Ohio State Journal of Criminal Law

The new issue is out with a wonderful sex-crimes-focused lineup of articles. Wayne Logan, who does excellent work in this area put together a symposium of three very important articles.

The first article is Virginia Davis and Kevin Washburn, Sex Offender Registration in Indian Country, 6 Ohio St. J. Crim. L. 3 (2008). This piece addresses some of the thorny issues raised by the application of registration laws to Native America. While the issues are limited geographically, the article should be read by anyone interested in registration issues more broadly.

The second piece is Eric S. Janus and Brad Bolin, An End-Game for Sexually Violent Predator Laws: As-Applied Invalidation, 6 Ohio St. J. Crim. L. 25 (2008). You might remember Janus as the author of the excellent book Failure to Protect. The article is focused on the use of civil commitment as a means of regulating sex offenders. Janus and Bolin suggest an interesting way of constructing the legal challenge to such laws that offers insight surely valuable to practitioners and scholars alike.

 

The final symposium piece is by the editor himself: Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim. L. 51 (2008). Logan's article focuses on an issue near and dear to my heart: whether the federal government has any role in the construction of sex offender policy. It's a very long piece and I've only made my first quick read-through of it. I think it is an absolute must read for anyone concerned with federal sex offender policy. Here is a taste (which is the conclusion to the article):

Federal concern over the perceived national menace of crime is of course not new. What is new, however, is the federal government's resolve to impose a national solution and the lack of any meaningful countervailing resistance to it. Just as the U.S. has increasingly moved to nationalize and render more uniform heretofore disparate state approaches to commercial law, such as products liability, and environmental policy, it has done so with criminal justice policy—in particular that relating to sex offender registration and community notification. That the shift has occurred via federal use of the "Trojan horse" of conditional spending power authority, rather than through the more controversial method of Commerce Clause authority, does not alter the outcome. The nationalization of registration and notification, systematically achieved by the federal government over a fifteen-year period, has had major effect on constitutional federalism and the states themselves. It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here. However, given the high political salience and potency of crime control more generally, and the disdain felt for criminal offenders, this might well not be the case. If indeed the essence of federalism lies, as William Livingston asserted over fifty years ago, "not in the institutional or constitutional structure but in [the attitudes of] society itself" then the transformation recounted here may well have broader implications for other criminal justice policy areas in the years to come.

Outside of the sex offender policy symposium, there is an article about Kennedy v. Louisiana: Heidi M. Hurd, Death to Rapists: A Comment on Kennedy v. Louisiana, 6 Ohio St. J. Crim. L. 351 (2008). Given all the other good stuff in the issue, I haven't even had a chance to look at this last piece, but I'm looking forward to it.

I applaud the efforts of the Ohio State Journal of Criminal Law, Doug Berman, and Wayne Logan in putting together such a valuable contribution to the scholarship regarding sex offender laws. I hope everyone checks the articles out.

Comments

[Daniel]

I agree/ I am working my way through it too.

"It may be that the unique social and political dynamic inspired by sex offenders is unique, limiting the broader implications of the story chronicled here."

That MAY be the case but I don't think so. It's easy to forget that rum used to be called "Demon Rum" and was vilified every bit as much as sex offenders are today. When they said demon they meant it; it wasn't just hyperbole.

[lawdoc]

The article on civil commitment by Janus and Brolin is excellent in its criticism of how statutes may appear to be constitutional and are actually unconstitutional in their application. The article aptly points out how fact and law are conflated to obscure what is, in effect, unconstitutional. The stakes are quite high in civil commitment, but some of the ideas apply to other areas of state civil regulation. This includes such areas as professional licensure, substantiation of abuse, enviromental regulation, and worker's compensation.