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.
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.
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).