I had planned to have this book review up a day ago, but my schedule made that impossible. The review is very lengthy for a blog post, so if you are just looking for the conclusion, read the next paragraph and then scroll down to the last paragraph.
Eric Janus's Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State explores the incredible changes over the last twenty years in the criminal laws designed to confront the perceived crisis of "sexual predators" in America. With its red cover and bright yellow print, you might think Failure to Protect is one of many sensationalist books on the subject of sex offenders. That is not the case. I guess that these days even university presses (in this case, Cornell's) need to get the book browser's attention. Failure to Protect's tone is somewhere between your average law review (academic and dry) and a well-written media story about sex offenders (captivating, but often lacking factual and empirical support). It captures some of the best of both styles and represents a powerful argument against the the fear-inspired legal crackdown on "sexual predators."
To start, Janus identifies the population that his book is about: "sexual predators." Predators are the perceived sex offender recidivists who commit the worst of sexual offenses and often murder as well. These sex offenders are actually very rare, but they are the focal point of most media accounts related to sex offenders. They are also the population that is targeted by the various sex offender laws that have been adopted over the last two decades.
The major changes in the time frame about which Janus is writing were the advent of sex offender registries, community notification, and civil commitment laws. Janus traces the adoption of these statutes to high-profile crimes committed by sex offenders. Minnesota and Washington independently led the trend toward civil commitment for offenders released from prison because of particularly brutal crimes committed by released sex offenders in each state. Similarly, registration laws are usually referred to as "Megan's laws," because the New Jersey law creating the registry was inspired by the murder of Megan Kanka. Megan's laws also normally include community notification provisions to ensure the registry has the effect of keeping the community informed of sex offenders within their neighborhoods.
As a historical aside, Janus explores the older, often forgotten history, of sex offender laws. In the 1930's, many jurisdictions adopted sexual psychopath laws which put sex offenders in mental institutions. These prior laws were targeted at the worst of offenders. After forty years of these laws, they were declared to be a complete failure by the group of psychiatrists designated to research the efficacy of sexual psychopath laws. As a result, the laws fell into strong disfavor in the late 1970's and early 1980's. However, the lessons of these prior failings were forgotten only a decade later when Minnesota and Washington adopted their civil commitment statutes.
A notable aspect of these civil commitment statutes for Janus is that the laws focus entirely on preventing crime instead of punishing offenders. Offenders suffer an extreme loss of liberty, often for life, even though they have served their criminal sentences. The result is a major theme in Failure to Protect: sex offender laws are aiding the development of a preventive state.
Janus also identifies a Kafkaesque double-bind that many offenders find themselves in during civil commitment hearings. If the offender says there is a risk he (or rarely, she) will re-offend, then that supports the finding to commit the offender. However, if the offender says there is no risk of re-offense, then that is considered as a lack of insight and is counted as a risk factor. While I think Janus is right that these hearings have many defects like he describes, I think that has more to do with the hastily-created statutes than anything inherent to the practice of civil commitment. Certainly, many of the problems that Janus identifies could be resolved through increased procedural protections at the commitment hearings. Nonetheless, Janus's arguments about the problems raised by these hearings, even with adequate procedural protections, are powerful.
Because this is a law-focused book written by a law professor, the book necessarily traces the various court battles about sexual predator laws. I won't replicate Janus's retelling of these stories here, but I should note that I think Janus does an excellent job of integrating the legal cases into the larger narrative about the culture of fear and panic surrounding sex offenders. Similarly, Janus provides a review of the statistical and empirical evidence about sex offender populations and recidivism. Here, I think Janus could have used a larger literature review with a little more detail to really drive home some of his points. However, it is hard to cover everything thoroughly in a single book tackling the incredible changes that have occurred in relation to sexual predator laws.
In the next section, Janus engages in a cost-benefit analysis of the different sex offender laws. I think this is one of the most valuable sections of the book. Janus assesses the real economic and other costs of sex predators laws versus the claimed benefits. Janus makes a strong argument that governments are sacrificing quite a bit, financially and otherwise, to achieve very little. One can argue that when it comes to the welfare of children, no cost is too high, but Janus shows just how little these laws matter and in many cases how they are counterproductive.
Janus also traces the trends in sex offender laws to the larger culture wars occurring in America. This is the section of the book where I disagree more significantly with some of Janus's conclusions. I think that while sexual predator laws fail for many reasons that feminists identified with rape laws, that the forces driving sex offender laws are very different than those fighting other cultural battles. This is not to say right v. left divisions don't color these battles, as virtually everything in our heavily politicized culture can be connected in some way to the culture wars. However, I think Janus's conclusions connecting sex offender laws to a conservative agenda are a bit strained. One of the crucial aspects of sex offender laws, in my opinion, that makes them so dangerous is that they appeal to both of the major political parties in the United States. Despite my substantive disagreement, I think Janus's arguments in this section are interesting and would appeal to anyone who is not as familiar with the larger political battles about sexual violence. I also think this section in the book is unnecessary to establish its general themes and so my disagreement doesn't detract in anyway from my opinion of the arguments in the book overall.
In the last few sections of the book, Janus really pushes his major messages about sexual predator laws. Janus sees a possible emergence of a preventive state of which sex offender laws are either an important cause or symptom. Either way, the emphasis on keeping offenders detained or isolated from society, but not in prisons, is a significant development that Janus feels undermines basic principles in American criminal justice. This is when Janus is at his most effective and I think he makes a compelling case concerning how radical these laws are in relation to America's history and conception of justice.
So what does Janus propose? Does he think we should go soft on sex offenders? Janus actually answers this last question explicitly in the opening of the book when he writes, "I do not advocate going easy on sexual violence or sex offenders. Rather, I present a brief for being hard on sexual violence by being smart about it." (p. 9) Given the enormous cost of enforcing sexual predator laws, Janus believes the resources would serve a more valuable function in treatment, education, and a public health approach to sexual violence. In some cases, stronger criminal penalties may be warranted as well. Each of these proposals is supported by strong evidence and Janus does a good job of showing how poorly America is allocating its resources in its crackdown on sex offenders.
Ultimately, I think Janus's book does a fantastic job of doing what it sets out to do: it makes a compelling case against the growth of sexual predator laws in America and supports a public health approach to sex offenders. It is interesting, though, that because of the rapid pace of change in this area of law, Janus's book become partly historical the moment it was written. While civil commitment continues to grow in states like New York, the battles over registration and notification are pretty much over. The newer frontiers are residency and work restrictions as well as more extensive GPS monitoring. These are developments that Janus just couldn't address in detail in his book. However, the arguments Janus makes in Failure to Protect apply just as well to these developments as well. So, while there is a recent history element of Janus's work, his legal, ethical, and economic arguments continue to resonate in current debates about sex offenders. As a result, I highly recommend this book to anyone who has interest in the subject of sex offender law.