A Uniquely Punitive Turn? Sex Offenders and the Persistence of Punitive Sanctioning

• Published date: 01 February 2021
• Author: Joshua C. Cochran,Daniel P. Mears,Ryan T. Shields,Elisa L. Toman
• DOI: 10.1177/0022427820941172
• Date: 01 February 2021
• Subject Matter: Articles

Article

A Uniquely Punitive

Turn? Sex Offenders

and the Persistence

of Punitive Sanctioning

Joshua C. Cochran

1

, Elisa L. Toman

2

,

Ryan T. Shields

3

, and Daniel P. Mears

4

Abstract

Objectives: This article tests two theoretical ideas: (1) that social concerns

about particular “dangerous classes” of offenders shift over time to influ-

ence court sanctioning practices and (2) that, since the 1990s, sex offenders

in particular came to be viewed by courts as one such “dangerous class.”

Methods: We examine sanctioning trends in Florida and compare punish-

ment of sex offenders in earlier versus later parts of the get-tough era. We

then examine whether sentencing is associated with rational criminal justice

incentives (e.g., increasing seriousness or rates of sex crimes) or with

shifting public concerns (e.g., increasing media attention to sexual violence).

Results: Punitiveness increased for all crimes but especially for sex crimes.

Punitiveness appears not to be driven by increasing seriousness or rates of

crime, but does appear to be partially driven by increasing national media

1

School of Criminal Justice, University of Cincinnati, OH, USA

2

Department of Criminal Justice and Criminology, Sam Houston State University, Huntsville,

TX, USA

3

School of Criminology and Justice Studies, University of Massachusetts, Lowell, MA, USA

4

College of Criminology and Criminal Justice, Florida State University, Tallahassee, FL, USA

Corresponding Author:

Joshua C. Cochran, School of Criminal Justice, University of Cincinnati, P.O. Box 210389,

Cincinnati, OH 45221, USA.

Email: joshua.cochran@uc.edu

Journal of Research in Crime and

Delinquency

2021, Vol. 58(1) 74-118

ªThe Author(s) 2020

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0022427820941172

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attention to sexual violence. Conclusions: The findings support arguments

that sex offenders were subjected to a uniquely punitive turn in sanctioning

and that courts are sensitive to shifting public concerns. The results advance

theoretical arguments developed by Gottschalk and earlier work that sug-

gests that the persistence of get-tough era sentencing practi ces may be

driven in part through focal attention to select types of offenders.

Keywords

sentencing, sex offenses/offenders, punishment

The get-tough punishment era in the United States was fueled in part by a

fear of illegal drugs and drug-related violence (e.g., Beckett and Sasson

2004; Tonry 2005). Moral panics along with actual increases in drug and

violent crime created political incentives to appear “tough” on crime (Enns

2016; Garland 2001; Pfaff 2017; Simon 2007; Stuntz 2011). Politicians in

turn enacted tough-on-crime laws, and the United States has since experi-

enced historically unprecedented growth in incarceration through greater

reliance on prisons and longer prison terms (Clear and Austin 2009; Tonry

2009; Travis, Western, and Redburn 2014).

However, the social and political backdrop that set the stage for the onset

of the punitive turn differed from that which followed. In contrast to esca-

lating violent crime of the 1980s and early 1990s, crime rates in the mid-

1990s and thereafter declined. The economy in the 1990s and early 2000s

improved before then deteriorating. And public support for less incarcera-

tion and more investment in alternatives arose (Sundt et al. 2015; Thielo

et al. 2016; see also Beckett 2018).

Yet, court sentencing practices became increasingly punitive and con-

tinued to be so throughout the 1990s and the subsequent decade (Bonczar

2003; Clear and Frost 2015; Jacobson 2005). Why? One line of argument is

that societal perceptions of “dangerous classes” of offenders can shift over

time and that these shifts not only influence policymakers and their policies

but that courts are responsive to them (e.g., Garland 2001; Simon 2007; see

also Steffensmeier, Ulmer, and Kramer 1998; Kramer and Ulmer 2002). A

second argument, made most recently by Gottschalk (2015), is that this

“dangerous class” phenomenon is one of several factors that has contributed

to sustained use of severe sentencing practices in courts. The idea in part is

that rhetoric about and fear of putatively dangerous classes of offenders—

resulting from rising crime rates in earlier years—persist even as crime has

Cochran et al. 75

declined and economic concerns about the costs of harsh punishment have

increased. This rhetoric incentivizes punitive political and criminal justice

approaches even in the face of improved public safety and a worsening

economy. Most relevant for this article, Gottschalk (2015) argued specifi-

cally that sex offenders constitute one such dangerous class toward which

courts have likely become more punitive despite countervailing social and

political forces that should have otherwise disincentivized harsh sentencing

practices (see also Simon and Leon 2008).

This argument is central to explanations about how get-tough sentencing

regimes have continued in courts in recent years, but it has received limited

empirical testing. Thus, the goal of this article is to provide a partial test of it

by examining relative trends in sex offender sentencing in state felony

courts during the 1990s and 2000s. In so doing, we seek to advance scholar-

ship and help to ground policy debates on an empirical foundation. To this

end, we will examine whether courts indeed have changed their practices

toward sex offenders in the same way that policymakers have. Sex crime

has seemingly received more criminal justice policy attention than any

other crime in recent decades (Ackerman, Sacks, and Greenberg 2012;

Hughes and Burchfield 2008; Velazquez 2008). Sex offenders appear to

have inherited the mantle held by drug and violent offenders as a group

perceived to be especially threatening (Mancini and Mears 2016). However,

no empirical analysis of courts exists that can discern whether policymakers

have alone enhanced punitiveness toward sex offenders or if courts have

followed suit. Such an assessment can provide a test of theoretical argu-

ments about court responsiveness to fears about dangerous classes of offen-

ders (e.g., Curry and Corral-Camach o 2008; Spohn and Holleran 2000;

Steen, Engen, and Gainey 2005) and those made specifically by Gottschalk

(2015) and others (e.g., Leon 2011; Simon 1998) about sex offenders cur-

rently constituting one such dangerous class.

These theoretical accounts point to three empirical questions that we will

answer in this study: (1) Did sex offender punishment become more severe

over time? (2) Were any increases in sanctioning severity greater for sex

offenders as compared to drug or violent offenders? (3) And, to what extent

is sanctioning of sex offenders influenced by rational explanations—mea-

sured as increasing severity of sex cr imes or increasing rates of sexua l

violence—or by increasing social concerns about sex crimes—measured

as increasing media attention toward sexual violence? To answers these

questions, this article examines criminal sentencing in Florida, one of the

largest state systems in the country, using regression and matching analyses

that examine sanctioning of sex offenders over time and in comparison to

76 Journal of Research in Crime and Delinquency 58(1)