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Psychology, Public Policy, and Law 1998, Vol. 4, No.

1/2, 452-467

Copyright 1998 by the American PsychologicalAssociation, Inc. 1076-8971/98/$3.00

MANAGING THE MONSTROUS: Sex Offenders and the New Penology

Jonathan Simon
University of Miami School of Law Sex offenders were once taken to be exemplary of the underlying psychopathological basis of crime. Today their significance is very different. Rather than occasions for testing our modernist faith in scientific rationality, they have become a lesson in the intransigence of evil. Recent laws aimed at addressing sex offenders reflect a transformation in the penal process that has been called the "new penology." This new penology sees crime as a problem of managing high-risk categories and subpopulations, not normalizing individuals to community norms. Kansas v. Hendricks and recent cases upholding the constitutionality of " M e g a n ' s L a w " open a window into the operation of the new penology and reveal the degree to which its features are largely immune from constitutional limits established by judicial review.

I. Introduction The U.S. Supreme Court often writes as if the social meaning of punishment were exhausted by the traditional purposes of criminal sanctions: retribution or vengeance, deterrence (specific and general), reform, and incapacitation. 1 In this view, the power to punish is marked by the appearance of one or more of these purposes, either expressly by the legislation or implicitly in the judgment of a court. Seen in this way, the passing of recent decades has witnessed rapid cycles of preference among these purposes. Rehabilitation was the cutting-edge philosophy of the late 19th century. As late as 1968, the President's Commission Report (1967) 2 on crime policy emphasized improvements in rehabilitation as the central task in the future of corrections. By the early 1970s, Francis Allen (1981) 3 could write about the decline of the rehabilitative ideal. In the 1980s retribution and deterrence seemed to be back, while in the 1990s incapacitation has emerged as the primary purpose. In a series of recent papers, Malcolm Feeley and I have argued that a different kind of historical change is unfolding in our contemporary penal practices that cuts across many of these philosophical differences. 4 What we have described as the

Correspondence concerning this article should be addressed to Jonathan Simon, University of Miami School of Law, P.O. Box 248087, Coral Gables, Florida 33124-8087. Electronic mail may be sent to j simon
ISee, e.g., United States v. Ursery, 116 S.Ct. 2135 (1996). 2presidential Commission on Law Enforcement and the Administration of Justice, (1967). The Challenge of Crime in a Free Society. Washington, DC: U.S. Government Primes Office. 3FRANCISA. ALLEN,The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (1981). 4Malcolm Feeley & Jonathan Simon, The New Penology, 30 Crim. 449 (1992); Malcolm Feeley & Jonathan Simon, Actuarial Justice: Power~Knowledge in Contemporary Criminal Justice, in The Future of Criminology (David Nelkin, Ed., London: Sage) (1994); Jonathan Simon & Malcolm Feeley, True Crime: The New Penology and Public Discourse on Crime in Punishment and Social Control: Essays in Honor of Sheldon Messinger 147 (Thomas G. Blomberg & Stanley Cohen, Eds., New York: Aldine de Grnyter) (1995).




"new penology" is marked more by changes in the targets, strategies, and discourses of the penal establishment than by purposes in a formal sense. These shifts are discontinuous and not always all present, but three broad patterns have emerged as defining characteristics of the new penology. First, the new penology abandons the priority of the individual in penality. From the end of the 18th century at least, Anglo-American and Continental criminal law were increasingly focused on the individual offender, albeit in very different postures. The target was sometimes the responsible agent behind the heinous act; at other times, it was the delinquent individual, whose later crimes were thought to be foreshadowed in minor transgressions. By the 20th century, the truth of crime was thought to lie in the personality and social conditions of the offender.5 This meant that knowledge produced at the level of the person was crucial to truth of crime. 6 Today this priority of the individual in both knowledge and power is being displaced in favor of groups, categories, and classes. In some senses, this returns to a concern with "dangerous classes" that preoccupied criminal justice in the 19th century. What distinguishes the new priority of groups is the dominance of statistical over characterological conceptions of group boundaries. In this sense, justice is becoming increasingly actuarial. 7 An important dimension is the priority given to the language of risk in the administration of justice. Risk of recidivism has long been a concern in criminal justice decision making. In recent decades, however, the role of risk has intensified and become more formal and more associated with statistical forms of inference. An important landmark in the emergence of risk was the rise of preventive detention for arrestees in the early 1980s. 8 Since then, there has been considerable talk about the role of risk prediction in criminal sentencing but no formal adoption. Administrative decisions, however, by both law enforcement (e.g., drug courier profiles) and prison administrators (custody level assignments) are increasingly done with an explicit focus on risk. Unlike the federal pretrial detention system, which relies on more traditional judicial case-by-case decision making, risk in these settings is determined using statistically selected risk factors with at least a theoretical potential to be validated using databases of past experience. A second shift has taken place in the master narratives of penology: Subjects formerly defined as aberrant and in need of transformation are now seen as high-risk subjects in need of management. The rehabilitative ideal was a development of the 20th century, but transformative and reformative goals of punishment have longer roots going back to the Enlightenment reformers of the 18th century and even earlier to cannon law. It is not that transformation has disappeared as a goal, but increasingly it amounts to little more than gestures, whereas the central focus has increasingly come to be on managing members of a population likely to be in and out of penal custody for a large portion of their lives. Of course, from the beginning of the use of imprisonment as a major response to serious crime in the 18th century, the problem of controlling a concentrated
5See, DAVID GARLAND, PUNISHMENTAND WELFARE (1985); DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE(1980). 6See, JONATHANSIMON, Ghosts of the Disciplinary Machine: Lee Harvey Oswald, Life-History, and the Truth of Crime, 10 YALEJOURNALOF LAW AND THE HUMANITIES75--113 (1998). 7See, FEELEY& SIMON,Actuarial Justice: The Emerging Criminal Law, supra note 2. 8Approved by the Supreme Court in United States v. Salerno, 481 U.S. 739 (1987).



population of offenders has made managerial concerns important. These concerns always operated as a subtext to the official goals of correction and normalization. 9 What is distinctive today is the degree to which the managerial task has become primary and explicit. Latent in this managerialism is a growing sense that little or nothing can be done to change offenders. The optimism that informed 18th and 19th century penal theorists has been replaced by a pragmatic pessimism that assumes little effectiveness to efforts at transformation. This pessimism reflects broader social shifts in both social conditions and the production of knowledge. The growth of a permanent poverty class in American cities, often referred to as an "underclass," feeds the perception that transformational strategies aimed at offenders are both futile and useless. They are seen as futile because if nonoffenders among the poor fail to follow incentives for economic advancement, then it is doubtful that offenders will respond to incentives to refrain from crime. They are seen as useless, because if mainstream society cannot or will not absorb the honest poor, there is little need to transform offenders. The abandonment of transformational goals also reflects the broad crisis of confidence that has struck the human sciences since the 1970s. The pessimistic sense that expert-guided interventions in the lives of individuals for social improvement are unlikely to succeed is a common one today. The failure of correctional treatment, the infamous "nothing works" conclusion, is practically the paradigm example for such skepticism. This epistemological crisis has been particularly hard on those sciences that have made the individual personality the center of study, like psychology--sciences that were long figured to be central supports for the old penology as well as much of 20th century education, labor, and welfare policy. A third major shift has been the displacement of evaluative norms rooted in real communities by operational parameters rooted in the penal system itself as evaluative guides, l Criminal justice decision making (e.g., pardons, paroles, and probation) were traditionally attuned to signals from those in the community in a position to fear or control the offender, including employers, family members, and neighbors. In recent decades this community focus has lessened. For much of the 20th century, the goal of progressive reform was precisely to shift decision-making influence toward professionals and away from ordinary citizens. Since the 1970s, however, the diminishing role of community members has been taken by internally generated and largely technocratic forms of knowledge, such as drug tests and compliance with administrative rules. 11 The new penology is only one important determinate of criminal justice practice today. It describes ways of thinking and responding most evident among penal managers, their staffs, and the penumbra of academic and policy workers involved in the production of penal discourse. Public and political discussion of

UNDERCLASS (1993) (Chicago: Universityof Chicago Press). lqn policing, the new rhetoric of community policing seems to suggest a shift in the opposite direction toward prioritizing community concerns. But many features of the new policing, when examined more closely, really involve internally generated information, like New York's celebrated "ComStat" strategy, in which units are regularly evaluated in their ability to achieve quantitatively set goals.



penality has been pulled in a very different direction, indeed one that clashes strikingly with the new penology. 12 This public discourse emphasizes what can be called "populist punitiveness." The death penalty, "three-strikes-and-you're-out" laws, and mandatory sentences for drug dealing all reflect a new primacy of vengeance seeking. For example, recent opinion surveys have found that supporters of the death penalty are more likely to cite vengeance and retribution as justifications than a decade ago, when utilitarian objectives like deterrence were the prime justifications cited. 13 The politicians, bolstered by what is taken to be nearly universal public support, compete to propose ever more severe responses to criminal behavior. The result is sanctions that have more sound-byte appeal than penological justification. Although the new penology is concerned with high-risk populations, populist punitiveness is as obsessed as ever with dangerous individuals. 14Whereas the new penology treats crime as a normal fact of life to be managed, populist punitiveness insists on a zero-tolerance approach and believes that with severe enough sanctions, crime can and should be completely eliminated. Although the new penology speaks the language of managerialism and systems theory, populist punitiveness remains rooted in normative judgments about aberrational evil. For the most part, the new penology and populist punitiveness coexist through a tenuously maintained acoustic divide. Politicians pass laws expressing populist punitiveness while relying on the managerial skill of penal professionals to keep the costs down by applying the techniques and strategies of the new penology. However, when the public learns that a new penology-minded bureaucracy often moderates its punitive mandates, the response is generally one of falling back on punitiveness. One area in which the two have found some public correspondence is in the theme of incapacitation. High overall rates of recidivism have helped deflate the appeal of deterrence arguments (because so little rehabilitation is attempted, the results can do little further damage to that ideal). The prison is increasingly seen as capable of holding predatory offenders away from a vulnerable public for at least some time. This has not so much mitigated the appeal of punitiveness and vengeance as much as complemented it. Long prison sentences for repeat offenders will not only punish but also provide some relief against those whose very prison careers have come to document their incorrigibility. For penal administrators and planners, incapacitation provides a public justification complementary to their own technocratic discourse and group management strategies. Recent sex offender laws provide a compelling picture of how the new penology and populist punitiveness are being merged in the creation of public policy. In the old penology, with its focus on transforming aberrant individuals, the sex offender, along with the alcoholic, the mental defective, and the like, provided central examples of how crime was rooted in individual deviation. Treatment and rehabilitation coexisted with incapacitation and preventive measures like sterilization, but all of these presupposed a penology equipped with expertise acting
12See SIMON FEELEY, True Crime, supra note 2. 13See generally Phoebe C. Ellsworth & Samuel R. Gross, Hardening of the Attitudes: Americans' Views on the Death Penalty, 50 JOURNALOF SOCIALISSUES 19-52 (1994). 14Indeed, laws like California's 3-strikes Law have been stimulated by specific well publicized crimes.



through individualized judgment. These exemplary figures also helped justify the penetration of psychological and psychiatric professionals into the criminal justice system. In the 1960s and 1970s, the introduction of due process norms began to strain what was by then called "the medical model" by exposing the practical difficulties of implementing many of these ideals. The new generation of sex offender laws represents a shift toward the new penology combined with a strong appeal to populist punitiveness. This takes the form of managerialism (i.e., the divorce of institutional objectives from public goals) combined with gestures of identification with populist sentiments evoked by sex crimes. The new penology is generally agnostic toward treatment. The goal is waste management. Populist punitiveness is exceedingly hostile toward medicalization. The result is an important transformation of the sex offender from the most obvious example of crime as disease back to an earlier conception of crime as monstrosity. Sex offenders are our modern-day monsters, producing tidal waves of public demand. What is interesting about the new sex offender laws is precisely that they must merge appeals to this populist response while enabling state bureaucracies themselves, ever more technocratic in orientation, to actually implement the policies. Recent decisions by the U.S. Supreme Court and the Supreme Court of New Jersey have opened a window into the new-style sex offender laws and their constitutional significance. In K a n s a s v. H e n d r i c k s (1996) 15 the Supreme Court per Justice Thomas upheld the Kansas S e x u a l l y Violent P r e d a t o r Act, 16 a law permitting the civil commitment of "violent sexual predators," including those who have already served their complete prison sentence for the underlying crimes. In D o e v. P o r i t z 17 the Supreme Court of New Jersey upheld M e g a n ' s Law, 18 a statute mandating a system of registration and selective community notification of convicted sex offenders. In more recent decisions, the Supreme Court of New Jersey has reviewed the administrative structures that have been developed to implement the law. 19 This article overviews the way the new penology and populist punitiveness are at work in the new style of sex offender laws exemplified by Kansas' Violent Sexual Predator Act and New Jersey's M e g a n ' s L a w . It also offers a critique of the current terms by which this regime shift has been constitutionalized. Part II of this article describes the preventive detention law upheld in H e n d r i c k s . Part HI describes the new community registration laws enacted by many states under the title "Megan's Law" in New Jersey. Both laws are fairly typical of statutes adopted in many states. The conclusion offers a critique of the terms under which the new penology is being constitutionalized in such cases and a plea for courts to recognize the distinctive features of contemporary penal practices in contrast to presuming continuity with the traditional goals of punishment. ~517S.Ct. 2072 (1996). 16SexuallyViolent Predator Act, Kan. Stat. Ann. Section 59-29a01 et seq. (1994). 17142N.J. 1 (1995). lSIn October 1994, the New Jersey Legislature enacted a group of eleven bills, collectively known as Megan's Law. In re C.A., 146 N.J. 71 (1996). The two laws that have been litigated in New Jersey are the Registration Law that requires certain sex offenders to register with law enforcement, N.J.S.A. 2C:7-1 to 7-5, and the Community Notification Law, N.J.S.A. 2C:7-6 to 7-11. 19In re C.A., 146 N.J. 71 (1996); In re G.B., 147 N.J. 62 (1996).



II. Kansas v. Hendricks In Kansas v. Hendricks (1996), 2 the U.S. Supreme Court upheld the Kansas Sexually Violent Predator Act. A majority opinion by Justice Thomas reversed the holding by the Kansas Supreme Court that the Act violated Hendricks' right to due process because it made "mental aberration" a predicate finding for confinement, rather than "mental illness," with its implication of psychiatric and psychological expertise. Justice Thomas, writing for a majority of six, upheld the statute. He found that the concept of "mental abnormality" appropriately limited the range of persons subject to confinement to those whose previous acts of sexual violence were combined with an objective mental characteristic supporting an inference of propensity to future crimes of sexual violence. The majority opinion also rejected Hendricks's cross-claim that the act violated the Constitution's double jeopardy and ex post facto prohibitions. Justice Thomas found that the Act was neither intended to be punitive nor was so punitive in effect as to constitute an additional term of punishment. The Kansas Act reflects the transformation of penal practice along the lines of the new penology and populist punitiveness. The Court's formation of the constitutional problems largely elides the significance of this shift. Under the old penology, the role of mental illness and psychological and psychiatric expertise was prominent throughout the penal law. Prisons were called "correctional" facilities, and rehabilitative programming was considered the key to the penal experience and especially parole. The limits of the prison as a rehabilitative environment, and of criminal law as a medical instrument, were posed by the problem of mentally ill offenders. Under some circumstances the state could continue to confine such an offender and provide more treatment in a theoretically more appropriate environment through the use of civil commitment laws. As recently as 1992 the U.S. Supreme Court seemed to affirm the centrality of the medical model to this kind of quasi-penal confinement by striking down civil commitment for an offender deemed dangerous but not mentally ill. 21 In Hendricks, both the majority and the dissent agreed that mental illness per se was not a due process prerequisite for confining dangerous sex offenders, at least as long as some mental "abnormality" provided an objective basis for distinguishing such inmates from others considered likely to commit future crimes of sexual violence. From Individual to Aggregates The target of the Kansas statute is explicitly framed in terms of dangerous categories or classes of persons. The Act's preamble names its target as a subpopulation or group rather than a type of behavior or form of individual aberration. A small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general civil commitment statute] .22

2117 S.Ct. 2072. 21Foucha v. Louisiana, 504 U.S. 71 (1992). 22KAN.STAT.ANN. 59-29(a)(01) (West Supp. 1994); quoted in Kansas v. Hendricks, 117 S.Ct. at 2077.



The Kansas procedure, to be sure, appears to solicitously protect the individual by insisting on both a probable cause finding by a judge and ultimately a finding by a jury that the defendant was, in fact, a sexually violent predator. That trial is to include examination by mental health professionals. But these procedural gestures toward the individual cannot change the fact that the underlying inquiry is rooted in a group concept. Once the jury found Hendricks a "sexually violent predator," the conclusion was foregone that he would be transferred to the custody of the Secretary of Social and Rehabilitation Services. 23

From Normalization to Management

The Act further defines its goals as ones of management rather than transformation. "The Kansas Legislature enacted the Sexually Violent Predator Act in 1994 to grapple with the problem of managing repeat sexual offenders" (italics added). 24 Indeed, the premise of the whole legislation is that managing sexual offenders under existing laws is difficult precisely because of the inapplicability of normal treatment assumptions to the Act's "sexual predators."
The legislature further finds that the sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure . . . . Is inadequate to address the risk these sexually violent predators pose to society. 25

From Social Norms to Systems

The displacement of decision-making criteria grounded in social judgments by technocratic system imperatives is one way of understanding the difference between "mental illness" and "mental abnormality" at the heart of the Court's due process analysis. The former is a concept grounded in sources of expertise relatively autonomous of the penal system, whereas the latter appears to be a far more flexible concept shaped by the system's own knowledge of the offender. Indeed, Justice Kennedy's concurrence underlined precisely this problem by worrying out loud that further implementation might show that the concept of "mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified." 26

Populist Punitiveness
The Kansas Act also reflects the role of sexual offenders as the new monsters haunting the American public. The majority opinion fully accepts the state's interpretation of the act as an act of risk management. But the very centrality of the term predator, which has no foundation in either human science or criminal jurisprudence, indicates the implicit reference to popular emotions, including fear and the desire for vengeance. Combined with the shift from mental illness (a scientific term) to mental abnormality (suggesting a normative evaluation), use of a term like predator marks a shift in the realm of that which is not part of normal

23Kansas v. Hendricks, 117 S.Ct. at 2077. 24KAN. STAT.ANN. 59-29(a)(01) (West Supp. 1994); Kansas v. Hendricks, 117 S.Ct. at 2076. 25KAN. STAT.ANN. 59-29(a)(01) (West Supp. 1994); Kansas v. Hendricks, 117 S.Ct. at 2077. 26Kansas v. Hendricks, 117 S.Ct. 2072, 2087, Kennedy, J. concurring.



human experience but is also outside of the forms of expertise associated with science (i.e., toward the "monstrous"). The use of a highly charged image like "predator," along with the elimination of an emphasis on treatment and expertise, makes the Kansas Act a potent symbol of the state's willingness to exercise power, unmediated by scientific concerns, on those deemed "monstrous." This is further emphasized by the role given to the prosecutor and the jury. The Kansas Act places the decision to seek postsentence civil confinement on the p r o s e c u t o r . 27 The ultimate decision as to whether such a prisoner should be considered a "sexually violent predator" is to be made at a trial by a jury. Hendricks argued that these criminal-like procedures underlined the punitiveness of the Act. Justice Thomas, however, found that such procedures were really evidence of the state's caution. The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards. That Kansas chose to afford such procedural protections does not transform a civil commitment proceeding into a criminal prosecution. 28 Prosecutors are generally among those state officials most vulnerable to and sensitive to public pressures and fears. The jury is, of course, an even more direct way to embody popular consent in acts of state power. Indeed, the development of the old penology through mechanisms like the indeterminate sentence and parole had the effect of removing the duration of punishment away from the influence of prosecutors and juries in favor of quasi-autonomous bodies supposedly grounded in professional expertise (e.g., parole boards and juvenile court clinics). By equipping its prosecutors with the power to confine "sexually violent predators" and inviting juries to consent, Kansas has emphasized the importance of populist fears and demands for punishment in its management of sex offenders. III. M e g a n ' s L a w The first law to be called by this name was enacted in New Jersey in 1994 in response to public outrage over the rape and murder of a 7-year-old girl, Megan Kanka. The man charged with her death, Jesse Timmendequas, was twice convicted of sex offenses against young female children, one of which had resulted in the near death of the victim. Megan was killed more than 6 years after Timmendequas was released from prison on his second offense. At the time of Megan's death, he was living in a house, along with two other convicted sex offenders, across the street from her home in suburban Hamilton Township, New Jersey. Megan's murder became a rallying point for victims' rights activists, who were joined by Megan's mother, Maureen. These groups, prominently featured by the media, framed the issue as one of the betrayal of parents by a state unable to control predators and unwilling to empower citizens to protect themselves. Maureen Kanka has stated repeatedly that had she known about the proximity of Timmendequas and his housemates, she would have taken precautions to protect Megan. The New Jersey legislature responded with a law defining those convicted
27KAN. STAT.ANN. 59-29(a)(04) (1994), quoted in Kansas v. Hendricks, 117 S.Ct. at 2077. 2SKansas v. Hendricks, 117 S.Ct. at 2083.



of a long list of sex offenses as sexual predators and requiring them to register their current address with state officials and keep them apprised of every further move. The state was required to evaluate the risk posed by each individual offender and in some cases notify community groups and individuals that a dangerous offender is in their midst. 29 The registration and notification mechanism, under the name "Megan's Law," was adopted by more than a dozen states in 1995 and has been by many more since then. The major public feature of Megan's Law, its promise to empower citizens with the information to protect them against offenders known to the state, has parallels in the old penology. The involvement of the community in crime control and rehabilitation was an explicit theme of many 20th century innovations in penal strategy, such as parole, probation, and the juvenile court. 3 State agents, supposedly trained in the insights of the human sciences, were given considerable responsibility for managing offenders in the community. One of their functions was to alert neighbors to the presence of a potential criminal threat and to enlist their cooperation in the surveillance and treatment of the offender. Megan's Law continues this tradition but eliminates the role of the state agent, and with it, the implication of state responsibility coupled with expertise. The design and implementation of Megan's Law reflects the imperatives of the new penology and populist punitiveness that we have discussed earlier. Here we examine the New Jersey version, because it was the first and has received the most administrative and judicial development.

From Individuals to Aggregates

First, in place of the old penology's concern with individuals, and like Kansas' Sexually Violent Offenders Act, Megan's Law names a subpopulation or category of persons as its target. The statute defined its target as "sex offenders.., offenders who commit other predatory acts against children.., a n d . . , persons who prey on others as a result of mental illness. ''31 The logic of the classification is one based on statistical evidence about recidivism rather than on clinical judgments about individual proclivities.
The laws represent a conclusion by the Legislature that those convicted sex

offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that

29Under the name "Megan's Law," the New Jersey legislature actually adopted 10 separate measures against sex offenders, including extending terms, making the murder of a child under 14 an aggravating circumstance for purposes of New Jersey's death penalty, involuntary civil commitment for "dangerous criminals," lifetime parole supervision, and mandatory DNA sampling for identification procedures, see Elga A. Goodman, Megan's Law: The New Jersey Supreme Court Navigates Uncharted Waters, 26 SETONHALLL. REV. 764 (1996). 3See generally, DAVIDJ. ROTHMAN,CONSCIENCEAND CONVENIENCE:THE ASYLUM AND ITS ALTERNATIVESIN PROGRESSIVEAMERICA(1980) (Toronto, Ontario, Canada: Little, Brown). 31142 N.J.1, at 15.



despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it. (emphasis added) 32 Megan's Law also reflects the priority given to risk, and especially actuarial constructions of risk, by the new penology. Once someone is defined as a sex offender for purposes of Megan's Law, one is mandatorily placed in one of three tiers of relative risk. Even the lowest tier involves some notification, to local law enforcement, and implies some level of risk. Thus, nobody classified by Megan's Law exists outside of a grid of risk. Actuarial constructions of risk are at the heart of the process of assigning sex offenders to the tiers. Local prosecutors are charged by the law with assigning all registered sex offenders in their jurisdiction to one of the three tiers. The attorney general was charged by the law with developing a procedure for this decision, a task that was delegated to a committee of legal and mental health experts. 33 The committee reviewed the existing scientific literature on sex offender recidivism and designed an instrument known as the Registrant Risk Assessment Scale. 34 The instrument depends on the analysis of four categories of facts about the offender: seriousness of the offense, the offender's offense history, characteristics of the offender, and the existence of community support for the offender. The instrument reflects the centrality of risk and risk assessment expertise to Megan's Law and similar measures. These have increasingly replaced the forms of psychological and psychiatric expertise that had anchored the old penology.

From Normalization to Management

Although the old penology focused on transforming offenders, Megan's Law is premised precisely on the futility of that effort with sex offenders. The Supreme Court of New Jersey noted that Concerning the basic facts [about sex offenders], however, there is no dispute: as far as society is concerned, sex offenses of the kind covered by the law are among the most abhorrent of all offenses; the relative recidivism rates of sex offenders is high compared to other offenders; treatment success of sex offenders exhibiting repetitive and compulsive characteristics is low; and the time span between the initial offense and re-offense can be long. 35 In short, sex offenders, as defined by Megan's Law, constitute a population of persons who pose a long-term risk of inflicting horrible costs on society. In this sense Megan's Law is actually premised on the failure of other efforts, including deterrence and treatment in prison. Although treatment measures will presumably continue in prison, Megan's Law reflects the imperative of providing a long-term strategy for managing a permanently dangerous class. This marks an important shift in quality of state power asserted in penal law. The old penology was a vehicle for relatively unbridled visions of state competence. The new penology, in contrast, is shaped by a pervasive skepticism about the power of the state to fundamentally change offenders. Megan's Law goes
32Ido at 1. 33146 N.J. 71, at 71, 81. 341d. at 71, 80. 35142 N.J. 1, at 15, note 1.



further by treating this as a problem not for the state but for the community. Megan's Law is, in effect, an unfunded mandate to community groups and parents to take responsibility for protecting children against sexual offenders.

From Social Norms to Systems

Despite its superficial appeal to popular concerns (addressed later), the administrative structures of Megan's Law emphasize technocratic forms of knowledge that further distance decision making from the community. The legislation that enacted Megan's Law required the attorney general to develop guidelines for local prosecutors and listed a host of factors to be included. The development of these factors reflects a clear preference for knowledge that is produced by the criminal justice system itself. The first set of factors developed by the attorney general completely excluded as a factor consideration of the offender's "behavior in the community following service of sentence," even though the statute had actually mandated such consideration. 36 Under the revised guidelines, some weight is given to psychological or psychiatric expertise and the actual circumstances in which the convicted sex offender is living, but the greatest weight is given to the number and severity of past incidents. In other words, the key criteria are those structured by criminal law categories and tracked by the system itself. In In re C.A., however, the court upheld the final classification system despite its heavy reliance on past crimes and its refusal to include clinical evaluation as part of the process. 37

Populist Punitiveness
On the surface, Megan's Law appears to be an effort to redress the lack of solicitude for ordinary citizens in the operation of the administration of justice. From this perspective, the fact that the state releases sex offenders without warning or protecting the public reflects the priorities of administrative convenience over public safety. As suggested earlier, however, Megan's Law is also a way of protecting the state from responsibility for failure. Having set up a registration and notification system, the state is insulated from the outrages produced by repeat sex offenses. Remarkably, this was popularly received as something the state was doing for citizens. Megan's Law also reflects the imperative of expressing populist punitiveness through regulation. The populist nature of Megan's Law is readily apparent in its timing, naming, and operation. The law was enacted shortly after the murder of Megan Kanka and well before her killer had been convicted. There was little doubt that it reflected the need felt by politicians to respond to an act that horrified many in the state rather than a considered police strategy. The naming of the law is even stronger evidence of its populist logic. By placing Megan Kanka's presence literally in front of the law, the legislature assured that any consideration of it would have to confront Megan's death and popular feelings about it. This produced a number of different kinds of effects. 38 It clearly raised the cost of
361d. at 24. The court ordered the attorney general to revise the guidelines accordingly. 37146 N.J. 71. 38This is not the first law in recent years to bear the name of a young crime victim. In 1993, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender



political opposition. E v e n to discuss M e g a n ' s L a w we have to c o m e immediately into the presence o f M e g a n Kanka, her youth, her suffering, and her mortality. Indeed, the first two decisions b y the S u p r e m e Court o f N e w Jersey on the law both recounted the fact o f M e g a n ' s murder. On October 31, 1994, a group of bills concerning sex offenders became law. They are generally referred to as "Megan's law," after the second female child abducted, raped, and murdered during the prior year. 39 In October 1994, the Legislature enacted a group of eleven bills, collectively known as "Megan's Law," in memory of a seven-year-old girl allegedly killed by a convicted sex offender. 4 The S u p r e m e Court o f N e w Jersey a c k n o w l e d g e d the centrality o f popular sentiments regarding the horror of the y o u n g v i c t i m ' s murder. Clearly, both the Legislature's and the public's increasing awareness of the dangers posed by sex Offenders triggered laws here, and elsewhere, as the understanding of the problem was accelerated by the occurrence of highly publicized and horrific offenses. 41 Moreover, the very purpose o f the l a w - - t o provide information on the location o f sex offenders to local law enforcement, c o m m u n i t y organizations, and m e m b e r s of the general p u b l i c - - a m o u n t s to an effort to shift information and responsibility for sex offenders to popular forces. Indeed, the N e w Jersey S u p r e m e Court recognized explicitly the degree o f vulnerability to the state p o s e d by failures to prevent sex crimes and thus the usefulness o f such gestures toward private action. The spectacle of offenses committed by neighbors, known in the public records as significantly potential reoffenders, but not known to anyone else, and especially not known to those most likely to be affected, their neighbors, suggested the most obvious and practical degree of protection: a law that would tell neighbors and others who might be affected, of the presence of such offenders, no more and no less. 42 But while recognizing the populist aspect o f this strategy, the majority refused to a c k n o w l e d g e the likely punitiveness that would inform private response. Instead, the court thought it had no right to assume that the public will be punitive when the Legislature was not, that the public, instead of protecting itself as the laws intended, will attempt to Registration Act (42 U.S.C.A. 14071 [West, 1997]), which encouraged states to undertake the registration of sex offenders now required by Megan's Law. Nor is this limited to the issue of child abuse. Gun control proponents fought for years to enact the "Brady" bill, named for James Brady, who was permanently disabled by a gun wielder attempting to assassinate President Ronald Reagan in 1982. I would like to examine what the history of this naming practice is but have not yet done so. There is an alternative tradition of naming laws after legislators (the Wagner Act, or the Mann Act). Wouldn't it be an interesting fact about American political culture if a tradition of imagining the democratic representative as the source of the law were replaced by a tradition of imagining hapless victims as the source of law? 39Doe v. Poritz, at 1. 4In re CA, at 71. 41142 N.J. 1, at 17. 42ld. at 18.


SIMON destroy the lives of those subject to the laws, and this Court has no right to assume that community leaders, public officials, law enforcement authorities will not seek to educate the public concerning the Legislature's intent. 43

In short, the court recognized the new populist elements in Megan's Law but not the punitive responses of the general public to sex offenders, despite a number of violent incidents that had already taken place as a result of the law's early implementation and cited by the dissent. The dissent also presented a historical analysis of concerns with popular punitiveness that have been present in our history since colonial days.44 Constitutional protections against special and multiple punishments were in part, under this argument, a specific response to the threat of populist pressures for punitiveness. 45 Although the dissent did not address the larger history of penality, it is clear from that history that the development of modern institutions, particularly the prison, was aimed at displacing popular emotions from the center of punishment by extending the control of state-based professionals. From a spectacle of solidarity between state and people against their common enemies, punishment became a vehicle for inculcating habits of social order suitable to a democratic society.46 Megan's Law is a shift away from this process of modernization. Starting with its name, and with the central role given to local prosecutors in applying the risk classification, Megan's Law advertises itself as a new hybrid of public and private vengeance. IV. Constitutionalizing the N e w P e n o l o g y Both Hendricks and the trio of New Jersey cases on Megan's Law reflect the relative indifference of the Constitution to substantive shifts in penal strategy. The major issues of dispute on these high courts have concerned whether to classify these particular practices as punishments. 47 But as Justice Kennedy pointed out in his concurrence to Hendricks, 48 the question of how to classify such laws often will be of interest only to a limited number of persons who can take advantage of ex post facto or double jeopardy claims. 49 It is not surprising that broad constitutional norms should leave sovereign states largely free to pursue different kinds of responses to crime, but the constitutionalization of the new sex offender laws also marks a substantive lessening in the rigor of constitutional review. This lessening in rigor, doctrinally located in due process analysis, is linked to the courts' own incomplete recognition of the new penology operating within these laws. Justice Thomas' opinion in Hendricks reaches its conclusion by recasting the
431d. 441d. at 138 Stein, J. dissenting. 45Id. at 125, Stein, J. dissenting. 46See generally DAVIDJ. ROTHMAN, THEDISCOVERYOFTHEASYLUM(1972) (Toronto,Ontario,

translated by Alan Sheridan (1977). 47Whichhas troubledthe SupremeCourt greatlyin recent years. 48117 U.S. 2072, 2087, Kennedy,J. concurring. 49With regard to Megan's Law, however, the exclusionof those alreadyplaced in jeopardy or punishedwouldhavehad a majorimpactbecausefor a longtimetheyincludedthe majorityof known sex offendersin New Jersey.



complex precedents on civil confinement as a story of unambiguous power by the state to deprive liberty to those deemed dangerous to good public order. Reaching back behind the era of due process expansion, Thomas invoked one of the strongest constitutional images of state police power, that in Jacobson v. Massachusetts. 5 This little-discussed case was decided the same year as Lochner v. N e w York, 51 and it presented a question of liberty interests and paternalistic state powers every bit as compelling. Jacobson affirmed the power of state government to use criminal sanctions against a citizen for refusing to undergo vaccination against small pox, despite acknowledged risks and real medical controversy about the benefits of vaccination. Justice Thomas argued that this venerable power to address dangerous individuals has no necessary relationship to treatment strategies or the role of psychiatric and psychological expertise. Arguing that terms like mental illness have no "talismanic significance, ''Sz Thomas held that the provision of criteria designed to separate those targeted for confinement from "other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings, ''53 was adequate constitutional protection. No attempt is made to explore the significance of the choice of words nor, of more importance, the institutional strategies and practices underlying the words. Justice Thomas also rejected Hendricks's claim that the statute was a punishment being imposed in violation of his right against double jeopardy and ex post f a c t o punishment. Here the court follows the pattern of other recent punishment cases and treats the state's intent to produce a civil sanction as having a strong presumption behind it. But even after granting this strong presumption, the Act comes in for remarkably little scrutiny in terms of its administrative structures. Here the logic of the new penology works to insulate the state from the burdens of the criminal process. In the context of Kansas' Violent Predator Act, Hendricks's past crimes are present as indicators of risk, not as occasion for moral judgment. Justice Thomas noted that the purposes of the Act suggest neither retribution nor deterrence, which he characterizes as "the two primary objectives of the criminal law. ''54 Although the old penology aimed at transforming offenders, laws like the Kansas Act approach offenders as a population incapable of being brought within the bounds of civil society. Justice Thomas' opinion took this as reassuring. Those persons committed under the Act are, by definition, suffering from a "mental abnormality" or a "personality disorder" that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement. 55 Justice Thomas never addressed incapacitation, which is the central strategic objective of the new penology. The logic of incapacitation behind the Kansas Act suggests an even grimmer and more dehumanizing view of sex offenders than does 5197 U.S. 11 (1905). 51198S.Ct. 45 (1905). 5ZKansasv. Hendricks, 117 S.Ct. at 2080. 53Id. at 2081. 541d. at 2082. 551d. at 2082.



traditional punishment. Despite that, incapacitation showed up as unproblematic because Justice Thomas did not consider it punitive. The Hendricks opinion raised this question in considering the significance of treatment to the constitutionality of civil confinement. Justice Thomas reasoned that confinement without treatment would be perfectly constitutional if no treatment were available. To the extent that treatment is available for persons like Hendricks, the Court found, relying on fragments in the record, that treatment was being provided. 56 The dissent raised a vigorous challenge to the majority's analysis of Kansas' procedure as nonpunitive. Justice Breyer saw treatment as an important marker of truly civil confinement.
When a State believes that treatment does exist, and then couples that admission with a legislatively required delay of such treatment until a person is at the end of his jail term (so that further incapacitation is therefore necessary), such a legislative scheme begins to look punitive. 57

Justice Breyer and the other dissenters found that the record reflected a willful absence of interest in minimizing imprisonment by attempting to treat sex offenders while they are serving their prison sentences. 58 But this analysis only implicates the Kansas Act insofar as it applies to previously convicted offenders like Hendricks. As Justice Kennedy pointed out, the majority and the dissent are seemingly untroubled by the extension of even punitive confinement under civil commitment procedures where it applies to new cases. 59 Justice Thomas and the majority reduced treatment to a secondary concern for due process. Confinement of those deemed dangerous can be carried out as a civil matter, at least where it is coupled with "the State's ancillary goal of providing treatment to those offenders, if such is possible. ''6 The centrality of treatment under previous readings of the due process clause made the constitutionality of confinement turn on the institutional priority of treatment and treatment professionals (i.e., those with a grounding in forms of knowledge and power independent of the penal system). In Hendricks, treatment has been reduced to a gesture. Justice Thomas' opinion allows the state to obtain the constitutional immunity of "treatment" without compromising its own organizational autonomy in this way. The opinions of the Supreme Court of New Jersey in the Megan's Law cases do not differ in any significant doctrinal way. It is important, however, that the New Jersey court has insisted that due process require a judicial hearing prior to the assignment of a sex offender to a tier requiting community notification. 61 In subsequent cases the court has made clear that these hearings are not tied to the scale created for local prosecutors. Judges can and must consider whether there is evidence to show that the scale is inaccurate when applied to particular sex offenders and consider testimony relevant to such a determination. 6e In this regard the New Jersey Supreme Court has shown an appropriate ambivalence about the authority of the scale.
561d. at 2084. 571d. at 2091-2, Breyer, J. dissenting. 581d. at 2093--4, Breyer, J. dissenting.

591d. at 2087, Kennedy, J. concurring. 6ld. at 2084. 6JDoe v. Poritz, at 107. 62In re G.B., 147 N.J. 62, 77-78.



The Scale, however, is not a scientific device. It is merely a useful tool to help prosecutors and courts determine whether a registrant's risk of offense is low, high, or moderate. Yet, the Scale is just that--a tool. Although a tier classification made on the basis of the Scale should be afforded deference, a court should not rely solely on a registrant's point total when it conducts a judicial review of a prosecutor's tier level classification or manner of notification decisions. 63 It remains to be seen whether the New Jersey courts will ultimately maintain close scrutiny on the tier assignments of prosecutors. V. Conclusion A new generation of sex offender laws is being produced that reflects a profound change in contemporary penality. This change is taking place on a number of different levels, including the targets of penal efforts, the forms of expertise that provide them with authority, and the image of state power they communicate. Behind the superficially consistent object of sex offender, a distinctly new and far more pessimistic vision has emerged. Sex offenders are the embodiment not of psychopathology, with the potential for diagnostic and treatment knowledge to provide better controls over such offenders, but of the monstrous and the limits of science to know or change people. Behind the seeming heterogeneity of laws like the Kansas Sexually Violent Offender Act and Megan's Law is a common set of transformations in the quality of state power, the demands the law places on its rationality, and the promises it makes to the community. Recent cases upholding these laws against a variety of constitutional challenges provide little real scrutiny of this transformation. Instead, the U.S. Supreme Court has begun to redefine downward constitutional expectations of state penal strategies. Not only has the new penology escaped direct review, but its features have helped mask the decline of constitutional standards. Ironically, the more the state disavows goals of individualization and transformation, the more deference courts are invited to pay to their coercive uses of power.

631n re

C.A., 147 N.J. 71,108.