Skylar's Law: memorial crime policy and mediating argument spheres.

• Author: Pason, Amy
• Position: Essay

Introduction

In March 2014, National Broadcasting Company's (NBC) Dateline featured "Something Wicked," chronicling the events leading up to and following the tragic disappearance and death of 16-year-old Skylar Neese of West Virginia (Cole 2014). Skylar snuck out of her bedroom window around midnight on July 6 2012, left voluntarily in a car, and was not seen alive again. Skylar's parents noticed her absence about 12 hours later when she was not home for lunch as expected, but only contacted local police after learning she had not reported to her fast food job. Skylar initially was classified as a runaway after police reviewed surveillance video from her family's apartment complex. However, Skylar took few personal belongings, suggesting she did not intend an extended absence. Local police questioned Skylar's family and friends, but did not contact state police to initiate an AMBER Alert because these alerts are intended for abducted minors. State AMBER Alert coordinators usually only issue alerts when the case meets issuance criteria, including having sufficient information about the abduction to convey to the public. Skylar's case did not fit AMBER Alert issuance policy, yet in the wake of her disappearance, her family and friends petitioned to change the policy, thinking (wrongly) that an AMBER Alert might have saved her life (Benson Bailey 2012).

After lying to local police during the six month investigation involving the Federal Bureau of Investigation (FBI), one of Skylar's best friends, Rachel Shoaf, confessed that she and another friend, Sheila Eddy, picked up Skylar from her apartment, drove 30 miles outside of West Virginia to an area near Blacksville, Pennsylvania, and stabbed Skylar to death (Linton 2013). Shoaf explained her motive as no longer wanting to be Skylar's friend. No AMBER Alert or any intervention by police would have saved Skylar--even her parents did not notice her absence until after she was already dead. Yet, in April 2013, the West Virginia legislature passed HB2453 ("Skylar's Law"), a putative "expansion" of their AMBER Alert protocols, to mandate local law enforcement contact state police for any abducted or suspected missing minor in the initial stages of investigation. However, the law does not change issuance criteria to include missing, thus the law commemorating Skylar is little more than a clarification of administrative processes to coordinate police efforts, keeping AMBER Alerts reserved for minors classified as abducted.

The question, then, is why a legislature passed a bill to honor a crime victim when that bill does not address the causes of the crime? We argue Skylar's Law follows a trend typical of memorial crime legislation (Surette 2007), where crime policy is a new form of epideictic speech. Naming laws after victims allows the public to assume the law would treat or prevent future similar crimes, and possibly engenders a false sense of security to the public who assumes this "solution" can and does work just because there is a law in place (Zgoba 2004b). Legislators benefit by addressing pressure from panicked constituents and symbolically showing their commitment to fighting crime (Griffin and Miller 2008). These laws are influenced by appeals to social values and community norms, often through personal testimony, where epideictic decorum prevents critical deliberation of costs or effective implementation (Bostdorff 2011; Murphy 2003). Problematically, sensationalized cases leading to memorial laws divert attention away from more prominent forms of crime and perpetuate policies without evaluation of their effectiveness. We argue that the personal sphere has overly influenced crime deliberation, and better public deliberation should mediate personal/normative concerns against technical expertise.

The deliberation about Skylar's Law demonstrates the influence of legislation by parental testimony at the expense of technical experts, and a failure of legislators to incorporate technical expertise to evaluate the proposed legislation effectively. We analyze discourse surrounding the passing of Skylar's Law and other news media related to AMBER Alert policy to show the trend of personal experience influencing public understanding of AMBER Alerts. (1) We closely analyze the bill and West Virginia House Judicial Committee meeting in which Skylar's Law was discussed, and where Skylar's father, Dave Neese, gave personal testimony. We find that the meeting morphed from deliberative assessment of the bill into an epideictic moment, ultimately halting discussion in order to commemorate Skylar and appeal to community values of protecting children. In this, we outline crime policy's relation to Goodnight's (1982) argument spheres, and how legislators acting in the public sphere should mediate personal and technical issues implicated in crime legislation. Next, we analyze Skylar's Law as an expansion of AMBER Alert policy, and Neese's epideictic moment. Finally, we show how crime policy should balance the personal and the technical in the public sphere.

Argument spheres and crime policy

Although scholars have been interested in the relationship between rhetoric and public policy (Asen 2010), few have studied crime policy deliberation or the policy process beginning with bill proposals (Gring-Pemble 2001). Crime policy deliberation is an area where the personal, technical, and public spheres of argument overlap and blur; crime policy is derived from the personal experience of victimization, deliberated in public related to community norms, and analyzed for effects (after the fact) by technical experts. This essay follows the claim of public criminologists who argue technical, empirical evidence about crime often is overlooked in legislative deliberations in favor of personal appeals or public "common sense" understandings of crime (Currie 2007). We argue that crime policy should be decided with a balance of arguments from both the personal and technical sphere, mediated in the public sphere using expert judgment. In other words, lawmakers should enact a phronesis of mediation to consider both normative considerations and factual/technical issues related to crime policy.

Argumentation scholars have debated the role of technical sphere arguments in public deliberation and criminologists have argued whether technical experts can address crime policy best or whether other public stakeholders should be involved (Dzur 2012). The adoption and implementation of crime policy can be complicated as legislators or community members are responsible for proposing crime laws, with technical experts (law enforcement, judges, lawyers, and other agencies) responsible for the implementation of laws. (2) Largely excluded or underfunded in the process is academic crime expertise to provide empirical evidence of crime causes, effects, or program evaluation (Gardiner 2014). Goodnight (1982) warned against technical arguments trumping public argument, but scholars more recently have concluded that technical experts or technical criteria for evaluating policy are necessary (Paliewicz 2012, 2014; Whidden 2012). Nevertheless, neither personal or technical arguments can be used exclusively; to do so results, Goodnight (1982) tells us, in an inability to evaluate the effects of a policy on the larger community. Schiappa (2012) contends that the knowledge gap between personal and technical influences on public policy can be vast; therefore, political representatives (or courts) have to be a check and mediating force to incorporate and find consensus from stakeholders.

Nevertheless, little evidence exists that legislators use technical experts or technical criteria when deciding crime issues. Currently, crime policy seems heavily influenced by personal sphere arguments. Sensationalized media accounts of crimes against children influence lawmakers to pass new laws quickly to alleviate the perceived emergency--even when those laws likely have practical drawbacks (Zgoba 2004b). For example, New Jersey's version of Megan's Law was enacted only months after Megan Kanka's murder, and AMBER Alert was enacted nationally following the safe return of Elizabeth Smart after her prolonged kidnapping focused extensive attention on the child abduction issue (Zgoba 2004b). Legislators are motivated to pass policies to appear tough on crime and sympathetic with victims without being accountable to, or provide resources for, assessing the policy. When presented with empirical evidence showing the ineffectiveness of a given policy by criminologists, some lawmakers--most of whom have limited experience with crime--might agree on the assessment, but vote for the measure anyway because doing so benefits their reelection prospects (Currie 2007). This suggests first that lawmakers use limited critical assessment and deliberation of crime policy and second that personal sphere argument from victims' families and panicked community members outweigh technical expertise.

To promote better crime policy deliberation, we follow the model of deliberation suggested by Majdik and Keith (2011) that suggests decision-making include both factual (what is the likelihood of harm?) and normative (how acceptable is the likely harm to us?) arguments, and include stakeholders best able to provide that information. With AMBER Alert policy, personal experience and arguments affirming the concern for the safety of children provide normative justifications for policy, but normative claims should be weighed against factual claims, often from technical experts, on the prevalence of stranger abductions and whether alerting the public is effective in finding suspects or recovering victims. Further, Majdik and Keith argue expertise is a type of argument, expanding who can provide evidence in different spheres. For them, "experts are people who can make arguments about things that best respond to a particular problem, and who possess an...