Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws
| Author | Tamara Rice Lave |
| Position | Master of Arts, University of California, Berkeley |
| Pages | 549-591 |
Master of Arts, University of California, Berkeley, Spring 2007. Ph.D., Anticipated, University of California, Berkeley, Spring 2009. J.D., Stanford Law School, 1995. B.A., Haverford College, 1990. Deputy Public Defender, San Diego County, 1995-2005. I am grateful to Harry Scheiber for his guidance and support. I would also like to thank my extraordinary advisor, Frank Zimring, who, as always, provided insightful comments and probing criticism. I am especially thankful to my Dad for his eternal patience, endless enthusiasm, and tireless feedback. Finally, I would like to thank the editors of the Louisiana Law Review for their skillful editing. All mistakes, of course, are my own.
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"The most rapidly increasing type of crime is that perpetrated by degenerate sex offenders . . . . Should wild beasts break out of circus cages, a whole city would be mobilized instantly. But depraved human beings, more savage than beasts, are permitted to rove America almost at will."
J. Edgar Hoover, 19471
Sexually violent predator laws are not the first wave of American legislation aimed at committing sex offenders to locked mental hospitals; they are the second. Preceding them by half a century were the sexual psychopath laws, which differed in significant detail but provided the same basic framework of indeterminacy and dangerousness. Like the sexually violent predator laws, the sexual psychopath laws were enacted in response to a few high profile sex crimes. Citizens across the United States were terrified that they were being engulfed by a wave of sex crimes, and politicians responded. Between 1937 and 1967, twenty-six states and the District of Columbia passed legislation calling for the indefinite civil commitment of so-called sexual psychopaths.2 By 1990-when the first sexually violent predator law was passed in the state of Washington3 -most of the sexual psychopath laws had fallen out of use or been overturned. Page 550
This Article looks at the history of the sexual psychopath laws. It begins by critically examining the popular belief that there was a sex crime wave. It then discusses different solutions proffered to solve the sex crime problem. Finally it provides an overview of the sexual psychopath laws and discusses the reasons for their demise.
On March 20, 1937, a nine-year-old girl's mutilated body was found in a burlap sack. Within hours, a twenty-six-year-old barber confessed to raping and bludgeoning her to death with a hammer in his Brooklyn Barbershop.4 On July 31 of the same year, an eight-year-old girl was found nude in the cellar of her Brooklyn home. The police interrogated an ex-convict for seventeen hours allegedly beating him with a rubber hose, before he confessed.5 Less then one month later-on August 13-a house painter for the Works Progress Administration used a grasshopper in a milk bottle to lure a four-year-old girl to a deserted house near a Staten Island swamp. After attempting to sexually assault her, the man strangled the girl with the straps of her red bathing suit and then dropped a fifty pound brick on her back.6
These crimes ignited the local and national press.7 Magazines like Time,8 the Christian Century? 9and Nation10 published articles about the rash of sex crimes. In 1937 alone, there were 143 articles published about sex crimes in the New York Times-so many that it had to create a new index category.11 Sex offenders were described as a nationwide menace. In July 1947, FBI Director J. Edgar Hoover published an article in American magazine entitled, "How safe is your daughter?" Hoover declared, "The most rapidly increasing type of crime is that perpetrated by degenerate sex offenders . . . . [It] is taking its toll at the rate of a criminal assault every 43 minutes, day and night in the United States."12 In the December 1948 edition of the Page 551 Saturday Evening Post, David Wittels proclaimed, "Most of the so-called sex killers are psychopathic personalities . . . . No one knows or can even closely estimate how many such creatures there are, but at least tens of thousands of them are loose in the country today." 13
Even the academic journals reflected an increase in articles related to sex crimes. From 1921 to 1932, only about six articles focused specifically on sexual offenders were published.14 The number increased five-fold in the years from 1933 to 1941. From 1942 through 1951, the number of articles published exceeded one hundred.
The public was outraged and demanded that something be done to combat sex offenders. One thousand angry citizens held a meeting in Ridgewood, New York on August 14, 1937, in response to the "increasing wave of sex crimes against young girls." Various speakers addressed the gathering including representatives of the police department, the state legislature, and an assortment of civil groups.15 A month later, a mass meeting to curb sex crime took place in New Rochelle, New York.16 Citizens groups and law enforcement teamed together in Westchester, New York in 1937 to promote changes in the law.17 On September 4, 1937, "drives to stop crimes of sex degeneracy" started in communities throughout Massachusetts.18
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Stories about sex offenders pervaded the popular and academic press, and many Americans believed that sex offenses were on the rise. Investigating the legitimacy of this belief is difficult, however.19 One obvious approach would be to look at contemporaneous crime data; yet, the FBI has cautioned that "statistics collected before 1960 are not comparable to subsequent or prior years' data and should be used with great caution."20 Since the FBI data was widely available, it will still be evaluated not for its truth, but for the impact it should have reasonably had on peoples' beliefs. In addition, independent crime data will be examined from New York City.
The FBI began collecting arrest data from police stations across the country in 1930 and compiling it in the Uniform Crime Reports for the United States and its possessions (UCR).21 In 1931, Sam Bass Warner published an article in the Harvard Law Review in which he sharply criticized the UCR. Warner concluded, "If the federal Government is to maintain its present reputation for the accuracy of its statistics, it must stand by the slogan, 'Better no statistics, than false statistics.'"22 Over twenty years later, the Page 553 accuracy of the UCR was still questioned. In 1958, esteemed criminologist and University of Pennsylvania Professor Thorsten Sellin stated: "The U.S. has the worst criminal statistics of any major country in the Western world."23
The problems with the UCR were multi-fold. A lack of data presented one hurdle. The FBI could not compel police to report arrests, and so in the first year, just 300 police agencies across the country reported their arrest data. By 1961, that number had increased to 7,800 agencies across cities that comprised 96% of the total population in the United States. Consequently, what might appear to the unsophisticated reader as a large increase in the number of rapes over this time period could be partially explained by the increase in the number of police departments reporting crime data.
Even if police departments were participating, they did not always report all of their arrests.24 Between 1949 and 1952, the FBI did not accept data from New York City because the number of offenses was significantly underreported. In 1950, New York City improved its collection methods, and in 1952, the FBI began again including its arrest data. The consequence, however, was the appearance of a significant increase in crime between 1948 and 1952.25 Chicago and Philadelphia also improved their reporting systems, which resulted in an apparent but not real increase in the incidence of crime.26
Until 1958, there was an additional problem with the UCR, which had to do with the way that it calculated crime rates.27Crime rates were originally calculated using the number of crimes reported every year divided...
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