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Abstract:
Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America. Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society.

Sex Offenders, Sex Crimes, Child Molestation, Rape, Residency Restrictions, Banishment, Exclusion Zones

Abstract:
In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe ("Smith") and Connecticut Department of Public Safety v. Doe ("DPS"), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and due process challenges. Three years later, the federal Sex Offender Registration and Notification Act ("SORNA") was passed as part of the Adam Walsh Child Protection and Safety Act. The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of "failure to register" which was punishable by up to ten years imprisonment. Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts' reasoning has been almost entirely based upon superficial, mechanical applications of the Court's decisions in Smith and DPS. This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA. Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, due process, and Commerce Clause grounds.

Sex Offenders, Registration, Notification, SORNA, Adam Walsh Act, Ex Post Facto, Due Process, Commerce Clause

Abstract:
This article addresses four central questions. First, what is the difference between normal law enforcement policy and a 'war' on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act ('AWA') in combination with other sex offender laws triggered a transition to a criminal war on sex offenders? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped? By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

sex offenders, criminal justice, war on drugs, war on crime, Adam Walsh, commerce clause, ex post facto clause, due process, confrontation clause

Abstract:
Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell rape.

This article argues against the commonly held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of rape trials. When a complainant testifies on the stand, she is forced into one of several roles by jury attitudes and defense narratives. These roles fit defense scripts and create a heavy burden of performance on the accusers.

This burden of performance operates to put a complainant's gender identity on trial and results in the incorporation of dangerous societal myths into the fact-finding process. The way by which this process works is analogous to that of disaster pornography. Academics have observed that compassion fatigue has resulted because of overexposure to disaster imagery. Similarly, as society has become saturated with rape narratives, it has become desensitized and dissociated from complainants' stories of rape. Because of this phenomenon, there needs to be a fundamental rethinking concerning rape law reform. Otherwise, success in the fight against rape will be as rare as it has been for the last thirty years.

rape, sexual assault, performance, burden of proof, rhetoric, gender

Abstract:
Beginning with the passage of the death penalty for rapists of children in Louisiana in 1995, a series of similar statutes have been proposed and passed in state legislatures across the country. The Louisiana Supreme Court subsequently upheld the statute despite the United States Supreme Court holding in Coker v. Georgia that capital punishment was unconstitutional for rape. The supporters of the new statute have argued that Coker does not apply to the rape of children. As a result, the political forces in favor of increasing punishment of child molestors have pushed the death penalty as a solution.

The United States has not been alone in pursuing this course. Even as the global trend has been away from using capital punishment, more countries are applying it the crime of rape. This is true even in countries where the death penalty is not allowed for murder.

This article argues that the source of this movement in the United States and around the globe is a revival of Victorian notions that someone is better off dead than raped. The elevation of chastity and purity has led activists, governments, and media to increasingly believe rape is a crime worse than murder. The article cites a range of speakers and writers who have argued that rape is indeed a crime worse than death.

Unfortunately, this trend serves to set back feminism in many ways. The emphasis on virginity and the invoking of Saint Maria Goretti has undermined efforts to help people recover from rape. After all, if it is better to be dead, then suicide is a logical option for many who have been raped. Further, the policy goals of these new statutes are often self-defeating. The end result of capital rape statutes is that criminals have an increased incentive to kill their victims so there will be no witnesses to their crime.

Because of the rhetoric driving these statutes, it is important that the fight against this statues not be confined to the legislatures and courtrooms. The cultural norms underlying these efforts must be attacked and awareness must be raised. Otherwise, the attitudes of patriarchy supporting the capital rape statutes will continue to undermine the goals of feminism in America and around the world.

Gender, criminal law, death penalty, capital punishment, rape, child molestation, feminism, coker, women

Abstract:
In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.

Sex Offender, Registration, Adam Walsh, SORNA, Commerce Clause

Abstract:
On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment.

Death Penalty, Capital Punishment, Rape, Child Molestation, Supreme Court, Military Law, UCMJ

Abstract:
Existing empirical scholarship about judicial activism has focused on the United States Supreme Court, relied upon coding of individual cases as “activist” or “restrained,” and been limited to actions by the judiciary that invalidated legislative, executive, and state actions. This article contends that such limitations yield an extremely narrow and flawed perspective concerning judicial activism and decision-making. In contrast, this article introduces a study of the United States Courts of Appeals that evaluates judicial activism based upon the appellate review of all types of district court judgments using an agnostic measure that does not rely on coding individual opinions as “activist” or “restrained.”

Activism, at its core, is about judges flexing their metaphorical muscles by elevating their judgment above other constitutionally significant actors. By analyzing how individual judges respect both deferential and non-deferential standards of review in reviewing district court judgments, this study captures, in the aggregate, the degree to which a judge privileges his or her judgment. The study utilizes a unique dataset that includes 30,714 judicial votes from 2008 in all eleven numbered regional circuits in cases in which a standard of review was applied. The study finds that there is no evidence to support a statistically significant correlation between activism of judges and: (1) the political party of the appointing President; (2) the particular President who appointed the judge; (3) the political composition of the Senate at the time of appointment; (4) the ideology of the judge based upon common space scores; and (5) whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual judges and Courts of Appeals vary substantially in their levels of judicial activism in a statistically significant manner. Further, the article explores in greater detail the judicial activism measurements of four notable jurists: Judges Frank Easterbrook, Richard Posner, (now Justice) Sonia Sotomayor, and J. Harvie Wilkinson III.

judicial activism, empirical, courts of appeals, federal courts, judicial restraint