Original article published in Criminal Legal News – June 2018 edition
by Christopher Zoukis
In October 1989, 11-year-old Jacob Wetterling was kidnapped at gunpoint and never seen again.
When the boy’s mother, Patty Wetterling, learned that her home state of Minnesota did not have a database of possible suspects—notably convicted sex offenders—she set out to make a change.
Wetterling’s efforts led to the passage of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which was signed into federal law by President Bill Clinton in 1994. Jacob’s Law was the first effort to establish a nationwide registry of convicted sex offenders, but it was not the last.
Soon after Jacob’s Law was enacted, 7-year-old Megan Kanka was raped and murdered by a neighbor with a previous conviction for sexual assault of a child. This heinous crime led the state of New Jersey to pass Megan’s Law, which required anyone “convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sex offense” to register with local law enforcement upon release from prison, relocation into the state, or after a conviction that did not include incarceration.
Two years later, Congress enacted a federal Megan’s Law. The bill, which passed in the House by a 418-0 vote and in the Senate by unanimous consent, required that states provide community notification of sex offender registry information “that is necessary to protect the public.” By the end of 1996, every state in the nation had some form of public notification law for sex offenders in place.
In 2006, Congress adopted the Adam Walsh Child Protection and Safety Act, named in honor of 6-year-old Adam Walsh, who was abducted and murdered in Florida. The Adam Walsh Act repealed and replaced both Jacob’s Law and Megan’s Law. The comprehensive Adam Walsh Act created a national sex offender registry and mandated that every state comply with Title I of the Act, the Sex Offender Registration and Notification Act (“SORNA”) or risk losing 10 percent of federal law enforcement funding. SORNA requires, among other things, that states establish a three-tiered sex offender registry system, with “Tier 3” offenders required to update their registry information every three months, for life. SORNA also created the National Sex Offender public website, which had nearly 5 million visits and 772 million hits by 2008.
Full compliance with SORNA has proven costly, and many states have opted out. As of 2014, only 17 states were in full compliance; the remaining 33 states have foregone their full federal law enforcement funding while remaining partially compliant.
Despite many states choosing not to comply with SORNA, a tremendous amount of sex-offender registry legislation has been enacted across the country since the 1990s. These laws have gone well beyond keeping a registry of convicted sex offenders, and now regulate where sex offenders may live and work, with whom they may have contact, and even where they may be present. Illinois, for example, created a law enforcement registry in 1986. Since it was created, the Illinois Legislature has amended the registry 23 times, each time adding new offenses, restrictions, or requirements.
False Premises, Faulty Numbers, and Unintended Consequences
There is a laudable and virtually unassailable goal associated with sex-offender registration and restriction laws: protection of the public, especially children. Congress passed SORNA, for example, “[i]n order to protect the public from sex offenders and offenses against children. . . .” 34 U.S.C. § 20901.
But the “protections” provided by sex offender registration and restriction laws are based on faulty information and more than one false premise. In passing registry laws, legislators frequently cite the high rates of recidivism among sex offenders. Judges do the same. In the 2002 opinion McKune v. Lile, U.S. Supreme Court Justice Anthony Kennedy cited a “frightening and high” sex-offender recidivism rate of up to 80 percent.
If it were true, that would, indeed, be “frightening and high.” However, that figure is flat-out wrong. Justice Kennedy based that assertion on an unverified claim in a 1986 Psychology Today article written by a therapist who has since repudiated it. In fact, the therapist has stated that the 80 percent figure is “absolutely incorrect” and that he is appalled that it is still being used to influence public policy and judges.
Similarly, a core belief underlying the value of sex offender registries is flat-out wrong—that crimes against children are most often committed by strangers with lengthy criminal histories. Actual recidivism rates are just about the lowest of any offender category—somewhere between 5 percent and 25 percent; sex offenses are, by a very large margin, committed by people known to the victim who have no criminal history, data show.
As crime prevention tools, sex offender registries are a near universal failure. What’s more, they work to create a kind of second-class citizen for whom living a normal life is impossible. Residency, “presence,” and employment restrictions regularly render registrants homeless, jobless, and cast out of public spaces. Public notification sometimes leads to vigilante action; Human Rights Watch has documented the assault and murder of sex offenders who were located on public registries.
But there is no legislation easier to pass than a restriction on a sex offender. As a group, sex offenders are greatly despised and are thus easy targets for “tough on crime” politicians needing to score points. If the goal of sex offender registration and restriction laws is to actually prevent crime in a constitutional and humane manner, however, it is well past time to take a hard look at the mounting evidence indicating that these laws have gone horribly wrong.
Overview of Registries Nationwide
Laws regulating registered sex offenders vary by state. While every state now requires that sex offenders register, the length of time that a particular sex offender must remain registered ranges from five years to life. Which individual sex offenders are listed on publicly available websites also depends on state law. Most states restrict where registered sex offenders may live, and some states restrict where registrants may work, or be present.
According to a chart created by the Alliance for Constitutional Sex Offender Laws, at least eight states require sex offenders to register for life. Most other states require registration for 10 to 15 years to life, depending on the registrant’s crime. Periodic updates are required in most cases, either quarterly or yearly—unless the registrant is homeless.
Homeless sex offenders face additional registration hurdles. For example, in North Dakota, a homeless or transient resident must re-register every three days. Most other states require homeless sex offenders to re-register every seven to 30 days. Massachusetts requires every homeless registered sex offender to wear a GPS device at all times.
Sex offender registration and restriction laws are frequently what lead a registrant to homelessness. In Florida, state law prohibits registered sex offenders from living within 1,000 feet of a school, child-care facility, park, or playground. In addition, as of 2011, the Florida Department of Corrections reported a total of 140 sex offender-related local ordinances, enacted in 44 of Florida’s 67 counties. Typically, these ordinances prohibit registrants from residing within 2,500 feet of various venues, including schools, parks, playgrounds, libraries, churches, public pools, sports fields, and school bus stops.
As a result of these onerous residency restrictions, a 2013 study found that more than 3 percent of Florida’s registered sex offenders are homeless. In Miami, the situation reached crisis levels in 2010, when residency restrictions forced many registered sex offenders to live under a bridge. Ron Book, chairman of the Miami-Dade Homeless Trust, referred to sex offenders as “monsters,” and seems not to have lost any sleep over the rising population of homeless registrants.
“I don’t care if they have to live under a bridge or if they have to live somewhere outside Florida,” Book said.
In other states, laws prohibit registrants from residing between 300 and 2,500 feet from a litany of locations, including schools, child-care facilities, playgrounds, parks, bus stops, youth centers, resident camp facilities, churches, ballparks, pools, athletic fields, “facilities where minors gather,” and the on-campus housing of any institution of higher learning. Some communities leverage these laws to banish sex offenders entirely. Strategically placed “pocket parks” can render entire cities off limits to registrants.
Many states also restrict where a registered sex offender may be present at any given time. In Arkansas, “Level Three” and “Level Four” registrants may not step foot into any swimming area, water park, or state park playground. Florida prohibits registrants with a conviction involving a minor from being within 300 feet of “a place where children are congregating.” In Iowa, a similar registrant may not loiter or be present within 300 feet of a public library.
State and federal law further restricts registered sex offenders from receiving certain government benefits and, in some cases, from taking shelter in state-run facilities during an emergency. The Agricultural Act of 2014 prohibits select registrants from receiving food stamps. Some jurisdictions in Florida prohibit sex offenders from seeking safety at public shelters during hurricanes. Homeless shelters and soup kitchens nationwide routinely refuse entry to registered sex offenders.
Sex offenders are subject to most state registry laws even when they are on vacation. In Ohio, South Dakota, and Wyoming, sex offenders must register if they are in the state for more than three days. California and Colorado require a visiting sex offender to register within five days. The registration process itself generally involves spending several hours at the local sheriff’s office, or the state DMV.
Registries in every state are available for public viewing. Some states also give affirmative notification to the public when a sex offender registers. In Alabama, Arizona, Alaska, Louisiana, Texas, and West Virginia, law enforcement or sex offenders themselves must notify the public of their status. Several other states, including Colorado, Connecticut, Maine, New Hampshire, and Washington, provide for discretionary public notification.
Some states also require that registered sex offenders obtain and carry with them special cards or endorsed driver’s licenses. Both Louisiana and Mississippi mandate that registered sex offenders obtain a “sex offender card” from the DMV. In Florida, all sex offenders must appear at the DMV within 48 hours of registration in order to pick up an ID card labeled either “SEXUAL PREDATOR” or “943.0435, F.S.” No states require registered sex offenders to wear identifying marks on the outside of their clothing—yet.
In addition to requiring that registered sex offenders have their papers in order, Louisiana prohibits registrants from wearing “masks or hoods” in public. Missouri requires registrants to post signs advising of their status on Halloween. And Minnesota calls its registry the “Predatory Offender Registry” database in order to, according to the state legislature, “more accurately reflect the offenses that trigger registration.” This is despite the fact that there are still people required to register who were convicted of sodomy prior to the Supreme Court declaring such laws unconstitutional.
In sum, sex offenders subject to registration are not welcome to reside or be present in huge swaths of the United States. Sometimes, legislators state their intentions explicitly. A 2008 report in the Hastings Constitutional Law Quarterly cited the speaker of the Georgia House of Representatives as plainly admitting that the state’s registry laws were aimed at driving sex offenders into neighboring states.
Sex offender registration and restriction laws are routinely imposed and defended in the name of public safety. Controlling where an individual who has been previously convicted of a sex offense lives, works, or is present is ostensibly meant to limit the likelihood of re-offense, which at first blush seems reasonable. Jason Chambers, a prosecutor and member of the Illinois Sex Offenses and Sex Offender Registration Task Force (“SOSOR”), summed up the common sense behind sex-offender registry and restriction laws.
“I have never seen a study that says that if I hit my hand with a hammer, it will hurt,” said Chambers. “But I still know it will hurt. I do not need a study to know that allowing a child sex offender with multiple convictions to live across the street from a grade school is a bad idea.”
There may be good reasons for casting aside common sense beliefs about sex offenders and the effectiveness of registries, however. Empirical evidence and objective data are beginning to confirm what experts have said for many years: Sex-offender registration and restriction laws do not reduce recidivism, and they do not make communities safer. In fact, these laws may actually increase recidivism and decrease public safety.
Common Sense vs. Reality: Sex Offenders Rarely Reoffend
Historically, sex offender registration and restriction laws have come in rapid response to public and legislative outrage over rare, high-profile crimes. The kidnapping and murder of a child evokes primal fears, and legislative responses to such evil tend to be swift and dramatic. Such responses also tend to be absent of careful study and deliberation that are the hallmarks of quality legislation. As such, when drafting sex offender registration and restriction laws, legislators often fail to understand the problems they intend to solve, as well as the tools employed to solve them.
In Illinois, for example, the SOSOR Task Force noted in its 2018 report that the state’s registry system was formed “as part of a national response not only to a particular set of circumstances, but often to specific cases that were legislated at a time when crime control was the dominant political philosophy.” The task force also pointed out that the high-profile incidents that led to calls for tighter control of sex offenders were “in many ways atypical of most sexual offenses.”
‘Little if any debate’
In his 2011 book, Justice Perverted: Sex Offender Law, Psychology, and Public Policy, forensic psychologist and SUNY-Buffalo Law School professor Charles Patrick Ewing elaborated on this point, writing that “sex offender registration, notification, and community restriction laws arose out of an understandable visceral response to a small number of outrageous sex crimes, coupled with false beliefs that sex offenses were increasing and that sex offenders have a high rate of recidivism.”
“[T]hese laws have often, if not usually, passed with no concern for either cost or likelihood that they will, in fact, reduce either sex offender recidivism or the number of sex offenses in general,” wrote Ewing. “Indeed, some of these laws have been passed with no public input and little if any debate.”
In crafting legislation in the wake of atypical crimes committed by atypical offenders, states have ensnared over 850,000 individuals in a system meant to prevent the type of crimes that they almost certainly did not commit in the first place and likely will not commit in the future. Common sense may indeed dictate that the registration and micromanagement of sex offenders is a good idea. But as author W. Somerset Maugham once said, “Common sense appears to be only another name for the thoughtlessness of the unthinking. It is made of the prejudices of childhood, the idiosyncrasies of individual character and the opinion of the newspaper.”
In Justice Perverted, professor Ewing set out to examine the efficacy of sex offender registration and restriction laws in a decidedly non-common sense manner. In order to answer what Ewing says “is, of course, an empirical question,” he did what legislative bodies and policy makers have historically failed to do when enacting sex offender registration and restriction laws: he considered the evidence.
A significant assumption underpinning sex offender laws is that the recidivism rates for this population are, as Justice Kennedy said, “frightening and high.” Ewing points out what researchers and experts have been shouting from the mountaintops for years: Recidivism rates for sex offenders are, in fact, “quite low, especially as compared to that for other offenses.”
This is not news. Michigan Citizens for Justice, a group that advocates for reform of sex offender registration and restriction laws, looked at a recent Department of Justice report on new convictions and found that, filtering the data for new convictions (a commonly used definition of recidivism) and crimes against children, sex offenders have a recidivism rate of around 11/2 percent. According to the Bureau of Justice Statistics, the general recidivism rate for released prisoners nationwide is 68 percent. Contrary to common misconception, the inclusion of sex offenders in this general number actually lowers the percentage due to sex offenders recidivating at such a low rate.
Other non-partisan sources have come to similar conclusions. The Illinois SOSOR Task Force, which was established by the Illinois Legislature and was composed of practitioners, law enforcement representatives, and advocates, found that the literature suggests a 5 percent sex offender recidivism rate after three years, and a 24 percent recidivism rate after 15 years. The task force also noted that researchers have consistently found that sex offenders are more likely to be rearrested, reconvicted, or reincarcerated for non-sex offenses than sex offenses.
Melissa Hamilton, a professor of law at the University of Houston Law Center and recognized expert on sex-offender recidivism issues, put the actual number in the “low single digits” in a recent court filing. Professor Hamilton is one of the nationally known experts who has been trying to set the record straight about sex-offender recidivism rates for many years.
“[T]he assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” Hamilton told Slate in 2014. “It’s a myth.”
Empirical evidence and objective data undermine the common-sense understanding of sex-offender recidivism rates. However, assuming that recidivism rates are lower than commonly believed, common sense still dictates that sex offender registration and restriction laws further reduce recidivism, which is a good thing regardless of how low the rates actually are.
Except that they don’t.
Sex Offender Registration Laws May Impede Public Safety
Professor Ewing examined several studies and meta-analyses and concluded that sex offender registration and restriction laws “have not reduced the number of sex offenses in the United States or even that among previously convicted sex offenders who have been the direct targets of these laws.” Interestingly, Ewing reviewed several studies that did find minimal reductions in recidivism rates for sex offenders subject to registration and restriction laws, but those studies were offset by others that found the opposite—that registration and restriction laws actually worked to increase sex offender recidivism rates. Human Rights Watch (“HRW”) explained in a nutshell how sex-offender registration and restriction laws fail to reduce recidivism, and may actually increase recidivism, in a 2007 report, “No Easy Answers for Sex Offenders.”
“Current registration, community notification, and residency restriction laws may be counterproductive, impeding rather than promoting public safety,” wrote the report authors. “For example, the proliferation of people required to register even though their crimes were not serious makes it harder for law enforcement to determine which sex offenders warrant careful monitoring. Unfettered online access to registry information facilitates—if not encourages—neighbors, employers, colleagues, and others to shun and ostracize former offenders—diminishing the likelihood of their successful reintegration into communities. Residency restrictions push former offenders away from supervision, treatment, stability, and supportive networks they may need to build and maintain successful, law abiding lives.”
The first point made in the HRW report has also been emphasized by experts and even state-level sex offender management agencies. For example, the California Sex Offender Management Board, which includes law enforcement officers, prosecutors, and prison officials, said in a 2013 report that “[the] registry has, in some ways, become counter-productive to improving public safety” because “[w]hen everyone is viewed as posing a significant risk, the ability to differentiate between who is truly high risk and more likely to reoffend becomes impossible.”
The Illinois SOSOR Task Force addressed this issue, in part, by recommending much more limited use of the term “sexual predator” when drafting sex-offender laws and regulations. Sex-offender registration and restriction laws are notoriously over-inclusive, and applying the label “sexual predator” to a person convicted of public urination (which can lead to registration in at least 12 states), a teenager convicted of consensual sex with another teenager (which can lead to registration in at least 29 states), or a 10-year-old convicted of a sex crime (which could lead to registration in Texas as of 2013) leads to understandable confusion about what a “sexual predator” is.
California recently enacted a law intended to address this problem while reining in the state’s unwieldy sex offender registry. Senate Bill 3484, sponsored by State Sen. Scott Weiner and signed into law by Gov. Jerry Brown, created a three-tiered registry meant to differentiate between offenders, while also providing most registrants the opportunity to petition to be removed from the registry between 10 and 20 years after release from prison. Law enforcement agencies supported the effort to reform California’s bloated registry, which includes more than 100,000 individuals. Weiner said the new system will improve public safety.
“With this reform, our law enforcement agencies will be able to better protect people from violent sex offenders rather than wasting resources tracking low-level offenders who pose little or no risk of repeat offense,” Weiner said in a statement. “Our sex offender registry is a tool used to prevent and investigate crimes, and these changes will make it a better and more effective tool for keeping our communities safe.”
The HRW report also highlighted the counterproductive nature of sex-offender registry notification requirements. Common sense dictates that public awareness of the location of a convicted sex offender must improve public safety. Directly addressing this question, professor Ewing found that “[u]nfortunately, the data indicates otherwise.” Publicly viewable sex offender registries do not lower recidivism, nor do they improve the safety of the community.
Sex offenses are committed, in almost every case, by first-time offenders who know their victim. The Bureau of Justice Statistics established in 2010 that family, friends, and acquaintances are responsible for more than 90 percent of all sexual abuse of children. The Association for Treatment of Sexual Abusers similarly found that 93 percent of sex offenses are committed by first-time offenders. A public registry does not necessarily make the community a safer place when the most likely victim of a sex offender knows the offender and, in the case of a repeat offense, probably already knows that the offender is a registered sex offender.
Attorney Alison Ruttenberg, who represents registrants challenging Colorado’s registry laws, said public misunderstanding of the “typical” sex offender contributes to the failure of registries as public safety tools. People tend to think that a sex offender is “a violent repeat molester who’s coming to get their children, which isn’t true in the vast majority of cases,” she said.
Dr. Toby Bolsen, associate professor of political science at Georgia State University, said the crimes committed by sex offenders “vary widely,” and as such, “there is no average sex offender.”
As a result, sex offender registries “generate misplaced fears about the risks that the vast majority of people convicted of a sex offense pose to their communities.” Ruttenberg agrees, and said that public misperceptions of registered sex offenders lead to trouble for registrants themselves.
“That’s why the men and women on the registry experience so much harassment and vigilante action against them,” said Ruttenberg.
Registrants Attacked by Vigilantes
Vigilante activity is a significant and underappreciated collateral consequence of sex-offender registration and restriction laws. In at least 14 states, there have been enough attacks on registrants to cause legislators to pass laws making it a crime to use registry information to harass, intimidate, or assault a registrant. The 2007 HRW report highlighted some examples of vigilante justice visited upon registered sex offenders.
“Registrants [spoke] of having glass bottles thrown through their windows; being ‘jumped from behind’ and physically assaulted while the assailants yelled ‘You like little children, right?’; having garbage thrown on their lawn; people repeatedly ringing the doorbell and pounding on the sides of the house late at night; being struck from behind with a crowbar after being yelled at by the assailant that ‘People like you who are under Megan’s Law should be kept in jail. They should never let you out. People like you should die. When you leave tonight, I am gonna kill you’. . . .”
Perhaps the most egregious example of common sense gone wrong, however, is the significant push across the nation to restrict where registered sex offenders may live, work, or be present. The presumption underlying all of these restrictions is that the physical location of a given sex offender has some relation to the likelihood that he or she will commit a crime. Similar to other aspects of the registry, however, the evidence suggests that residence, employment, and presence restrictions do not reduce recidivism or enhance public safety at all.
Consider residency restrictions, which prohibit registered sex offenders from living some arbitrary number of feet from specified locations, such as schools, parks, daycares, and other public places. Professor Ewing suggests that such restrictions are “inherently unlikely to do much if anything to reduce the number of sex crimes in any given geographical location.” Ewing points out a major flaw in the logic of residency restrictions: “[T]hese laws do not restrict convicted sex offenders from living near children, only from living near schools, day care centers, parks, playgrounds, and other places where children congregate.”
“Thus, for example, a child sex offender might be barred from living within 2,500 feet of one of these ‘protected’ areas but still be allowed to live in a large apartment complex brimming with children,” wrote Ewing.
The best available evidence suggests that restricting where registered sex offenders may reside has no impact on recidivism or public safety. The Illinois SOSOR Task Force notes that while “no research was available on whether [residency restrictions] would prevent sexual offending prior to implementation” of such laws, the research is available now. And it does not support the common-sense belief that residency restrictions work.
“[R]esearch has shown residency restrictions neither lead to reductions in sexual crime or recidivism, nor do they act as a deterrent,” wrote the task force.
A significant (false) premise underlying residency restrictions may explain why they don’t work. The task force notes that “residency restrictions were premised on preventing sexual abuse by strangers, [but] research has shown most offenders are not strangers to their victim and abuse tends to happen in a private residence rather than identified public locations.”
The nightmare scenario of stranger abduction of a child has a strong hold on the American psyche. Professor Hamilton said that “[i]t’s become a part of our culture that there are predators waiting around corners.” But the empirical evidence—the Bureau of Justice Statistics finding that over 90 percent of victims of sexual abuse know their abuser—puts an end to the myth that sex offenders frequent schools, parks, and daycares trolling for victims. Outside of the rare, high profile incident, stranger abduction from public places wasn’t happening 20 years ago, and it isn’t happening now.
What is happening, however, is a continued push to further isolate registered sex offenders by way of additional restrictions, such as those on where a registrant may work or be present. Registered offenders are barred from holding certain licenses and engaging in select occupations across the country. These restrictions generally focus on jobs that might involve contact with children. In Massachusetts, for example, a registered sex offender may not operate an ice cream truck.
Some states take employment restrictions to the extreme. In Alabama, for example, registrants may not be employed anywhere within 2,000 feet of a school or childcare facility or within 500 feet of a playground, park, athletic field or facility, or child-focused business or facility. In Delaware, a registered sex offender cannot be a plumber; Alaska prohibits sex offenders from dealing in hearing aids. New Hampshire prohibits registrants from working in an “end stage renal disease dialysis center,” and Kentucky does not allow a sex offender to be a land surveyor during the first 10 years of registration.
Presence restrictions are becoming commonplace in sex offender registry regimes as well. At least 26 states now restrict where a registered sex offender may be present. In some states, registered sex offenders may not go to a public pool. In others, they are prohibited from patronizing a mall or library.
Employment and presence restrictions are as beneficial to public safety as residency restrictions. That is, they are not beneficial; they neither lower recidivism nor improve community safety. In fact, these restrictions may actually inhibit public safety and increase recidivism.
Across the board, experts agree that a key to limiting the likelihood of recidivism in any releasing population is successful reintegration into the community. The onerous restrictions placed on registered sex offenders do not engender a sense of community, and they severely limit the ability of an offender to reintegrate. Professor Ewing said sex-offender restrictions might actually increase recidivism and decrease public safety.
“[L]aws that restrict the residences, workplaces, and movements of sex offenders also appear to do little if anything to reduce recidivism and may have the unintended negative consequence of making sex offender recidivism more likely because they engender hopelessness and homelessness in some offenders, impede their contact with social support networks in the community, and create disincentives for pro-social behavior,” wrote Ewing.
With all of the available evidence pointing to the decidedly non-common sense conclusion that sex offender registries and restrictions do not reduce recidivism or improve public safety, one would be forgiven for wondering why legislatures nationwide continue to pile on the requirements and restrictions. The Council for State Governments, a nonpartisan group funded in part by the states, posits that “common myths about sex offenders continue to influence laws” despite the fact that “there is little empirical proof that sex offender registries and notification make communities safer.”
“High-profile cases involving sex offenders continue to dominate the news,” said the Council. “[These cases] understandably shape the public perception of sex offenders.”
Whatever the myths or perceptions, Professor Ewing notes that “it appears that the emperor has no (or very few) clothes.”
“The consensus of empirical research is that these sex offender registration and notification laws have no statistically significant effect on sex offender recidivism and thus fail to provide the protection upon which they are premised and which they promise the public,” wrote Ewing.
Sex Offender Registries and Restrictions: A Costly Failure
States spend hundreds of millions of dollars implementing and operating sex-offender registries that don’t work. The restrictions that accompany registries also come at a great social cost. And registries cost the community significantly, because they provide a false sense of safety.
The economic cost of sex-offender registration nationwide is, according to professor Ewing, “immense.” SORNA, which is intended to force states into compliance with federal registry law, was estimated by the Justice Policy Institute to cost states $488 million to implement in its first year. This cost dwarfed the federal crime fighting dollars lost for noncompliance, and most states have chosen not to comply with the federal law. Compliant or not, however, states spend enormous sums operating sex offender registries.
New Jersey, for example, spent an estimated $5.1 million maintaining Megan’s Law in one year alone. California spent $88 million in 2011 solely to electronically monitor about 7,000 paroled sex offenders. Given that California has more than 100,000 registered sex offenders on its rolls, the total cost to operate the state’s registry is in the hundreds of millions.
Sex-offender registries also come with indirect economic costs. Real estate markets, for example, are impacted by the presence of a registered sex offender. One study found that houses within one-tenth of a mile from a registrant’s residence sold for 17.4 percent less than similar homes located farther away. According to the study’s author, “If you have a person who committed a sex offense next door to you, or even a block away, or two-tenths of a mile away, you pay a price.”
The social costs of sex offender registries are wide ranging and significant. Professor Ewing points out that the public may be taking false comfort in the “safety” provided by the registration and restriction of sex offenders.
“[T]he sense of added safety and security that [registration, notification, and restriction laws] convey to the public, while often misleading if not altogether false, may lead some citizens, especially parents and other caretakers of children, to become less mindful of the dangers of sexual victimization,” wrote Ewing. Moreover, “armed with the knowledge that convicted sex offenders are not allowed to live within 2,500, 1,000, or even 500 feet of a school, day care center, playground, park, or other place where children regularly congregate, parents and other caretakers may conclude that their children are thus safer and less in need of care and supervision when they are in these ‘protected’ places. Sadly, the facts do not bear out any such conclusions.”
In addition to social and economic costs to the community, sex-offender registries come at great personal and social costs to the families of sex offenders. Women Against the Registry (“WAR”), an organization dedicated to the abolition of sex offender registries, was founded primarily due to the “punishing effect of the registry on innocent family members.”
According to WAR, one study showed that family members of registered offenders are regularly subjected to threats and harassment by neighbors, physical assault, and property damage. The same study found that innocent family members have been evicted or forced to move out of their own home due to a registrant’s status.
“The effect of the public registry on the family of registered offenders cannot be overlooked,” states a WAR pamphlet. “From shaming to banishment to outright violence, these family members are facing harsh treatment daily simply because they are the family member of registered offenders.”
The Human Rights Watch profile of Gavin D. illustrates this point. Gavin was a softball coach who was convicted of misdemeanor indecent contact with a child after he grabbed and twisted the buttocks of a 12-year-old girl in a fit of anger over the outcome of a softball game. He served two years on probation and completed anger management courses but was also required to register as a sex offender in Iowa. As a result of his registration status, Gavin was forced to move out of the home he shared with his wife and two children.
Because he couldn’t find compliant housing in Dubuque, where his family resided, he crossed the border to Wisconsin, where he moved into a friend’s basement. Gavin can’t sleep in the same home as his family, but he can “visit” as often as he likes.
“I can be there 23 hours if I stay awake,” Gavin said. “On the weekends, I stay there as long as I can keep my eyes open. I just want to be with my kids as long as possible. I at least always wait to leave until they have gone to bed, and I try to leave Wisconsin to get back home to them before the kids wake up. I don’t get much sleep, but I need to be a father to my children.”
Registries and restrictions also come at a great cost to sex offenders themselves, of course. Many registrants find themselves homeless due to a lack of affordable and compliant housing. Unemployment among registrants is rampant. Registrants are cast out of most social situations and suffer shame without end. In a 2003 concurring opinion, U.S. Supreme Court Justice David Souter wrote of the consequences of registration suffered by sex offenders.
“Widespread dissemination of offenders’ names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts,” wrote Justice Souter. “It thus bears some resemblance to shaming punishments that were used early in our history to disable offenders from living normally in the community. While the [majority] accepts the state’s explanation that [Alaska’s registration law] simply makes public information available in a new way, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it without warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.”
The registration and restriction of sex offenders also portends other heavy-handed moves by government, according to some experts. Noted criminologist Marie Gottschalk wrote that the required registration of one particular group (i.e., sex offenders) could easily be extended to other groups.
“[T]he war on sex offenders is setting important punitive precedents for expanding the prison beyond the prison not just for released sex offenders but also for a whole range of other groups and individuals deemed undesirable by law enforcement officers, government officials, and the broader public,” wrote Gottschalk in her 2015 book Caught.
Sex-offender registries and restrictions are not effective in reducing recidivism or improving public safety. Instead, professor Ewing argues that the actual effects of these laws are: “(1) creating the impression that government is doing something to reduce the number of sex offenses; (2) giving the public a greater sense of safety and security in the face of what is erroneously perceived as a growing threat of sexual victimization; and (3) adding another layer of punishment to the criminal justice system’s response to sex offenders.”
Ewing allows for the possibility that there is some value in the true effects of sex-offender registry and restriction laws, however dubious it may be. But the costs, in both dollars and lives, far outweigh the limited and highly suspect “value” of a system that does not accomplish its one and only task: improvement of public safety.
Registry Reform: Casting Aside (Erroneous) Common Sense
Sex-offender registration and restriction laws are products of irrational (but understandable) fear and political calculation. They do not improve public safety or decrease the likelihood that a sex offender will reoffend, but states continue to add requirements and restrictions with great abandon. In the current social and political climate, it is fair to question whether registry reform is possible, regardless of whether the system is broken.
In Missouri, for example, a registration reform bill made it out of the legislature, but was vetoed by the governor. The bill would have removed juvenile offenders—those who committed sex crimes before they were 18—from the state’s public registry, and would have allowed them to petition to be removed from the law enforcement-only version. Gov. Jay Nixon took the opportunity to engage in political grandstanding and vetoed the bill.
“The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to keep their families safe, are not,” said Nixon.
But fear mongering and public hysteria will only go so far in the face of empirical evidence and a hefty financial burden. Professor Ewing argues that states may eventually “be forced to conduct honest and realistic cost-benefit analysis in deciding whether sex offender registration, notification, and restriction laws are worth the hundreds of millions if not billions of dollars they cost taxpayers each year.”
The Illinois SOSOR Task Force report is a good example of the kind of legislative reform efforts that are needed. The task force spent one year examining research, conducting public hearings, and formulating sensible reform recommendations. Like the California Sex Offender Management Board, the Illinois Task Force strongly recommended committing resources to effectively differentiating between sex offenders, both for treatment purposes and for registration purposes. As the registry currently stands in Illinois, and in most states, sex offenders are treated generically, which does not “reflect their actual risk-to-reoffend.”
The Association for Treatment of Sexual Abusers (“ATSA”) underscored the importance of treating sex offenders heterogeneously for purposes of registration and restriction in a recent Supreme Court filing.
“There is universal agreement among professionals that restrictions on registrants must have some basis in empirical reality to be effective,” wrote the ATSA brief’s authors. “One such reality is the fact that registrants are not a homogenous group of ‘sex offenders’ that should be monolithically managed. Rather registrants comprise a diverse group of individuals, each different from the next in terms of past criminal history, behavioral patterns, and risk of recidivism. On top of the fact that the observed recidivism rates for ‘sex offenders’ in aggregate are far lower than what conventional folk wisdom suggests, differences in recidivism risks among the diverse registrant population requires a tailored rather than a uniform approach to crime prevention.”
United States District Court Judge Richard Matsch made a similar observation in a recent ruling in which he found Colorado’s sex-offender registry unconstitutionally cruel and unusual.
“The fear that pervades the public reaction to sex offenses—particularly as to children—generates reactions that are cruel and in disregard of any objective assessment of the individual’s proclivity to commit new sex offenses,” wrote Judge Matsch. “The failure to make any individual assessment is a fundamental flaw in the system.”
Professor Ewing concludes that a public registry will never promote public safety, regardless of any reforms. This is because a public registry has no impact on whether a given sex offender will recidivate. If registered sex offenders choose to recidivate, they can simply “seek victims in areas where they are unknown and not likely to be recognized.” As such, Ewing proposes limiting registration to a small number of cases on a law enforcement-only database.
Patty Wetterling laments what has happened to sex-offender registries in the years since she championed Jacob’s Law and now advocates for sex-offender registry reform. “These registries were a well-intentioned tool to help law enforcement find children more quickly,” Wetterling told Slate in 2014. “But the world has changed since then.”
Wetterling believes that better understanding and acceptance of sex offenders is crucial to actually improving public safety.
“These are human beings who made a mistake,” said Wetterling. “If we want them to succeed, we’re going to need to build a place for integrating them into our culture. Right now, you couldn’t walk into a church or community meeting and say ‘I was a sex offender, but I’ve gone through treatment. I now have this lovely family, and I am so grateful to be a part of this community.’ There is no place for success stories. Nobody believes them.”
Sources: slate.com, inthesetimes.com, washingtonpost.com, hrw.org, floridaactioncommittee.org, stopitnow.org, saeninc.org, calcasa.org, latimes.com, sfgate.com, womenagainstregistry.org, montrosepress.com, ilvoices.org, micitizensforjustice.wordpress.com, cnn.com, westword.com, thefederalist.com, nytimes.com, reason.com, Hastings Constitutional Law Quarterly
Additional sources: Justice Perverted: Sex Offense Law, Psychology, & Public Policy by Charles Patrick Ewing (Oxford University Press, 2011); “Sex Offenses and Sex Offender Registration Task Force Final Report” (http://www.icjia.state.il.us, January 2018); “Improving Illinois’ Response to Sexual Offenses Committed by Youth: Recommendations for Law, Policy, and Practice” by Illinois Juvenile Justice Commission (March 2014); Caught by Marie Gottschalk (Princeton University Press, 2015); “No Easy Answers for Sex Offenders” by Human Rights Watch (September 2007); “Adults on Probation Supervision in California for a Sexual Offense: Report to the California Sex Offender Management Board” by Danielle Arlanda Harris and Edith Kinney (March 2017); Personal interview with Dr. Toby Bolsen, associate professor of political science, Georgia State University (April 18, 2018)
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.