Since 1996, federal, state, county, and municipal legislation has required convicted sex offenders to register with law enforcement agencies and has imposed escalating restrictions on the lives of the offenders. These expanding restrictions and the growing number of registered sex offenders, nearly 705,000 in the United States as of December 2009, have led some observers to examine the unanticipated consequences of registries as harmful to ex-offenders, their families, and their communities. Recognizing the unanticipated outcomes of registries is only one of the four more prominent controversies revolving around sexual offender registries. The other three controversies pertain to issues of: defining the term sex offender, coping with reentry problems, and questioning whether or not registries work or are effective in keeping children safe from predators.
For example, consider this: When 16-year-old Traci Lords became an immediate porn star in 1984 in the commercially successful X-rated video What Gets Me Hot, she had lied about her age to get the part. If, today, you retained a copy of her early videos or viewed it in the privacy of your home or at a party, you could be convicted of child pornography. Or this: Chicago police checked a halfway house for released felons to determine whether registered sex offenders had complied with state law to provide a valid address. A man wearing a bathrobe stood up and began screaming, “I’m a murderer! I’m a murderer!” He preferred the stigma of being a killer to that of being a sex offender (Sheehan 2006). So which would a person rather be: a murderer, or a 20-year-old college male caught watching the original Traci Lords video, which under current state laws could lead to prosecution, stigma as a pedophile, and possible lifelong registration as a sex offender?
From the scarlet letter worn by the adulteress in Hawthorne’s novel to the Hitlerian pink and gold stars forced on gays and Jews in Nazi Germany, societies have traditionally identified their pariahs with public symbols of stigma. In the past two decades, the United States has witnessed a similar rise in public identification and increased stigmatization of social pariahs: sex offenders. In most cases, unlike the earlier symbols that pariahs displayed on their bodies or property, the new sign is borne digitally through online registries that are easily accessible to the public worldwide across the Internet. In other cases, offenders may wear electronic monitoring devices to allow law enforcement personnel to keep tabs on them.
II. Key Controversies
III. What Is a Sex Offender?
IV. Unanticipated Outcomes
B. Property Values
VI. Do Registries Work?
Sex-offender registries are relatively new. California was the first state to enact tracking legislation in 1947, and only five states required convicted sex offenders to register with local law enforcement prior to 1994. Since then, in response to several highly dramatic and media-grabbing murders of children in the early 1990s, Congress passed the Jacob Wetterling Crimes against Children Act (Bureau of Justice Assistance 2006), providing financial incentives for states to comply with federal guidelines to establish registries at state and local levels. The act was the result of the disappearance of 11-year-old Jacob Wetterling in Minnesota, who, on returning home from a convenience store with a friend, was abducted by an armed masked man.
While they were investigating his disappearance, police discovered that nearly 300 known sex offenders were living in the counties surrounding Jacob’s home (Scott and Gerbasi 2003). Although police never established a link between Jacob’s abductor and any convicted sex offenders, public attention became focused on sex offenders residing nearby. This opened the legislative floodgates to a subsequent deluge of registry laws. Even though it specified minimum criteria for states to follow, the act encouraged states to enact more stringent legislation and provided the model for disclosing offender information to the public.
In the same year that the Jacob Wetterling Act was passed, another high-profile case further fueled the fears of an already angered public, triggering more legislation. Seven-year-old Megan Kanka disappeared from her New Jersey neighborhood on July 29, 1994. The door-to-door search for her eventually led police to a twice-convicted sex offender who had recently moved in across the street. There had been rumors about the offender and his two housemates, but no one was aware that all three were convicted sex offenders. The offender confessed to Megan’s rape and murder and led authorities to her body.
In response, New Jersey passed Megan’s Law, the first major state registration legislation. The law required public disclosure of the names, photographs, and other personal information of sex offenders. In 1996, the federal Jacob Wetterling Act was amended to incorporate Megan’s Law, requiring states to inform the public of sex offenders living in neighborhoods and near schools (Levenson and Cotter 2005). Although states have individual names for their registry legislation, usually named after a child victim who inspired it, they have become known collectively as “Megan’s Laws.” Since 1996, all states have complied with “Megan’s Law” requirements; currently there are hundreds of overlapping governmental and private registries and databases containing the names and personal information of adjudicated sex offenders (Logan 2003).
To date, the primary legal challenges include the constitutionality of releasing offenders’ private information to the public; the restrictions in living accommodations; and the retroactive requirement that offenders convicted and released prior to the enactment of registry laws be required to register. In general, the U.S. Supreme Court has upheld both the constitutionality of the registries and most of the provisions.
One of the most significant challenges to registries was to the requirement that offenders who had served their time, even decades prior to the enactment of registry laws, be required to register. This requirement, it was argued, violated the Constitution’s ex post facto clause, whereby a law passed after the commission of an offense may not increase the punishment after the offense has occurred. However, in 2003, the U.S. Supreme Court upheld the retroactive provision of registries in ruling that sex-offender registries are civil rather than punitive proceedings and therefore do not violate the ex post facto clause (Smith v. Doe 2003).
These and other rulings provided the legal basis for registries, which have led to efforts to expand their contents. In order to centralize sex offender information, in August 2006, Congress passed the Adam Walsh Child Protection and Safety Act (U.S. Public Law 109–248 2006), which created a national centralized database of sex offenders. State and local authorities continue to pass increasingly restrictive provisions on sex offenders.
In some states, such as Illinois, sex offenders who attend an institution of higher learning are required to notify the institution of their status; failure to comply risks additional felony prosecution. Residency restrictions, which create “banishment zones” that prohibit child sex offenders from living near schools, parks, daycare centers, and other places where children might congregate, have gained popularity. In some states, this limits offenders from living within up to 2,500 feet of schools, swimming pools, playgrounds, parks, school bus stops, churches, or other locations where children might congregate (Nieto and Jung 2006).
Critics have argued that these restrictions place an unjust hardship on offenders. They also have argued that, because not all sex offenders are pedophiles, violent, or predators, the restrictions are far too broad in scope, often irrelevant, often not easily enforceable, and unjust. For example, if a school bus stop is placed within the banishment zone where an offender resides, then the offender must move out of the new zone or face felony prosecution (Miller 2006). In enacting banishment zones, an increasing number of cities are requiring offenders who already reside within the zone to move, even if they own their homes. Although these laws have been challenged in federal courts in recent years, in fall 2005 the U.S. Supreme Court declined to review a challenge from the Iowa American Civil Liberties Union (ACLU), which left the laws intact and inspired other states to pass their own residency restrictions.
Other measures designed to publicly identify sex offenders have found their way into legislative agendas in a number of states. Some, such as Illinois, have begun monitoring sex offenders’ movements in the community by requiring global positioning system (GPS) monitoring systems that inform authorities if a “high-risk” offender has encroaches into a restricted area. Computer monitoring can trace and record retrievable information for real-time alerts or for later review. This can lead to revocation of parole or to further felony prosecution, even if a registered offender is unaware of the banishment zone and has inadvertently entered it.
Other legislative proposals range from placing special insignia on an offender’s driver’s license to special pink license plates for all sex offenders (WKYC-TV 2005). In Texas, a judge ordered signs placed in sex offenders’ yards, alerting the public that sex offenders are resided there (Milloy 2001). In one Illinois county, an elaborate e-mail distribution system was established to notify neighborhoods when a sex offender moved into the area. Such legislative efforts have prompted the expansion of the scope and restrictions in states and municipalities, creating what has been described as “an arms race of circle-drawing as offenders bounce from city to city” (Howley 2006).
It would seem that sex offender registration is a positive safeguard and a reasonable response to protecting our children. Who, after all, wants to put children at risk of baby rapers, child murderers, and fiends? To the public, notification laws are a necessary and proactive response to a major social problem, so the responses seem like solutions (Presser and Gunnison 1999, 299–315).
The rationale behind registering sex offenders seems hard to dispute: if we know who offenders are, we will be safe (Sheehan 2006). Given that these laws are intended to protect the public, especially children, and given the public’s animosity toward sex offenders and overwhelming support of registries, why should they be controversial?
There is little disagreement that the public, especially children, should be kept safe from predators. In fact, in a 2005 Gallop poll, over two-thirds of U.S. adults expressed that they were “very concerned” about predators of children (Kelly 2005). Coupled with overwhelming public and legislative support for tougher restrictions on sex offenders returning from prison to the community and an increase in the rhetoric about the dangers of sex offenders, legislators have been eager to act. There is, however, emerging evidence that sex-offender registries and corresponding restrictions on movement, residency requirements, and public stigma may be creating new problems while doing little to enhance public safety. As a result, controversies of all kinds have developed. In particular, four emerging issues demonstrate, but hardly exhaust, the increasing complexity and unanticipated outcomes of sex-offender registries.
The first issue is that of defining a sex offender, as an increasing array of offenses are subsumed in the category. The second issue involves the outcomes: Do restrictive laws do more harm than good? The third issue raises questions about how registries pose problems for offenders attempting to reenter society. The fourth issue asks: Do registries work?
What Is a Sex Offender?
Sex offender rhetoric quickly shifts the meaning of the broad term sex offender to the more narrow and highly pejorative label of child molester or pedophile, as if they were synonymous. They are not. Several problems cloud the definition.
First, despite attempts by politicians to demonize offenders with bombastic rhetoric (Mingus 2006), the reality is that the category of sex offenses requiring registration includes infractions ranging from minor misdemeanors to violent predatory sexual assaults. In Illinois, typical of many states, “sex offenses” can include the commonly accepted definitions, such as forcible rape and pedophilia, but can also include other serious predatory but not sex-related acts such as carjacking if a child is a passenger, kidnapping and unlawful restraint if the carjacker is not the parent, and other crimes against a minor or an adult victim that, while felonies, are not necessarily sexual in nature. Sex offenses also include other actions that can require registration but are not normally considered violent or predatory. This can include sex with a person under age 18, consensual sex between an adult and custodial staff , “indecent exposure,” voyeurism if the “victim” is under 18, and “importuning” (indecent solicitation) of a person of any age. We need not condone any of these behaviors to raise the question of whether they all ought to be combined under the single label of sex offense.
A second problem arises in defining the term child offender. In some states, conviction of any crime against a child, such as child abuse, can result in the requirement to register as a sex offender. No crime against children is acceptable, but words have meanings, and without an explicit sexually predatory component to an offense, we risk casting the net far too wide and catching offenders convicted of fairly minor crimes who then must bear the burden of a spoiled identity.
A third problem with the sex offender label is that the public assumes that sex offender is the same as pedophile. This is erroneous for two reasons.
First, very few sex offenders are pedophiles, a clinical diagnosis applied to individuals who are sexually attracted to, or engage in sex with, prepubescent children, generally aged 13 years or younger (“Pedophilia” 2005). In reality, however, the overwhelming majority of victims of a sex crime are between 13 and 35, and it is family members or acquaintances who fall within a five-year age range of the victim who usually victimize juvenile victims between ages 13 and 17.
Two, by law, the term child broadly refers to a minor, which is any youth under age 18. Thus, a victim aged 2 and one aged 17 years and 11 months are each categorized as “children.” This encompassing label also ignores the changing conceptions of childhood over the decades in which the age of consent for marriage or consensual sexual relations has increased from the early teens to the now standard age of 17 or 18 in most states. Because age 18 is a largely arbitrary social construct reflecting contemporary social norms rather than any inherent biological or other objective standard, some critics of registries argue that they are not so much a reflection of the dangerousness of offenders but of the imposition of subtle patriarchal and gender-based conceptions, especially of young women as “childlike” and in need of protection. Few people would defend behaviors that prey on powerless victims. However, the historical context of the changing conception of childhood suggests that sex-offender registries, in many cases, go too far in criminalizing what, even two decades ago, might not have been an offense. Thus, requiring registration of offenders who committed an offense in 1980 that was not then covered under current laws strikes some critics as unjust.
A fourth problem with defining a sex offender centers on the legal protections of due process: Is a sex offender a person who has been convicted in a court of law, or can criminal proceedings be bypassed to label a person as a sex offender and require registration with subsequent restrictions? State legislators in Ohio have begun a process that would allow alleged sex offenders to be publicly identified and tracked even if they were never charged with a crime (“Sex Offenders” 2006). The proposal would allow prosecutors or alleged victims to petition a judge to have a person civilly declared a sex offender. The “offender’s” name, picture, address, and other information would be placed in public files and on the Internet and subject to the same registration requirements and restrictions as a convicted offender. Although the “offender” could petition to have the name removed, once made public on the Internet, the information becomes a de facto permanent record in private archives and cached files.
The public generally feels that sex offenders “deserve what they have coming” after release. If registries harm offenders, these perpetrators should have thought of that before committing the crime. However, the consequences of registries affect others as well, including some groups that are rarely considered. Here are just a few from a substantial list.
The increasing number of registered offenders, conservatively estimated to be growing by at least 10 percent per year, adds to the burden of law enforcement agencies that, in most jurisdictions, already operate with strained budgets. Preliminary interviews that we (the present authors) conducted with law enforcement personnel suggest that larger jurisdictions may be facing staff and resource problems in processing offenders, keeping databases up to date, coordinating databases with other agencies, meeting public demand for access to registration information, and maintaining the digital infrastructure required for electronic storage and Internet access. Smaller agencies, lacking specialized personnel to process data, divert the labor of patrol officers and other staff for processing and assuring registry compliance. In jurisdictions that record 10 or fewer registrations a week, this may not be a significant hardship. Nonetheless, according to one law enforcement interviewee, it dramatically diverts staff time away from other more urgent tasks.
Although there are no reliable data for the costs of maintaining registries and some of the costs are absorbed as part of other routine clerical or patrol tasks, there appears to be a growing consensus that as the mission creep of registries expands and the list of offenders grows, law enforcement will need to comply with legislation to process offenders, enforce compliance and other registry provisions, and maintain databases.
The implementation of GPS monitoring adds another direct cost to monitoring, costing up to $10 a day, and tracking a single offender can cost up to $3,650 per year for the technology alone. As of 2006, a total of 13 states had GPS monitoring in place, six more had GPS legislation pending, and other states were considering implementation (Koch 2006).
One irony of the registries is that while they may give the perception of increased physical security, they can have a negative economic impact on a neighborhood. Our initial interviews with realtors in a medium-sized city suggested that the presence of sex offenders living in a neighborhood could be a “deal breaker.” Some studies have found that an offender living within a tenth of a mile of an offender’s home can lower property values by an average of 10 to 17.4 percent (Larsen, Lowrey, and Coleman 2003; Leigh and Rockoff 2006).
Another unanticipated consequence of registries can occur when someone is attempting to adopt a child. A few high-profile cases in which sex offenders adopted and then abused a child have led to closer scrutiny of adopters. Some adoption agencies now include routine checks for sex offending neighbors during background checks, which can complicate or prevent adoption. For example, one of our interviewees in Minnesota began adoption proceedings, but a sex offender moved into the neighborhood. The adoption agency had searched the database for sex offenders, and this then became a potential obstacle in the adoption.
Reentry into society is one of the major hurdles that offenders face on release from prison. Sex offenders must overcome additional burdens because of the consequences of registries and the ease of public access to them. For offenders with families, repairing the emotional breaches with partners and children triggers additional family stresses from trying to explain the offense to children, regaining their respect, providing discipline and control in light of the offender’s own background, and coping with the withdrawal of neighbors’ families and children’s school peers. In addition, because of travel restrictions and limits on associations, registered offenders are commonly unable to participate in school or church functions with their families or to engage in other routine domestic activities outside the home.
Another reentry problem lies in the residency requirements. If, on release, an offender’s original residence was located within a banishment zone, the offender must move. In some cities, the banishment zones exclude up to 95 percent of available housing.
Mental health issues add special obstacles. For most sex offenders, post-release counseling is generally a condition of release back into the community. Residency restrictions can make access to counseling services difficult, especially in locations lacking viable mass transit. Other mental health issues include the loss of self-esteem and increased insecurity resulting from the stigma and ubiquitous visibility of their spoiled identity and to constant fears of being “outed” in situations where their identity is not yet known. Because the laws affecting them constantly change, and because registration ranges from 10 years to life, there is the continual uncertainty of not knowing what new requirements or restrictions will disrupt the stability of a normal life. This makes day-to-day living tenuous and long-term planning difficult.
Do Registries Work?
To date, there have been no studies to support the claim that sex-offender registries reduce recidivism or make a community safer. Registration and notification laws have gained a tremendous level of public support, largely due to the perception that the vast majority of sex offenders will repeat their crimes (Levenson and Cotter 2005). The expectation is that these laws will protect society by curbing recidivism and making community members aware of the presence of sex offenders, thus allowing them to monitor or avoid offenders.
The belief that sex offenders have a high probability of repeating their crimes has fueled much of the hysteria surrounding registration and notification. Such perceptions are often formed on the basis of high-profile cases in which a previously convicted sex offender goes on to commit another atrocious offense. However, research has found that sexual offense recidivism rates are far lower than the public perception (Levenson and Cotter 2005). Despite claims by registry proponents that 95 percent of sex offenders will repeat their crimes, the Bureau of Justice Statistics (2003) showed the recidivism rate for sex offenders to be closer to 5 percent (Langan, Schmitt, and Durose 2003). Media and politicians highlighting the dramatic but infrequent cases have largely created the view that sex offenders are all high-risk individuals (Kelly 2005).
In short, sex-offender registries, rather than protecting society, could actually push an offender closer toward recidivism, because they hamper reentry into society and exacerbate the very issues that may have led to the original sex offense (Tewksbury 2005). Some have asked this question, for example, in the case of Phillip Garrido, who was discovered to be holding, in his California home, a woman ( Jaycee Dugard) he had kidnapped as a child years before and with whom he had fathered two children despite being a registered sex offender (Cunningham 2009).
There are other concerns with the registries. For example, sex offenders can become victims of vigilante justice; persons on the registries may be there by mistake; there is a growing problem of offender compliance with registries as laws become more restrictive, thus penalizing law-abiding registrants while nonregistrants disappear; and registered names can remain indefinitely on the Internet even after being removed from official lists.
Some states are starting to recognize that sex-offender registries are flawed and result in costly unintended consequences. However, the current trend is for increased restrictions on offenders, harsher laws for noncompliance in registration, and expansion of the definition of a sex offense to assure that no potential predators slip through the cracks.
The escalation of registries and restrictions are fed in part by an ideology of “tough on crime,” by fear, and by ignorance. There are no simple answers to complex problems, and policy makers are generally reluctant to appear soft on crime, especially when the welfare of children appears to be at risk.
If legislators were to approach the problem of sex offenses rationally with data-driven judgments rather than demagoguery, then a few modest proposals would be in order:
- There should be reexamination of whether registries are needed. If, on balance, they are ineffective in solving the problems, and instead create new ones, then they should be discarded.
- The political rhetoric underlying public discussions of sex offenders and registries should have accurately data-based descriptions of the nature of the problem, avoid the myths surrounding sex offenders, and take into account the impact of hyperbole in obscuring solutions.
- Media should present to the public a more accurate and less inflammatory characterization of the nature of crime in general and sex offenders in particular.
- If registries remain a requirement for sex offenders after release, then the criteria for registration should be refined. At a minimum, criteria should include recognition that not all sex offenders are pedophiles, predators, or violent; that the range of sex offenses is overly broad and nets minor offenders, including those whose offense was not sexual in nature; and that policies should distinguish between sexually dangerous persons and one-time offenders.
- If registries make a community safer, then registries should be expanded to include high-risk offenders who pose a far greater threat to the community than sex offenders. This category would include drug users and dealers, drunk drivers, and burglars.
- Current laws across the country are a patchwork of inconsistent requirements, definitions, and enforcement. If registries are retained, then there should be consistency such that the harsh laws of one community do not drive offenders to other communities that allow offenders more latitude.
- Existing policies should be revised to reflect the deleterious impact of registries on families, communities, and on the offenders themselves in order to prevent creating new problems and tacit punishments borne by both nonoffenders and offenders.
- The movement toward banishment, an ancient practice that most people in an enlightened civilization would reject, should be halted lest we create gulags for ex-offenders.
- Policy makers should recognize that nearly all incarcerated offenders will eventually return to their communities. Reentry obstacles make adjustment and successful reintegration difficult. Rather than create problems for ex-offenders, legislators should recognize that the best way to assure public safety is to facilitate reentry and work to provide conditions that facilitate family stability, employment opportunities, and reduced costs to taxpayers resulting from all offenders’ physical and mental health problems, recidivism, and long-term well-being.
Whether one supports or opposes sex-offender registries, the reality is that they raise complex issues. Those wishing to make their communities safer, protect children and adults, and promote the well-being of all community residents should recognize that this critical issue should not be driven by fear, but by a deeper understanding of the intents and outcomes of our treatment of all ex-offenders.
Jim Thomas and Will Mingus
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