After 25 Years, These Regulatory Regimes Are Proven to Be Misguided, Dysfunctional, and Excessively Punitive. It’s Time to Replace Fear With Function.
by Casey J. Bastian
The term “sex offender registry” (“SOR”) is known to nearly every person in America. It evokes fantastic visions of human monsters, offenders who have committed atrocious, unforgivable crimes, deserving of zero mercy and who shall not ever be afforded any future opportunity to participate in our society.
What You Think You Know AboutSORs Is Probably Wrong
California was the first state to create any form of SOR back in 1947. By the late 1990s, the use of SORs was trending towards national ubiquity. Today, the use of SORs is entrenched in notions of public safety. Every state in America is federally required to have any person convicted of any sex offense placed on both the SORs and on the publicly available notification systems. This tremendous expansion of SORs is the result of a relatively small number of high-profile, egregious crimes against children. Though these crimes were extreme outliers in terms of frequency, the entirety of American society became consumed with fear and outrage—an understandable sentiment to even one such crime—and this caused common sense approaches to become lost in the fervor.
More and more inclusions, restrictions, and broad control mechanisms have been heaped upon a system that is imploding under its own breadth. The list of crimes has become so comprehensive that the offenders who likely need the most supervision, and the potential victims who deserve the most protection, are being overlooked and essentially lost in the cacophony of the overwhelming amount of registry information. So many people are required to be on SORs for so many offenses of wildly differing degrees of egregiousness (from urinating in a public park to the most horrific crimes imaginable against children) that the genuine monsters get lost in the background noise created by the sheer number of registrants. The fear precipitated by the very existence of the offenders found on the SORs has nearly surpassed the function for which they were originally intended.
Worse, the perceptions and beliefs of why the SORs are necessary, and the benefits to society and public safety they provide, appear to be unfounded, and misplaced. Data show that publicly available SORs may actually be more detrimental than beneficial to public safety.
The Term ‘Sex Offender’ Has Become Overly Broad
A person convicted of any sex-based offense is considered a sex offender. While the underlying conduct that qualifies as a sex offense does vary state by state, most state and federal laws include: forcible and statutory rape; sexual assault or battery; sexual contact with a minor and molestation; production of child pornography; and attempts to commit any such crime. There is little disagreement that, if there are going to be SORs, these types of offenses merit inclusion on them.
The problem arises when the definition of what qualifies as a “sex offense” becomes so expansive that it includes conduct that does not involve coercion or violence, a crime against a minor, and may have little or nothing to do with actual sexual conduct.
For example: adult-prostitution related offenses require registration in five states; at least 13 states require registration for urinating in public, and only two of those states limit registration requirements to only situations where a minor witnessed the act; consensual sex between teenagers requires registration in at least 29 states; and, in 32 states, public exhibition of the genitals requires registration, and in only seven of those states does the victim need to be a minor.
SORs Origin Stories
Prior to the 1990s, the existence and use of SORs was very limited. Even though many states had created SORs in the 1950s and 60s, those registries were not the overly comprehensive and restrictive public databases that have evolved through today. Between 1994 and 2006, the legislative foundations were laid for every state, territory, and the District of Columbia to implement publicly-available SORs and the community notifications systems as we now know them.
In October 1989, 11-year-old Jacob Wetterling was riding his bike in St. Joseph, Minnesota, along with his little brother and friend. An unknown, masked male assailant kidnapped Wetterling at gun point. The two other boys were not harmed. Law enforcement were able to identify only a few suspects. No arrest was made in the case, and Wetterling’s parents began vigorously advocating for more effective laws to assist in the recovery of abducted children and for the prevention of sexual violence towards children. In response to enormous public demand, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”) in 1994. (In 2016, 27 years later, a man named Danny Heinrich confessed to the Wetterling killing as part of a plea deal in a separate case. See: PLN, May 2017, p.1)
The Wetterling Act required all states to establish SORs while also creating financial incentives to do so. Any state that did not adopt the federal mandate would be subject to the loss of portions of federal crime prevention funding to which the state would otherwise be entitled. The Wetterling Act also required that all people convicted of sexual abuse of children or sexually violent crimes against adults would have to register for 10 years upon reentry into the community.
However, if a person was determined to be a “sexually violent predator” under the Wetterling Act guidelines, that person would have to register indefinitely until such time that he or she was determined by the government to be “no longer dangerous.”
Polly Klaas was 12 when she was kidnapped and murdered in 1994. Although no direct federal legislation was created in response to her tragic story, it did deepen the public’s anxiety during this period. Klass’ parents created the “Klass Kids’ Foundation” to assist in preventing crimes against children.
Megan Kanka was raped and murdered in New Jersey by a convicted sex offender living in her local neighborhood. No one knew the man living there had been previously convicted of sex offenses and was on a SOR. The result was “Megan’s Law,” a state mandated community notification system of sex offender’s SOR information. Prior to Megan’s Law, only Washington State was utilizing such a community notification system. The Wetterling Act was amended in 1996, effectively making Megan’s Law a federal mandate imposed upon all 50 states, territories, and Washington, D.C.
The Pam Lychner Sexual Offender Tracking and Identification Act (“Lychner Act”) was also signed into law in 1996. The Wetterling Act originally authorized the release of SOR information by law enforcement to the public but did not legally require community notification. Law enforcement had still retained discretion concerning public notification and would only release information about a registered sex offender’s presence in the community when it was “necessary to protect public safety.”
Through 1998, 28 percent of all jurisdictions still considered SOR information to be confidential and available to law enforcement only and solely for law enforcement purposes. The Lychner Act removed professional judgment and discretion from law enforcement. Combined with the amended Wetterling Act, significant mandates upon the states were created, requiring that every state not only strengthen its systems for tracking sex offenders through the SORs but also by enhancing compulsory community notification systems. These combined laws were intended to create SORs for local law enforcement and criminal justice agencies to effectively track the location of offenders moving into their jurisdiction; the notification systems were intended to alert citizens of the sex offenders living within their neighborhoods. Such requirements placed significant burdens on many of the states. Burdens particularly arising from the compliance deadlines created by the federal legislation. The states were required to not just create more rigorous SOR systems but also to make them compatible with a National Sex Offender Registry (“NSOR”).
The second significant mandate of the Lychner Act was for the Federal Bureau of Investigation (“FBI”) to become responsible for establishing the NSOR. The NSOR bureaucracy would handle federal SORs and also notify individual states of any failure to implement “minimally sufficient” programs as required by the new legislations. As part of the FBI’s National Crime Information Center-2000 system, the NSOR includes fingerprint and mugshot images of registered offenders. In March 1998, the Bureau of Justice Statistics (“BJS”) issued the Program Announcement for the NSOR Assistance Program (“NSOR-AP”), which provided $25 million in federal assistance so that states implemented two primary legislative requirements.
The two primary goals of NSOR-AP were to ensure that: (1) State SORs could “identify, collect, and properly disseminate relevant information that was consistent, accurate, complete, and up-to-date;” and (2) States could establish effective information networks compatible with the FBI’s national system so that state SOR information can be utilized from one jurisdiction to another. And in case all that didn’t succeed in creating sufficiently onerous mechanisms to secure public safety, Congress wasn’t done.
Ten years after the Wetterling Act was amended and the Lychner Act incorporated into federal SOR legislative mandates, the Adam Walsh Act of 2006 (“AWA”) was signed into law, which was named after 6-year-old Adam Walsh, who was abducted from a South Florida mall and murdered in 1981. Walsh’s severed head was found in a canal nearly 100 miles from his Florida home. The rest of his remains have never been located, and no one has been convicted of his murder. Walsh was the son of former sheriff and host of the television show America’s Most Wanted, John Walsh. He has since become a prominent national victims’ right’s advocate. (In 2008, then-police chief of the Hollywood Police Department officially named Otis Toole as Walsh’s killer and apologized for past mistakes made by the police department in the case, including losing critical pieces of evidence.)
The Awa And Sorna: The Creation of a Whole New Crime
Title I of the AWA, identified as the Sex Offender Registration and Notification Act (“SORNA”), created several more legislative mandates including a national standard for determining which crimes should be registerable offenses and which registered offenders’ information shall be publicly available. The AWA significantly expanded the requirements of who must register as a sex offender. The definition of a “sex offense” under the AWA became “any criminal offense that has an element involving a sexual act or sexual contact with another.”
SORNA also creates an entirely new, separate criminal offense for “failure to register,” that can carry fines, imprisonment, and/or deportation for non-citizens. In apparent recognition of the need for discernment regarding offense conduct in relation to SOR inclusion, the AWA did exempt consensual sexual conduct between those aged at least 13 and another individual no more than four years older (these close-in-age exemptions are commonly referred to as Romeo and Juliet laws). But then the AWA requires juveniles to register. Something with which most state legislative bodies don’t readily agree should be a part of SOR information. It seems there is little purpose in the pursuit of public safety when registration requirements are imposed on offenders posing little to no actual risk to the community.
In a very broad manner, the AWA attempted to differentiate offender risk by creating a three-tier classification system. Tier I offenders are required to register once a year for 15 years. Tier II offenders are required to do so once every three months for 25 years, and those in Tier III are required to register every three months for life. Offenders can petition to be removed from registration requirements after 10 years if they are a Tier I offender; Tier II and III offenders required to register for 25 years to life cannot petition for removal no matter how long they go without recidivating or even how long they live. For these people, registration is a life sentence.
There is one exception. If a Tier III offender was adjudicated as a juvenile, they may petition for removal if they maintain a clean record for a certain period of time. A registrant must register with law enforcement, not just where they live, but where they work or go to school as well. These mandatory requirements are applied to every registrant for the entire duration of their imposed registration. Despite the byzantine procedures resulting from all of these laws, the AWA is only the minimal standard a state is required to impose.
There is nothing stopping a state from being even more demanding in its individual registration requirements. As a result, at least 24 states have mandated that certain offenders must register until the day they die, even if the probability of them recidivating is essentially zero. And state’s rights are foreclosed in that no state may implement requirements that its legislature deems to be more reasonable or effective if those laws would fall below the federal mandates.
Sorna Itself Makes States’ Compliance Difficult
If the true purpose of SORs and public notification systems is public safety, and not imposing a further punishment on offenders, then there is little purpose served through imposing arduous registration requirements on those posing minimal to no risk to the community. Since the passage of SORNA, states have struggled with altering their legislative requirements to comply with federal laws. The federal minimum standards are highly inflexible and make compliance difficult. Well over 15 years, and more than 1,000 bills later, 32 states are still considered “substantially noncompliant.”
Some of these states are intentionally noncompliant, even if the noncompliance results in a loss of 10 percent of the Edward Byrne Justice Assistance Grant Program. This grant program provides funding for local and state crime control and prevention measures. Ironically, the federal government is willing to leverage monies intended to increase public safety by withholding those monies from so-called noncompliant states in the pursuit, somehow, of public safety. The state of New York cited both the excess costs of implementing SORNA, as well as its assertion that the law would not increase public safety. New York asserts, quite sensibly, that SORNA’s crime-based tier system is not as effective as an individual risk assessment system at estimating likelihood of recidivism.
The Center for Sex Offender Management (“CSOM”) supports the idea of replacing one-size-fits-all registration systems. CSOM advocates for individual risk assessments that consider the “complex and varying nature of sexual abuse and the individuals who perpetrate it.” Similar reasons for noncompliance have been cited by Texas as well. Another substantial impediment to ensuring full SORNA compliance is that the law requires juvenile offenders to be placed on the registries. As there is a higher likelihood of juvenile offender rehabilitation, many states oppose such requirements. States that have implemented the juvenile requirements of SORNA have seen courts strike them down.
The U.S. Department of Justice Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART Office”) provides the federal oversight of SORNA. The SMART Office issued two sets of supplemental guidelines to increase states’ flexibility in an effort to increase compliance. The 2011 supplement provided discretion for states exempting juvenile offender information from community notification systems. In 2016, supplemental guidelines gave states more flexibility in treating juveniles who committed certain offenses. The SMART Office also changed its own guidelines for determining if a jurisdiction is in substantial compliance with SORNA in relation to juveniles who commit “serious” sex offenses. This supposed increased flexibility did not bring about more substantial state SORNA compliance. Perhaps if the federal government spent less time trying to come up with clever agency acronyms and more time coming up with sensible solutions, compliance would not be so difficult to achieve in the first place.
Over-Breadth of SORs Decreases Efficiency of Public Safety
For over 25 years, federal and state governments have battled with what is the best way to ensure public safety from sexual predators. And if the only goal is to protect the public, then those required to register, and for how long, should be limited to only those who present a realistic threat of committing another sexually violent offense. In a telephone interview with two probation supervisors from Grand Rapids, Michigan, who requested anonymity, one of the officials told Human Rights Watch that, “The expansion of state sex offender registries to include more offenses and longer registration periods has really compromised our ability to monitor high risk offenders.”
The chief probation officer in an Arizona county, also requesting anonymity, added, “Lawmakers have no idea the kind of burden they put on law enforcement when they increase the number of offenders who must register.”
There is no legitimate reason why lawmakers continue to expand SORs when the information is already so overwhelming to authorities that it has become nearly pointless in its intended purpose—to protect vulnerable people from the worst sexual predators.
Brenda V. Jones is the executive director of Reform Sex Offender Laws (“RSOL”), an advocacy group seeking to bring common sense reforms to the bloated SOR laws. Jones admits that changing the laws has been a slow fight.
“People start to talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous. Because, oh, my God, we’re going to be soft on sex offenders,” Jones stated.
In February 2011, Amanda Y. Agan authored a 32-page report entitled “Sex Offender Registries: Fear Without Function?” This report was published by the University of Chicago Press in the Journal of Law & Economics. The report examined three separate sets of data to resolve the question of whether SORs are truly effective in reducing recidivist sexual offending.
First, state-level panel data were used to determine whether there was a diminished rate of rape or other sexual abuse crimes subsequent to the implementation of SORs and public notification systems.
The second set of data considered was the rate of recidivism of offenders who are required to register versus those who are not required to do so. This data tracked the release of sex offenders from 15 states in 1994 and any subsequent arrests of those offenders.
The third set of data considered was combining data on locations of committed crimes in Washington, D.C., with that of locations of registered sex offenders in the same area.
The report did acknowledge that SORs might provide two plausible ways in which they could be effective. One is that new offenders and recidivists not yet on the registry could be deterred by the greater penalties’ registration imposes upon sex offenders. The other way is that, for those offenders already on an SOR, this might reduce recidivism because of either increased police monitoring or “target hardening.” Target hardening refers to the increased safety precautions that are taken by potential victims as they become aware of the offenders on the SOR.
As it turned out, SORs were not found truly effective in producing enhanced public safety in any capacity.
The state-panel data used were from 1985-2003 and utilized the FBI’s Uniform Crime Reporting (“UCR”) program statistics on rape incidents and sex offense arrests. The study’s author conducted a fixed-effects data regression, which considered demographic control and general crime environment variables, to test whether the UCR measures declined post-SOR or public internet registry access. After examining enormous amounts of data, the results were summed up quite succinctly. The UCR panel data did not demonstrate a statistically significant decline in rates of rape or arrests for sexual abuse crimes subsequent to the implementation of SORs or public access to that information.
The next data set followed sex offenders for three years upon release from prison in 1994, while tracking any ensuing arrests or convictions. The post-release criminal records were compared to sex offenders who should have been registered upon release versus sex offenders who would not have been mandated to register. These two groups were compared on two measures of recidivism: arrest and conviction. Any variation arises from the status of registry laws during the period of study. Only six of the 14 examined states had SOR laws in effect by 1994. Three enacted SOR laws in 1994, and five still had no registries by the end of 1994. The BJS data reflecting state statistics across each variable and measure that tracked individual sex offenders post-release in 1994 indicate that registration did not have a “significantly negative effect on recidivism.” This data may not reflect the true number of post-release offenses committed by any sex offender. It is impossible to measure incidents not inputted to the BJS registry system. Arrests and convictions are the best proxy to measure offenses committed. Notably, there is no statistically significant difference in post-release arrest or conviction rates between the two groups.
Finally, crime location data from the Washington, D.C., Metropolitan Police Department (“MPD”) during the period from January 1, 1997, to July 30, 2003, were examined. The precise crime data included the date, hour, and block of crime occurrence, as well as the type of offense committed: sexual abuse, arson, burglary, theft, theft from auto, stolen auto, homicide, assault with a deadly weapon, and robbery. The MPD’s SOR website contained all of the required information for Class A and B sexual offenders who were studied, including their home and work addresses. Some parts of Washington, D.C., have no or very few sex offenders, but generally speaking, offenders are evenly distributed throughout most of the city. In each block group of 1,000 offenders, there was a sexual abuse incident rate of .92 per block group, i.e., fewer than one sexual abuse incident per 1,000 registered sex offenders. In fact, in locations where these block groups live, the data indicate slight decreases in sexual abuse crimes. The data also reflect that block groups with greater than 1,000 per block tend to have lower rates of violent and nonviolent crimes in general. Even if this is not statistically significant in representation of decreases in crimes in general, there is certainly no greater crime rates as a result of sex offender residency in any given location.
It is evident that Washington, D.C., crime data indicate that knowing the locations of sex offenders via publicly available SOR information provides no assistance in predicting locations of future sexual abuse. Not only does it not predict sexual abuse probability or locations, knowing where sex offenders live does not reveal where any increase of any crimes will occur.
The 2011 report concludes: “This pattern of non-effectiveness across the data sets does not support the conclusion that [SORs] are successful in meeting their objectives of increasing public safety and lowering recidivism rates.” Even allowing for other considerations, it is not at all clear that every effect of SORs will be positive. There are multiple identified downsides to the excessive registration schemes. For one, offenders may be compelled to commit different crimes that do not require registration, which relates to a different legislative problem.
Lawmakers Consider Expanding a Broken System
SORs do not work as intended and claimed, yet multiple states are actually considering registries for other classifications of offenders. The overwhelming burden placed on sex offenders is barely sustainable, and it would be a further tragedy to place that same burden on even more people who might never be able to fully reintegrate into our society because they will forever be paying for their past mistake.
This leads to a second identified problem. The reintegration costs for offenders on the SORs is already enormous, and these costs might themselves lead to recidivism. If you are an offender who is already experiencing the worst SORs have to offer, including “threats of bodily harm, termination of employment, on-the-job harassment, and forced instability of residence,” as Agan’s report notes, what incentive is created to stay offense free? The SORs become counterproductive when they become criminogenic (likely to cause criminal behavior).
Regulations That Include Too Many People For Too Many Wrong Reasons
As of March 2007, the National Center for Missing and Exploited Children claimed that the number of registered sex offenders had ballooned to 602,245 on SORs in America. Today, the number is reported at over 917,000. Law enforcement is overwhelmed. Monitoring all of the registrants is impossible. California admitted in 2003 that it had lost track of over 33,000, or around 44 percent, of its convicted registered sex offenders.
A Sacramento police officer was tasked with tracking 1,945 registered sex offenders on his own. He said, “There is so many of them out there, it’s hard to keep track.”
In 2005, Florida found that over 7,000 of its registrants were missing—either absconded, incarcerated, or even dead. Dozens of offenders were still on registries but confirmed dead. “As a result, you have an excessively long list that does not generate enough accurate information to make registration useful to anyone,” according to a child safety advocate interviewed by the New-Press.
The website for the Maryland Department of Public Safety and Correctional Services notes that SOR information is “provided as part of the state’s effort to protect children and others from those with histories of crimes against children and other sex offenses.” Far too often, it does not actually work that way. A 1999 study in Massachusetts revealed that only six of 136 new sex offenses were actually committed by a registrant. Minnesota had 585 sex offender convictions during one period—only 58 of those, or just under 10 percent, were committed by someone previously convicted of a sex offense. Not only does the SOR system appear completely misguided, but the results can also be downright tragic.
In 1999, Salina, Oklahoma, a high school senior was arrested for indecent exposure after displaying his genitals to a group of freshman girls in school on his way to the restroom. His mother described the act as a “high school thing” to local media. The young man was incarcerated for four months prior to pleading guilty. He was also given community service and a five-year suspended sentence; mandatory sex offender registration was also imposed. Oklahoma law defines indecent exposure as a sex offense even absent any sexual or lascivious motive and requires 10 years on a state SOR.
“It seemed like after that happened, he didn’t care,” said the boy’s mother. The stigma of the sex offender label caused him to drop out of school, driving him from his community and family. Employment was hard to secure and maintain. In November 2000, one month before the young man’s 20th birthday, he was found shot to death. It was ruled a suicide. His mother believes that registration requirements should not be mandatory for nonviolent acts. The SOR “changed his life,” she said. In reality, it may have ended his life.
Zachary Anderson stopped being a typical 19-year-old, Indiana man in February 2015. It was a February day when Anderson met a Michigan girl on the dating app Hot or Not. After flirting online, Anderson drove a few miles to Michigan to meet the girl. They engaged in consensual sex; he was 19, she said she was 17—one year over the age of consent in Michigan. As it turned out, she was only 14. The girl’s mother had called the police out of concern for her whereabouts. The mother had no idea where her daughter was. The police were at the girl’s home when she returned. After telling the police where she had been, they contacted Anderson. He cooperated with the authorities. Pleading guilty to fourth-degree criminal sexual assault, Anderson received 90 days in jail and probation. As an Indiana resident, Anderson will most likely be on a SOR for the rest of his life.
Advocates and legal authorities cite Anderson’s case as another instance of gross SOR overreach. Registries in the U.S. have soared. Most are not the dangerous predators, or even actual pedophiles, that the registries were meant to monitor.
“The whole registry is a horrible mistake. I think it is utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile,” believes William Buhl.
Buhl is a former Michigan judge who publicly advocates for SOR reform. Anderson’s father calls the registration requirement a “scarlet letter.” Efforts to change registry requirements are being guided by cases like Anderson’s. Including juveniles and low-risk offenders does not serve the primary objectives of the SOR laws. The officials in the Anderson case seem obtuse. The judge in his case said, “There is no excuse for [Anderson’s conduct] whatsoever,” which seems like a moral consideration, not a legal one.
Michigan State Senator Rick Jones seems to take the same archaic approach to legislating. Jones is responsible for Michigan’s registry laws. About Anderson, Jones said he believes society has become “looser” and that “crazy apps” cause problems. “A 19-year-old knows that you have to be very careful, and you certainly should not be having sex with a 14-year-old,” said Jones. Anderson’s lawyer took a more reasonable approach, stating that the “outcome doesn’t do anybody any good.” Anderson’s mother provided the most apt statement when she said, “A young person, they make one mistake and all of the sudden they’re classified as a loser for the rest of their life. This scenario should never result in jail time or a life of anxiety.”
Neither of these young men were previously on a SOR. They are not recidivists. They are not predators of young children. But the myth is perpetuated every single day in legislative bodies, court opinions, and media stories. As an example, Mississippi’s legal code, written to support stringent SOR mandates, states that, “[t]he legislature finds that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to the government.” So, the question arises: If most studies demonstrate that sex offenders have lower rates of recidivism than other criminals, why does everyone “know” that the recidivism rates are “frightening and high” for sex offenders?
The Foundations of a Dangerous and Wildly Inaccurate Collective Belief—SCOTUS
It shocks most people when they learn that the origins for perpetuating such outrageously false information about a matter so important to public safety and discourse is a Supreme Court of the United States (“SCOTUS”) case—Smith v. Doe, 538 U.S. 84 (2003).
Writing for the Boston College Law Review, Melissa Hamilton explained, “Unfortunately the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.”
Robert C. Montgomery is a lawyer for the state of North Carolina. In 2017, he was in front of SCOTUS defending a state statute that barred sex offenders from using social media.
“This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” Montgomery told the court. Sometimes, a false idea will take root in the public consciousness and insidiously transform into an article of faith that “everyone knows.” And when it comes from an august body like SCOTUS, the presentation of facts that irrefutably expose that widely held belief as being demonstrably false do little to change people’s minds. Sex offenders and their actual recidivism rate is one of these time.
Eula Biss wrote a piece on irrational fears in 2014. Biss, a renowned author, wrote: “Risk perception may not be about quantifiable risk so much as it is about immeasurable fear. Our fears are informed by history and economics, by social power and stigma, by myth and nightmares. And as with many other strongly held beliefs, our fears are near and dear to us. When we encounter information that contradicts our beliefs, we tend to doubt the information, not ourselves.” And so, it goes with the perceived risk of sex offender recidivism.
It has seemed that no amount of contrary information will change people’s beliefs about SORs and the people on them. But when judge Alice M. Batchelder of the U.S. Court of Appeals for the Sixth Circuit openly declared in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), that there is “significant doubt cast by recent empirical studies on the pronouncement in Smith [v. Doe] that the risk of recidivism posed by sex offenders is ‘frightening and high,’” maybe we should look closer at what she is referring to.
Robert Lile’s case came before SCOTUS in 2002. In McKune v. Lile, 536 U.S. 24 (2002), Lile argued that his Fifth Amendment rights were being violated by a Kansas prison therapy program. The program required participants to complete a prior sexual history form and submit to a verification polygraph. Lile refused because the information could become the basis for additional prosecution. Refusal triggered automatic punishment including loss of privileges. Lile lost the case.
In support of the Court’s opinion, Justice Kennedy cited a recidivism rate “of untreated offenders has been estimated to be as high as 80%.” Kennedy continued by explaining that the “Kansas treatment program gives inmates a basis ... to identify the traits that cause such a frightening and high risk of recidivism.” The very next year SCOTUS heard Smith v. Doe, 538 U.S. 84 (2003)—the decision that Judge Batchelder refers to above.
The Smith decision upheld retroactive SOR requirements in Alaska, finding that registration is not a punishment but a reasonable measure to ensure public safety. The majority opinion in Smith, again by Justice Kennedy, recalled his opinion in McKune v. Lile: “Alaska could conclude that a conviction for a sex offense provides the evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.’”
This “frightening and high” recidivism rate of sex offenders is commonly used to justify increasingly harsh collateral consequences upheld by courts across America. The Iowa Supreme Court, in State v. Seering, 701 N.W.2d 655, 664 (Iowa 2005),acknowledged the “difficulties” created by the state’s residency restrictions but rejected a constitutionality challenge because “the risk of recidivism posed by sex offenders is ‘frightening and high’” as “numerous authorities have acknowledged.”
In reality, the “numerous authorities” cited referred only to Justice Kennedy’s Smith and McKune opinions.
A 25-year-old Kansas man challenged his lifetime registration after being convicted of having consensual sex with a 15-year-old girl. The girl testified that she had “encouraged” the man’s behavior. A Kansas Corrections Department psychologist testified that the man accepted responsibility, showed an “appropriate level or remorse,” and was at a low risk to reoffend. The Kansas Supreme Court rejected the challenge and cited Smith. Finding that the Kansas legislature might have reasonably “grave concerns over the high rate of recidivism among convicted sex offenders” whose risk of recidivating is “frightening and high.”
So where did that “80%” recidivism rate described as “frightening and high” by so many courts come from?
The infamous assertions made in McKune by Justice Kennedy and repeated ad infinitum by ill-informed jurists, prosecutors, legislators, law enforcement officers, moral crusaders, and members of the general public are not based upon multiple rigorous, peer-reviewed academic studies but rather a single non-academic document: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender.” This 231-page guide was published in 1988 by the U.S. Department of Justice, National Institute of Corrections—ostensibly, a reliable source for such assertions. Unfortunately, it’s definitely not. In fact, the preface notes that the views of the authors “do not necessarily represent the official position or policies of the U.S. Department of Justice;” a distinction that’s clearly lost on those who read the Court’s opinion.
The guide in turn cites only one discredited source to support the ubiquitously parroted “80%” figure, which in turn is persistently characterized as “frightening and high” to describe (inaccurately) the recidivism rate for sex offenders. That dubious source is a 1986 article in Psychology Today magazine, a mass market publication for a lay audience, not an academic journal. The cited article contains this unfortunate sentence: “Most untreated sex offenders released go on to commit more sex offenses—indeed, as many as 80% do.” But as critics point out, the sentence is a naked assertion without even a single reference or citation to support it. The sentence is nothing more than an unsubstantiated claim. The article cites zero data, evidence, or even elaborate on how the conclusions were reached.
The most influential statement in American sex-offender jurisprudence and legislation comes from a wholly unsupported, naked assertion in an article that appeared in a mass-market magazine not even published for professional consideration. As critics note, the author of that shameful sentence, Robert E. Freeman-Longo, lacks the scientific credentials needed to even qualify him to testify at trial as an expert on recidivism. Instead, he’s a counselor, not a scholar who studies sex crimes or recidivism rates.
To make matters worse, the cited article isn’t even about recidivism statistics. It’s about a counseling program that, conveniently enough, he ran for sex offenders in a prison in Oregon. His unsupported 80% figure was used to contrast his equally unsupported claim that recidivism rates for offenders who completed his program were lower than for those who hadn’t. So the evidence for the most influential data point in American sex-offender jurisprudence is an unsupported claim in a lay publication by someone whose livelihood was based upon selling sex-offender counseling programs to prisons, i.e., basically, marketing material for a small business.
The unforeseen results of these assertions have ruined countless lives and cost taxpayers hundreds of millions of dollars and have not actually produced the promised increase in public safety. Ironically, Longo would later write that registration laws “may do more harm than good when applied to low-risk offenders and burden rehabilitation efforts” in an article published in 2001, titled “Revisiting Megan’s Law and Sex Offender Registration: Prevention or Problem.” Longo has since moved from traditional counseling to providing services under the business name Serendipity Neurofeedback, operating from the website roblongo.com.
The second most influential statement used to justify harsh SOR requirements was the Solicitor General’s opening brief in Smith. The Solicitor General, acting as the attorney for the U.S. when litigating before SCOTUS, wrote: “Sex offenders exact a uniquely severe and unremitting toll on the Nation and its citizens for three basic reasons: ‘[t]hey are least likely to be cured’; ‘[t]hey are the most likely to reoffend’; and ‘[t]hey prey on the most innocent members of our society.’”
This language was quoted to support California’s highly-restrictive Jessica’s Law, which made finding housing nearly impossible for thousands of people convicted of a sex offense, in turn, leading to arrests that increased recidivism statistics for sex offenders.
Where did the Solicitor General’s statement come from? Although it’s attributed to a Justice Department “report,” legal scholars have determined that there is no such report. Instead, it’s apparently based on a collection of speeches given at a 1998 conference for SOR advocates, specifically, by a former school teacher turned Texas State Senator Florence Shapiro. Remarkably, her statement was one she never claimed to be true, just one she “likes to say.” While speaking at the conference, Shapiro’s exact words were: “Sex offenders are a very unique type of criminal. I like to say they have three very unique characteristics: They are the least likely to be cured; they are the most likely to reoffend; and they prey on the most innocent members of our society.” It’s unimaginable that such a statement would appear in a brief (with erroneous attribution) submitted to the U.S. Supreme Court by the Solicitor General, yet it did. Shapiro is also quoted as saying that her “proudest achievement” was in 1995 when she introduced Ashley’s Laws, designed to protect children from sexual predators.
Experts agree that her conference speech is odd and clinically incoherent. What would offenders be “cured” of exactly? And technically, who is more likely to be “cured” of a propensity to commit sex offenses than one already convicted of such crimes? How does she define “reoffend”? Is it if a sex offender commits a new sex offense, or if it is any crime, arrest, and/or conviction? But the more important and troubling question is why was that statement in the Solicitor General’s brief?
The Reality of Recidivism
Does it matter that 92% of those rearrested after committing an initial sex offense were guilty of only parole or probation violations, according to the California Department of Corrections? Nearly 8,000 offenders were followed in 21 studies for an average of 8.2 years, some for up to 31 years. The high-risk offenders group saw 32% commit a new sex offense within 15 years. A high percentage to be sure, but it is the high-risk category. And this percentage is still well below the 80 % rate offered up as a blanket rate for all sex offenders. The other 68% of high-risk offenders never did commit a single offense if they passed the 16 years mark. This is a significant fact, as most SOR requirements are for decades, or even life, across the offender spectrum.
Low-risk offenders have an arrest rate of only 2.5% after five years, and only 5% after 15 years. Even 4.5% of all released felons with no previous history of sex offenses are rearrested for a sex offense within five years. It is also revealing that the recidivism rate of juvenile offenders averages between 2% and 7%.
Regarding juvenile registration requirements, the Pennsylvania legislature cited the following rationale to support treating every offender as one likely to reoffend: “Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.” The legislature found an irrebuttable presumption of juveniles being at a high-risk to recidivate based on an initial offense conviction. The Pennsylvania Supreme Court struck down the new law, ruling that treating every person convicted of a sex offense as a likely “re-offender” based on a presumption of risk violates the Fifth Amendment and is “not universally true.”
These issues were thoroughly discussed in a 2015 report authored by Ira Mark Ellman and Tara Ellman published by the University of Minnesota Law School. The report was titled, “Frightening and High: The Supreme Court’s Crucial Mistake About Sex Crime Statistics.” The authors summed up what the Supreme Court had done by writing, “Its endorsement has transformed random opinions by self-interested non-experts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed. The court’s casual approach to the facts of sex offender re-offense rates is far more frightening than the rates themselves, and it is high time for correction.”
If SCOTUS is fooled by pseudoscience, the rest of the public stand little chance of obtaining an accurate understanding of the legitimate rates of recidivism for sex offenses. It is hard to imagine people listening to a meaningful argument that demonstrates the wildly reviled and feared group that is “sex offenders” are actually less dangerous than people want, and have been conditioned, to believe. Challenging such false assumptions is difficult because it feels inherently correct. As such, there is no evidence that any proposed SOR law has ever failed a free-standing, regular-session floor vote held by any legislative body in America. No SOR law has ever been repealed, and no SOR law has ever been weakened in a substantial way. Real recidivism rates and horribly tragic, unintended consequences have not been enough to persuade lawmakers to reconsider SOR laws. Misinformation, junk science, and fear are triumphing over facts and rationality.
These laws are being used as an extension of the punishment under the guise of public safety. Anyone on an SOR, or even their families, can attest that this is true—and that was never the goal claimed by lawmakers and SOR advocates. When we now know SORs are justified by false statistics and self-serving, uncorroborated assertions, the SOR laws need to be reexamined.
Two decades ago, Patty Wetterling fought to have SOR laws passed. She is now an advocate who expressed doubts about the current state of SORs. “We can’t just keep locking [sex offenders] up. That doesn’t change the problem,” Wetterling said in a 2016 interview. “I’ve turned 180 [degrees] from where I was.”
Redefining ‘Sex Offender’
So, who is supposed to be a “sex offender”? What is the real nature of sexual harm in America? What harm have SORs caused offenders, especially juvenile offenders, and offenders’ families? Can we as a society re-imagine public safety and reconstitute sex offender laws? Each is a pertinent question with complicated answers. Real public safety is worth the effort in answering them.
SORs were intended to identify recidivist “sexual predators” and give parents the tools to protect their children in the face of threats that even law enforcement could not presumably keep at bay. SORs were never intended to include low-risk, non-violent and juvenile offenders: the 17-year-old boy and his 15-year-old girlfriend having consensual sex are not pedophiles or sexual predators; two teenagers sharing naked “selfies” aren’t child pornographers (and neither is the average internet voyeur); indecent exposure, public urination, prostitution and solicitation of prostitution, parental kidnapping during a child custody dispute, and even consensual incest are not predatory crimes. No academic literature has linked these behaviors to molestation or violent sexual assaults.
The presence of these low-risk, non-violent and juvenile offenders create registry “clutter.” The ability of law enforcement to monitor the truly dangerous offenders is highly diminished as a result, wasting valuable resources and not increasing public safety, all while the collateral consequences of SOR laws have needlessly ruined lives.
Today, more is known about sex crimes and the people who commit them than was known by legislators in 1996. The mythology behind “stranger danger,” the child-focused predator roaming around hoping to snatch an unknown child off the street, is not at all common. Pedophiles rarely kidnap their victims. The BJS reports that less than 7% of sexual crimes involving children are committed by strangers. And, the Klass Kids’ Foundation estimates that the number of children taken by strangers is fewer than 100 per year, and a majority of those are children caught in the middle of other crimes like auto theft. Approximately 90% of offenders knew their victims. Intimate partners and family members are far more likely to sexually abuse someone they know. And evidence also exists that SORs actually decrease the reporting of such abuse for fear of the excess collateral costs the registry impose upon everyone involved.
Reexamining the Regulation of Sexual Harm
The SOR mechanisms by which we physically banish presumably sexually dangerous strangers and publicizing their identities are meant to be measures that prevent future sexual harm. However, not only do SORs not prevent future sexual offenses, post-conviction sex offender regulations have been determined to be criminogenic. In-depth support for such conclusions can be found in the 68-page article published in the California Law Review in 2014 by Allegra M. McLeod, an associate Professor at Georgetown University Law Center. McLeod’s work is titled, “Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform.” The three-part article begins by identifying the central issues with SORs: U.S. criminal regulations meant to prevent sexual harm incorrectly focuses on the belief that sex offenders are presumed to be unknown to their victims—a belief that the BJS demonstrates to be false.
The article uses the term “sexual harm” and not “sexual violence” or “sexual abuse” to both capture the excessive breadth of the category “sex offender” and draw attention to the true behavior and institutions causing harm to people—including the SOR laws themselves.
Part one of the article attempts to demonstrate how SORs focus on sexual offending in a manner that is “draconian, ineffective, and unjust.” This part exposes how SORs are actually antagonistic to their stated purposes and goals while exacerbating the suffering of both survivors of sexual harm and the accused. It examines why, despite their detrimental outcomes, SORs continue to secure political and popular support. The first issue with SORs is that there is a mismatch between the reality of sexual harm in America and the emphasis of prevailing statutory regulations that focus on extraordinary offenses committed by dangerous strangers. These current measures are not effective in dealing with the realistic threats of sexual violence or abuse.
As criminologist Mona Lynch aptly explains: “The prototypical offender/perpetrator was always characterized as a stranger and an outsider even though only about 3 percent of sexual abuse against children is committed by strangers and 6 percent of child murders are committed by strangers.”
The excessively punitive nature of SORs cause survivors to be reluctant to report crimes committed by those with close personal or familial ties. Not out of fear or shame but because the consequences of sex offense convictions upon intimates are often undesirable, which would not be a consideration if the offender were a stranger. These current measures strongly disincentive reporting amongst family members. Despite the implementation of SORs, widespread rape and sexual assaults continue unabated in America’s institutions, including military programs, colleges and universities, parishes, prisons, and families.
In fact, sexual violence in prisons and institutions constitute the largest percentage of sexual offending in America. SORs do nothing to address or alleviate the largest contributor to rates of rape in this country. The Department of Justice identified 216,000 victims of sexual abuse in jails and prisons in 2008 alone; that’s 216,000 victims who may have experienced multiple acts of rape and abuse.
Worse, the survivors of these types of sexual violence outside of prisons underreport their victimization because of the inability of the system to administer the criminal legal process while balancing the needs of the victim. Prevailing SOR mechanisms produce an irrational, overbroad category of registered “sex offenders,” which causes a widespread fear of and frequently draconian response to them, without addressing these primary issues. SORs over-criminalize and over-punish many offenses while neglecting an array of responses that would better address the reality of sexual harms between intimates and survivors. SORs seem to offer psychological relief to the general public (i.e., political theater), while ignoring the reality that sexual violence is normalized and embedded in the ideas of family privacy, unequal gender relations, and in institutional hierarchies. This helps maintain the secrecy, stigma, and shame associated with sexual abuse.
The anxiety that arises from acknowledging the depth and difficulty of addressing pathologies in our churches, schools, and families is perpetuated by SORs because they seem to locate the problems of sexual violence in a fantasy. The fantasy that sexual harm might be eliminated by identifying dangerous strangers, publicly shaming them, and excluding them from our society. Politicians will always support the easy scapegoating of sex offenders over the difficult task of an informative public discourse about uncomfortable realities of who perpetrates the majority of sex crimes. It is so much easier to be viewed as “tough on crime,” even when the actions championed do little to actually address crime, than perceived as easy on sex offenders.
Patty Wetterling has also said that she is “tired of tough. Everyone wants to out-tough the next legislator. ‘I’m tough on crime.’ ‘No, I’m even more tough.’ There is no single cure to the very complex problem of sexual violence.” And seeking simple solutions leads to unintended consequences when politicians honestly seeking public safety go too far.
As the mayor of Albuquerque, New Mexico, said when asked about the constitutional rights of sex offenders, a sex offender’s “rights should not be taken into consideration when formulating a sex offender policy.”
The Unrecognized Harm Caused by SORs
As previously identified, SORs can be criminogenic. It is the result of attitudes that are dismissive of the rights of sex offenders. Specifically, the residency restrictions and community notification aspects of these regulations cause enormous issues for offenders and their families. The results render sex offenders to be “unemployable, homeless, and at risk of harassment or even lethal violence.”
The second part of McLeod’s article calls attention to these threats and harms that are produced by the SOR regulations themselves. The justification for residency restrictions are founded on two premises proven to be false: “Stranger Danger” and a “frightening and high” rate of recidivism. It cannot be overemphasized that multiple studies prove that “[r]elatives, friends, babysitters, persons in positions of authority over [a] child, or persons who supervise children are more likely than strangers to commit a sexual assault.”
No more than 10% of all child molestation cases are committed by strangers. A 2003 DOJ survey confirmed that only 7% of all incarcerated sex offenders were strangers to their victims. Yet the entire sex-offender criminal justice apparatus is designed predominately towards preventing “stranger danger” offenses and addressing the nonexistent “frightening and high” rate of recidivism among sex offenders. Protecting society from future sex crimes cannot possibly be effectively achieved when the entire system is geared towards the wrong offender profile and mythological recidivism rates.
Residency Restrictions Don’t Work as Envisioned Either
Studies have not demonstrated any correlation between a sex offender’s “residence[’s] distance from a school or child care facility, and any increased likelihood of recidivism.” A California newspaper reviewed arrest rates for 500 sex offenders legally living near day care facilities and schools. One out of the 500 was arrested during the one-year period, not for a sex offense, but for a parole violation.
Psychologists have repeated that “it doesn’t really matter how close a school is” if an offender wants to recidivate. A comprehensive study published by the DOJ in 2003 found that “recidivism rates were markedly lower than that of other felons.” In 2006, The Economist, citing the 2003 DOJ study, wrote that “compared with other ex-cons, sex offenders were paragons of virtue.”
Landreaux Yantz was to be released from a New York state prison on June 26, 2015. When Yantz was 26, he was convicted of rape in the third-degree for having sex with a 14-year-old girl. Due to residency restrictions, Yantz would not be allowed to live within 1,000 feet of any school in New York City. This resulted in Yantz being unable to find approved housing, and he was held for months past when his term of imprisonment was legally completed.
“I know a guy who put in 19 addresses and got denied at all of them,” said Yantz. One of Yantz’s roommates spent six months longer in prison because he couldn’t find housing due to residency restrictions. Will Mingus is the executive director of Illinois Voices for Reform. He said, “I’ve known a number of people who served their entire parole period in prison and then were sent out without any counseling.”
A sex offender in California underwent voluntary castration after completing the state sex-offender treatment program and was still turned down by 120 rehabilitation facilities upon his release. In Washington, a man’s dad’s neighbors refused to allow the man to move in, so now, he lives in a trailer on the grounds of a California prison. Residency restrictions are an untenable aspect of sex-offender risk management, and it is all part of the SOR apparatus. The problem undoubtedly requires new strategies.
Four new strategies are suggested in “Never Going Home: Does It Make Us Safer? Does it Make Sense? Sex Offenders, Residency Restrictions, and Reforming Risk Management Law,” by Caleb Durling in the Journal of Criminal Law and Criminology. Durling suggests: (1) tailor restriction measures according to risk assessment criteria to match post-prison restrictions to prior acts and future risk; (2) indeterminate sentencing that allows for imposition of longer sentences and more restrictions for high-risk offenders; (3) civil commitment, where instead of longer prison sentences, involuntary post-incarceration therapy is required to be completed before the offender can be phased back into society; and, (4) sex offender reentry courts that specialize in sex-offender risk management where officials supervise treatment and hold the “offender accountable for relapses or lack of effort in treatment.”
Whatever solutions are eventually implemented, they must be tailored to an actual probability of offender risk.
How Long Before We Admit SORs Are About Punishment, Not Public Safety?
SOR reform advocates possess plenty of evidence to identify the threats and harms caused by these regulatory regimes to core constitutional rights; the rule of law; property rights; juvenile offenders; state budgets (including the impact on law enforcement effectiveness); and non-threatening, low risk offenders like Wendy Whitaker. She engaged in a single act of consensual oral sex on a 15-year-old boy when she was 17. After pleading guilty to sodomy and completing five years of probation, Georgia law required that Whitaker be placed on the SOR. She was then prohibited from living within 1,000 feet of “any place where children congregate.”
Hundreds of examples of similarly situated teenage offenders, posing little to no risk, but still being subjected to excessively punitive regulatory regimes, can be found all across America. These regimes don’t just impose unjustifiably harsh restrictions and outcomes on the offenders, the families of these offenders suffer from collateral consequences as well. The community notification systems provide offender information to the public that is not used solely to protect children from dangerous strangers. The use of the information results in ostracization, commencement of evictions proceedings, destruction of personal relationships, harassment, threats, property damage, vigilante violence, suicide, and murders. Despite these realities, registered sex offenders are continuing to be exposed to tremendous burdens by having their information on community notification systems.
The facts demonstrate that society is more dangerous to the sex offenders than sex offenders are to society. A Florida study published in 2005 by the Journal of Contemporary Criminal Justice revealed that up to one-half of registered sex offenders experience “dire consequences” from SOR regimes that are supposedly “not punishments.” Any sense of a right to privacy is destroyed by the community notification.
Linda is the wife of a California Registrant, and she said, “I have not felt safe living here since that night in February when someone in the night left that poster [of my husband’s online profile] on my porch, and then banged on all our windows. Now all we want to do is move.”
One registrant wrote that “there are a lot of nuts out there so you got to be really careful. That’s why a lot of ex-offenders don’t register because they don’t want people to know who they are and come kill them or burn down their house or something ... they’re afraid.”
As a result of publicly available information, employers must be concerned that customers will refuse to patronize their businesses if they hire sex offenders. A parole officer in Arizona expressed similar concerns, “I have found it near impossible to find an employer willing to take a chance on a convicted sex offender. We have to find ways to ... help sex offenders reintegrate into society.”
Suicide for adult and juvenile offenders is also a legitimate problem because of the notification systems. “I thought of suicide because I felt people were talking bad about me. Maybe some people want for me to die. Maybe that’s what this law is about, to cause enough stress on the offender so he will take his own life,” said Frankie, who was required to register in Texas after being convicted of possessing pornography.
One Florida man’s daughter told Human Rights Watch that, “My father became extremely depressed and I am often afraid of him ending his life. Everything has been taken away from him and it must be so hard. The future looks grim. It seems like each month, another living restriction is placed for offenders.”
Clovis Claxton was a 38-year-old disabled man from Florida. After reproductions of his online SOR entry were laminated and placed throughout the neighborhood, Claxton did end his own life. While he only had the mental capacity of a 10-year-old, he could still feel like no one wanted him around.
Juvenile offenders are reported to be four times more likely to commit suicide than the average teenager as a result of the stigmatization arising from registry placement.
Lawrence Trent stabbed one registrant and set fire to two buildings where they lived in New Hampshire in 2003. Police found a list of “targets” taken from the online registry in his pocket when Trent was arrested. In August 2005, a man in Bellingham, Washington, posed as a federal agent to gain entry into the home of two sex offenders. The man told the two offenders that they were on a “hit list.” He shot and killed the two offenders in their own home after they let him in.
A man from Canada drove to Maine in 2006 and killed two sex offenders he located on Maine’s online SOR. One of those killed was 24-year-old William Elliot, who had been convicted when he was 19-years-old of having sex with his 15-year-old girlfriend. Elliot’s mother, Shirley Turner, said, “Without the registry, he would still be alive today. I would still have him. I just want my son back.”
The Financial Harm Caused by SORs
Fiscal issues arising from the high cost of registration are imposed on states and individuals as well. In 2017, California spent $140 million to register and monitor youth registrants; the same year California would spend only $46,000 on prevention measures and victims’ services. States are even foregoing AWA compliance because lack of funds outweighs any financial incentive to participate in the regulatory regime. Sacrificing federal funding costs less than registry enforcement processes. States are realizing that residency restrictions may cause them to be responsible for providing housing for displaced offenders.
Wisconsin had to scrap further residency restriction plans when it realized the plan would cost at least $17 million to create sufficient sex offender housing. Property developers and homeowners are subjected to significantly lower property values where any sex offenders assume residency in a nearby home. Home values can be almost 17% lower in such areas.
The third part of the McLeod article explores possible regulation outside the criminal law domain that might be implemented to reimaging the regulation of sexual harm. The suggestions cover four measures, including: (1) social institutional reform, specifically policies that promote sexual secrecy and shame; (2) infrastructure prevention strategies designed to limit exposure to risk of and from sexual harm; (3) broadening alternative forms of redress that involve non-carceral alternatives to “creatively explor[e] new terrains of justice, where the prison no longer serves as our major anchor”; and (4) shifting sexual discourse that might reconfigure power relations and redesign regulatory mechanisms through more complete information about sexual harm and people’s perceptions of those harms.
Recognizing the Need for Significant Reforms
“To protect the public, we must teach empathy and restore people into some form of community wherein they can be held accountable and allowed to grow as human beings,” stated Sam Caldwell, a tech programmer who is currently on a SOR after 10 years in a Texas prison. Caldwell then asked rhetorically, “If, alternatively, we alienate and cast out people forever, how can we expect them to respect the rules of a community to which they no longer belong?” Reimagining public safety regimes related to sex offenders and possible future sexual harm is not going to be easy. Yet it must be done.
Even while challenges to SOR laws are gaining momentum, legislators are considering expanding these ineffective regimes to other types of offenses. “Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” said Florida State University law professor Wayne A Logan.
Fortunately, there have been recent judicial and legislative victories in pursuit of reimagining register regimes that might slow the expansion of registries. Advocates are working hard to make the entire SOR system less punitive and more effective in achieving their original purposes and goals. A federal judge ruled in 2017 that Colorado’s SORs violate the Eighth Amendment’s prohibition against cruel and unusual punishment. The judge wrote that, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”
In California, amended state laws allowed a judge to decide whether registration requirements should be imposed on an offender after being convicted of having vaginal sex with a minor at least 14-years-old, as long as the other person was not more than 10 years older.
However, the law for anal and oral sex still mandated registration in such circumstances. Senate Bill 145 changed that by including oral and anal sex. “It’s appalling that in 2020, California continues to discriminate against LGBTQ people, by mandating that LGBTQ young people be placed on the sex offender registry in situations where straight people aren’t required to be placed on the registry. SB 145 simply ends that discrimination ...,” said Senator Scott Wiener.
Another area of law that is receiving attention is juvenile SOR requirements. SCOTUS has not yet addressed whether SORs are punishment for juveniles. The majority of SCOTUS opinions dealing with juvenile justice jurisprudence is that “all children, no matter what they’ve done, can be redeemed.”
Not Completely Alone: SOR Reform Advocates and Support Groups
Despite the notorious reputation of sex offenders, there really are many groups advocating for the humane treatment of sex offenders. Vicky Henry is 72 and runs “Women Against Registry” (“WAR”) along with five other people. Henry’s son is on the registry for a pornography conviction. “It destroyed me,” said Henry.
Henry provides a rare, judgment-free opportunity for families of registered sex offenders to speak about their struggles. Henry listens because she has her own story to share. Women like Henry who take up the mantle of defending a loved one usually do so to share their experiences.
“They are often victims of these sex offender policies,” wrote Ashley Kilmer, associate professor of criminal justice at Towson University.
Judy Burke is 65 and also works with WAR. She said, “Every time I talk to somebody and impart my personal story it strengthens me. It helps me be stronger.” An extensive list of 41 advocacy organization and agencies is available at cure-sort.org/advocacy.html.
There are no simple solutions to the problem of sexual harms. We need to do everything in our power to protect those most vulnerable in our society. Public safety truly is a paramount governmental interest. But it must be done in an open, honest, and forgiving manner. And importantly, it must be done in an effective manner. We cannot treat all offenders the same, never allowing them a chance at redemption. Let’s hope that facts, truth, and rational solutions can overcome the misinformation, fear, and punitive mindset that currently dictate the sex-offender registry schemes currently in place all across the country.
Sources: Agan, Amanda Y., Sex Offender Registries: Fear Without Function, jstor.org; Summary of Sex Offender Registries: Automation and Operation 1998, bjs.ojp.gov; The Complexities of Sex Offender Registries, National Conference of State Legislatures, ncsl.org; V. Sex Offender Registration Laws, hrw.org; Teenager’s Jailing Brings Call to Fix Sex Offender Registries, nytimes.com; Ellman, Ira Mark and Ellman, Tara, Frightening and High: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, scholarship.law.umn.edu; Did the Supreme Court Base a Ruling on a Myth?, nytimes.com; How the Supreme Court Spread a False Statistic About Sex Offenders, thecut.com; Why the sex offender registry isn’t the right way to punish rapists, vox.com; Shawna: A life on the Sex Offender Registry, The Marshall Project, themarshallproject.org; Rethinking Sex Offender Registries, National Affairs, nationalaffairs.com; McLeod, Allegra M., Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform (2014), Georgetown Law Faculty Publications and Other Works, scholarship.law.georgetown.edu; The List: When juveniles are found guilty of sexual intercourse, the sex offender registry can be a life sentence, The New Yorker, newyorker.com; Sex Offender Registry Doesn’t Help Victims Hurts Young Offenders, Juvenile Justice Information Exchange, jjie.org; For Some Prisoners, Finishing Their Sentences Doesn’t Mean They Get Out, The Marshall Project, themarshallproject.com; Newsom signs bill intended to end discrimination against LGBTQ people in sex crime convictions, Los Angeles Times, latimes.com; The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal, The Hill, thehill.com; VII: Consequences of Registration and Community Notification Laws for Registrants and their Loved Ones, Human Rights Watch, hrw.org; Barred from Church, The Marshall Project, themarshallproject.org; Injustice: How the Sex Offender Registry Destroys LGBT Rights, The Advocate, advocate.com; Sterling, Robin Walker, Juvenile-Sex-Offender Registration: An Impermissible Life Sentence, The University of Chicago Law Review, jstor.org; Hudson, David L., Crime Registries Under Fire: Adam Walsh Act Mandates Sex Offender Lists, but some Say It’s Unconstitutional, ABA Journal, jstor.org; Klein, Spencer, The New Unconstitutionality of Juvenile Sex Offender Registration: Suspending the Presumption of Constitutionality for Laws That Burden Juvenile Offenders, Michigan Law Review, jstor.org; Durling, Caleb, Never Going Home: Does It Make Us Safer? Does It Make Sense? Sex Offenders, Residency Restrictions, and Reforming Risk Management, The Journal of Criminal Law and Criminology, jstor.org; Miller, Erin, Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders, Yale Law Journal, jstor.org; Sex Offender Registry Reform, Stop Child Predators, stopchildpredators.org; When a sex offender calls, she’s there to listen, vox.com; Advocacy Organizations and Agencies, cure-sort.org.
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