Unfair (38 page)

When the researchers probed more deeply:
Paul Slovic and Ellen Peters, “Risk Perception and Affect,”
Current Directions in Psychological Science
15 (2006): 324. Put differently, when considering the risk as a probability, people imagined a single individual who might or might not act violently in the future. By contrast, when considering the risk as a frequency, people imagined a set of offenders who would certainly commit horrible acts, which was more
evocative and frightening. Yuval Rottenstreich and Christopher K. Hsee, “Money, Kisses, and Electric Shocks: On the Affective Psychology of Risk,”
Psychological Science
12 (2001): 188–89.

If we have strongly negative feelings:
Slovic and Peters, “Risk Perception and Affect,” 324; Rottenstreich and Hsee, “Money, Kisses, and Electric Shocks,” 185; George F. Loewenstein, Elke U. Weber, Christopher K. Hsee, and Ned Welch, “Risk as Feelings,”
Psychological Bulletin
2 (2001): 276–78.

A one-in-five-million chance:
Cass Sunstein has termed this dynamic “probability neglect”: we can be so focused on certain negative consequences that we largely ignore the likelihood that those events will transpire. Cass R. Sunstein, “Terrorism and Probability Neglect,”
The Journal of Risk and Uncertainty
26 (2003): 122.

Indeed, sometimes when more:
Paul Slovic and Daniel Västfjäll, “The More Who Die, The Less We Care: Psychic Numbing and Genocide,” in
Behavioural Public Policy
, ed. Adam J. Oliver (Cambridge, UK: Cambridge University Press, 2013), 94–114.

Mother Teresa was right:
Paul Slovic, “ ‘If I Look At the Mass I Will Never Act': Psychic Numbing and Genocide,”
Judgment and Decision Making
2 (2007): 80.

Research suggests that:
Slovic, “ ‘If I Look At the Mass I Will Never Act,' ” 88.

It's no coincidence that:
The 1994 federal law that requires convicted sex offenders to register with authorities was named after eleven-year-old Jacob Wetterling, who was abducted while riding bikes with his brother and a friend. Roger N. Lancaster, “Sex Offenders: The Last Pariahs,”
New York Times
, August 20, 2011,
http://www.nytimes.com/​2011/08/21/​opinion/sunday/sex-offenders-the-last​-pariahs.html?src=rechp
; “Megan's Law Website,” Pennsylvania State Police, accessed
November 2, 2014,
http://www.pameganslaw.state.​pa.us/​History.aspx?dt=
. A later amendment prompted state regulations that mandate that law enforcement notify members of the public about the presence of offenders in their neighborhoods. Lancaster, “Sex Offenders: The Last Pariahs.” These statutes are known as Megan's Law—after Megan Kanka, who was raped and murdered by a known sex offender who lived across the street and invited her over to look at a puppy. William Glaberson, “Man at Heart of Megan's Law Convicted of Her Grisly Murder,”
New York Times
, May 31, 1997,
http://www.nytimes.com/​1997/05/31/nyregion​/man-at-heart-of-megan-s-law-convicted-of-​her-grisly-murder.html?src=pm
. In addition to increasing and expanding punishment for sex crimes against children, the 2006 Adam Walsh Act permits something that is almost always prohibited in criminal law: the retroactive application of the tougher regulations. Lancaster, “Sex Offenders: The Last Pariahs.” It was signed on the anniversary of the date that Adam, the son of the host of America's Most Wanted, John Walsh, was kidnapped from a department store and murdered. Yolanne Almanzar, “27 Years Later, Case Is Closed in Slaying of Abducted Child,”
New York Times
, December 16, 2008,
http://www.nytimes.com/​2008/12/17/us/​17adam.html
.

We assume that assessing risk:
Slovic and Peters, “Risk Perception and Affect,” 322; Loewenstein, Weber, Hsee, and Welch, “Risk as Feelings,” 267.

And the problem is that:
Cass R. Sunstein, “Book Review: Misfearing: A Reply,”
Harvard Law Review
119 (2006): 1110.

Yet the risk that your child:
Lancaster, “Sex Offenders: The Last Pariahs”; Centers for Disease Control and Prevention, 10
Leading Causes of Death by Age Group Highlighting Unintentional Injury Deaths, United States—
2011, accessed November 2, 2014,
http://www.cdc.gov/​injury/wisqars​/pdf/​leading_causes_of_injury_deaths_highlighting_unintentional_injury_2011-a.pdf
;
U.S. Department of Transportation,
Traffic Safety Facts—2012 Data
—
Children
(Washington: National Highway Traffic Safety Administration, 2014), 1. In fact, contrary to popular perceptions, the incidence of various child abduction crimes have decreased—not increased—since the 1980s. Lancaster, “Sex Offenders: The Last Pariahs.” And the statistics show that only a very small percentage of sexual crimes involve repeat offenders—indeed, Justice Department data indicates that reoffending rates for sex offenders are notably
lower
than for those convicted of robbery, burglary, and drug crimes. Lancaster, “Sex Offenders: The Last Pariahs”; Rachel Aviv, “The Science of Sex Abuse,”
The New Yorker
, January 14, 2013,
http://www.newyorker.com/​reporting/2013/01/14​/130114fa_fact_aviv​?currentPage=all
. Moreover, when it comes to sexual abuse, it is relatives, friends, and acquaintances who make up the vast majority of abusers, not strangers hiding in the bushes. Lancaster, “Sex Offenders: The Last Pariahs; Youth Villages, “In Child Sex Abuse, Strangers Aren't the Greatest Danger, Experts Say,”
Science Daily
, April 13, 2014,
http://www.sciencedaily.com​/releases/2012/04/​120413100854.htm?utm_​source=feedburner&utm_medium=email&utm_campaign​=Feed%3A+sciencedaily%2Fmind_brain+%28ScienceDaily%​3A+Mind+%26+​Brain+News%29
.

The pedophile threat:
Paul Slovic, “Perception of Risk,”
Science
236 (1987): 282–83; Paul Slovic,
The Perception of Risk
(London: Earthscan, 2000), 140; Timur Kuran and Cass R. Sunstein, “Availability Cascades and Risk Regulation,”
Stanford Law Review
51 (1999): 708–10; Jared Diamond, “That Daily Shower Can Be a Killer,”
New York Times
, January 28, 2013,
http://www.nytimes.com/​2013/01/29​/science/jared-diamonds-guide-to-reducing-lifes-risks.html?_r=0
. Researchers have identified a number of other factors that prompt greater fear and an enhanced perception of risk, including whether the risk is perceived as involuntary,
irreversible, human-generated, and impacting children, among others. Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 701, 708–10. One of the intriguing things about our threat perceptions is how difficult they are to control: we may “know” that a risk is very unlikely to happen, but still see it as a major threat. Daniel Kahneman,
Thinking, Fast and Slow
(New York: Farrar, Straus and Giroux, 2011), 323. For many of us, a great example of this phenomenon comes when we fly in an airplane: we know that our chances of death are significantly less than if we completed the same journey by car; yet our automatic emotional response leaves us on edge for the flight. Likewise, we may be aware that we are far more likely to die of heart disease than Ebola, but be much more motivated to respond to the risk of Ebola.

So we invest heavily:
Today, you can search a free online database of registered sex offenders in every state. Lancaster, “Sex Offenders: The Last Pariahs.” And the amount of oversight and punishment of sex offenders shows no sign of dissipating. Forty-four states, for example, have either enacted or are currently considering laws that require certain sexual predators to wear electronic monitoring devices for the rest of their lives. Lancaster, “Sex Offenders: The Last Pariahs”; National Conference of State Legislatures,
State Statutes Related to Jessica's Law
, accessed November 3, 2014,
http://www.leg.state.vt.us/​WorkGroups/sexoffenders​/NCSLs_Jessicas_Law_Summary​.pdf
. At the federal level, in less than 20 years, the average sentence for possessing or distributing child pornography has more than quintupled to just under a decade in prison. U.S. Sentencing Commission,
Sentence Length in Each Primary Offense Category
(2011), Table 13,
http://www.ussc.gov/​sites/default/files/​pdf/research-and-publications​/annual-reports-and-sourcebooks/2011/Table13.pdf
; Rachel Aviv, “The Science of Sex Abuse.”

Unfortunately, research suggests that these types of laws are extremely costly and often ineffective. “Sex Laws Unjust and Ineffective,”
The Economist
, August 6, 2009,
http://www.economist.com/​node/14164614
. Indeed, a study of Megan's Law in New Jersey, funded by the federal government, showed no meaningful effect on recidivism rates. Kristen Zgoba,
Megan's Law: Assessing the Practical and Monetary Efficacy
(New Jersey Department of Corrections, 2008), 2; Lancaster, “Sex Offenders: The Last Pariahs.” And these statutes can actually make matters worse. Once they are listed on a public registry, people are at serious risk of losing their jobs and struggle to find employment. Jill S. Levenson and Leo P. Cotter, “The Effect of Megan's Law on Sex Offender Reintegration,”
Journal of Contemporary Criminal Justice
21 no. 1 (2005): 49, doi: 10.1177/1043986204271676; “Sex Laws Unjust and Ineffective.” Laws that bar offenders from living within a certain number of feet of parks or schools further marginalize these individuals, particularly in urban areas where most of the landscape ends up being off-limits “Sex Laws Unjust and Ineffective.” Research shows that those without a stable place to live or a job are more likely to reoffend. Center for Sex Offender Management,
What You Need to Know About Sex Offenders
(Center for Effective Public Policy, 2008), 4-5,
http://www.csom.org/​pubs/needtoknow_fs.pdf
; “Sex Laws Unjust and Ineffective.”

Our registries also make those previously convicted of sex offenses targets for harassment and attacks. “Sex Laws Unjust and Ineffective”; Richard Tewksbury and Matthew Lees, “Perceptions of Sex Offender Registration: Collateral Consequences and Community Experiences,”
Sociological Spectrum
26 (2006): 329. That is, we facilitate serious crimes against people who have served their time and, in many cases, are simply trying to piece their lives back together.

Similarly, passing a bill allowing for the indefinite civil detention of sex offenders even after they have completed their sentences may seem like a sensible response to a particularly egregious crime against a child—a way to use the tragedy to enact change that will keep kids in the community safer. And, in fact, the Adam Walsh Act and more than twenty state sexually violent predator laws provide for the subsequent civil commitment of those prisoners assessed to have serious impulse control issues related to sexually assaulting children. Rachel Aviv, “The Science of Sex Abuse.” But it seems extremely unjust to determine that a person has sufficient control over his actions to be found criminally blameworthy, have that person serve his time in prison, and then, just as he is about to regain his freedom, decide to lock him up in a mental-health facility on the grounds that he is dangerous because he does not have the ability to control his actions. A dirty trick like that would seem more at home in a Kafkaesque nightmare than present-day America.

The news media further distorts:
Kahneman,
Thinking, Fast and Slow
, 137–45.

And how easily we can recall:
Kahneman,
Thinking, Fast and Slow
, 142; Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 685–86.

It makes a difference:
It's easy to see how media coverage can engender a vicious cycle—what some scholars call an “availability cascade.” Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 685; Daniel Kahneman,
Thinking, Fast and Slow
, 142. Horrible crimes are given prominence by the media, which causes private citizens and lawmakers to assess these crimes as more likely to occur than they actually are and to believe that addressing them is particularly important. This, in turn, means that the media focuses even more time on covering rapes, murders, and brutal assaults, which encourages the public to see them as even more important and dangerous.

Likewise, the disproportionate number:
Jerry Kang, “Trojan Horses of Race,”
Harvard Law Review
118 (2005): 1549–51.

Many academics and journalists:
Ian Sample, “US Court See Rise in Defendants Blaming Their Brains for Criminal Acts,”
Guardian
, November 10, 2013,
http://www.theguardian.com/​world/2013/nov/​10/us-rise-defendants-blame-brains-crimes-neuroscience
; Jessica Hamzelou, “Brain Scans Reduce Murder Sentence in Italian Court,”
New Scientist
, September 1, 2011,
http://www.newscientist.com/​blogs/shortsharpscience/​2011/09/brain-scans-reduce-sentence​-in.html
; Emiliano Feresin, “Italian Court Reduces Murder Sentence Based on Neuroimaging Data,”
Nature News Blog
, September 1, 2011,
http://blogs.nature.com/​news/2011/09/​italian_court_reduces_murder_s.html
.

Stefania had pled guilty:
Feresin, “Italian Court Reduces Murder Sentence.”

Critics of the reduced sentence:
Hamzelou, “Brain Scans.”

Moreover, they noted, Stefania's brain:
Feresin, “Italian Court Reduces Murder Sentence.”

It seems obvious that:
Hamzelou, “Brain Scans.”