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May 2, 2014

"Kids, Cops, and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis"

The title of this post is the title of this interesting paper newly posted on SSRN and authored by David Singleton. Here is the abstract:

Sex offenders are today’s pariahs — despised by all, embraced by none.  During the past twenty years, society’s dislike and fear of sex offenders has resulted in a flood of legislation designed to protect communities from them.  These laws include residency restrictions, which bar convicted sex offenders from living near places where children are expected to be found.  Given this climate, do lawyers who for sex offenders have any hope of winning justice for their clients?

In 2005, the Ohio Justice & Policy Center (“OJPC”) began a three year-advocacy campaign against Ohio’s residency restrictions.  At first OJPC lost badly — in both the courts of law and public opinion.  But after losing the initial legal challenge, OJPC transformed its seemingly lost cause into a winning effort.  It did so by borrowing an idea from Professor Derrick A. Bell.

Professor Bell is famous, among other things, for his interest-convergence thesis. According to Bell, blacks achieve racial equality only when such progress it is in the interests of whites.  The classic example of Bell’s theory is his explanation of the Supreme Court’s decision in Brown v. Board of Education.  According to Bell, the Court desegregated public schools not for moral reasons but because doing so would improve America’s credibility on racial issues during the Cold War.

OJPC eventually prevailed in its challenges to residency restrictions because it aligned the interests of sex offenders with society’s interests in protecting children from sexual abuse.  Not only did OJPC win two important legal challenges but it also transformed the local media narrative about residency restrictions.

Kids, Cops and Sex Offenders: Pushing the Limits of the Interest-Convergence Thesis begins by telling the story of OJPC’s advocacy — both before and after employing an interest-convergence strategy. The article then poses and answers three questions: (1) whether it is appropriate to attach the “interest-convergence” label to OJPC’s sex offender advocacy given that Bell’s thesis is “historically descriptive rather than a recommendation for future-oriented strategies,” according to Professor Stephen Feldman, a leading scholar; (2) whether interest-convergence theory explains the victories OJPC won for its clients; and (3) assuming that interest convergence has value as an advocacy tool, whether it potentially presents a downside for the marginalized clients the lawyer seeks to serve.  I conclude the article with a discussion of a course I developed called Complex Problem Solving for Lawyers, which teaches law students to incorporate Bell’s interest-convergence theory into advocacy on behalf of despised groups like sex offenders.

May 2, 2014 at 11:29 AM | Permalink

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Comments

the problem is that the term SO or registry paints a overly broad impression in the general public of these people of which many if not most are not even associated with hands on offenses or a danger to society. viewing material only and other such non-contact violations should not be lumped in with the worst of the worst, be on a registry or have living restrictions put upon them, it's completely insane that their is no differental of seriousness among the various violations.

Posted by: Randy | May 2, 2014 1:56:40 PM

LOL I couldn't have said it better. When enough two-faced politicians start getting hurt because of these illegal laws. THEN they will change not before.

Posted by: rodsmith | May 2, 2014 4:23:02 PM

it's completely insane that their is "no differental of seriousness" among the various violations.

I could not disagree more! We are a country that is governed by laws, NOT by public opinion. At the time of sentencing, the punishment was handed down. ONCE and only ONCE is a person to be punished for a crime. Not again and again and again, for as long as the public wants to hate a certain group or for as long as it is profitable for a politician.

The Registry does NOT protect anyone. It's only purpose is to further condemn the offender and stigmatize his/her family as well as keep the former convict from being employable.

It does not matter the seriousness of the crime. the Public Registry is the problem not the severity of the offense itself. The only group of people that need to be concerned about the "seriousness" of an offense is the Probation/Parole Officers
during the evaluation period of the person on paper, and the investigative agencies Police and FBI when a crime has been committed.

Posted by: Book38 | May 2, 2014 8:37:07 PM

Randy, rodsmith and Book38 - I couldn't have said it better. What really bothers me the most is the "legal profession's" swallowing of the gems of wisdom of the majority of 9 baboons in black pajamas that came to the decision in Smith vs. Doe that registration was civil and non-punitive and hence not ex-post facto. Words mean something (to non-government stooges) and the creative rewriting of the Constitution should not be tailored to todays People Magazine's popular opinion, or especially pandering members of Congress (Foley, Vitter, etc.). That illustrious Supreme Court will go down in history as talking out of their backsides and there was basically not a tsk, tsk or even a peep from the legal profession, just a self-deceiving rationalization of imaginary stereotypes.

The decision greatly overstated the "government interest" and was not "narrowly tailored". For this we throw away one of the great American building blocks of Justice. I am not saying that for some individuals that real, workable laws would not be appropriate, but that is not anything near what we have now! This black eye will fall on Kennedy, et al and we as a nation are worse for it.

Posted by: albeed | May 2, 2014 9:07:54 PM

"According to Bell, the Court desegregated public schools not for moral reasons
but because doing so would improve America’s credibility on racial issues
during the Cold War."

Similarly, both Amy Carmichael & Mother Theresa only
opposed prostitution and abortion-- and gave their health and lives --
not for moral reasons,
but for purely cynical reasons.

Posted by: Adamakis | May 2, 2014 9:26:06 PM

Objection!!! You don't know what the motive's of Amy Carmichael or Mother Theresa were. It's pure speculation on your part.

Posted by: Book38 | May 3, 2014 7:23:56 PM

We are a country that is governed by laws, NOT by public opinion.

You say that as though you deserve a round of applause. We are also a nation of FOR PROFIT prisons - how convenient. A lot of good the "valuable tool" argument is when individuals are forced to register under a compliance or prison ultimatum that are 110 percent innocuous to society and will never pose a threat to anyone. The "public safety" platitudes are folly and only further exploit worst-case hypothetical scenarios that are statistically insignificant.


Megan's Law doesn't stand for proactive prevention, it stands for retaliatory vengeance and unbridled hatred. Megan and Adam's memory have been done a great disservice with these illegal laws in which were passed in a selfish and pathetic attempt to keep them from dying in vain. Well, the experiment was a failure, which I'm sure history will put these laws in the same column as the holocaust and slavery.

Posted by: lance mitaro | May 4, 2014 8:21:36 PM

I don't get the point, "not in my backyard but okay in your backyard", in fact I could advocate a reverse residency restriction, REQUIRING offenders to LIVE WITHIN A 1000 FEET OF A POLICE STATION, which would usually result in them being close to parks, schools, and other places that are closer to residences in a city, rather than forcing a move to more rural areas, where police have to travel further, of course what about "DRUG DEALERS, ARSONISTS, TERRORISTS, ARE THEY A THREAT TO CHILDREN AND SOCIETY?)

Posted by: Alex | May 6, 2014 11:13:02 AM

Alex,

You make very valid points. Could one say that society itself is a threat to society?

Posted by: Oswaldo | May 7, 2014 8:06:15 AM

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