Most public policy is borne out of some combination of values, politics, and social science. But sometimes, particularly in criminal justice, there is legislation so emotionally driven and politically expedient that science — i.e., what the evidence suggests is the best way to improve public safety — is thrown out altogether. Such is nearly always the case when legislation is rolled out in the wake of a high-profile crime with a young female victim, as was the case with Chelsea’s Law, Marsy’s Law, Jessica’s Law, and Megan’s Law and Three Strikes (spurred by the murders of Kimber Reynolds and Polly Klaas).
This year’s “Named Legislation” takes the form of SB 838 (Beall) — which is known as “Audrie’s Law.” Fifteen-year-old Audrie Pott committed suicide on Sept. 10, 2012. A week earlier she had woken up after partying with friends to find her shorts removed, and learned over the next several days that cellphone photos had been taken of her being sexually assaulted, which had been messaged to other classmates. Three teenagers reportedly confessed to assaulting Audrie and possessing photos of her, and were sentenced to between 30 and 45 days in juvenile detention.
Now, after suffering such a tragic loss — and galvanized by the light sentences handed to the offenders — Audrie’s family is seeking to establish a law that will “give Audrie’s life and death meaning,” her father said in his testimony before the Senate Public Safety Committee last week. SB 838 would increase punishments for sexual assaults that involve 1) social media, including text messages, or 2) a victim incapacitated by intoxication or disability. The latest version of the bill has yet to be officially released, but is likely to set a mandatory minimum sentence of two years in out-of-home placement and add a sentence enhancement of up to a year and $10,000, along with other provisions. (The bill has been substantially amended from its earlier, even more punitive version).
These enhanced punishments may seem warranted to many people. But here’s where we need to pause and look at the evidence: Decades of research have shown, nearly unanimously, that mandatory minimums and sentence enhancements do not deter crime. If anything, harsher penalties endanger communities by diverting resources away from social services, tearing apart families and communities, and making it more difficult for people who commit offenses to reintegrate into society and lead law-abiding lives.
Too often, ramping up punishment is seen as the only response to tragedy. But it’s not the only one — and, despite the media coverage, it’s not the one most victims prefer. There are alternative responses to sexual assault and cyberbullying that are much more likely to be effective, such as school-based prevention programs that educate teens on the dangers of sexting, including the legal consequences and impact on victims; treatment and counseling services for victims of sexual assault, including suicide prevention; restorative justice for victims and offenders; and treatment programs tailored to youth who have committed sexual offenses.
To some people who have suffered immense tragedies, these alternatives may not sound like justice. But they are evidence-based approaches that will likely prevent other families from experiencing the same tragedies that they have.