Hot Crimes: a Study in Excess

• Publication year: 2022

45 Creighton L. Rev. 33. HOT CRIMES: A STUDY IN EXCESS

HOT CRIMES: A STUDY IN EXCESS

STEVEN GROSSMAN(fn*)

Societies appear to be subject, every now and then, to periods of moral panic. . . . [IJts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even in the way society conceives itself.(fn1)

I. INTRODUCTION

In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was "sick to death of things like the presumption of innocence."(fn2) After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ("MADD") issued a press release classifying the "murders as 'insignificant' compared to those killed in alcohol-related traffic accidents."(fn3)

What do these two announcements have in common? This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system. For a long time, crimes such as these were either not treated with the seriousness they deserve (i.e. drunk driving) or the extent of their prevalence in society was significantly underestimated (i.e. child sex abuse). Fortunately, in ways this Article discusses, the previous undervaluation or under aptpreciation of these crimes was brought to the attention of different elements of American society, and people were educated about the nature of these crimes and the degree of harm they cause. As a result of this heightened attention, the public and particularly victims' rights groups began to call for more action in preventing and punishing these crimes. Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals. Prosecutors investigated these crimes with more urgency and charged and prosecuted them more strictly. Judges began to sentence individuals convicted of these offenses more harshly. In other words, each affected group in society took action in an appropriate way to deal with the dangers that child sex abusers and drunk drivers posed.

There came a point, however, when reaction turned into over-reaction and remedial measures became excessive. This Article examines some of that over-reaction, seeks to explain why it occurs with certain crimes, fleshes out the lessons to be learned from the over-reactions, and offers suggestions on how to avoid recurrences of this type of social pathology. For the most part, this Article uses those crimes related to the serious problems that child sex abusers and drunk drivers pose as illustrations of how crimes become hot crimes and then how such crimes are treated.

Section II of this Article discusses the genesis of a hot crime, what factors appear to be needed for a crime to become hot, and how each factor contributes to the way in which such crimes are ultimately treated. Section III looks at the types of excesses that hot crimes breed. Section IV examines the kind of flaws in society's responses to hot crimes that breed these excesses. Section V discusses how the concept that has been referred to as moral panic explains the hot crimes phenomenon. Lastly, Section VI explores ways in which society, particularly law enforcement and legal institutions, can respond to serious crimes without the need to react with excessive and arguably unconstitutional measures.

II. THE GENESIS OF HOT CRIMES

On October 23, 1976, a man who was thrown out of a Bronx, New York social club after having an argument with his girlfriend returned to the club and threw a firebomb into the club. The result was an arson fire that killed twenty-five people.(fn4) One year later on October 12, 1977, during the television broadcast of the second game of the World Series from Yankee Stadium, a fire started in an abandoned public school building a few blocks away from the stadium. The fire obviously made for dramatic television, as the camera from an ABC helicopter lingered on the view of the school burning. Legendary sports broadcaster Howard Cosell, who was announcing the game for ABC Sports, looked at the fire and said, "There it is, ladies and gentlemen, the Bronx is burning."(fn5)

Prior to the game and Cosell's words, the Bronx had been suffering from a rash of arson fires, especially in decaying areas of this New York City borough.(fn6) While some were acts of deliberate violence like the social club fire, the vast majority were believed to be either randomly set or the product of attempts by landlords to get damage awards from insurance companies for what were becoming worthless properties.(fn7) Cosell's comment was an example of the growing attention that the media was paying to the arsons and the reactions to them.

The legal community was reacting to the escalating arson fires as well. State legislatures in the region passed laws making the arson fires far more serious crimes.(fn8) Perhaps more significantly, politicians, prosecutors, and judges, especially those in the Bronx, handled arson fires, even ones in which no one was hurt, far differently than they had in the past.(fn9) Crimes such as rape, armed robbery, and even some homicides, long viewed as among the most serious of crimes, became secondary to arson. Arson quickly received the most attention and the heaviest sentences. In other words, arson had become a hot crime.(fn10)

Although in 1970's New York the number of arson fires seemed to increase, there was nothing new about fires being set for deliberate reasons. The amount of attention arson fires received during this time period had to do with more than just an increase in the frequency of such crimes. Where no injuries resulted from fires, arson had always been viewed, prosecuted, and punished as a property crime. In the 1970s, the media, the public, legislators, prosecutors, and judges began to understand that arson fires, even where no injuries resulted, should be viewed as much more than just crimes against property.(fn11) The crime of arson, until the late 1970s, was not treated with the seriousness it deserved. The 1980's equivalent of arson, in this regard, was the crime of drunk driving.

A. Drunk Driving

"[B]ooze had to go when . . . the motor car came in."

- Henry Ford.(fn12)

America has always been fascinated with the automobile.(fn13) Cars provide a relatively fast way to get from place to place and give us the freedom of movement on which we have come to depend. When Europe was relying on vast rail systems and other means of public transportation after World War II, America was constructing the Eisenhower Interstate System. Many believe that modern America has inadequate means of public transportation to satisfy our needs, but our system of roads and highways is considered extensive and relatively complete. The primary problem with our roadways is that over-reliance on automobiles in the united States creates congestion.(fn14)

In the 1960s and 70s, the United States experienced an alarming increase in the rate of driving-related fatalities, and understandably people became concerned about the dangerous driving that caused these accidents.(fn15) While it was no secret at that time that a significant number of these accidents were caused by drivers who had been drinking alcohol, the drunk driving laws were enforced in a manner that was lax, inconsistent, and unresponsive.(fn16)

Several reasons for this lack of effective enforcement of the drunk driving laws existed. First, it was difficult to fully understand the problem because both effective field research is difficult to conduct and research into drunk driving did not begin in earnest until after the drunk driving problem was "federalized."(fn17) Second, the law enforcement community did not consider drunk driving a "real crime." For example, until the 1990s, the FBI did not even include drunk driving related crimes in the national crime database.(fn18) Lastly, drunk driving may simply not conform to social, historical, or political expectations of a crime in the way murder, theft, or terrorism might.(fn19)

In 1910, New York became the first jurisdiction in the United States to adopt laws against drunk driving.(fn20) Early laws prohibited driving while intoxicated, but the necessary proof of intoxication was hard to come by because chemical tests for blood alcohol content ("BAC") were not yet invented.(fn21) Once BAC tests were created, and law enforcement was required to use them, the American Medical Association recommended, and early laws adopted a BAC standard: The law presumed that drivers with a .15% BAC or higher were under the influence, drivers with less than .05% were not, and drivers with a BAC in between could be found to be under the influence if corroborating...