The following was a series of posts from Phil Locke on The Wrongful Convictions Blog.

The series was very well documented and contained links to a bunch of useful information, so I decided to copy and paste it as-is into our site in order to share the information. The source for these articles can be found here.

The History of Sex Offender Registries in the US

Sex offender registration in the US all began with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act passed by Congress in 1994.  Its genesis was the abduction of 11 year old Jacob Wetterling, who was never found.  The law requires all states to establish a sex offender registry.  At the same time (1994) in New Jersey, the state legislature passed Megan’s Law.  It was enacted in response to the murder of seven year old Megan Kanka by a known prior sex offender.  The law requires public notification of a person’s sex offender status, and the commonly included information is the offender’s name, picture, address, incarceration date, and nature of crime.   The Wetterling Act was amended by Congress in 1996 to include Megan’s Law.  Since that time, every state has enacted some form of sex offender registry and public notification law.  It is a deeply emotional and visceral issue that has been able to easily capture the support of the politicians and the public.  But the wave of seemingly automatic public support has enabled and encouraged the legislators to go too far too fast.  The legislators latched onto this, because it’s a political “no brainer” – it gets them elected.  But there has been no check on it, and the administrative and punitive solutions for dealing with the offenses have been implemented with no data or evidence of efficacy.

In 2006, at the federal level, we had the passage of the AdamWalsh Act and SORNA.  SORNA refers to the Sex Offender Registration and Notification Act which is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248).  SORNA establishes minimum standards for sex offender registration and notification in the United States.

There are currently over three quarters of a million registered sex offenders in the US.  (You can see a detailed state-by-state sex offender census here: US RSO’s.)  Discounting the very small number of women who are registered, this means that one in every 149 adult males in the US is a registered sex offender.

 Sex Offender Registries are Manifestly Unjust

Imagine this.  You (or a loved one) have been convicted of a “sex crime.”  This could be anything from inappropriate touching, indecent exposure (flashing your breasts in California counts), or public urination to rape or sexual assault.  You’ve done your prison time, and have been released from incarceration.  If you had committed any crime other than a sex crime, you’d be on probation/parole for a few years, then you would have “paid your price,” and you’d be “done.”  However, since you were convicted of a sex crime, you first had to serve a particularly long prison sentence (11 years for inappropriate touching in one case I’m familiar with), and then you must participate in mandatory “treatment” programs after release, and you must register with the authorities as a sex offender for a lengthy period of time – often decades and sometimes for life.  Your name, address, and photo are placed on publicly available government web sites.  As a consequence of being on the registry, you find that you experience some combination of the following (varies by state):  You can’t find a place to live, because nobody will give you a lease, and you can’t live within very large restricted zones which can include entire city limits.  If you do find a place to live, you may be required to have one month advance approval to reside at that address.  You can’t find a decent job, if you can even find one at all.  The words “sex offender” are printed on your driver’s license.  You’re not allowed to have a Facebook page, or are not even allowed internet access at all.  You can’t go to fast food restaurants or malls that have playgrounds.  You can’t be alone with your own children.  You can’t walk your child to the school bus.  You can’t visit your own child in a children’s hospital.  You can’t go to parks, zoos, playgrounds, fairs, carnivals, beaches, movie theaters, fitness centers, bowling alleys, public pools, golf courses, . . . . . ..  You must post a “no treats” sign in your yard on Halloween, or you might even have to report to the police station.  You must re-register every 90 days.  You are highly vulnerable to extortionists who threaten to splash your personal information across multiple web sites.  Your sex offender status and personal information are printed in the local paper and broadcast on the local news.  You must get permission to leave the county or the state.  You have to wear a GPS locator ankle bracelet.  And the list just goes on.

Aside from the question of whether or not the laws actually work – which we’ll get to later – the laws, punishments, and systems that have been put in place have gone far beyond the bounds of what would be right and proper and just.  See this recent article from The Slate: Sex Offender Laws Have Gone Too Far.

California, and other states, had the infamous “three strikes” law, which turned out to be a disaster, but … the SOR’s are the equivalent of a “one strike” law.

If you haven’t already done so, I would strongly urge that you read the WCB article The Wrongfully Convicted Sex Offender, which helps fill in some other details about what actually happens to sex offenders in the system.  And then, read on ….

 Sex Offender Registries Don’t Work

The SOR’s were not established out of evidence-based data.  We know that for sure.  I believe they were established, at least in part, out of the same kind of moral hysteria that pervaded the country during the preschool satanic cult episodes of the early 80’s.  I believe another component has been that our justice system tends to be punitive and revenge-based.  After all, the US has the most draconian sentencing laws in the world, and this has been a function of the will of the electorate – you get what you vote for.  When the families of sex offense victims say they want “justice,” what they really mean is they want revenge, and the SOR’s help see that they get it, and get it, and get it.  Perhaps this also goes back to some of the puritan cultural roots of the country with “cleansing” through punishment and public shaming; but of course, that’s conjecture on my part.  But the bottom line is – the SOR’s don’t work – at least, not the way they’re supposed to.  They do effectively impose long-term (often lifetime) punishment and public shame upon the registrants, but they’ve been shown to not accomplish their purposes of community safety and preventing repeat offenders.

By their very existence, SOR’s make the presumption that all sex offenders are mindless psychotics incapable of controlling themselves.  A major driver behind SOR legislation has been the false and unsubstantiated belief that sex offenders are highly likely to be repeat offenders.  This couldn’t be further from the truth.  As we’ll see below, sex offenders have a statistically very low rate of recidivism (re-offending).  It has also been mistakenly believed that most sex offenders are strangers to their victims.  This is also just not true.  Data compiled by the National Center for Juvenile Justice in their paper  Juvenile Offenders and Victims shows that for sexual assault committed against minors (age 0-17) the offenders were 35% family members, 60% acquaintances, and only 5% strangers.

Study after study has confirmed that sex offender registries fail to achieve the objective of limiting recidivism and reducing the occurrence of sex crimes.  Let’s look at where it all started in 1994 with Megan’s Law in New Jersey.  A 2008 federally funded study done by the New Jersey Department of Corrections came to these conclusions (underline emphasis added):

We do know, however, that sex offender registries do accomplish these three things.

1) They increase the burden of punishment far beyond what would be right and just, and for extended periods of time – sometimes life.  It is beyond all logic and beyond all reason.

2)  For sex offenders that have been wrongfully convicted, the SOR’s make a travesty of justice that is positively unthinkable.  (see The Wrongfully Convicted Sex Offender)

3)  They cost the taxpayers a LOT of money.

Guy Hamilton Smith is a convicted sex offender.  Even though on the Kentucky SOR, he has been able through incredible diligence to achieve a law degree, and given his experience inside the system, he has some very insightful things to say about the need for change.  It’s worth noting that even though he has a law degree, the Kentucky Supreme Court says he cannot take the bar exam until he’s off the registry – in another 18 years.   See that story here.

Jill Levenson of Lynn University and David A. D’Amora of the Center for the Treatment of Problem Sexual Behavior have written a paper that compares social policies designed to prevent sexual violence [sex offender registration, community notification (Megan’s Law), residence restrictions, civil commitment, and electronic monitoring] to “the emperor’s new clothes.”  The proponents and progenitors of these polices would have you believe that they work, are effective, and are necessary.  However, this quote from the paper’s abstract: “… extant research does not suggest that these policies achieve their goals of preventing sex crimes, protecting children, or increasing public safety.”  See the abstract of that paper here.

The proponents of SOR’s will claim that they are needed to help prevent sex offenders from “doing it again.”  However, the data shows that the rate of recidivism (reoffending) for sex offenders is low, approximately 5% or 1 in 20.  The only other crime with a lower recidivism rate is murder at 1.2% (US Bureau of Justice Statistics).  For comparison, here are the recidivism rates for some other crimes:  car theft, 79%; burglary, 74%; domestic battery, 41%.  Perhaps what we should really have is domestic battery offender registration or car theft offender registration.

Here are just a few relevant scholarly studies:

Through her research, Prof. Jill Levinson of Lynn University, who is a nationally recognized expert in sex offender policy, has confirmed that sex offender recidivism is rare, and should not determine policy.  See her article here.

Sex Offender Registries: Fear Without Function?, a study by Amanda Agan of the University of Chicago.  From the abstract:  The results from all three datasets do not support the hypothesis that sex offender registries are effective tools for increasing public safety.

Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State by Eric S. Janus.  Janus contends that aggressive measures such as civil commitment and Megan’s law, which are designed to restrain sex offenders before they can commit another crime, are bad policy and do little to actually reduce sexual violence. Further, these new laws make use of approaches such as preventive detention and actuarial profiling that violate important principles of liberty. Janus also warns that the principles underlying the predator laws may be the early harbingers of a “preventive state” in which the government casts wide nets of surveillance and intervenes to curtail liberty before crimes of any type occur.

Sex Offender Laws: Failed Policies, New Directions by Richard G. Wright.  In response to many high-profile cases of sexual assault, federal and state governments have placed a number of unique criminal sanctions on sex offenders. These include residency restrictions, exclusionary zones, electronic monitoring, and chemical castration. However, the majority of sex offender policies are not based on empirical evidence, nor have they demonstrated any significant reductions in offender recidivism. In fact, some of these policies have unintended consequences, which actually increase the likelihood of sexual offenses.

For a comprehensive list of books, studies, reports and documentaries, see this  page  on the website  It’s Time to Reduce, Reconstruct, Reclassify, Rethink and Reform the Virginia Sex Offender Registry, which is administered by Mary D. Devoy.

Sex Offender Registries Cost a Lot of Money

We’ve said that the SOR’s cost taxpayers a lot of money.  Just how much is that?

The Justice Policy Institute published estimates of the cost of the state sex offender registries  compliant with SORNA.  Here are some of the estimates made in 2009 expressed in 2014 current dollars:  California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M.  In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M.

For the US, the total is $547M.  That’s over half a billion dollars – every year – for something that doesn’t work.

Conclusion

One must certainly concede that there are people out there who are just truly evil and sick, and yes, these people deserve all the attention and monitoring that the state can give them.  But this is a very small number of people.  The sex offender registries, as now structured within the justice system, sweep in even first-time minor offenders (e.g. “inappropriate touching” or indecent exposure) and impose upon them an inordinately harsh and lengthy punishment.

Do you believe that one in every 149 adult males in the country are so sexually dangerous that they must be registered and tracked continuously?  I cannot and do not.

In 2003, the US Supreme court, in Smith vs. Doe, ruled that SOR’s were purely administrative and not punitive.  But given the directions and extremes of how the SOR’s have developed, I seriously wonder if an Eighth Amendment challenge couldn’t be brought against the SOR’s as “cruel and unusual punishment?”

Unfortunately, the registries have, at this point, become embedded in the justice system infrastructure.  There are now lots of highly paid people who make their livings from running these things, and they will fight mightily to ensure their continuance.  And can you imagine a state legislator introducing a bill to abolish the state’s sex offender registry?  Political suicide. The public is ill-informed at best, but is mostly clueless.  Even the thought of sex offenses elicits a deep-seated emotional response from most people, regardless of what actually may have happened or what is just, so getting voter support for such a move would require a massive public education campaign.

Sex offender registries are unjust, they don’t work, and they cost a lot of money.  So, why do we have them??  My analysis would be that, based upon the FACTS, they are not supportable as they currently exist.

And how the hell are we going to fix this?  I’ll be damned if I know.  But I would hope that if enough of the electorate eventually develops an understanding of how medieval and unjust the SOR’s are to most of the people who are in them that we can bring some legislative sanity to this issue.