Sex Offender Registration: Why Fear Isn’t Smart Policy

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As momentum around criminal justice reform builds nationwide, sex offenders are one population that is consistently left out of the conversation.

As of 2008, there were 737,000 individuals living on the sex offender registry in the United States, according to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking—almost double the 386,000 registered individuals in 2001.

After the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act was passed in 1994, as part of President Bill Clinton’s Omnibus Crime Bill, registration became a federal mandate for individuals convicted of a number of different categories of sex offenses.

Megan’s Law, passed in 1996, added a community notification component. With the passage of the Adam Walsh Child Protection and Safety Act (or SORNA), the number of register-able offenses broadened and average lengths of registration increased. The intervening years between their inception and the present have not shown these laws to be effective in accomplishing their goals of community safety or reducing the number of children who are victimized.

So why aren’t champions of prison and sentencing reform talking about it?

The current laws were all enacted with the best of intentions. Parents, afraid for their children, overwhelmingly supported policies that they believed would keep their communities safe.  But as we have seen in the case of the War on Drugs, policies so deeply rooted in fear and misunderstanding will never be successful. In the meantime, they are causing a great deal of harm.

Despite what researchers at the University of Chicago Booth School of Business call a “lack of empirical evidence for the recidivism-reducing benefits of registration and notification,” these laws persist and cause a number of problems. The Chicago researchers point to the financial costs associated not just with those convicted and their families, but with the taxpayers who subsidize their registration and supervision.

Additionally, they point out, neighbors of those on the registry often suffer loss in property value, based simply on physical proximity.

Placement on the registry does not take into account individual risk level, meaning that people are assigned to a somewhat arbitrary term of registration, along with a tier, based solely on the broad category of crime they committed.

Much advocacy work has been undertaken in recent years to address the labeling and registry of juveniles convicted of sex offenses, citing data about low recidivism rates and discussing the harm done to young people who end up registered and greatly restricted when they pose little risk to the public.

This work has already been successful, with some states beginning to remove juvenile offenders from the registry. These same arguments can be made for large portions of the adult men and women who are currently registered across the United States.

CO Revising Sex Offender Law That Critics Say Goes Too Far

Despite the oft-cited “frightening and high” language* that is used to describe recidivism rates for individuals who have committed sex offenses, current data suggests that recidivism rates, particularly for new sexual offenses, are incredibly low—especially when compared to other types of criminal behavior.

For example, a California Corrections Department report found that of registrants returned to prison, a staggering 92% were rearrested on parole violations, while less than 1% were re-incarcerated for a new sexual offense. A 2003 brief from the Bureau of Justice Statistics cites a 5.3% recidivism rate over the first three years of release for high-risk offenders (those who have committed rape or sexual assault) with their likelihood of recidivism declining steadily over time.

For individuals classified as low-risk, those numbers are much lower: “About 97.5% of the low-risk offenders were offense-free after five years, about 95% were still offense-free after 15 years,” the report said.  Compare this to the fact that more individuals (3%) convicted of felonies with no sex offense on their record (who are not, therefore on the registry) will commit a sex offense within 4.5 years of release.

I am not advocating for the laws to be thrown out entirely. But it’s  time for a serious cost/benefit analysis.

And this call for reform has some surprising advocates. After her eleven-year-old son Jacob was abducted and murdered in 1989, Patty Wetterling began fighting for the implementation of a national registry. But in the intervening years, Wetterling has become a staunch supporter of smarter laws and policies. She saw firsthand the way that these laws could take on a life of their own, and have serious collateral consequences.

We need an honest accounting of which  parts of these laws are functional and which are not.  It’s a conversation that we should be having, for a number of reasons. Men and women on the registry often struggle to find and maintain stable housing or employment, due to their registration status.

Some researchers and treatment providers suggest that these “collateral consequences,” as they are often called, may actually increase the likelihood of recidivism by encouraging “social withdrawal and heightened anxiety…common precursors to reoffending.”

While it is certainly important for law enforcement to be able to effectively monitor violent and high-risk individuals, these individuals represent a minority of those on the registry. When we register people who don’t pose a serious risk to the community, we spread already scarce resources even more thinly.

Likewise, current systems perpetuate a myth that “violent strangers” are largely responsible for committing these insidious sexual offense—and, if we can only identify and isolate them, they can be managed.

The reality is much more complicated.

More than 90% of those who sexually offend are known to their victim. In fact, the stricter our laws become around sexual offenses and those who commit them, the more likely will a victim be discouraged from reporting abuse at the hands of a friend or family member, fearing the repercussions of registry and notification.

Sophie Day

If we truly want to make our communities safer and to reduce the number of new victims of sexual offense, then we need to pursue practices and policies that are based on evidence and not rooted in fear.

By using individual risk-assessments to sentence and register individuals and engaging in primary prevention programs, we may actually begin to improve the safety of our communities— and of our children.

Sophie Day is a graduate student completing Masters in Social Work at the University of Pennsylvania. She has done clinical work with men convicted of sex offenses as well as policy research related to the laws currently on the books.

*This language, which comes from a U.S. Supreme Court decision written by Justice Kennedy in the 2002 case McKune v. Lile, 536 U.S. 24, 33, is based on an 80% recidivism rate for untreated offenders. This data point comes from a Department of Justice report which cites as its source an article from Psychology Today, a mass-market magazine and not a peer-reviewed journal. The article’s author was not a researcher, but a practitioner who offered treatments within California prisons and was writing the article to encourage people to use his services. He offered no data to backup the 80% recidivism that he quoted (Ellman & Ellman, 2015).

 

10 thoughts on “Sex Offender Registration: Why Fear Isn’t Smart Policy

  1. You make a lot of very good points. It is all backed up by peer-reviewed research and empiracle evidence. Who do you think you will convince?

    The registry was built upon politics. Every single registry law brought before a legislature is passed unanimously or almost so. The scariest nightmare of every politician in the U.S. is attack ads by political opponents that politicians are protecting sex offenders. No legislature is required to use evidence as their basis for legislation.

    It should be noted that most State courts are also elected positions. This makes them inherently political.

    Registry laws are not about protecting children at all. It is about punishment. Except in this instance the punishments are meted out by legislatures (verses courts). All a legislature needs to do is make a proclamation of community safety and that the law seems rational (rational basis test) for it to be Constitutional and applied ex-post facto. Even in the face of overwhelming evidence of harm to registrants, if a law MIGHT protect it is Constitutional.

    Registration laws are increased and almost never decreased. Legislatures have full authority over the list and restrictions. They can place ANYONE (even non-sexual crimes) on a registry at any time. When a legislature makes statements that the laws are not criminal, but civil, outcomes are not considered.

    A good example is residency restrictions. There has not been one case anywhere where a residency could be said to be a factor in a re-offense. There is lots of evidence of the harm they do to community safety. They make registrants homeless, isolated, alienated and finally more likely criminal. However, it SEEMS to be rational to keep offenders away from parks and schools. In other words, residency restrictions don’t consider what actually motivates offenders in any way. These are complicated subjects of which every person is different. Proximity is an easy concept to understand for people who vote and have no understanding, or education about offending. A mother worried about her kids isn’t an expert on offending but has an obvious emotional attachment to these laws.

    The definition of despotism is the unlimited ability of government to determine a person dangerous without any recourse, challenges or appeals. Every single government oppresses people through public safety laws. Whether it be Jews (the laws were meant to protect them) or Blacks or a hundreds of other ways you can distinguish social groups or racial groups ALL oppression is justified for public safety.

    What to do?

    The federal courts must assert their authority and be the gate-keeper of the registry. There must be an “interest” Constitutionally protected that an offender has to NOT be listed. As of now, an offender has ZERO Constitutional interest in a registry listing. This is exactly how the Adam Walsh Act was applied to crimes going back to 1955.

    I have an INHERENT interest in NOT being listed on a registry through the DUE PROCESS clause of the U.S. Constitution to not be labeled as dangerous, if in fact I am not dangerous. (isn’t this obvious?). I am asserting that interest through the use of public blogs and forums (the only access I have). I am demanding my DUE PROCESS.

    The courts and society can choose to ignore my demands. But it is well established legally that I do not have to put my own safety and/or security at risk for some public safety law that clearly does not advance public safety.

    Until I get my due process, I don’t register. I live a free life, as anyone else. I don’t have all the stresses, instability and isolation of a registry. I left the registry because it was going to make me homeless (an inherently dangerous situation).

    The whole idea behind the U.S. Constitution was about limited government and individual rights. A government’s unlimited ability to create and control a list of out-casts is antithetical to a Republican Constitutional form of government Until Courts have jurisdiction as the gate-keeper to a registry, the registry lacks that most basic component that makes it credible and that is DUE PROCESS.

  2. one thing that needs to be pointed out that even within this article there is false information about recidivism rates the Department of Justice study that is cited within the article cites the 5.3 percentage for rearrests not reconviction rates the actual re-offense rate should only be considered for reconvictions this is what the Department of Justice did say about reconviction’s “Of the released sex offenders, 3.5 percent were reconvicted for a sex crime within the 3-year follow-up period,” the other point that needs to be made about this statement is the fact that it is a limited study since everyone on the registry as well as their family members suffers collateral damage from the registry and community notification the only real fence rate that should be looked at is the re-offense rate for everyone that is on the registry in 2013 Nebraska released its study on the entire Nebraska registry and found that the re-offense rate was 6/10 of one percent another Ohio study that looked at 21,000 people that they added to the registry and follow them for 10 years found that the re-offense rate of around 4/10 of one percent. and those percentages have persisted going back pre-registry, so the registry did not lower the recidivism rate. in fact there are studies showing that after AWA was up proved in certain states that the re-offense rate actually increased a small percentage. so the registry and community notification are not making people safer in fact they are making them less safe and the collateral damage to the 850,000 people that are on the registry and there over 3 million family members that are suffering increases with every new law that is passed based on the false information of high recidivism rates.

  3. I would point you to the following report by the United States Justice Department and encourage all interested parties to read the report and download a pdf copy to keep and share with lawmakers:

    https://www.smart.gov/pdfs/AdultSexOffenderManagement.pdf

    It basically verifies through legitimate statistics that just about every facet of the registry and the current ‘CONTAINMENT STRATEGY’ does not work.

  4. @Rudy101: I agree there are many good points in this article. With respect to, “Who do you think you will convince?” We need to convince everyone we can: friends, family, enemies, etc. The only way the laws will change, short of laws being struck down by the courts, is to educate and change the minds of the people. Politicians will change their tune when there’s no longer support for the laws, juvenile registration is a good recent example that’s starting to fall apart.

  5. I agree with everything you said except this, “The current laws were all enacted with the best of intentions.” Here I agree with Rudy101 that politics plays a strong roll in the creation of these laws and other sex offense related laws. If the laws were well-intentioned, there would be more research before the bills are introduced, follow up to determine their effectiveness, and they would be rescinded if not effective. This is important because putting undue stress on the sex offender population is counter productive. I was on the registry for five years and in sex offender group therapy for over eight years (four years before trial and four years post conviction} before my conviction was reversed on appeal. I was in therapy with dozens of different men over the years and have seen first hand how difficult the registry makes their lives. These are people who lack healthy coping skills and have used compulsive sexual behavior to deal with stress, depression, anger, and other unwanted emotions. Sex was their medication to kill the pain. Increasing stress on them with laws that are not even effective is counterproductive. This is especially true when it occurs before they have had a chance to get through some therapy.

    Your article is well written and spot on. We need more professionals like you to come forward and counter the myths and misinformation out there.

  6. Thank you, Sophie, for a well researched and written piece on the subject. We are heartened and encouraged by young people such as yourself who are willing to speak the truth. Please contact us if we can help you in any way.
    Sandy Rozek, NARSOL

  7. How can you compare a person in the privacy of their own home looking at child porn on a computer with a person who physically harms a child? How do they deserve the same sentences?

  8. My family is impacted every day by sex offender laws. My son was 21 when he received a mandatory minimum sentence. He will be required to register as a SO for the rest of his life unless the laws change. He has never hurt anyone. Because of what happened to us, I have become aware of so many others that have been impacted by these broad stroke laws. The majority of convicted sex offendors are NOT predators. There is such a misunderstanding about this. I want to be part of the conversation. I want things to change. I am a mother and I want protections for all children – including those that end up in the criminal justice system.

    • My son was also convicted and has to register. It has devastated ALL our lives. I want to do something about this. I am returning to college so I can. I am having difficulty in deciding which degree and career to choose. I believe people would be shocked to know the truth about out “justice ” system and how it really works.
      Any advice on career paths is appreciated.

  9. Thank you for your intelligent article and thorough research. I think we can learn a lot from looking at other countries in Europe and Scandinavia who have a far more rational and rehabilitative approach to crime and justice, including those of sex offenders.

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