When Does Ordinary Law Enforcement Become a “War on Crime?”
In 1971, Richard Nixon declared the War on Drugs in America. However, the laws enabling that criminal war had been enacted years before Nixon’s speech officially recognized the new conflict. By 1968, Lyndon Johnson had established the Bureau of Narcotics and Dangerous Drugs (the predecessor organization to the Drug Enforcement Agency) to lead the charge against domestic drug use and distribution. The next year, efforts to limit drug smuggling along the Mexican border culminated in Operation Intercept which nearly closed the border entirely. When Nixon took over the Presidency, he signed into law the Comprehensive Drug Abuse Prevention and Control Act which established the categorization system for regulating narcotics. Perhaps the clearest sign that something was afoot even before Nixon’s speech was that the anti-drug-war group, The National Organization for the Reform of Marijuana Laws (“NORML”), was founded to counter the shifting policy priorities of the criminal justice system. By the time of the official declaration, the War on Drugs was already underway.
So, when did the “war” actually start? In an era when foreign wars are not even truly “declared” anymore, perhaps it is not surprising to think that a criminal war might be underway without a specific statement from the federal government. In a paper I have been working on for a while that I will be presenting at the Law & Society Conference, I contend that a criminal war on sex offenders may have already begun. We are, thus, in a period like that in the late 60’s and early 70’s wherein the conflict has started even if the government has not yet acknowledged it.
In reviewing America’s history of criminal wars, I have identified three major characteristics of those conflicts. The first two are essential prerequisites for the war to begin and the third is a sign that it is underway. First, there must be a substantial campaign of myth creation. For the war on drugs, movies like Reefer Madness embodied the misinformation that was propagated to support government policy against drugs. In regards to the nascent war on sex offenders, there are already developed myths of the prevalence of stranger rape, of child molesters lurking in the bushes, that offenders cannot be “cured” based upon faulty recidivism statistics, and of the collective nature of the class “sex offenders.” Second, there must be a significant marshalling of resources in proportion to the perceived threat. For sex offenders, policy innovation has created an environment at the federal, state, and local levels whereby offenders have a significant weight upon them. Lifetime registration, residency restrictions, civil commitment, lifetime real-time GPS monitoring, castration, community notification, and work restrictions are just a few of the policies that have targeted sex offenders. The treatment of offenders seems out of proportion given that previously convicted and released sex offenders are only responsible for a small portion of sex crimes. However, the marshalling of resources is still incomplete. The Adam Walsh Child Protection and Safety Act, the most significant piece of federal sex offender legislation, has not been fully funded to enforce its various provisions. Perhaps with the economic downturn and a new administration, the focus of criminal justice resources on sex offenders might yet dissipate.
Third, and importantly for non-sex offenders, an inevitable result of criminal wars is exception-making to various protected rights. The drug war has arguably limited the rights protected under the First, Second, Fourth, Fifth, Fourteenth, Sixth, and Eighth Amendments. Further, federal authority has expanded well beyond the previous reaches of the Commerce Clause. These “exceptions” to prior doctrine have had long-term implications outside of the drug war. Similarly, the war on sex offenders through registration laws has limited due process rights, changed Ex Post Facto doctrine, and further expanded the federal reach under the Commerce Clause. Residency restrictions have revived banishment as punishment in a way that is detrimental to basic aspects of American democracy. Other punishments have already curtailed First, Fifth, Fourteenth and Sixth Amendment protections.
So, based upon those criteria, I think a strong case that a war on sex offenders has already begun. There is a chance that through court decisions, state noncompliance with the Adam Walsh Act, or failure to fully fund the various sex offender laws, that the war could falter. However, based upon the politics of crime, it seems likely that America has started a new war on the criminal front.