As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.
The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized. A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.
The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.
Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison. In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison. Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug.
It is a feature.
If America has a civil death penalty, putting people on the sex offender registry is it. In a recent experiment, when individuals were given the choice between being labeled a child molester or dying, most chose death.
The numbers of those currently on the registry are staggering, and continue to increase each year. Absent seismic shifts in criminal justice policy, the trend will likely continue. In a nod to Mencken’s admonition, the model popularized with sex offender registries is quietly being exported to other classes of crime — including white collar crimes, meth, guns, and animal abuse — despite little evidence that such registries accomplish much beyond branding its inhabitants irredeemable.
Decades on, ghosts of dead children are dragooned into supporting legislation that vastly expands the powers of the state, with few prepared to offer informed criticism. Despite doing little to protect children from the varied and pernicious harms that they face, sexual or otherwise, such “first-name” legislation is crafted by political operatives who use the memory of innocents in the same way one might use a human shield. No one with a beating heart is unmoved by the plight of parents of a murdered child; nor could one could easily criticize a law named in memoriam without simultaneously disrespecting that plight. Optics such as these are not accidental, they are political.
In order to sell policies to the public, our political leaders have often created boogeymen. During the heyday of the drug war, the boogeymen pressed into service were so-called superpredators, a heavily racialized term describing young people with “no respect for human life and no sense of the future.”Ostensibly toting Glocks and selling death to our communities, they ended up selling the belief in prison-as-protection, government-as-protector: a profoundly punitive turn in our legislation and discourse.
Even as we find ourselves in a new era marked by bipartisan acknowledgement of the need for criminal justice reform, in some areas we continue to be influenced by this same appeal to boogeymen, even if their shape and form changes. Instead of “super” predators, we’re now faced with “sexually violent” ones.
As with witches, the modern-day sex offender is largely a creature of our own creation, acting as a sort of repository for many of our collective moral anxieties around sex. While a baked-in ick factor often turns many erstwhile warriors into silent observers, awareness and informed response is badly needed from those within the criminal justice community.
And it is needed soon.
Originally published in In Justice Today, Dec. 12, 2017, reprinted with permission.
