Judicial Responsiveness to Valence Issues: An Event History Analysis of the Initial Sex Offender Registration and Notification (SORN) Laws

• DOI: http://doi.org/10.1111/lapo.12046
• Published date: 01 January 2016
• Author: Bianca Easterly
• Date: 01 January 2016

Judicial Responsiveness to Valence Issues: An Event

History Analysis of the Initial Sex Offender

Registration and Notification (SORN) Laws

BIANCA EASTERLY

Under what conditions does judicial responsiveness to the public’s policy preferences compromise

the court’s role as a countermajoritarian institution? Scholars have yet to examine whether and

how quickly state appellate court justices respond to valence issues. This study investigates the

relationship between retention elections and judicial responsiveness to the initial sex offender

registration and notification (SORN) laws popularized in the 1990s. Findings show that judges

who participated in nonpartisan retention elections exhibited greater democratic accountability

by engaging in judicial review of SORN laws earlier than judges in other retention election

systems. Valence issues create political challenges for nonpartisan judges who, like their coun-

terparts in other retention systems, are expected to balance majoritarian interests with minority

rights.

INTRODUCTION

Which factors influence state court agenda-setting behavior? The attitudinal model attri-

butes judges’ gatekeeping decisions to their legal policy goals. Compared to justices with

optimal docket discretion, such as those on the US Supreme Court, the pursuit of legal

policy goals for state appellate court judges occurs in the context of institutional arrange-

ments that constrain their ability to act as policymakers. Limited administrative and

budgetary resources further enhance the need for appellate justices to make gatekeeping

decisions strategically (Brace and Hall 2001). While considerable evidence exists linking

electoral competition to judicial decision making (Cann 2007; Hanssen 2004b), Eakins

(2006) contends that political opposition can also affect state court agenda-setting

decisions. The age of new-style judicial campaigns that now mirror legislative and guber-

natorial elections in terms of campaign spending and attention to specific issues bolsters

the significance of public opinion to judicial behavior (Cann and Wilhelm 2011; Baum and

Hojnacki 1992). Enhanced judicial accountability and responsiveness in competitive selec-

tion and retention systems may also undermine judges’ ability to adjudicate without

political influence (Canes-Wrone and Clark 2009; Cann 2007; Langer 2002; Hanssen 1999,

2004a, 2004b).

Judicial review functions as a representative institution to signal awareness of and

potentially agreement with the public’s policy preferences as well as show deference to the

executive or legislative branch. State court scholars find that position issues, particularly

I would like to thank the anonymous reviewers of this article for their helpful and constructive comments that

greatly contributed to improving the final version of the article. I am also immensely grateful to Jennifer Clark,

Paul Brace, Ling Zhu, and Harrell Rodgers for their insightful input during the development of this research.

Address correspondence to: Bianca Easterly, Department of Political Science, Lamar University, P.O. Box

10030, Beaumont, Texas, USA 77710. Telephone: (409) 880-7801; E-mail: bianca.easterly@lamar.edu.

LAW & POLICY, Vol. ••, No ••, •• 2015 ISSN 0265–8240

© 2015 The Author

Law & Policy © 2015 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12046

LAW & POLICY, Vol. 38, No. 1, January 2016 ISSN 0265–8240

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doi: 10.1111/lapo.12046

the low information cost and high salience of morality policies, such as the death penalty

(Brace and Boyea 2008; Langer and Brace 2005; Traut and Emmert 1998; Emmert and

Traut 1994; Brace and Hall 1993, 1997; Hall 1992; Hall and Brace 1992; Hall 1987),

abortion (Caldarone, Canes-Wrone, and Clark 2009; Brace, Hall, and Langer 1999, 2001),

and right to die (Glick 1992), enhance policy congruence between elected judges and their

constituents (Hill and Hurley 1999; Carmines and Stimson 1980; Erikson 1978; Miller and

Stokes 1963), but may also have a lagging effect on policymaking. In contrast, the absence

of political opposition in valence issues, or issues that garner strong, uniform agreement

about a problem and intended solutions, may speed up the policy-making process (Nelson

1984; Stokes 1963). Generally speaking, it remains unclear whether and how quickly the

court, as a countermajoritarian institution, responds to these types of issues.

The growth of punitive crime policies as crime rates declined in the 1990s illustrates the

paradoxical behavior on the part of the government that valence issues can create. Even

as the rates of rape, robbery, and aggravated assault began to decline, crime remained on

the national agenda. Conventional wisdom holds that a few well-publicized sex crimes

involving children ignited public and political interest in sex offenders (Leon 2011; Wright

2009; Jenkins 1998; Finn 1997; Bedarf 1995). Consequently, between 1990 and 1996, sex

offender registration and notification (SORN) laws rapidly diffused across thirty-seven

states prior to the passage of a federal mandate that required every state to adopt its own

version of SORN or risk losing 10 percent of funding from the Edward Byrne Memorial

State and Local Law Enforcement Assistance Programs.1Proponents believed SORN

would protect the public, specifically children, by requiring offenders to provide identify-

ing information to law enforcement agencies by mandating public access to an offender’s

criminal history, physical description, and home address.

Offenders and civil liberty groups, however, questioned the constitutionality of com-

munity notification. In the absence of politically active and well-mobilized offender advo-

cacy groups to lobby for legislative changes to the laws, offenders in thirty-one states

sought the courts for recourse, thus reinforcing the courts’ role as the countermajoritarian

institution. Offenders’ varied and, in some states, repeated attempts for relief did little to

change the opinion of the courts, which consistently rejected the bulk of these challenges,

ruling that states acted with a proper, nonpunitive motive (Janus and Prentky 2008).

Given their time and resource constraints, it is not readily apparent why state appellate

courts with discretionary dockets would engage in judicial review (in many instances,

repeated and rather hastily) only to uphold state law.

Contrary to the generally held belief that partisan elections produce a higher degree of

responsiveness than nonpartisan elections, Caldarone, Canes-Wrone, and Clark (2009)

posit that without the mask of partisan labels in nonpartisan elections, judges’ reelection

goals remain bound to public opinion on position issues. Using the initial SORN laws as

a test case, this article contributes to the literature by conducting an event history analysis

(EHA) to investigate whether and how quickly appellate state court judges respond to

valence issues. The results indicate that judges who participated in nonpartisan retention

elections exhibited greater democratic accountability by engaging in judicial review of

SORN laws earlier than judges in other retention election systems. Valence issues create

political challenges for nonpartisan judges who, like their counterparts in other retention

systems, are expected to balance majoritarian interests with minority rights.

SORN LAWS AS A VALENCE ISSUE

As Jacoby and Cullen find (1998), compared to other types of offenses, the public con-

sistently favors more punitive measures for violent perpetrators and sex offenders than

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Easterly JUDICIAL RESPONSIVENESS TO VALENCE ISSUES 5

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