The Politics of Symbolic Laws: State Resistance to the Allure of Sex Offender Residence Restrictions

• DOI: http://doi.org/10.1111/lapo.12153
• Date: 01 July 2020
• Published date: 01 July 2020

The Politics of Symbolic Laws: State Resistance to

the Allure of Sex Offender Residence Restrictions

MONICA WILLIAMS, ERIN B. COMARTIN and ROBERT D. LYTLE

Sex offender residence restrictions are largely symbolic laws that address constituent demands

to do something about sex crimes without actually reducing sex offenses. While the majority of

US states have implemented such restrictions, this exploratory study examines three states that

have resisted the allure of these symbolic laws. Using data from state government archives, we

analyze expressive and instrumental rationales for rejecting residence restrictions to explore

what facilitates the failure of a symbolic law. We find that while supporters and opponents both

made largely instrumental arguments, opponents framed their instrumental arguments in

expressive terms. Legislators’ policy positions, reliance on empirical evidence, and testimony

from bureaucrats also contributed to the failure of residence restrictions in these states. Our

findings help explain why empirically ineffective sex offender laws appeal to the public and pol-

iticians, how these laws might be scaled back, and how symbolic laws may lose their power in

some contexts.

I. INTRODUCTION

The problem of sex offending has captured public and political attention. Despite evi-

dence of the ineffectiveness of sex offender registration, notification, and residence

restriction laws (Simon 2000; Lave 2011; Levenson 2011; Terry 2011), lawmakers con-

tinue to pass such legislation. Registration and community notification laws, often

known as Megan’s Law, proliferated among states in the early 1990s before registries

became a national mandate with the Jacob Wetterling Act of 1994 and were further

refined as a result of the Adam Walsh Act of 2006. Residence restriction laws, also

sometimes referred to as Jessica’s Law, became popular in the mid-2000s after the kid-

napping and murder of Jessica Lunsford (Zgoba 2011).

Sociolegal studies that have examined societal reactions to sex offenders suggest that

the social construction and stigmatization of sex offenders contributes to public and

political support for these types of increasingly punitive sex offender laws

(e.g., Jenkins 1998; Lynch 2002; Janus 2006; Leon 2011a; Williams 2018a). These laws

may serve the symbolic purpose of placating frightened, angry constituents during times

of moral panic over sex offenders by communicating an official response to this socially

The authors would like to thank Gary Duran, Shanice Gipson, and Steven Knox, our research assistants who

helped obtain and code state policies and legislative documents.

Address correspondence to: Monica Williams, Weber State University, Department of Criminal

Justice, 1299 Edvalson St., Dept. 1206, Ogden, UT, USA, 84408-1206. Telephone: 801-626-6231. Email:

monicawilliams@weber.edu.

LAW & POLICY, Vol. 42, No. 3, July 2020

©2020 The Authors

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

doi: 10.1111/lapo.12153

ISSN 0265-8240

identified problem (see Jenkins 1998; Kemshall and Maguire 2001; Meloy, Miller, and

Curtis 2008; Terry 2011; Douard and Schultz 2013; Socia and Rydberg 2016).

From an expressive law perspective, legal regulations may calm fears that sex

offenders will infiltrate communities and prey on unsuspecting children, and political

action against such policies ostensibly places politicians on the side of sex offenders

rather than victims (Simon 2000). Thus, ineffective (and sometimes counterproductive)

laws remain popular because they help society publicly express outrage and fear in what

Huffman (2016) has termed the “politics of fear.” Considering the responsiveness of law-

makers to public opinion when making policy decisions (e.g., Key 1961; Kingdon 1995),

this popularity would be expected to promote legislative support for these laws. Indeed,

research has found that high-profile victimizations contribute to policymakers’ perceived

need for more sex offender legislation to respond to public pressures and increase public

safety in their states (Meloy, Boatwright, and Curtis 2013; Meloy, Curtis, and

Boatwright 2013a). Policymakers’ personal perceptions of the problem of sexual

offending and what constitutes feasible solutions to it also mix with public pressure to

contribute to sex offender policy decisions (Sample and Kadleck 2008).

Contrary to expressive law explanations, some states have resisted the allure of popu-

lar sex offender laws, resulting in a patchwork of policies in which some states are much

tougher on sex crime and offending than others (Mancini, Barnes, and Mears 2013).

Expressive law perspectives may account for why states have implemented sex offender

laws, but they cannot explain why some states have not implemented such laws. The cur-

rent study uses data from state government archives in all fifty states to examine sex

offender residence restrictions. After analyzing laws in states that resisted residence

restrictions, we use case studies of public hearings to investigate how legislatures have

resisted passing these policies. As a whole, this study provides insight into the features

of sex offender laws that do not appeal to politicians and how these laws might be scaled

back in light of increasing evidence of their ineffectiveness. More broadly, our findings

illuminate the processes by which symbolic laws can lose traction in different state-level

contexts.

II. SEX OFFENDER RESIDENCE RESTRICTIONS

A growing body of research in punitive policymaking suggests that differences in state

contexts contribute to variation in the extent to which states implement punitive policies

and practices (Barker 2009; Phelps 2017). Examining one state in particular, Goodman,

Page, and Phelps (2017) found that struggles between activists, bureaucrats, and other

low-level actors contributed to changes in criminal justice policies. Their findings reflect

increasing calls for scholars to examine the local contexts of policymaking in order to

understand how and why policies vary across places (Williams 2018b). Despite this new

trend in analyzing policymaking at the state level, few studies have directly examined the

policy processes that contribute to the proliferation of residence restriction laws across

states. Studies of residence restrictions that go beyond assessments of their effectiveness

have addressed the content of residence restrictions in each state, the role of political ide-

ology in implementing residence restrictions, and policymakers’ perceptions of sex

offender legislation.

Residence restriction laws assume that sex offenders prey on unsuspecting children

who are unfamiliar with the perpetrator. If this were true, then it would make sense to

restrict sex offenders from living near places likely to attract children (e.g., schools,

parks, and playgrounds). Unfortunately, research on sex offender residence restrictions

©2020 The Authors

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210 LAW & POLICY July 2020