Skylar's Law: memorial crime policy and mediating argument spheres

Argumentation and Advocacy ISSN: 1051-1431 (Print) 2576-8476 (Online) Journal homepage: http://www.tandfonline.com/loi/rafa20 Skylar's Law: memorial crime policy and mediating argument spheres Amy Pason, Timothy Griffin & Michael Kwiatkowski To cite this article: Amy Pason, Timothy Griffin & Michael Kwiatkowski (2017) Skylar's Law: memorial crime policy and mediating argument spheres , Argumentation and Advocacy, 53:1, 23-40, DOI: 10.1080/00028533.2016.1272897 To link to this article: https://doi.org/10.1080/00028533.2016.1272897 Published online: 13 Feb 2017. Submit your article to this journal Article views: 338 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rafa20 ARGUMENTATION AND ADVOCACY, 2017 VOL. 53, NO. 1, 23–40 http://dx.doi.org/10.1080/00028533.2016.1272897 Skylar’s Law: memorial crime policy and mediating argument spheres1 Amy Pason a , Timothy Griffinb and Michael Kwiatkowskic a Department of Communication Studies, University of Nevada, Reno, NV, USA; bDepartment of Criminal Justice, University of Nevada, Reno, NV, USA; cDepartment of Social Psychology, University of Nevada, Reno, NV, USA ABSTRACT ARTICLE HISTORY Crime policy is often created as a reaction to victimization, influenced by personal sphere arguments, and without much consultation with or assessment by technical experts. This is especially true for “memorial crime” policies such as the AMBER Alert expansion, “Skylar’s Law” in West Virginia. By analyzing the Judiciary Committee Meeting for Skylar’s Law, we show how personal sphere arguments and parental testimony framed and transformed deliberation of the bill’s merits into an epideictic moment to honor Skylar. Laws influenced by epideictic norms are problematic as costs and consequences are not addressed. We argue better criminal justice policy requires balancing personal and technical argument spheres, and that legislators should employ phronesis—enacting expertise to mediate public deliberation to address both normative and factual arguments related to the policy. Received 19 August 2014 Accepted 1 April 2016 KEYWORDS AMBER Alert; spheres of argument; epideictic; legislative policy; criminal justice Introduction In March 2014, National Broadcasting Company’s (NBC) Dateline featured “Something Wicked,” chronicling the events leading up to and following the tragic disappearance and death of 16-year-old Skylar Neese of West Virginia (Cole 2014). Skylar snuck out of her bedroom window around midnight on July 6 2012, left voluntarily in a car, and was not seen alive again. Skylar’s parents noticed her absence about 12 hours later when she was not home for lunch as expected, but only contacted local police after learning she had not reported to her fast food job. Skylar initially was classified as a runaway after police reviewed surveillance video from her family’s apartment complex. However, Skylar took few personal belongings, suggesting she did not intend an extended absence. Local police questioned Skylar’s family and friends, but did not contact state police to initiate an AMBER Alert because these alerts are intended for abducted minors. State AMBER Alert coordinators usually only issue alerts when the case meets issuance criteria, including having sufficient information about the abduction to convey to the public. Skylar’s case did not fit AMBER Alert issuance policy, yet in the wake of her disappearance, her family and CONTACT Amy Pason [email protected] 1 A version of this paper was presented at 16th Biennial Rhetoric Society of America Conference in San Antonio, Texas, USA. © 2017 American Forensic Association 24 A. PASON ET AL. friends petitioned to change the policy, thinking (wrongly) that an AMBER Alert might have saved her life (Benson Bailey 2012). After lying to local police during the six month investigation involving the Federal Bureau of Investigation (FBI), one of Skylar’s best friends, Rachel Shoaf, confessed that she and another friend, Sheila Eddy, picked up Skylar from her apartment, drove 30 miles outside of West Virginia to an area near Blacksville, Pennsylvania, and stabbed Skylar to death (Linton 2013). Shoaf explained her motive as no longer wanting to be Skylar’s friend. No AMBER Alert or any intervention by police would have saved Skylar—even her parents did not notice her absence until after she was already dead. Yet, in April 2013, the West Virginia legislature passed HB2453 (“Skylar’s Law”), a putative “expansion” of their AMBER Alert protocols, to mandate local law enforcement contact state police for any abducted or suspected missing minor in the initial stages of investigation. However, the law does not change issuance criteria to include missing, thus the law commemorating Skylar is little more than a clarification of administrative processes to coordinate police efforts, keeping AMBER Alerts reserved for minors classified as abducted. The question, then, is why a legislature passed a bill to honor a crime victim when that bill does not address the causes of the crime? We argue Skylar’s Law follows a trend typical of memorial crime legislation (Surette 2007), where crime policy is a new form of epideictic speech. Naming laws after victims allows the public to assume the law would treat or prevent future similar crimes, and possibly engenders a false sense of security to the public who assumes this “solution” can and does work just because there is a law in place (Zgoba 2004b). Legislators benefit by addressing pressure from panicked constituents and symbolically showing their commitment to fighting crime (Griffin and Miller 2008). These laws are influenced by appeals to social values and community norms, often through personal testimony, where epideictic decorum prevents critical deliberation of costs or effective implementation (Bostdorff 2011; Murphy 2003). Problematically, sensationalized cases leading to memorial laws divert attention away from more prominent forms of crime and perpetuate policies without evaluation of their effectiveness. We argue that the personal sphere has overly influenced crime deliberation, and better public deliberation should mediate personal/normative concerns against technical expertise. The deliberation about Skylar’s Law demonstrates the influence of legislation by parental testimony at the expense of technical experts, and a failure of legislators to incorporate technical expertise to evaluate the proposed legislation effectively. We analyze discourse surrounding the passing of Skylar’s Law and other news media related to AMBER Alert policy to show the trend of personal experience influencing public understanding of AMBER Alerts.1 We closely analyze the bill and West Virginia House Judicial Committee meeting in which Skylar’s Law was discussed, and where Skylar’s father, Dave Neese, gave personal testimony. We find that the meeting morphed from deliberative assessment of the bill into an epideictic moment, ultimately halting discussion in order to commemorate Skylar and appeal to community values of protecting children. In this, we outline crime policy’s relation to Goodnight’s (1982) argument spheres, and how legislators acting in the public sphere should mediate personal and technical issues implicated in crime legislation. Next, we analyze Skylar’s Law as an expansion of AMBER Alert policy, and Neese’s epideictic moment. Finally, we show how crime policy should balance the personal and the technical in the public sphere. ARGUMENTATION AND ADVOCACY 25 Argument spheres and crime policy Although scholars have been interested in the relationship between rhetoric and public policy (Asen 2010), few have studied crime policy deliberation or the policy process beginning with bill proposals (Gring-Pemble 2001). Crime policy deliberation is an area where the personal, technical, and public spheres of argument overlap and blur; crime policy is derived from the personal experience of victimization, deliberated in public related to community norms, and analyzed for effects (after the fact) by technical experts. This essay follows the claim of public criminologists who argue technical, empirical evidence about crime often is overlooked in legislative deliberations in favor of personal appeals or public “common sense” understandings of crime (Currie 2007). We argue that crime policy should be decided with a balance of arguments from both the personal and technical sphere, mediated in the public sphere using expert judgment. In other words, lawmakers should enact a phronesis of mediation to consider both normative considerations and factual/technical issues related to crime policy. Argumentation scholars have debated the role of technical sphere arguments in public deliberation and criminologists have argued whether technical experts can address crime policy best or whether other public stakeholders should be involved (Dzur 2012). The adoption and implementation of crime policy can be complicated as legislators or community members are responsible for proposing crime laws, with technical experts (law enforcement, judges, lawyers, and other agencies) responsible for the implementation of laws.2 Largely excluded or underfunded in the process is academic crime expertise to provide empirical evidence of crime causes, effects, or program evaluation (Gardiner 2014). Goodnight (1982) warned against technical arguments trumping public argument, but scholars more recently have concluded that technical experts or technical criteria for evaluating policy are necessary (Paliewicz 2012, 2014; Whidden 2012). Nevertheless, neither personal or technical arguments can be used exclusively; to do so results, Goodnight (1982) tells us, in an inability to evaluate the effects of a policy on the larger community. Schiappa (2012) contends that the knowledge gap between personal and technical influences on public policy can be vast; therefore, political representatives (or courts) have to be a check and mediating force to incorporate and find consensus from stakeholders. Nevertheless, little evidence exists that legislators use technical experts or technical criteria when deciding crime issues. Currently, crime policy seems heavily influenced by personal sphere arguments. Sensationalized media accounts of crimes against children influence lawmakers to pass new laws quickly to alleviate the perceived emergency—even when those laws likely have practical drawbacks (Zgoba 2004b). For example, New Jersey’s version of Megan’s Law was enacted only months after Megan Kanka’s murder, and AMBER Alert was enacted nationally following the safe return of Elizabeth Smart after her prolonged kidnapping focused extensive attention on the child abduction issue (Zgoba 2004b). Legislators are motivated to pass policies to appear tough on crime and sympathetic with victims without being accountable to, or provide resources for, assessing the policy. When presented with empirical evidence showing the ineffectiveness of a given policy by criminologists, some lawmakers—most of whom have limited experience with crime—might agree on the assessment, but vote for the measure anyway because doing so benefits their reelection prospects (Currie 2007). This suggests first that lawmakers use 26 A. PASON ET AL. limited critical assessment and deliberation of crime policy and second that personal sphere argument from victims’ families and panicked community members outweigh technical expertise. To promote better crime policy deliberation, we follow the model of deliberation suggested by Majdik and Keith (2011) that suggests decision-making include both factual (what is the likelihood of harm?) and normative (how acceptable is the likely harm to us?) arguments, and include stakeholders best able to provide that information. With AMBER Alert policy, personal experience and arguments affirming the concern for the safety of children provide normative justifications for policy, but normative claims should be weighed against factual claims, often from technical experts, on the prevalence of stranger abductions and whether alerting the public is effective in finding suspects or recovering victims. Further, Majdik and Keith argue expertise is a type of argument, expanding who can provide evidence in different spheres. For them, “experts are people who can make arguments about things that best respond to a particular problem, and who possess an expertise consisting in their ability to make a case for a particular definition of problem or solution” (374). The authors relate expertise to phronesis, or the “ability involved in making these kinds of choices: choices where the outcome is uncertain and the normative considerations are fully entwined with the factual/technical ones” (376). We suggest legislators should have this disposition and expertise of the process to ensure more effective deliberation. We argue the continued expansion and use of AMBER Alerts has been largely due to normative claims to promote a certain vision for how child safety is achieved and has not balanced these norms against factual expertise. This imbalance is exacerbated by the use of laws to fulfill epideictic functions to memorialize victims. AMBER Alert (in)effectiveness and expansion AMBER Alert exemplifies policies proposed in the wake of personal tragedies perpetuated and expanded through new laws even though technical expertise (largely confined in criminal justice academic journals) indicates the ineffectiveness of such laws. Common sense understandings about the effectiveness and success of AMBER Alerts (especially touted in news articles any time a child is retrieved when Alerts are issued) and social norms suggesting we should “do anything” to keep children safe undergird AMBER Alert policy, exemplifying logic derived from the personal sphere. In this section, we show how personal sphere arguments have influenced the passing and expansion of this policy, regardless of the ways in which the desire to save children hinders discussion of the resources used or effectiveness of the policy. In this, we do not mean to suggest that alerting the public has not contributed to retrieving missing children but emphasize that AMBER Alerts are not always necessary as parents or local news media can utilize social media to alert communities of missing children on their own accord. We argue the intention and implementation of the policy in practice contrasts with how costs and benefits ideally should be addressed. AMBER Alert was first enacted in Texas in 1996 as “Plan Amber,” after 9-year-old Amber Hagerman was kidnapped while riding her bicycle. A neighbor witnessed the event, but there was no extant coordinated plan to broadcast information effectively to enlist the community to look for the abducted child. Originally designed for “stereotypical” child abductions such as the Hagerman case, AMBER Alerts are used when a child (aged 17 or younger) is (1) kidnapped (usually by a stranger or someone little known to ARGUMENTATION AND ADVOCACY 27 the family), (2) believed to be in imminent danger (as stranger abductions disproportionately result in the murder of the child), and (3) substantial information is known about the suspect or the car the suspect is driving, so that information can be broadcast on highway signs, local media, Internet, or via cell phone text alerts and social media (Griffin et al. 2007; Zgoba 2004a, 2004b). The issuance criteria are important, as an alert will (should) not be issued unless authorities have enough useful information to convey to the public. AMBER Alert has been implemented in all 50 states using similar issuance criteria and was extended into a federal system when President George W. Bush signed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act in 2003 (Zgoba 2004a). The logic behind AMBER Alerts is that by giving the public information about a suspected kidnapper, the child is more likely to be found through a tip to police from an aware community member. Because of the system, the public feels a sense of security that something can and will be done to find an abducted child because an alert is issued (Sicafuse and Miller 2010). Although some instances exist in which a citizen was able to identify a suspect to assist law enforcement, rarely in stereotypical stranger abduction cases does such a strategy work.3 AMBER Alerts have limited effectiveness as people have to read highway signs or alert messages quickly, retain the information, and then be willing to contact authorities when they come across a possible kidnapping perpetrator and victim—a process which can tax an average person’s cognitive abilities (Miller et al. 2009). Furthermore, most AMBER Alert “successes” involve cases where the child was not in clear danger (e.g. non-custodial parental abductions) and in most AMBER Alert cases overall, the alert was not directly responsible for successful recovery of the child (Griffin 2010). The simplistic solution of having community awareness through an alert, therefore, does little to help recover abducted children who are endangered and does not address complex issues leading to stranger or parental abductions. Common sense or personal sphere appeals prevail in public discourse regarding AMBER Alert by affirming the role of AMBER Alert in saving children regardless of the circumstances surrounding the missing/abducted child. For example, an alert was issued for a child who “went missing” playing hide-and-seek in her backyard. Although the child was “found” after coming out of hiding, editorialists still linked the success of finding the child to AMBER: “But if you do [take your eyes off your child] and they’ve disappeared, pray for an Amber Alert as exemplary as this one” (Sun Herald 2014). With success stories like this, other parents might assume AMBER Alerts routinely are issued and brought to a successful resolution. For example, when an alert was not issued in the case of a missing child in Massachusetts because there was no specific information regarding the facts of the child’s disappearance or any potential suspect, friends of the family still affirmed that “150 percent, yes” the police should have issued an alert to help in the search (Mackenzie 2012). These examples show how the reporting of personal experiences is the “common sense” foundation for how most members of the public understand AMBER Alert. It is easy, then, for people to use hindsight bias to assume AMBER Alerts results in a missing child’s safe return, or conversely, that AMBER Alerts would have made a difference in cases where they were not issued (Sicafuse and Miller 2010). Common sense suggests that an alert will work, even in situations for which the alert was not created. Technical information largely is absent from public arguments about alerts, regardless of the need for the public to assess competing constructions of common sense and to use 28 A. PASON ET AL. expert testimony in making decisions (Chappell 1995). Although some news articles highlight the limits of AMBER Alerts (e.g. Mackenzie 2012), and the Department of Justice (DOJ) (2010) offers some facts related to the policy, these sources do not provide data related to policy effectiveness other than generalized numbers of “children saved.” From a technical sphere perspective, AMBER Alert fails to meet effective policy criteria, including whether the policy addresses the circumstances of the crime in question, whether the measure aligns with the intent of the law, whether there are unintended consequences of the policy, and whether the consequences and costs are acceptable (see Welsh and Harris 1999). In comparison, AMBER Alert is designed for a relatively small percentage of crimes against children, includes considerable potential costs (Griffin and Wiecko 2015), and is prone to misuse or overuse to appease panicked parents (see Griffin 2010; Griffin and Miller 2008; Griffin et al. 2007; Miller et al. 2009).4 As a result, criminologists have dubbed AMBER Alert as an example of “Crime Control Theater” because of its limited effectiveness despite public appeal. The public perceives the policy to be an effective solution, yet alerts do not deter or prevent crime (Griffin and Miller 2008). Since the public perception is that AMBER Alerts are effective and many assume alerts can be issued for any missing child (Goforth 2013), “common sense” suggests we should expand and utilize alerts for any missing person situation. State legislators have proposed expansions to activate alerts for missing minors, to help find elderly (in cases where, for example, those with dementia wander off), or even to locate lost pets (Ahunhodjaev 2014). Some states have proposed removing most of the issuing criteria for alerts to be issued for any instance of a missing child, regardless of whether police have other information (e.g. about the suspect) to convey to the public. Local police increasingly are pressured to issue alerts even when it does not meet criteria to avoid litigation by parents, possibly exacerbating the incidence of superfluous alerts. Through personal experience and common sense appeals, AMBER Alert policy expansion to help in the retrieval of missing persons continues without much resistance. AMBER Alert expansion in Skylar’s Law Similar to other expansions, Skylar’s Law was proposed by legislators following community outcry over a tragedy. Skylar’s Law is not a typical AMBER Alert expansion, as it only tweaks the procedure by which local police contact state police. Nevertheless, like other expansions, Skylar’s Law almost certainly does not improve the ability of alerts to recover abducted children or deter this type of crime. Like other memorial laws, the social significance of the law is established by the inclusion of Skylar’s name in the preamble. In this section, we analyze the particulars of Skylar’s Law to assess technical arguments related to AMBER Alert policy. Skylar’s Law gives the appearance of helping in cases like Skylar’s because of the name, but does not address the cause of her death; it only memorializes it. The text of Skylar’s Law is straightforward and similar to extant AMBER Alert policy. The bill includes the issuance criteria, indicating, “The following criteria shall be met before the State Police activate the Amber Alert” (West Virginia HB 2453 2013). The issuance criteria includes, “(1) The child is believed to be abducted; … [and] (4) There is sufficient information available to indicate that an Amber Alert would assist in locating the child.” The explanatory information included at the beginning of the bill indicates that the AMBER Alert ARGUMENTATION AND ADVOCACY 29 coordinator determines whether an alert should be issued and whether the AMBER Alert criteria have been satisfied. Since the new law does not change the definitions and basic implementation of AMBER Alert, the law would not protect children in situations similar to Skylar’s. Initially presumed a “runaway” (not abducted), little information existed to provide to the public to assist in finding Skyler—again, indicating an AMBER Alert was not an appropriate measure in her case. However, the naming of the law leads us to believe that the circumstances associated with Skylar’s disappearance and murder have been addressed. The changes to the original West Virginia AMBER Alert policy concern “administrative processes” related to coordination of local and state police with the AMBER Alert coordinator. The bill’s beginning explanatory information states the law now requires “a reporting law-enforcement agency to report a suspected missing or abducted child to the West Virginia State Police in the initial stages of investigation.” The explanatory information is followed by subsection (b) under the issuance criteria that the reporting law enforcement agency will contact the West Virginia State Police Communication Center by telephone, the communication center will contact the AMBER Alert coordinator to determine if the criteria are satisfied, and the previous should be done in the initial stages of investigation for missing or abducted children. In the new law missing was included along with “abducted” as a criterion for when state police should be contacted. To be clear, this does not guarantee that an AMBER alert will be issued for missing and abducted children, just that state police are informed for missing or abducted (but not runaway) minors sooner than perhaps they were before the policy was amended. As noted in the Judicial Committee hearing, this bill does not change criteria to issue AMBER Alerts in West Virginia, and as one sponsor states, “It is a statement of essentially what the administrative processes are” (Miley 2013). Presumably, some clarification on the processes might help make the system more efficient, but the bill does not include material changes that would have affected law enforcement action for Skylar. In addition to naming the bill after Skylar, the preamble touts the effectiveness of AMBER Alerts in West Virginia to resolve crimes successfully as well as to deter similar crimes. The wording of the law shifts attention away from the circumstances that resulted in Skylar’s death by employing vague language that supports common sense reasoning regarding the law’s effectiveness. The preamble states, “The Amber Alert plan [] has been in effect in West Virginia for nearly ten years with very successful results.” Griffin and Miller (2008) report that the DOJ claimed that 42 lives were saved as a direct result of AMBER alerts in 2006, but they noted that of the 34 “successful” alert issued that year, over half were for parental abductions and only three involved stranger abductions. In other words, law enforcement officials would need to use an alert to recover an abducted child in only a small number of cases. Moreover, the preamble claims that laws such as these help to deter crime, “the Amber Plan not only helps to recover abducted children but also acts as deterrent to this type of crime.” At present, no available research from academic criminologists supports the claim that AMBER Alert has deterred abductions. In fact, some criminologist theorize that alerts may increase the risk of harm to a child by a perpetrator who might be motivated to kill the child quickly after an alert to better escape law enforcement (Griffin 2010; Miller et al. 2009). Thus, the bill not only claims that AMBER alert is a successful policy initiative to help rescue abducted and missing children, but also to help deter similar crimes—all without any material evidence. 30 A. PASON ET AL. From the beginning of the process, Skylar’s Law was characterized by public misconceptions about AMBER Alert and its effectiveness. Lawmakers repeated statements of success and co-opted a recognized policy to respond to Skylar’s tragedy before the real causes of her death were known. Greater appreciation of empirical assessments of AMBER Alerts could have induced lawmakers to seek other solutions besides symbolic administrative policy clarification. Expertise in deliberating Skylar’s Law As noted previously, personal experience is preferred over technical expertise during public deliberations, resulting in crime policy being proposed and debated without consulting technical experts. Within the case of Skyler’s Law, the Judicial Committee meeting referenced and noted experts who were not present during the hearing to provide testimony. Rather, members of the committee allowed Skylar’s father, Dave Neese, to address the capabilities of state police resources to underscore that more should be done to find missing children like his daughter. Neese represents an emotional personal perspective that idealizes common sense arguments rather than a professional perspective that relies upon technical, empirical arguments. Neese’s testimony is an example of personal experience being used exclusive of technical expertise to develop public policy. The meeting on the bill was short, with little deliberation on the implications of the bill’s changes. The House Judiciary Committee meeting for Skylar’s Law took place on March 5 2013; the meeting lasted only 24 minutes, and included only seven delegate speakers (of 25 members) excluding the chairperson and bill sponsor. We chose to focus on this meeting because committees are where most of the work on bills and changes to bills are deliberated (Goodnight 2010), and because Committee Chair Tim Miley publicized the hearing on his personal website.5 The initial bill was introduced in February 2013 to the West Virginia House by members of the Committee for Crimes Against Children, including Delegate Charlene Marshall (D-Monongalia) who remembered Skylar once worked as her page. That few members spoke, and few members of the committee have legal or criminological training, demonstrates limits to deliberation on factual issues related to the bill. Skylar’s Law was signed into law on April 29 2013—less than a year since Skylar was murdered and three months after Shoaf’s confession. We note this timeline to show that the bill was drafted when facts of the case had only recently come to light, limited time existed to consult or evaluate proposed policy changes, and the bill was passed quickly, adopting a “solution” before the problem was understood. The bill’s sponsor, Bill Hamilton (R-Upshur) dominated the bill’s deliberation, fielding clarification questions and deferring questions to “authorities” not present in the meeting. Most committee members requested explanation and clarification about the basics of AMBER Alert policy; Hamilton’s deference of questions did not provide the information needed for delegates to evaluate the bill, and as the deliberation progressed, these types of assessments were pushed aside in order to move the bill through committee. First, delegates sought clarification about changes from the initial version to the final version of the bill. The initial version included “missing regardless of reason” as part of the issuance criteria, whereas the amended version did not. During the committee hearings, Hamilton indicated that the current bill was a result of consultation with the bill sponsors and West Virginia state police, and acknowledged his awareness that the bill did ARGUMENTATION AND ADVOCACY 31 not change the ultimate issuance criteria. When committee delegates questioned what change the bill brought about, including possibly in the reporting of cases, Hamilton “deferred to professionals” in regards to questions about how missing children are classified or the process of issuing an alert. He nevertheless implied the bill would allow for alerts to be issued for “missing” minors, noting other states include missing children in their AMBER Alert policies and West Virginia “would be following those states with this involvement.” To be clear, some states have included “missing” as part of the issuance criteria, but Skylar’s Law ultimately did not follow the laws of other states. This slippage also opens the door to the subsequent news reporting on the bill that also assumes Skylar’s Law expands AMBER Alerts to be issued for “missing” children (see Porterfield 2013).6 Hamilton deferring to “experts” on questions related to how the policy works or how missing children are classified means delegates did not receive information necessary that might open space for them to question whether the bill is necessary or impactful. Delegates did not probe further about how the bill would affect current enforcement practices, nor did they ask how the bill related to Skylar. Although state police were consulted prior to the committee meeting, a gap exists between the intention of the technical implementation experts (police) and what the presumed intention of legislators in passing this bill. A bill that does not alter material practice allows the legislature to project an image of acting without the technical knowledge to accomplish the asserted goal. In short, the committee did not have the information needed to appropriately respond to the problem or identify other possible options (Majdik and Keith 2011). A further demonstration of the committee’s reliance on personal testimony in place of technical expertise occurs when Skylar’s father is allowed to speak, in essence, as an expert on behalf of state police. After being introduced to the committee, Neese was asked whether he believes contacting state police sooner would have helped in his daughter’s case. He responded, “The state police have a lot more resources and a lot more things they could do. So yeah, I think that it could’ve actually helped a lot.” Neese’s opinion operates within the committee hearing as technical fact. According to Whidden (2012), parental experience is often the preferred expertise in public deliberation even when it contradicts technical expertise. Again, with only limited knowledge of Skylar’s case, delegates did not question how police jurisdiction works, or what action state police took when leads suggested Skylar might have been seen near the site of a robbery (Cole 2014). Although we do not deny Neese is a stakeholder in this policy decision, we follow other criminologists who argue that an understanding of the history, cause, or assessing previous interventions of crime are more effective for proposing effective solutions (Welsh and Harris 1999). The deliberation of Skylar’s Law is problematic because it relies on the “common sense” or public knowledge of the policy without the necessary expertise from the technical sphere. The absence of technical experts is not unusual for legislative sessions. In most cases, legislators rely on third party researchers in crafting bills (whether through lobbying efforts or from legislative council research teams), and might consult with some experts including lawyers or police (but rarely criminologists [see Currie 2007]). Referring to experts, as Hamilton did, is not the same as having those individuals present. If present, experts can explain concepts in better detail or clarify questions lawmakers may have. Acknowledging “research” or experts in the Skyler’s Law deliberation functions to “bolster the image of a policy proposal, rather than to define how it could be effectively 32 A. PASON ET AL. implemented” (Asen et al. 2011, 207). In short order, the deliberative hearing became a symbolic gesture as the meeting continued on with only the personal testimony of Skylar’s father as evidentiary support. Personal sphere memorialization in Skylar’s Law The deliberation for Skylar’s Law shows how personal testimony was relied upon in the absence of technical expertise. The inclusion of Neese’s testimony further frames and warrants the bill’s passing in the personal sphere, calling on legislators to identify as parents rather than representatives of the public good. Whereas expert testimony is the norm to ground public sphere arguments, and personal testimony use in the public sphere is understood as a supplement to, but not grounds for, argument (Palczewski 1995, 2001; Pickering 2003), Skylar’s Law deliberations demonstrate how personal testimony is allowed, problematically, to stand as evidence. Moreover, the personal testimony is used as a form of epideictic speech, which influences the audience to turn from debating the merits of the bill to judging the appropriateness of speech (Condit 1985). Neese’s testimony, therefore, persuades delegates through epideictic rather than deliberative speech. Neese’s short, emotional speech directs delegates towards a preferred course of action. Neese praised Skylar and blamed law enforcement in order to prompt the passing of the bill “so other families may not have to go through this horrible ordeal.” Neese began by thanking the committee for allowing him to be at this important meeting and then talked about Skylar’s positive qualities, including a four-point grade point average and having “never been in trouble a day in her life.” As is typical of epideictic speeches, Neese amplified the positive characteristics of Skylar (e.g. good student), while ignoring negative characteristics (e.g. sneaking out without her parents’ knowledge), or his own possible failing as a parent (e.g. not noticing his daughter was missing for 12 hours). Audibly upset, Neese noted he knew he would cry during his speech. Neese narrated that Skylar had left with two friends, but framed Skylar’s classification as a runaway, limiting the action police could take, as an injustice. Bostdorff (2011) contends that epideictic speech allows speakers to both deflect blame from themselves and persuade on deliberative questions as preparatory to action (see also, Condit 1985). As Neese places blame on police/police procedure, he underscores the purpose of this bill is for all children to be “considered as a missing person [] and be treated as such, until a further investigation points to evidence in another direction.” Murphy (2003) argues that deliberative topics are influenced by value judgments made through epideictic, thus, Neese’s statement implies the right course of action is to classify all children as “missing” or whichever categorization might enlist the most attention and resources to keep children safe. Absent, however, is rigorous discussion of whether the proposed legislation will make any child materially safer. Although deliberation spaces can include other genres of speech (and Goodnight (2012) suggests we should be more attentive to hybrid genres), the inclusion of Neese’s epideictic speech disrupts the typical meeting procedure. Changing procedure to allow Neese to speak also signals a change in roles for delegates, including how they should process Neese’s statement. Seven minutes into the meeting Chairperson Miley noted the change in procedure and allowed Marshall (D-Monongalia) to present an extended statement (which other delegates had not been allowed to do), and asked the committee if ARGUMENTATION AND ADVOCACY 33 they would allow Neese to present a prepared speech. During their remarks both Marshall and Neese blamed Skylar’s tragedy on ineffective police action and appealed to delegates to think about their own children and what they would want as parents. Marshall stated, “time is of the essence [] and I’m sure, of anyone here, if it was your child or someone in your family, you would want someone to start looking for them right away.” Neese similarly urged members to think of their own children: “It could have been yours. You know?” Marshall’s and Neese’s remarks encouraged the delegates to think less about the bill and more about their families. Appealing to the audience to think about their own children and what resources they would employ to keep their children safe are typical in AMBER Alert discourse, but such appeals displace attention from how the policy affects the deployment of public resources. Marshall and Neese appealed to indisputable values, abstracted from particulars of the Skylar’s case: parents should want the quick and safe returns for all children. Boser and Lake (2014) argue that appeals to abstract values work by allowing audiences to forget material realities or the events that necessitated epideictic speech. Thus, it does not matter that Skyler could not have been guaranteed a safe return if this bill had been law at the time of her disappearance or the implications of the policy for public agencies; the correct course of action is to pass the bill to affirm that the community wants the safe return of lost children. Legislators identified as parents rather than lawmakers, and asked the public to do the same. For example, Delegate Rick Moye (D-Raleigh) compared Skylar’s tragedy to how he felt when his own 11-year-old daughter wandered out of his sight at the Capitol for a brief period, stating, “I would hate to think I would have to wait days before someone would start looking for her” (Porterfield 2013). Although Moye’s daughter’s wandering off differs from Skyler’s disappearance, personal testimony works by promoting identification with audiences (Pickering 2003). Moye understood his support of the bill as analogous to protecting his own child. After the meeting, delegates continued to promote the bill through epideictic norms, exaggerating the implications of the bill’s effects. Chairperson Miley directed his website audience to what he viewed as most important part of the meeting: Neese’s statement. Marshall asked her audience to understand the bill from Neese’s perspective, emphasizing the courage it took for Neese to explain the need for the bill to the committee. Marshall stated, “He’ll never get Skylar back. He simply doesn’t want any other child or parent to suffer the same fate” (Porterfield 2013, n.p.). During the committee meeting delegate Randy Smith (R-Preston) exaggerated the bill’s broader moral imperative: “This is just a small step in that direction to start making the changes that we need to do as human beings, as parents and grandparents, as aunts and uncles” (Porterfield 2013). Smith then maintained that the law needed to be passed “to combat ‘these weirdos, these pedophiles’” (Porterfield 2013). Put in such terms, citizens have a moral obligation to support the bill; to argue against the bill could risk casting oneself as supporting “pedophiles” or as attacking Neese or as not wanting the safe return of abducted children. Epideictic speech coupled with personal testimony promotes unquestioning acceptance of claims and restrains audiences by suggesting any critical evaluation would be indecorous. Epideictic norms quelling deliberation in Skylar’s Law As one function of epideictic discourse is to unify communities (Condit 1985), any potentially disruptive controversy is disallowed. In this case, assessing effective crime policy is 34 A. PASON ET AL. not a possible argumentation strategy to support the normative values warranting the bill. As we note above, Skylar’s Law was understood publicly as expanding AMBER Alert issuance criteria to include “missing” children, although the actual text of the bill does not change issuance criteria. Any attempt to discuss this key point was precluded as the meeting was called to a close after Neese’s statement. Expert testimony was not allowed disrupt the narrative of Neese’s personal experience. Perhaps the most illustrative moment of the proceeding occurred after Neese’s statement, when a noticeable pause followed Chair person Miley’s asking if anyone had any other questions. Kelli Sobonya (R-Cabell) hesitantly took up the call, noting the current bill no longer included language allowing alerts to be used for abducted or missing children. Sobonya stated, “If we are taking out, if we don’t put in those provisions found in that section, it means that a missing child would not have to be reported under a broadcast alert.” Hamilton brushed off this concern, claiming the particular section Sobonya referenced only concerns when an alert is issued. In doing so, Hamilton glossed over the important issue that the current version might not require AMBER Alerts to be issued for “missing” minors. Sobonya persisted in her questioning, hedging her statements with phrases such as “I am just wondering” or “I don’t want to beleaguer the question” before determining that AMBER Alerts would not be issued unless all criteria previously established were are met. After four exchanges, Chairperson Miley asked, “Are you done, Lady from the Eighteenth?” Miley’s question discouraged further discussion; following his inquiry Sobonya dropped her line of questioning. The next and final order of business for the meeting was to have Neese’s statement included in the minutes before the committee voted unanimously to pass the bill. For the committee, the important outcome of the meeting was to include Neese’s statement in the minutes, not, as Sobonya attempted, to ensure the bill was technically sound or substantive. This same issue was also brought up in the Senate Judiciary Committee hearing, stalling the bill, but ultimately the bill was not changed to include “missing” as part of the issuance criteria (Ali 2013). Setting aside Miley’s paternalist dismissal of “the Lady from the 18th” and Sobonya’s critical question, we find that Neese’s speech, as an epideictic moment, foreclosed critical attention to key elements and proposed effects of the bill. As a result, Sobonya hedged her questions in the name of decorum. According to Condit (1985), epideictic speakers must not attempt to divide the audience. Thus, Sobonya’s questioning could be perceived as divisive by impeding the passage of a bill requested by a grieving parent. As with other policies originating from emotional or traumatic circumstances (such as those following 9/11), legislators become impatient with the process and reduce the burden of proof to policy efficacy (Goodnight 2010). In this case, the Judiciary Committee hurried critical questioning, deferred to absent experts and vague “success” rates, and privileged the testimony of Neese in passing the bill. Subsequent talking points by lawmakers defined Skylar’s Law as a victory. Delegate Nancy Guthrie (D-Kanawha) recognized on the surface this law seemed to be a “minute” change, but stated, “we make little, itty, bitty changes that will make a big difference” (cited in Porterfield 2013). Other reports touted this legislation as “both logical and welcomed” because all missing children should be considered endangered (Bluefield Daily Telegraph 2013). Regardless of our assessment that the law is problematic for not substantively changing AMBER Alert policy or addressing the particulars of Skylar’s death, lawmakers defined the bill as an important step in protecting children. ARGUMENTATION AND ADVOCACY 35 Better deliberation for crime policy Crime policy, especially related to crimes against children, largely is influenced through personal experiences of victimization and trauma. Derived from personal sphere argumentation logic, legislators pass such policies in an effort to console grieving parents and disrupted communities without much consideration of technical issues of cost or effectiveness—or any consideration of whether the laws address the most prominent forms of crimes against children. The AMBER Alert policy is one such example in which continued expansions of the policy for more missing persons are influenced by personal testimony and “success” stories and individuals conflate the issuing of an alert with the recovery of their child—regardless of whether the alert or just basic policing are responsible for the child’s return. This has likely instilled a belief in the effectiveness and use of AMBER Alert for all cases, even though AMBER Alerts are designed for a narrow set of cases and largely are ineffective for most missing person cases. As we have shown through the case of Skylar’s Law, personal sphere argument is problematic for crime policy as effective crime policy should address causes of crime and utilize resources that prevent and deter crime— not merely serve as symbolic remembrances of crime victims. As the deliberation of Skylar’s Law demonstrates, use of personal testimony in crime cases opens the deliberative space to epideictic discourse. This further frames crime policy in personal terms and through normative value appeals to keep children safe no matter the cost. To preserve decorum of the epideictic moment, critical assessment of policy is quelled, allowing the trend of “apostrophe” or memorial laws to continue. “Apostrophe” laws allow bereaved parent to “do something positive” to keep the child’s name alive (Hampson 2013), following a trend of “victim movements” (Mallicoat 2014). The “naming” and honoring function of the law biases legislators to support the policy without criticism (Liptak 2013), thus distorting the nature and prevalence of rare but lurid crimes (Zgoba 2004b). Moreover, many of these laws are redundant (by passing laws similar to crime policies already in place), engender costly and counterproductive unintended effects, or fail to address the category of crime committed against the victim the law is named after (Griffin and Miller 2008). In Skylar’s case, new reporting policies for law enforcement do not address the issue of peer violence that led to her death. We contend that better memorialization, if accomplished through law, should result in policies that are effective in preventing crime, which requires deliberations that address factual, technical arguments related to the policy as well as community norms. As we do not naively foresee a time where crime policy will be divorced from the exigencies of personal victimization or where lawmakers will not propose and enact responses to tragedies, we argue legislators (or anyone facilitating deliberations) should be held accountable to enacting a phronesis of mediation—to include and to balance both personal and technical expertise in legislating crime policy. Public sphere expertise, then, is the process and assessment of whether a problem is defined adequately, and ensuring all stakeholder interests are included in evaluating all possible solutions to decide one that is the best use of resources to address the cause of the problem most directly. This might be easy for us to say as academics (and not legislators facing reelection pressures), but better awareness of how epideictic speech is used to pursue memorial policy can make legislators more aware and accountable to deliberative processes regarding crime policy. Perhaps if it had used technical expertise, the West Virginia Judicial Committee might 36 A. PASON ET AL. have halted proceedings, tabled the matter until experts could explain bill particulars, or realize other means to memorialize Skylar would be more fitting. In Skylar’s Law, as with other memorial laws, the solution was proposed before all facts were known about her victimization, and the creation of an AMBER Alert expansion was derived more from social constructions of missing children crimes rather than empirical fact. Had legislators consulted crime research, they might have discovered that the most successful interventions to prevent minors from turning to crime are interventions rooted in better parenting or school supervision (Gardiner 2014). Either of those might have saved Skylar Neese’s life, but the very bill named after her, by the admission of its staunchest advocate—her father—would not have. After Shoaf’s confession, Neese was asked if Skylar’s Law would have helped Skylar. Remarkably, he acknowledged that it would not have, but that it might “help someone else down the road” (WPXI 2013). The outcome of Skylar’s Law, like other AMBER Alert expansions, is that legislators scored a symbolic win in addressing crime and community tragedy. Perhaps it is a legislative success that memorial laws acknowledge community tragedies, and that, in this case, it is likely no real damage to law enforcement investigation practices was inflicted (such as the countless alerts which would have to be issued were an alert issued for every “missing” child). However, we still are left to ask whether is it in the best public interest to continue using epideictic speech to construct laws, and celebrating individual wins over addressing complex, systematic issues leading to more prominent forms of crime in general and crimes against children in particular. We believe better deliberation and mediating personal and technical issues could create safer communities through effective, not just symbolic, policies. Notes 1. We used LexisNexis Academic and Access World News to locate national news articles on AMBER Alert cases or policy changes. We categorized statements from law officials and parents/community members, and found themes noted in this essay (e.g. “doing all we can” for missing children and the need to issue alerts for all circumstances). 2. For example, California’s Three Strike policy was written by a father whose daughter was killed in a robbery attempt. At first, the proposal did not get traction with legislators; it was only after the highly publicized murder of Polly Klaas that the policy was adopted through a voter initiative. This policy, stricter than other states’, has increased incarceration costs and has not reduced violent crime significantly (Chen 2014). 3. For example, in August 2013, Hannah Anderson was kidnapped by a family friend in California. Four days later, horseback riders spotted Anderson and her abductor camping in an Idaho wilderness, but were suspicious as Anderson was not dressed for camping. A day later, these witnesses saw a televised news story about the kidnapping and contacted local authorities (Dvorak 2013). Although the tip from the riders is not directly from the initial AMBER Alert, most news reported this as an AMBER Alert success story. This case also does not fall under what criminologists would consider a stereotypical stranger abduction as Hannah knew her kidnapper and was not in the same level of danger or likelihood of murder as with typical stranger abductions (in typical abductions, there is an estimated three hour window before a child would be killed by the abductor, hence the logic of using alerts quickly to enlist communities to be on the lookout). See Griffin (2010) and Griffin et al. (2007). 4. AMBER alert is intended for the stranger abductions that account for about 115 cases per year. Alerts are often issued for non-custodial parent related abductions (over half of AMBER alerts are issued for parental abduction situations, nearly 20% of alerts are issued for hoaxes). ARGUMENTATION AND ADVOCACY 37 Parental abductions account for at least 200,000 reported cases per year, and children are returned nearly 98% of the time in parental abductions with or without an alert issued (Griffin 2010; Zgoba 2004b). More common crimes against children include parental neglect or abuse, or the nearly 900 murders of children under the age of 12—almost half of which are caused by someone the child knows (Zgoba 2004b). 5. We are not certain this is standard policy for lawmakers in West Virginia to obtain and post audio of hearings, and assume Miley posted this to draw attention and public support for the measure. West Virginia has a live audio feed of all sessions to which one can listen, but other audio (including this one) from the bill is not archived on the main legislative website. We transcribed the audio and cross-referenced the noted speakers (“Lady from the 51st”) with members of this committee. References to the meeting are from our transcription. 6. We recognize there is a difference between a “law-on-the-books” and “law-in-action,” where enforcement officials have discretion in how they implement policy. In this case, it is possible that, after State police notify the AMBER Alert coordinator, the coordinator might use discretion to approve alerts for “missing” children, but the current bill is written to not allow such an action. Acknowledgments The authors would like to thank the anonymous reviewers for their helpful feedback in honing the arguments of this project. Disclosure statement No potential conflict of interest was reported by the authors. Notes on contributors Amy Pason (PhD communication studies, University of Minnesota, 2010) is currently an assistant professor and specializes in (counter) public deliberation and social movement rhetoric. This essay is part of interdisciplinary research as part of the School of Social Research and Justice Studies at University of Nevada, Reno. Timothy “Skip” Griffin (PhD Criminal Justice, University of Cincinnati, 2002) is currently an associate professor whose diverse research specialties include the AMBER alert system, criminal case processing, and media constructions of crime justice. He is currently developing research related to assessing expert criminal justice opinion on crime policy. Michael Kwiatkowski is currently a doctoral candidate in the social psychology program at University of Nevada, Reno. He received the Bilinski Fellowship to work on his dissertation research in conflict and mediation, and he served as a research assistant on this project. 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