Radical Right Reality Check

The far right’s latest misleading rhetoric on criminal justice

By Rob Schofield

One of the greatest challenges to sound, democratic government is the tendency of legislative bodies to be swept up in the tide of public emotion and to act based upon what sounds like good policy rather than what actually is good policy. A glance at the period that followed September 11, 2001 and the enactment of the disastrous “USA Patriot Act” (in which few if any members of Congress even had the opportunity to read the massive new law before it was rammed through is the classic modern example).

In such instances, even ordinarily thoughtful lawmakers who know better can be caught up in the opinion tidal wave and opt for the political safety of going silently along with the flow rather than the politically risky course of public opposition.

At the state level, no issue more frequently lends itself to this brand of counterproductive, “lemmings to the sea” policymaking than criminal justice. As is evidenced by the horrendously costly and disastrously ineffective “war on drugs,” it is the nature of public fears and macho propaganda that American politicians are loath to take any stands that might allow them to be portrayed as “soft on crime.” This is true for many lawmakers even if it means voting for repeated penalty increases that they know will have no measurable impact on society – other than to drive up already skyrocketing prison costs.

Sex crimes are a topic that is particularly susceptible to this pattern – especially if the victim is a child. Given the understandable public revulsion at such offenses generally, it is virtually impossible for lawmakers to have a thoughtful public discussion regarding legislation that promises to “get tough” on sex crimes committed against minors – especially if politically motivated proponents are willing to whip up public sentiment and employ a “with us or against us” lobbying approach that shuns sober analysis and refuses to acknowledge the possibility of subtleties and/or shades of gray.      

“Jessica’s Law”

The latest example of this brand of advocacy has been on display recently in the efforts of some advocates to gain adoption of a proposal they call “Jessica’s Law.” The proposal seeks to honor the memory of a young girl tragically murdered in Florida a few years ago by toughening criminal sentencing laws related to sex crimes.

One of its most visible supporters is right-wing TV loud mouth Bill O’Reilly. According to O’Reilly’s website:

“We have investigated all 50 states to determine which ones are tough on sexual predators and which ones treat these criminals with kid gloves. You can find out where your state ranks elsewhere on this web site. If your state is soft or noncommittal, I urge you to write your Governor, who is paid by YOU.” 

The site lists North Carolina as a state with an “inconclusive” approach to the issue and links those who click on the North Carolina portion of a U.S. map directly to a pre-written letter to Governor Easley in support of the legislation.

During the 2007 session of the North Carolina General Assembly, several members of the House introduced a measure (House Bill 933) that they called the “Jessica Lunsford Act for North Carolina.” The bill passed the House in the waning days of the session, but was not taken up in the Senate.      

Recently, supporters of the legislation, including at least one local right wing think tank, the JW Pope Civitas Institute, attempted to bolster the bill’s prospects in 2008 at a rally outside of Charlotte. According a report in the Charlotte Observer, the Civitas spokesperson made the following statement:

“When all the neighboring states pass this legislation and we don’t, we really become a magnet for sex offenders.”

Reality Check

The unspeakable crime that befell Jessica Lunsford is a tragedy that deserves significant public attention. To the extent that state governments had or have laws on the books that permit sick people like Jessica’s murderer to prey on children when they should be incarcerated or closely monitored, there is no doubt that lawmakers should act swiftly.

Having said this, it does no good for state officials to delegate their lawmaking responsibility to Bill O’Reilly or the Pope Civitas Institute. The crafting and enforcement of criminal justice laws is an extremely complex business that involves more than simply picking a number out of the air (e.g. “25 years to life”) and/or slapping the name and of a prominent victim on a proposal and making it law.

Real and effective criminal justice laws are most often the result of a complex calculus that involves a thorough vetting process amongst experts from many disciplines. This is especially true with an area like sex crimes, in which, almost by definition, all of the perpetrators have some form of mental illness.       

In 2006, North Carolina undertook just such a process. State lawmakers passed a comprehensive, bi-partisan bill entitled “An Act To Protect North Carolina’s Children/Sex Offender law Changes.” The new law made numerous changes and updates to state law on this very topic, including sex offender registration with local law enforcement officials, satellite-based sex offender monitoring, and many other topics. Some provisions of the law only went into effect in 2007.

These changes came on top of state sentencing guidelines that already assure long prison terms for anyone convicted of sexual assault in North Carolina. Under current law, for instance, convicted rapists face a mandatory sentence of anywhere from 12 to 40 years followed by another 10 years to life of registration and monitoring.  

The challenge in crafting such laws – as with all criminal penalties of course – is to mete out severe punishment and protect the public while at the same time recognizing that not all crimes or criminals are the same. As horrible as both crimes might be, for example, there is a difference between a 40-year old, three-time offender who commits a violent rape and a mentally disturbed 18 year-old, first –time offender who engages in sexual relations with a 12-year old neighbor.

Unfortunately, advocates like O’Reilly and the Civitas spokesperson (a person who ran the noxious congressional campaign of Vernon Robinson) do not seem interested in acknowledging the complexities of such matters. They would rather use scare tactics and rhetoric to promote a cruder bill that both mandates a prison sentence of 25 years to life followed by 30 years of monitoring for those who ever manage to gain release and ups penalties across-the board for several penalties unrelated to the Jessica Lunsford tragedy.

Hence the outrageous claim that North Carolina would be come “a magnet” for sex offenders if it fails to adopt their proposed legislation – as if someone ill enough to commit such an offense is going to weigh out the sentencing and satellite monitoring schemes of North Carolina and its neighboring states prior to acting.     

Going Forward

In the months to come it seems likely that the O’Reilly and Civitas types will pull out all the stops to push this ill-conceived bill – especially given the current lack of voter appeal for so many other traditional components of the far right agenda. Let’s hope that responsible state lawmakers and policymakers of both parties stand up to the bullying tactics and stick to the thorough and common sense approaches they used in crafting current law.

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This entry was posted on Friday, January 18th, 2008 at 11:01 am and is filed under Radical Right Reality Check. You can follow any responses to this entry through the RSS 2.0 feed.