Grossman on Hot Crimes

Steven P. Grossman (University of Baltimore - School of Law) has posted Hot Crimes: A Study in Excess (Creighton Law Review, Vol. 45, No. 1, 2011-2012, pp. 33-86) on SSRN. Here is the abstract:

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. 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.

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 appreciation 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 overreactions, 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.