherent problems of legislative epidemics).
125. For the executive summary of the report, see LAWRENCE A. GREENFIELD, DEP'T OF JUSTICE, CHILD VICTIMIZERS: VIOLENT OFFENDERS AND THEIR VICTIMS (1996), http://www.ojp.usdoj.gov/bjs/pub/pdf/cvvoatvx.pdf, who highlights the statistics compiled of crimes against children.
126. See America's Most Wanted, About John Walsh, http://www.amw.com/ about-amw/john-walsh.cfm (last visited Dec. 6, 2009) ("[John Walsh] was a successful businessman, building high-end luxury hotels and building his life. But after Adam's murder, everything changed.").
127. See Jacob Wetterling Res. Ctr., supra note 98 (explaining the history of the Jacob Wetterling Foundation).
128. See Susan K. Livio & Maryann Spoto, Report: Megan's Law Fails to Deter Sex Offenders, STAR LEDGER (N.J.), Feb. 6, 2009, at 1 (quoting Maureen Kanka's position regarding Megan's Law after researchers found the law failed to deter sex crimes). The New Jersey Legislature passed the first iteration of Megan's Law in 1994.
129. See N.J. STAT. ANN. § 2C:7-1 (West 2005).
130. Persuaders of equal force have contributed to passage of other laws. See, e.g., 154 CONG. REC. S9350-55 (2008) (attributing the passage of the Emmett Till Unsolved Civil Rights Crime Act of 2007 to private citizen Alvin Sykes who "truly made a difference");
131. Bureau of Justice Assistance, Background Information on the Act and its Amendments, http://www.ojp.usdoj.gov/BJA/what/2a2jwactbackground.html (last visited Dec. 6, 2009). Pam Lychner, who survived a vicious attack, promoted an amendment to the Jacob Wetterling Act that would provide law enforcement with greater tracking capability. The bill was later named the Pam Lychner Act after Ms. Lychner who was killed in the explosion of TWA flight 800. Bureau of Justice Assistance, supra.
132. Not everyone who is the victim of crime is comfortable in the spotlight. Polly Klaas's mother, Eve Nichol, for example, so shaken by the tragedy of her daughter's death, speaks out rarely. See Alex Tresniowski, Polly, Alive in Memory, PEOPLE MAG., Sept. 22, 2003, at 187 (describing Eve's silence in the wake of Polly's death).
133. In an interesting exercise, I polled family, friends, and students to see which phrases or slogans "stuck" with them. Interestingly, although the group ranged in age from nineteen to over sixty years of age, the same phrases were mentioned by nearly everyone. In these highly unscientific results, some of the more popular sticky messages were: "Whatever" [Clueless]; Just Do It! [Nike]; "Diamonds are Forever" [KayeWest Jewelers]; "Beam Me Up, Scotty" [Star Trek]; "Where's the Beef" [Wendy's]; "I'll Be Back" [Terminator]; "Whazzzup" [Budweiser]; "Make My Day" [Dirty Harry]; "Houston, we've got a problem" [Apollo 13]; and "Show me the money!" [Jerry Maguire].
134. See Obituary, Clara Peller, the Actress in 'Where's the Beef?' TV Ad, N.Y. TIMES, Aug. 12, 1987, at D22 (reporting that the "Where's the beef?" campaign increased annual revenue by thirty-one percent, made the actress Clara Peller a star, and even was used in the 1984 presidential primary by Walter F. Mondale in criticism of his rival, Gary Hart).
135. The "Miranda warnings" provides a prime example of a procedure named for the case that produced it. This popular reference to the warnings that police must give a suspect in a custodial interrogation originated from the United States Supreme Court decision of the same name. See Miranda v. Arizona, 384 U.S. 436 (1966).
136. The Mann Act of 1910, which prohibited the transportation of women across state lines for prostitution, was named after Congressman James Robert Mann. See Biography of James Robert Mann, http://law.jrank.org/pages/8422/Mann- James-Robert.html (last visited Dec. 6, 2009). The Unruh Civil Rights Act, which prohibits discrimination in employment and housing, was named for famed California Legislator Jesse M. Unruh.
137. See BLLL BOYARSKY, BIG DADDY JESSE UNRUH AND THE ART OF POWER POLITICS 84-89 (2008) (detailing the evolution and passage of the Act).
138. The Lindbergh Law, titled the Federal Kidnapping Act, 18 U.S.C. §§ 1201-1202 (2006), grew out of the kidnapping of Charles Lindbergh Jr., the toddler of famous aviator Charles Lindbergh. See Short History of FBI, http://www.fbi.gov/libref/factsfigure/shorthistory.htm (last visited Dec. 6, 2009) (recounting how the Lindberg baby's kidnapping and murder served as a catalyst for the federal kidnapping law).
139. Outside the criminal law, one of the more interesting personalized pieces of legislation is the Ryan White HIV/AIDS Program, which includes compassionate and supportive services and funds named for the eighteen-year-old who died of AIDS in 1990. See Health Res. & Serv. Admin., The Ryan White HIV/AIDS Program, http://hab.hrsa.gov/livinghistory/timeline/19861990/1986.html (last visited Dec. 6, 2009) (explaining the passage of the Ryan White Act).
140. See supra note 97-104 and accompanying text.
141. 42 U.S.C. §§ 16901-16991 (2006).
142. Iowa Broadcasters Assoc., History of Amber Alert Plan, http://www.iowabroadcasters.com/ambrhist.htm (last visited Dec. 6, 2009). The idea of systematic and statewide alerts for child abductions grew out of this heartbreaking tragedy when a listener to a radio station suggested that that the Emergency Alert System should be used during child abduction cases. First established as the Dallas Amber Plan, child abduction alert bulletins are now available nationwide. See id.
143. See H.B. 1877, 2005 Leg., Reg. Sess. (Fla. 2005).
144. See Anthony Bruno, Jessica Lunsford: Death of a 9-Year Old, TRUTV CRIME LIBRARY, http://www.trutv.com/library/ crime/serial-killers/predators/jessica-lunsford/1-index.html (last visited Dec. 6, 2009).
145. FLA. STAT. § 800.04(5)(b) (Supp. 2009). A variation of Jessica's Law was passed by California voters in November 2006 under Proposition 83. See Text of Proposition 83, reprinted in CAL. ATT'Y GEN., SEX OFFENDERS, SEXUALLY VIOLENT PREDATORS. PUNISHMENT, RESIDENCE RESTRICTIONS AND MONITORING. INITIATIVE STATUTE 127-38 (2006), http://www.sos.ca.gov/ elections/vig-06/general-06/pdf/proposition-83/entire-prop83.pdf. States have adopted variations of Jessica's Law. The California law is formally known as the Sexual Predator Punishment and Control Act: Jessica's Law (SPPCA). See, e.g., CAL. PENAL CODE §§ 220, 290, 311.11 (West Supp. 2009). The passage was not without controversy.
146. See Jennifer Warren, Judge Blocks Part of Sex Offender Law, L.A. TIMES, Nov. 9, 2006, at A32.
147. See Adam Walsh Child Protection and Safety Act of 2006 §§ 118-120, 42 U.S.C. §§ 16918-16920 (2006) (establishing a national sex offender registry and Dru Sjodin National Sex Offender Public Website).
148. See Bootie Cosgrove-Mather, Anger, Fear, Pain After Dru Found, CBSNEWS, Apr. 19, 2004, http://www.cbsnews.com/stories/2004/ 04/20/national/main612796.shtml (reporting on the death of Dru Sjodin at the hands of Alfonso Rodriguez, Jr., a level three convicted sex offender).
149. See Overview of Zachary's Law, http://www.allencountysheriff.org/ sexoffender/zachary.html (last visited Dec. 6, 2009) (providing the background of the passage of Zachary's Law).
150. Bush Signs Bill Named After Jetseta Gage, QUAD-CITY TIMES, July 28, 2006, available at http://www.qctimes.com/ news/state-and-regional/article-9699fb70-59b9-561b-8567-6f27046d9e7a.html.
151. See Ashley's Laws Require Registration, Longer Prison Terms for Sex Offenders, DALLAS NEWS, Sept. 3, 2003, http://www.dallasnews.com/s/dws/spe/2003/ashleyestell/090403dnwebashleylaws. 6f3db545.html (detailing the parameters of Ashley's Laws). In an interesting development in the case, new DNA testing cleared Michael Blair who was convicted for the murder and sentenced to death.
152. Stephanie Lucero, Judge Recommends Exoneration in Ashley Estell Case, CBS11TV.COM, May 23, 2008, http://cbs11tv.com/local/Michael. Blair.Ashley.2.731801.html.
153. H.R. 3107, 109th Cong. (2005).
154. See Cheryl Little et al., Securing Our Borders: Post 9/11 Scapegoating of Immigrants, 82 INTERPRETER RELEASES 1161, 1189 (2005).
155. For the heartbreaking account of Carlie Brucia's abduction, see David Krajicek, The Abduction of Carlie Brucia, TRUTV CRIME LIBRARY, http://www.trutv.com/library/crime/notorious-murders/famous/ carlie-brucia/3.html (last visited Dec. 6, 2009). In a horrible twist to this story, police failed to use the "Amber Alert" when Carlie was reported missing by her family because police believed Carlie may have run away. Id.
156. Jenny's Law, H.R. 731, 111th Cong. (2009).
157. See HEATH & HEATH, supra note 40, at 8 ("By stick, we mean that your ideas are understood and remembered, and have a lasting impact - they change your audience's opinion or behavior.").
158. Id. at 16-17. For a discussion of these six principles in the library world, see Jean M. Holcomb, supra note 1, at 588-91.
159. HEATH & HEATH, supra note 40, at 52.
160. Id.
161. In a very interesting piece on the use of language and images connected to passage of Megan's Law, see Daniel M. Filler, Making the Case for Megan's Law: A Study in Legislative Rhetoric, 76 IND. L.J. 315 (2001).
162. HEATH & HEATH, supra note 40, at 16.
163. See WALTER LIPPMANN, PUBLIC OPINION 79-103 (Transaction Publishers 1991) (1922) (describing the role that stereotypes play in making sense of the world in which we live).
164. Id. at 95.
165. Called The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act of 1990, it provided comprehensive support and services for those afflicted with HIV/AIDS. See Ryan White Comprehensive AIDS Resources Emergency Act of 1990 § 2, 42 U.S.C. § 300ff (2006).
166. HEATH & HEATH, supra note 40, at 100.
167. Id. at 113-14.
168. See Collin O'Connor Udell, Parading the Saurian Tail: Projection, Jung, and the Law, 42 ARIZ. L. REV. 731, 748 (2000) ("The role of the symbol and the soundbite in our high-speed culture is integral to our processing of information.").
169. HEATH & HEATH, supra note 40, at 132-37 (relating the various kinds of "authority" that might provide credibility to the message).
170. Megan Nicole Kanka Found., Our Mission, http://www. megannicolekankafoundation.org/mission.htm (last visited Dec. 6, 2009).
171. See, e.g., Christopher N. Dela Cruz, Maureen Kanka Defends Megan's Law Despite Report Saying It Fails to Deter Pedophiles, NJ.COM, Feb. 6, 2009, www.nj.com/news/index.ssf/2009/02/despite-new- report-on-megans-l.html;
172. Bevin Theodore, Maureen Kanka, Whose Daughter's Death Spawned Megan's Law, to Speak in Lopatcong Twp., LEHIGHVALLEYLIVE. COM, Jan. 8, 2009, http://www.lehighvalleylive.com/phillipsburg/index.ssf/ 2009/01/post-7.html;
173. accord Press Release, Township of Nutley, Maureen Kanka Set to Talk with Nutley Parents on March 5th (Feb. 19, 2008), http://www.nutleynj.org/ ReleaseDetails.aspx?pid=e99e779c-5137-4af8-916b75b13a573f2f;
174. see also Press Release, Life-Prints, LLC, Voice for Missing Children and Child Safety Advocate Maureen Kanka of Megan's Law Named Spokeswoman for Life-Prints Child Safety Software (Aug. 1, 2007), http://www.prweb.eom/releases/2007/8/prweb544154.html (announcing that Maureen Kanka had agreed to be the spokesperson for Life-Prints Child Safety Software).
175. HEATH & HEATH, supra note 40, at 301.
176. See LIPPMANN, supra note 137, at 13 ("The only feeling that anyone can have about an event he does not experience is the feeling aroused by his mental image of that event.").
177. HEATH & HEATH, supra note 40, at 165-67 (reporting that people were more likely to contribute in response to a plea that centers on one person as a symbol of the need).
178. Id. at 165-203 (discussing the importance of using concrete images to tap human emotion).
179. See Laurie Davies, 25 Years of Saving Lives, DRIVEN (Mothers Against Drunk Driving, Irving, Tex.), Fall 2005, at 11, available at http://www.madd.org/getattachment/48e81e1b-df43-4f31- b9a1d94d5b940e62/MADD-25-Years-of-Saving-Lives.aspx (noting Marilyn Sabin, Coordinator for the California Office of Traffic Safety, who reported that before MADD's involvement, she saw several DUI bills fail in California).
180. For a review of the media's role in skewing perception about the commonness of crime, see David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. REV. 211, 243-44 (2004).
181. See Filler, supra note 135, at 329-30 (referencing statements made by legislators).
182. See, e.g., Lisa Anderson, Demand Grows to ID Molesters, States Weigh Children's Safety Versus Offenders' Rights, CHI. TRIB., Aug. 15, 1994, at 1 (noting that community anger was "the catalyst" for passage of community notification laws);
183. Stephen W. Dill, A Plea for the Sake of Megan, PHILA. DAILY NEWS, Aug. 3, 1994, at 4 (describing the grief and anger of communities over the death of Megan Kanka and of rallies that urge the passage of new laws to combat these killing);
184. Joseph F. Sullivan, Law Makers Get Tough on Sex Offenders, N.Y. TIMES, Aug. 10, 1994, at B4 (reporting the community anger over the death of young girls at the hands of male neighbors).
185. An excellent example of an emotional message that produced new legislation is the story of Sherrice Iverson, who was killed by Jeremy Strohmeyer in a Nevada casino bathroom while his friend, David Cash, may have been aware. See infra notes 169-71 and accompanying text.
186. Whether Megan's Law does, in fact, protect the community is the subject of debate. See, e.g., Elizabeth Garfinkle, Coming of Age in America: The Misapplication of Sex-Offender Registration and Community-Notification Laws to Juveniles, 91 CAL. L. REV. 163 (2003) (contending that community notification statutes are ineffective as applied to juveniles);
187. Jeffrey C. Sandler, Naomi J. Freeman & Kelly M. Socia, Does a Watched Pot Boil? A Time-Series Analysis of New York State's Sex Offender Registration and Notification Law, 14 PSYCHOL. PUB. POL'Y & L. 284 (2008) (calling into question whether it is efficient to utilize so many resources on repeat offenders when 95% of those arrested are first time offenders).
188. H.R. 3107, 109th Cong. (2005).
189. See Cheryl Little et al., supra note 129, at 1189; see also Krajicek, supra note 129 (describing the events surrounding Carlie's abduction and murder by Joe Smith). Carlie's father acquiesced in naming the bill after Carlie although he conceded that Carlie's killer did not share the attributes of those targeted in the bill. Crimeshots.com, In Loving Memory of Carlie Brucia, http://crimeshots.com/CarlieBrucia11.html (last visited Dec. 6, 2009).
190. See Robert M. Cover, Foreword, Nomos and Narrative, 97 HARV. L. REV. 4, 5 (1983) ("[L]aw and narrative are inseparably related.").
191. See Filler, supra note 135, at 330-32 (reporting that every senator who spoke in favor of the passage of Megan's Law recounted a vivid and disturbing case of sexual abuse).
192. See, e.g., State v. Cook, 700 N.E.2d 570, 573 (Ohio 1998) (opening the decision with the murder of Megan Kanka).
193. HEATH & HEATH, supra note 40, at 206.
194. See E.B. v. Verniero, 119 F.3d 1077, 1081 (3d Cir. 1997) ("Public reaction to Megan's murder was intense, and New Jersey's governor and legislature responded quickly.").
195. See Filler, supra note 135, at 315-17 (offering an historical look at the passage of Megan's Law and its aftermath).
196. See, e.g., Teen Admits Killing Young Girl in Casino, NEWSDAY (Long Island), Sept. 9,1998, at A15 (relating the events surrounding the murder).
197. See Steve Chapman, Should Doing Nothing About A Crime Be A Crime? CHI. TRIB., Aug. 27, 1998, § 1, at 23 (reporting that David Cash admitted to seeing Strohmeyer struggle with Sherrice Iverson in the bathroom stall before walking out of the restroom).
198. See, e.g., Call for Samaritan Law out of Child-Sex Case: Penalties for Witnesses Who Don't Report, S.F. CHRON., Sept. 10, 1998, at A2;
199. Stacy Finz, Killing of Girl, 7, in Casino Spurs Good Samaritan Bills, S.F. CHRON., Dec 9, 1998, at A21 (relating the public's anger over the inability to charge Cash).
200. In response, California and Nevada passed laws criminalizing the failure to intervene. See Sherrice Iverson Child Victim Protection Act, CAL. PENAL CODE § 152.3 (West Supp. 2009);
201. NEV. REV. STAT. ANN. § 202.882 (LexisNexis 2006).
202. See GLADWELL, supra note 1, at 133-92 (highlighting a variety of examples to demonstrate the importance of environmental factors to an epidemic).
203. Consider Professor Friedman's excellent analysis of the potential impact of the telephone or the automobile on the law and legal institutions. See Friedman, supra note 47, at 1584-86.
204. GLADWELL, supra note 1, at 9.
205. See, e.g., Sara Sun Beale, What's Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23 (1997) (exploring why the public favors harsh crimes and punishments in the face of countermanding evidence);
206. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 781 (2006) (contending that the harsh justice of the 1970s was in response to the "constitutional proceduralism" of the 1960s).
207. See infra Part III.A and accompanying text.
208. The title of this section is taken from the 1998 movie of the same name, which was adapted from the 1971 novel by HUNTER S. THOMPSON, FEAR AND LOATHING IN LAS VEGAS: A SAVAGE JOURNEY TO THE HEART OF THE AMERICAN DREAM (Second Vintage Books 1998) (1971).
209. See infra Part III.A and accompanying text (providing legislative examples of the shift in public attitude on crimes).
210. See, e.g., MICHAEL TONRY, THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE (2004) (examining various reasons for the shift in penal attitudes).
211. See e.g., LORI DORFMAN & VINCENT SCHIRALDI, BLDG. BLOCKS OF YOUTH, OFF BALANCE: YOUTH, RACE & CRIME IN THE NEWS 3 (2001), http://www.buildingblocksforyouth.org/media/ media.pdf ("Although violent crime by youth in 1998 was at its lowest point in the 25-year history of the National Crime Victimization Survey, 62% of poll respondents felt that juvenile crime was on the increase.").
212. Id. at 9.
213. See Richard G. Wright, Sex Offender Post-Incarceration Sanctions: Are There Any Limits?, 34 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 17, 21-25 (2008) (reporting statistics to support the position that sexual assault by a stranger is an "infrequently occurring event").
214. DORFMAN & SCHIRALDI, supra note 181, at 4 (quoting LIPPMANN, supra note 137, at 3).
215. Id.
216. For an excellent discussion of the media's role in creating an alarming picture, see Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397 (2006).
217. See generally PHILIP JENKINS, MORAL PANIC: CHANGING CONCEPTS OF THE CHILD MOLESTER IN MODERN AMERICA (1998) (condemning the societal response to sexual offenses as highly disproportionate to the offenses).
218. Id. at 6-7; see also John Douard, Sex Offender as Scapegoat: The Monstrous Other Within, 53 N.Y.L. SCH. L. REV. 31, 41 (2008/2009) ("[S]ex offenders are the targets of 'moral panic."').
219. On the rampant escalation of sex offender registration laws, see, for example, Wayne A. Logan, Constitutional Collectivism and Ex-Offender Residence Exclusion Laws, 92 IOWA L. REV. 1, 6 (2006), who argues that sex offenders are the recipients of the harshest "punitive zeal."
220. In the context of HIV transmission, the 1980s was the height of societal panic. See Jerry Estell, Ind. Youth Tells of Fight Against AIDS - and Bias, PHILA. INQUIRER, Mar. 4, 1988, at A15 (detailing the panicked actions as schools barred HIV infected students from school, homes were firebombed, and families were forced to move);
221. Deborah Hurst, Houston Boy with AIDS Virus Barred from School, HOUSTON CHRON., Apr. 23, 1987, at 11 (reporting that a Houston child was barred from school);
222. Herb Michaelson, School Battles Leave Own Scars, SACRAMENTO BEE, Nov. 10, 1986, at A20.
223. See infra Part III.A and accompanying text.
224. Philip Jenkins, Failure to Launch: Why Do Some Social Issues Fail to Detonate Moral Panics?, 49 BRIT. J. CRIMINOLOGY 35, 35 (2009) (quoting STUART HALL ET AL., POLICING THE CRISIS: MUGGING, THE STATE, AND LAW AND ORDER 16 (1978)).
225. David A. Singleton, Sex Offender Residency Statutes and the Culture of Fear: The Case for More Meaningful Rational Basis Review of Fear-Driven Public Safety Laws, 3 ST. THOMAS L.J. 600, 602-03 (2006) (arguing that the proliferation of crime reports induced the proliferation of sex offender registration laws);
226. cf. Ctr. for HIV Law & Policy, The National Legal Resource and Strategy Center for HIV Advocacy, http://www.hivlawandpolicy.org/ resourceCategories/view/2 (last visited Dec. 6, 2009) (claiming that media coverage which demonized those inflicted with HIV/AIDS influenced a backlash that resulted in the myriad of AIDS criminal legislation).
227. See, e.g., Beale, supra note 186, at 409 (referencing Bureau of Justice Statistics that note unprecedented drop in crime).
228. See DORFMAN & SCHIRALDI, supra note 181, at 5 (citing a Baltimore survey where, despite declining crime rates, residents believed that crime was on the rise).
229. See Beale, supra note 186, at 422-23 (noting that crime news stories on the three major networks grew from 557 stories to 2574 in a five-year time frame).
230. See Singleton, supra note 192, at 604-05 (tracking the increase in articles on child abductions since 1981).
231. The testimony of the President of the National Center for Missing & Exploited Children who appeared before the Judiciary Committee in March 2009 articulates well the role of high-profile cases: In recent years, millions of Americans have followed with horror the devastating stories of Jessica Lunsford, Sarah Lunde, Jetseta Gage and others. These tragic cases have generated anger and indignation nationwide, and epitomize an area of great concern: how to effectively track, register and manage the nation's convicted sex offenders. . . . [Sex offenders] evoke unparalleled fear among citizens. Sex Offender Registration and Notification Act (SONRA): Barriers to Timely Compliance by States: Hearing Before the H. Subcomm. on Crime, Terrorism, and Homeland Security, 111th Cong. 81 (2009) [hereinafter SONRA] (statement of Ernie Allen, CEO & President, National Center for Missing & Exploited Children).
232. See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 352 (1997) ("[V]isible efforts by private citizens to protect themselves from crime may convey the message that criminality is rampant."). Interestingly, the absence of media attention can produce a dearth of legislation, even where legislation is warranted and necessary. See Jenkins, supra note 191, at 41 (maintaining that the lack of comprehensive child pornography laws may be due to the lack of media access).
233. See Philip Whitehead, Penal Populism, Sentencing Councils and Sentencing Policy, 49 BRIT. J. CRIMINOLOGY 430, 432 (2009) (book review) (noting that there is an "atmosphere of populist punitiveness").
234. For scholarship on the shift in public attitude, see, for example, Paul Almond, Public Perceptions of Work-Related Fatality Cases, 48 BRIT. J. CRIMINOLOGY 448, 449 (2008), for a review of research that demonstrates the change in public attitude; Beale, supra note 176, at 44-51, for an exploration of why the public favors harsh punishments in the face of countermanding evidence;
235. and Samuel Jan Brakel & James L. Cavanaugh, Jr., Of Psychopaths and Pendulums: Legal and Psychiatric Treatment of Sex Offenders in the United States, 30 N.M. L. REV. 69, 69 (2000), for a description of the shift in attitude as the "pendulum effect."
236. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY (2001).
237. Id. at 8.
238. Jonathan Simon, Managing the Monstrous: Sex Offenders and the New Penology, 4 PSYCHOL. PUB. POL'Y & L. 452, 454 (1998). With respect to sex offender registration laws specifically, Simon criticizes what he calls the "new penology" which includes a public that is more concerned with management of high risk offenders than rehabilitation and transformation. Id. at 454-56.
239. In an interesting swing of the pendulum, rehabilitation is reemerging as a penal goal. Not because the public has gained new-found optimism, but rather because the costs of incarceration can no longer be accommodated in a failing economy. See, e.g., Michael Rothfeld, The California Fix: Prison Cuts Easier Said than Done, L.A. TIMES, Aug. 23, 2009, at A1 (describing efforts to reintroduce programs of rehabilitation to drive incarceration costs down).
240. See Lindsay A. Wagner, Comment, Sex Offender Residency Restrictions: How Common Sense Places Children at Risk, 1 DREXEL L. REV. 175, 179
241. (citing NAOMI MURAKAWA, ELECTING TO PUNISH: CONGRESS, RACE, AND THE AMERICAN CRIMINAL JUSTICE STATE 140 (2005)); see also Simon, supra note 202, at 455 ("The politicians, bolstered by what is taken to be nearly universal public support, compete to propose ever more severe responses to criminal behavior.").
242. Doe v. Poritz, 662 A.2d 367, 375-76 (N.J. 1995).
243. A proffered rationale for the increased federalization is the belief that a uniform set of laws better protects the citizenry. See Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 OHIO ST. J. CRIM. L. 51, 56 (2008) (outlining the wave of federalized criminal laws).
244. See, e.g., 154 CONG. REC. S10.300-01 (daily ed. Oct. 1, 2008) (statement of Sen. Schumer) ("[S]ocial networking web sites . . . [are] potential hotbeds for sexual predators, who can easily camouflage themselves amidst the throng of users on these sites, while furtively pursuing their own despicable designs.");
245. 154 CONG. REC. S8976-01 (daily ed. Sept. 18, 2008) (statement of Sen. Martinez) ("Public safety is among the highest priorities of Government. Americans should feel - and have a right to feel - safe in their homes, their neighborhoods, and their communities. Although the national violent crime rate has dropped substantially since 2000, we know any crime is too much crime. As elected officials, we ought to do what we can to prevent criminal acts." (emphasis added));
246. 154 CONG. REC. H6441-42 (daily ed. July 14, 2008) (statement of Rep. Schiff) (urging continued funding for a provision of the PROTECT Act of 2003 that allowed state and local government access to national fingerprint databases for volunteers who work with children, although only six percent of all volunteers tested under the program had serious criminal records);
247. see also Stephanie Chen, iPhone Apps Help Track Sex Offenders, Spot Crime, CNN, Sept. 30, 2009, http://www.cnn.com/2009/CRIME/09/29/iphone. app.fight.crime/index.html (reporting that the Offender Locator application, which provides the location of sex offenders, has been downloaded more than a million times in the three months since its debut in June 2009 and is among the ten most popular iPod applications).
248. E.B. v. Verniero, 119 F.3d 1077, 1112 (3d Cir. 1997) (Becker, J., concurring in part, dissenting in part);
249. see also Artway v. Att'y Gen., 81 F.3d 1235, 1243 (3d Cir. 1996) ("[Megan's Law] was rushed to the Assembly floor as an emergency measure, skipping the committee process, and was debated only on the floor; no member voted against it.").
250. J. Kelly Strader, Criminalization as a Policy Response to a Public Health Crisis, 27 J. MARSHALL L. REV. 435, 435-40 (1994) (analyzing the myriad of HIV criminal legislation passed in response to the HIV/AIDS crisis).
251. For a thoughtful discussion of the "jurisdictional competition" model, see Darryl K. Brown, Prosecutors and Overcriminalization: Thoughts on Political Dynamics and a Doctrinal Response, 6 OHIO ST. J. CRIM. L. 453, 453-56 (2009).
252. For the impact of the competition model as applied to residency restrictions, see Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. U. L. REV. 101, 104 (2007), who contends that "the amount of real estate available to sex offenders will continue to decrease and more sex offender communities will emerge."
253. 538 U.S. 84 (2003).
254. 538 U.S. 1 (2003).
255. See 42 U.S.C. § 14071(g)(2)(A)-(B) (2006) (mandating that states must comply with provisions or face decreased funding).
256. See, e.g., Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.N.Y. 1998) (arguing that registration laws impact protected liberty interests);
257. Cutshall v. Sundquist, 980 F. Supp. 928 (M.D. Tenn. 1997) (raising a number of claims including whether the Tennessee Sexual Offender and Registration and Monitoring Act violates double jeopardy, the right to travel, and equal protection);
258. Helman v. State, 784 A.2d 1058 (Del. 2001) (questioning whether juveniles should be subjected to these laws);
259. Doe v. Poritz, 662 A.2d 367 (N.J. 1995) (challenging whether the newly enacted laws apply to previously convicted sex offenders).
260. See, e.g., United States v. Ward, 448 U.S. 242, 248 (1980) ("The distinction between a civil penalty and a criminal penalty is of some constitutional import.").
261. See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997) (concluding that civil commitment requirements were sufficiently tailored to meet nonpunitive purpose);
262. accord Seling v. Young, 531 U.S. 250, 263 (2001) (deciding that commitment of sexually violent felons was a civil remedy that did not impact the constitutionality of the statute under ex post facto or double jeopardy clauses); see also infra note 217 (citing sex offender registration cases that have concluded the laws are civil remedies and not criminal penalties).
263. See, e.g., Russell v. Gregoire, 124 F.3d 1079, 1087-88 (9th Cir. 1997) (concluding that these laws were regulatory, not punitive in nature);
264. Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997) (determining that registration and notification provisions did not inflict punishment);
265. People v. Castellanos, 982 P.2d 211, 217 (Cal. 1999) ("The sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment.");
266. State v. Cook, 700 N.E.2d 570, 578 (Ohio 1998) ("Consequently, we find that the registration and verification provisions are remedial in nature and do not violate the ban on retroactive laws set forth [under the Ohio Constitution].");
267. Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999) (finding that registration is not punitive).
268. 662 A.2d 367 (N.J. 1995).
269. Id. at 372-73.
270. Id. at 372. Other courts have affirmed the power of the legislature to protect its citizenry. See, e.g., E.B. v. Verniero, 119 F.3d 1077, 1097 (3d Cir. 1997) ("[W]e found that the legislative purpose of Megan's Law was to identify potential recidivists and alert the public when necessary for the public safety, and to help prevent and promptly resolve incidents involving sexual abuse and missing persons.");
271. Lee v. State, 895 So. 2d 1038, 1040 (Ala. Crim. App. 2004) ("The Legislature finds that the danger of recidivism posed by criminal sex offenders and that the protection of the public from these offenders is a paramount concern or interest to government."' (quoting ALA. CODE § 15-20-26(a) (1975)));
272. Fredenburg v. City of Fremont, 14 Cal. Rptr. 3d 437, 439 (Ct. App. 2004) ("[T]he [California] Legislature further found that the public had a 'compelling and necessary . . . interest' in obtaining information about released sex offenders so they can 'adequately protect themselves and their children from these persons."' (quoting 1996 Cal. Stat., ch. 908 § 1(b))).
273. See, e.g., Doe v. Pryor, 61 F. Supp. 2d 1224, 1226 (M.D. Ala. 1999) (characterizing Alabama's registration scheme as "among the . . . most restrictive of such laws in the nation");
274. Doe v. Pataki, 3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998) ("[T]he registration provisions of the Act place a 'tangible burden' on plaintiffs, potentially for the rest of their lives.");
275. Doe v. Dep't of Pub. Safety, 92 P.3d 398, 409 (Alaska 2004) (reiterating the burdensome nature of Alaska's registration requirements);
276. State v. Robinson, 873 So. 2d 1205, 1213 (FIa. 2004) ("We believe the Act imposes more than a stigma.");
277. State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996) ("The practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment.").
278. See State v. Bollig, 605 N.W.2d 199, 205-06 (Wis. 2000) ("Although we recognize that sex offenders have suffered adverse consequences, including vandalism, loss of employment, and community harassment, the punitive or deterrent effects resulting from registration and the subsequent dissemination of information do not obviate the remedial and protective intent underlying those requirements.");
279. accord State ex rel. Olivieri v. State, 779 So. 2d 735, 749 (La. 2001) (explaining that any economic burden on the sex offender resulting from the notification scheme is a necessary result of a "well justified system");
280. Young v. State, 806 A.2d 233, 249 (Md. 2002) (concluding that although the sex offender registration statute does place affirmative burdens on the registrants, these burdens are not unreasonable in light of the statute's remedial aims).
281. See, e.g., Verniero, 119 F.3d at 1112-29 (Becker, J., concurring & dissenting) (analogizing community notification statutes to shaming punishments); Doe v. Att'y Gen., 686 N.E.2d 1007 (Mass. 1997) (concluding that sex offender registration laws are unconstitutional in the absence of a right to a hearing for a determination of whether actor poses a risk); Poritz, 662 A.2d at 424-28 (Stein, J., dissenting) (rejecting the majority's position that the laws were not punitive in nature). This view is gaining hold. See infra notes 311-27 and accompanying text (discussing recent decisions that have found sex offender registration laws are punitive in nature).
282. Smith v. Doe, 538 U.S. 84 (2003).
283. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003).
284. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Kennedy delineates the following seven factors to determine whether a law is regulatory or punitive in its effect: [1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment - retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned. Id. (citations omitted).
285. See Hudson v. United States, 522 U.S. 93, 99, 103 (1997) (rejecting double jeopardy claim in administrative hearings following criminal prosecution, deeming them civil under the Mendoza-Martinez "intent-effects test");
286. see also People v. Logan, 705 N.E.2d 152, 158-60 (Ill. App. Ct. 1998) (employing the "intent-effects" test to determine whether sex offender registration statute was constitutional);
287. Poritz, 662 A.2d at 433 (Stein, J., dissenting) (observing the judicial evolution from the Mendoza-Martinez seven-factor test to the two-part intents-effects test).
288. See, e.g., Lambert v. California, 355 U.S. 225, 228 (1957) (observing the wide latitude given to the legislature's authority to define an offense);
289. State v. Cook, 700 N.E.2d 570, 576 (Ohio 1998) ('"An enactment of the General Assembly is presumed to be constitutional ...."'
290. (quoting State ex rel. Dickman v. Defenbacher, 128 N.E.2d 59 (Ohio 1955)));
291. In re Christopher S., 776 A.2d 1054, 1057 (R.I. 2001) ('"This [C]ourt's evaluation of legislative enactments has been extremely deferential...."' (quoting City of Pawtucket v. Sundlun, 662 A.2d 40, 44-45 (R.I. 1995) (alteration in original))).
292. See Hudson, 522 U.S. at 103 ("It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of 12 U.S.C. §§ 84 and 375b to be civil in nature."); United States v. Ward, 448 U.S. 242, 248-49 (1980) (recognizing clear congressional intent to characterize monetary penalties under the Clean Water Act as civil in nature).
293. See, e.g., Smith v. Doe, 538 U.S. 84, 110 (2003) (Souter, J., concurring) ("What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one . . . .");
294. see also Poritz, 662 A.2d at 374 (majority opinion) ("Such a legislative determination is beyond judicial review.").
295. See, e.g., ARK. CODE ANN. § 12-12-902 (2003) ("[P]rotecting the public from sex offenders is a primary governmental interest, [and] that the privacy interest of the persons adjudicated guilty of sex offenses is less important than the government's interest in public safety ....");
296. ME. REV. STAT. ANN. tit. 34-A, § 11201 (Supp. 2007) ("The purpose of the chapter is to protect the public from potentially dangerous registrants by enhancing access to information concerning those registrants.");
297. MICH. COMP. LAWS ANN. § 28.721a (West 2004) ("The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state.").
298. ARK. CODE ANN. § 12-12-902 (2003);
299. see also, e.g., IDAHO CODE ANN. § 18-8302 (2004) ("The legislature finds that sexual offenders present a significant risk of reoffense and that efforts of law enforcement agencies to protect their communities, conduct investigations and quickly apprehend offenders who commit sexual offenses are impaired by the lack of current information available about individuals who have been convicted of sexual offenses who live within their jurisdiction. The legislature further finds that providing public access to certain information about convicted sexual offenders assists parents in the protection of their children.");
300. LA. REV. STAT. ANN. § 15:540 (2005) ("[P]rotection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest.");
301. MISS. CODE ANN. § 45-33-21 (West Supp. 2008) ("The Legislature finds that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to government.").
302. Compare NEB. REV. STAT. § 29-4002 (2008) ("The Legislature finds that sex offenders present a high risk to commit repeat offenses. The Legislature further finds that efforts of law enforcement agencies to protect their communities, conduct investigations, and quickly apprehend sex offenders are impaired by the lack of available information about individuals who have pleaded guilty to or have been found guilty of sex offenses and who live, work, or attend school in their jurisdiction."),
303. with N.M. STAT § 29-11A-2 (2004) ("The legislature finds that: (1) sex offenders pose a significant risk of recidivism; and (2) the efforts of law enforcement agencies to protect their communities from sex offenders are impaired by the lack of information available concerning sex offenders who live within the agencies' jurisdictions.").
304. See, e.g., Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) ("We can hardly conceive of a state's action bearing more 'stigmatizing consequences' than the labeling of a prison inmate as a sex offender.");
305. Ray v. State, 982 P.2d 931, 936 (Idaho 1999) ("[R]egistration brings notoriety to a person convicted of a sexual offense [and] does prolong the stigma attached to such convictions.");
306. Young v. State, 806 A.2d 233, 249 (Md. 2002) ("Being labeled as a sexual offender within the community can be highly stigmatizing and can carry the potential for social ostracism.").
307. See, e.g., Brandon Bain, Downside of Registries: Harassment, Vigilantism, NEWSDAY (Long Island), Oct. 23, 2006, at A31 (recounting numerous examples of vigilantism against registered offenders); see also Carpenter, supra note 100, at 301 n.16 (listing reports of harassment and violence against registered offenders).
308. See Unjust and Ineffective, ECONOMIST, Aug. 8-14, 2009,
309. Sigler v. State, No. 08-CA-79, 2009 WL 1145232, Ohio App. 5 Dist., at *1 (Ct. App. Apr. 27, 2009) (quoting the trial court, although reversing it).
310. See Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003) (addressing this central issue in the case).
311. See supra notes 221-22 (reporting the hardships registrants face in meeting the requirements).
312. See Doe v. Poritz, 662 A.2d 367, 433 (N.J. 1995) (Stein, J., dissenting) (explaining the second part of the "intent-effects" test).
313. Hudson v. United States, 522 U.S. 93, 99 (1997) (citations omitted) (recognizing that it is largely an issue of statutory construction whether a punishment is civil or criminal in nature); see also Artway v. Att'y Gen., 81 F.3d 1235, 1263 (3d Cir. 1996) (crafting a three-prong test of (i) actual purpose; (ii) objective purpose, and (iii) effect to determine whether regulation was a civil or criminal penalty).
314. See, e.g., Smith v. Doe, 538 U.S. 84, 102 (2003) ("[A] rational connection to a nonpunitive purpose is a '[m]ost significant' factor in our determination that the statute's effects are nonpunitive." (alterations in original)
315. (quoting United States v. Ursery, 518 U.S. 267, 290 (1996)));
316. Young v. State, 806 A.2d 233, 250 (Md. 2002) (finding that registration provisions are tailored to protect the public);
317. cf. Meinders v. Weber, 604 N.W.2d 248, 260 (S.D. 2000) (concluding that the legislature must be given deference in determining whether a statute is excessive to its alternative purpose).
318. See Smith, 538 U.S. at 102-03 ("[T]he Act has a legitimate nonpunitive purpose of public safety which is advanced by alerting the public to the risk of sex offenders in their communit[y]." (citation omitted) (second alteration in original)); see also Conn. Dep't of Pub. Safety, 538 U.S. at 4 (reinforcing the basic premise that Connecticut's registration scheme was "designed to protect its communities from sex offenders").
319. See Lambert v. California, 355 U.S. 225, 228 (1957) ("[D]eep in our law, is the principle that of all the powers of local government, the police power is 'one of the least limitable."'
320. (quoting Dist. of Columbia v. Brooke, 214 U.S. 138, 149 (1909))).
321. 539 U.S. 558 (2003).
322. 478 U.S. 186, 189 (1986) (upholding the legislative power to criminalize sodomy), overruled by Lawrence, 539 U.S. 558.
323. Lawrence, 539 U.S. at 578.
324. Id. at 578.
325. See Kaufman, supra note 39, at 435 (arguing that the Power of Context was in effect in Lawrence in that environmental factors provided the Supreme Court with the impetus to overrule Bowers).
326. See, e.g., State v. Pollard, 908 N.E.2d 1145, 1154 (Ind. 2009) (affirming dismissal of violation of residency restriction);
327. Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009) (rejecting the Smith analysis to conclude that, under Indiana's constitution, the sex offender registration scheme is punitive in nature and thus violates ex post facto law when applied to previously convicted offenders);
328. see also State v. Wagoner, No. COA08-982, 2009 WL 2783449, at *9 (N.C. Ct. App. Sept. 1, 2009) (Elmore, J., dissenting) (advocating that sex offender registration scheme is punitive in nature).
329. See supra notes 65-76 and accompanying text (reviewing the changes in the laws on drunk driving).
330. See GLADWELL, supra note 1, at 22 (describing the change in the pandemic of 1918).
331. See GOUDSMIT, supra note 25, at 37-42.
332. CHRISTINE AMMER, THE AMERICAN HERITAGE DICTIONARY OF IDIOMS 247-48 (1997).
333. Over twenty states have residency restriction statutes. See Logan, supra note 188, at 6-7 (summarizing residency restriction laws). For examination of the legitimacy of residency restrictions, see Douard, supra note 188, at 45, decrying residency restrictions as an example of scapegoating; Joseph L. Lester, Off to Elba! The Legitimacy of Sex Offender Residence and Employment Restrictions, 40 AKRON L. REV. 339, 366-67 (2007), who contends that residency restrictions impose a physical restraint under the Mendoza-Martinez test; Logan, supra note 188;
334. Asmara Tekle-Johnson, In the Zone: Sex Offenders and the Ten-Percent Solutions, 94 IOWA L. REV. 607, 610-15 (2009), who contends that residency restrictions are ineffective;
335. Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. U. L. REV. 101, 103 (2007), who analogizes the historical practice of banishment to exclusion zone laws;
336. and Timothy Zick, Constitutional Displacement, 86 WASH. U. L. REV. 515, 562 (2009), who depicts the banishment of sex offenders as the "Geography of Membership."
337. See, e.g., CAL. PENAL CODE § 3000.07 (West Supp. 2009).
338. See, e.g., CAL. PENAL CODE §§ 220, 290, 311.11 (West 2008 & Supp. 2009). Sometimes a court rejects the application of sex offender status to the crime charged. See State v. Robinson, 873 So. 2d 1205, 1217 (Fla. 2004) (disallowing sex offender classification to carjacker who did not know that child was asleep in the car).
339. See, e.g., CAL. PENAL CODE §§ 220, 264, 286, 288(a) (West Supp. 2009).
340. See Dan Morain, Proposition 184 - 'Three Strikes': A Steamroller Driven by One Man's Pain, L.A. TIMES, Oct. 17, 1994, at A3 (revealing that Mark Klaas was trying to defeat Three Strikes because of its breadth and scope).
341. See, e.g., GA. CODE ANN. § 42-1-12(a)(3)(b) (West Supp. 2009) (prohibiting sex offenders from living within 1000 feet of a school, day care center, or area where minors congregate);
342. 720 ILL. COMP. STAT. 5/11-9.4(b-5) (2002) (barring sex offenders from living within 500 feet of a playground, child care centers, or facilities that offer programs for children).
343. See, e.g., DEL. CODE ANN. tit. 11, § 1112 (Supp. 2007) (preventing sex offenders from living within 500 feet of school property);
344. MICH. COMP. LAWS ANN. § 28.733(f) (West Supp. 2009) (defining student safety zones as "1,000 feet or less from school property"); see also Logan, supra note 188, at 6-7 (stating that the average buffer zone in 2006 was 1,000 feet).
345. See, e.g., ALA. CODE § 15-20-26(a) (LexisNexis 2008) (revising buffer zone from 1000 feet to 2000 feet); CAL. PENAL CODE § 3003.5 (West Supp. 2009) (increasing residency restriction to 2000 feet under Jessica's Law); accord A.C.A § 5-14-128(a) (2009); OKLA. ST. tit. 57, § 590A (Supp. 2008); see also Press Release, N.J. Assembly Republicans, Casagrande Calls for Immediate Action on Sex Offender Bills following Court Ruling that Invalidates Local Ordinances (May 7, 2009), http://www.njassemblyrepublicans.com/press-release.php?id=748 (reporting on attempts to prohibit high and moderate-risk sex offenders from living within 2500 feet of schools, child care centers, or parks);
346. Kelly Monitz, Sex Offender Laws Face Challenge, STANDARD - SPEAKER (Hazelton, Pa.), Apr. 4, 2009, at A1 (discussing Alleghany County's attempt to prevent sex offenders from living within 2500 feet of schools, parks and child care facilities).
347. GA. CODE ANN. § 42-1-12(a)(3) (West Supp. 2009) (amending law to include bus stops); accord H.R. 4323, 2006 Gen. Assembly, 116th Sess. (S.C. 2006) (prohibiting certain sex offenders from residing within 1000 feet of bus stops).
348. See LA. REV. STAT. ANN. § 14:91.1(2) (2004) (adding free-standing video arcades to the list of locations).
349. See. H.R. 7621, 2006 Gen. Assem., Jan. Sess. (R.I. 2006) (barring child predators from residing within 500 feet of day cares, schools, public parks, playgrounds, and libraries).
350. The stories of ostracized offenders are numerous. See, e.g., Carol DeMare, Efforts to Protect Kids Often Carry Own Risks, TIMES UNION (Albany, N.Y.), Sept. 9, 2007, at A1 (describing the travails of one offender who moved and was unable, because of residency restrictions, to find housing of any kind);
351. Catharine Skipp & Arian Campo-Flores, A Bridge Too Far, NEWSWEEK, Aug. 3, 2009, at 46 (reporting on displaced persons around the country).
352. See, e.g., Brandon Bain, What If There's No Space? Residency Limits on Sex Offenders May Need to be Adjusted, NEWSDAY (Long Island), Nov. 23, 2006, at A18;
353. John Pain, Miami Sex Offenders Get OK to Live Under a Bridge, CHI. TRIB., Apr. 7, 2007, at 4;
354. see also Jill S. Levenson, Restricting Sex Offender Residences: Policy Implications, HUM. RTS., Spring 2009, at 21-22 (acknowledging that most residents live in proximity to locations prohibited to sex offenders).
355. Michael Beebe, Nowhere to Go, Sex Offenders Come Here, BUFFALO NEWS, Sept. 5, 2007, at A1.
356. See Skipp & Campo-Flores, supra note 266, at 48.
357. Id. at 48-49.
358. Id. at 49.
359. See Bill Ainsworth, Law Creates Homeless Parolees, Report Says: Sex Offenders Limited by Residency Rules, SAN DIEGO UNION-TRIB., Feb. 22, 2008, at A1 (examining the plight of registered offenders to find housing);
360. see also Lyda Longa, Clusters of Shame: Laws Force Some Sex Offenders into Motels, onto Streets, DAYTONA NEWS-J., Jan. 11, 2009, 1A (reporting that many sex offenders live in the woods or in their cars).
361. See Barbara R. Keshen, Sex Offender Residency Limits Don't Make Kids Safer, CONCORD MONITOR, Mar. 6, 2009, at A9 (arguing that stricter New Hampshire residency restrictions will have negative implications).
362. See Larry Sandler, Corrections Officials Speak Against Sex Offender Proposal, MILWAUKEE J. SENTINEL, June 29, 2007, at 6B (expressing concern over the drop in registration in Iowa).
363. No Parole for Sex Offenders Act, H.R. 1375, 111th Cong. (2009).
364. International Megan's Law of 2009, H.R. 1623, 111th Cong. (2009).
365. Protecting America's Children Act of 2009, H.R. 2674, 111th Cong. (2009).
366. Sex Offender Registration Tips Program Act of 2009, H.R. 2612, 111th Cong. (2009).
367. Jenny's Law, H.R. 731, 111th Cong. (2009).
368. See Erik German, Safer Social Networking, NEWSDAY (Long Island), Jan. 30, 2008, at A7.
369. Kevin McDermott, The Battle Over Tracking Sex Offenders: Too Tough?, PANTAGRAPH (Bloomington, Ill.), Mar. 1, 2009, at A1.
370. See JENKINS, supra note 187, at 6.
371. Doe v. Portiz, 662 A.2d 367, 374-75 (N.J. 1995);
372. see also E.B. v. Verniero, 119 F.3d 1077, 1097 n.17 (3d Cir. 1997) ("Heinous crimes have been committed against children after release from incarceration.");
373. State v. Druktenis, 86 P.3d 1050, 1068 (N.M. Ct. App. 2004) ("[S]ex offenders pose a significant risk of recidivism.");
374. State v. Sakobie, 598 S.E.2d 615, 617 (N.C. Ct. App. 2004) ("The purpose of [the state's sex offender registration law] is to prevent recidivism because 'sex offenders often pose a high risk of [reoffense] and . . . protection of the public from sex offenders is of paramount governmental interest."'
375. (quoting N.C. GEN. STAT. § 14-208.5 (2003))).
376. Smith v. Doe, 538 U.S. 84, 103 (2003)
377. (quoting McKune v. Lile, 536 U.S. 24, 34 (2002)).
378. See U.S. Dep't of Justice, Criminal Offender Statistics, http://www.ojp.usdoj.gov/bjs/crimoff.htm# (last visited Dec. 6, 2009).
379. Id.
380. PATRICK A. LANGAN & DAVID J. LEVIN, U.S. DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1994 (2002), cited with approval in Ewing v. California, 538 U.S. 11, 26 (2003).
381. Adam Shajnfeld & Richard B. Krueger, Reforming (Purportedly) Non-punitive Responses to Sexual Offending, 25 DEV. MENTAL HEALTH L. 81, 83 (2006).
382. Id. (positing reasons to reject blanket statements about sex offenders). In HIV/AIDS legislation, one commentator has questioned whether criminal laws of transmission should be reexamined because the medical nature of the disease has changed.
383. See James B. McArthur, Note, As the Tide Turns: The Changing HIV/AIDS Epidemic and the Criminalization of HIV Exposure, 94 CORNELL L. REV. 707 (2009).
384. Erik German, Sex Offenders Face Tighter Rules, NEWSDAY (Long Island), Dec. 5, 2006, at A42.
385. The case of registered sex offender Phillip Garrido is instructive. Despite his registration for rape and kidnapping following his conviction in the 1970s, Mr. Garrido nonetheless was able to kidnap eleven-year-old Jaycee Lee Dugard and hold her for eighteen years undetected, all the while fulfilling his registration requirements. See Monica Davey, Plenty of Data on Sex Offenses, but Registries Are Just a Start, N.Y. TIMES, Sept. 2, 2009, at A1.
386. Sandler et al., supra note 160, at 299 (concluding that statistics do not support a positive impact from registration schemes).
387. Id. at 297.
388. See Levenson, supra note 267, at 21 (reporting studies that find no correlation between where the offender lives and the abuse).
389. See supra notes 65-76 and accompanying text.
390. See supra notes 7-8 and accompanying text.
391. Michael Rothfeld, Prison Cuts Easier Said than Done, L.A. TIMES, Aug. 23, 2009, at A1 (providing statistics on increase in prison population and the budget for incarceration).
392. Editorial, Forcing Their Hands: Budget Crisis Pushes Governor and Lawmakers on Prison Reform, SAN DIEGO UNION- TRIB., May 17, 2009, at F2.
393. Editorial, A Simple Fix: Paperwork Crimes Don't Warrant Third Strikes, SAN DIEGO UNION-TRIB., Jan. 20, 2009, at B7 (citing the report to argue for change in which crimes trigger the Three Strikes Law).
394. LITTLE HOOVER COMM'N, SOLVING CALIFORNIA'S CORRECTION CRISIS, at i (2007), http://www.lhc.ca.gov/studies/185/Report185.pdf.
395. Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820, at *115 (E.D. Cal. Aug. 4, 2009). California has been ordered to reduce its incarcerated population up to forty percent within two or three years in order to relieve severe overcrowding. Id. at *116.
396. See Editorial, Court Order Should Prod State to Begin Prison Reform, ALAMEDA TIMES-STAR (Oakland, Cal.), Aug. 9, 2009, at A14 (linking California's Three Strikes Law to the worsening prison conditions).
397. See, e.g., 154 CONG. REC. S9352 (daily ed. Sept. 24, 2008) (statement of Sen. Coburn) ("We promised everybody we would do it, but have barely funded it at all.");
398. accord 155 CONG. REC. E611 (daily ed. Mar. 10, 2009) (statement of Rep. Smith) ("Unfortunately, many of the programs authorized by the Adam Walsh Act. . . have received insufficient or no direct funding from Congress.");
399. 154 CONG. REC. S4588-89 (daily ed. May 21, 2008) (statement of Sen. Hatch) ("Unfortunately, many of the enforcement provisions in the Adam Walsh Act have not been funded ....").
400. See, e.g., Christian Nolan, GPS Tracking Gets Cautious Endorsement, CONN. L. TRIB., Nov. 24, 2008, at 1;
401. Jennifer Sullivan, Sex Offenders Get Tracking Bracelets, SEATTLE TIMES, Oct. 2, 2008, at B6 (observing that GPS monitoring will improve public safety).
402. See, e.g., Mark Pitsch, Eyes on Sex Offenders: Sometimes, or Always?, WIS. ST. J., Mar. 1, 2009, at A1 (reporting on budget cuts proposed by Wisconsin governor to change nature of monitoring).
403. See Ainsworth, supra note 272; see also Paul Eakins, Offender Law Draws Criticism, LONG BEACH PRESS-TELEGRAM (Cal.), Mar. 13, 2008, at 1A (quoting an official for the State Department of Corrections and Rehabilitation).
404. See, e.g., SONRA, supra note 197, at 52-59 (statement of Emma Devillier, Att'y Gen. of La.).
405. See id. at 74-85 (statement of Ernie Allen, President & CEO, Nat'l Ctr. for Missing & Exploited Children); see also Jolynne M. Hudnell, No State in Compliance with Adam Walsh Act as Deadline Approaches, ASSOCIATED CONTENT, June 21, 2009, http://www.associatedcontent.com/article/1831723/no-state-in-compliance-with- adam-walsh-pg3.html?cat=17.
406. A prime example is the inaction of California lawmakers to respond to the worsening prison crisis, even in the face of reports over the last decade that demanded action. See Editorial, supra note 298 (decrying that legislators received five separate reports from the Hoover Commission explaining the deplorable conditions in prison, yet did nothing in response); see also supra notes 200-05 and accompanying text.
407. See e.g., Wallace v. State, 905 N.E.2d 371, 383-84 (Ind. 2009) (concluding that Indiana's sex offender registration scheme is punitive in nature);
408. see also Editorial, Revisit Jessica's Law, L.A. TIMES, Jan. 19, 2009, at A16;
409. Eric Russell, Court to Shape Sex Offender Registry Debate, BANGOR DAILY NEWS, Feb. 23, 2009, at A1 (commenting on potential changes in Maine's sex offender registry law to distinguish between violent and nonviolent offenders).
410. Wallace, 905 N.E.2d at 379-84.
411. Id. at 377-78.
412. Id.
413. Id. at 383-84.
414. Id. at 384; see also Doe v. Schwarzenegger, 476 F. Supp. 2d 1178, 1179 (E.D. Cal. 2007) (ordering California's Jessica's Law to be applied only prospectively);
415. Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009) (concluding that retroactive application of Massachusetts statute requiring GPS monitoring of sex offender on probation violates ex post facto).
416. Wallace, 905 N.E.2d at 381-82;
417. see also Dowdell v. City of Jeffersonville, 907 N.E.2d 559, 562, 571 (Ind. Ct. App. 2009) (finding that, as applied to this defendant, prohibition for this sex offender to enter park violates ex post facto clause of the Indiana Constitution).
418. Wallace, 905 N.E.2d at 384.
419. See Russell, supra note 310, at A1 (commenting on potential changes in Maine's sex offender registry law to distinguish between violent and nonviolent offenders).
420. Wallace, 905 N.E.2d at 379 ("[A]ssuming without deciding that the Legislature intended the Act to be non-punitive, we conclude its effects are nonetheless punitive as to appellant Wallace.").
421. Id. at 384.
422. State v. Pollard, 908 N.E.2d 1145, 1150-53 (Ind. 2009) (articulating under the Mendoza-Martinez test the reasons that Indiana's residency restrictions were punitive in effect).
423. Id. at 1153 (repudiating the application of residency restrictions to those convicted of Class D felonies in the same manner as those convicted of Class A felonies).
424. Id.
425. Mann v. Ga. Dep't of Corrs., 653 S.E.2d 740 (Ga. 2007).
426. Id. at 741-42.
427. Id. at 742.
428. Id. (comparing jurisdictions that have exceptions in their residency restrictions).
429. Denny Walsh, Sexual Predator Law Again Targeted, SACRAMENTO BEE, Nov. 17, 2006, at A3.
430. See Editorial, Lockyer's Curveball on Prop 83 Baffles Bench, ALAMEDA TIMES-STAR (Oakland, Cal.), Dec. 3, 2006, at Metro 5.
431. Richard Lee Colvin & Ted Rohrlich, Courts Toss Curveballs to '3 Strikes,' L.A. TIMES, Oct. 23, 1994, at A1.
432. Id.
433. See Steve Berry, Cooley's First Year Produces Few Highs or Lows, L.A. TIMES, Dec. 3, 2001, at B1.
434. Editorial, supra note 302 (recounting legislative refusal to take ameliorative action while continuing to sponsor measures).
435. 539 U.S. 558 (2003).