Two recent reports from the U.S. Sentencing Commission (USSC) shed light on the legal treatment of sex offenders and further undermine the prevailing assumption that all members of that broad class pose similar threats to public safety. That assumption, which underlies both harsh punishments and indiscriminate registration requirements, is demonstrably wrong.

In fiscal year 2019, according to a USSC report released this week, the average federal prison sentence for child pornography production offenses was nearly 23 years, reflecting the gravity of such crimes, which entail direct involvement in sexual abuse. By comparison, the USSC reported in June that the average sentence that year for nonproduction child pornography offenses, which involve possessing, receiving, or sharing images, was about eight and a half years.

The fact that sentences for production offenses were treated more severely makes sense, but that does not mean the sentences for nonproduction offenses were just or reasonable. These crimes do not involve contact with children and may consist of nothing more than looking at pictures, which in the context of online sharing counts as both receiving and possessing child pornography.

People who think the problem is that some offenders are getting off too lightly tend to believe that anyone who looks at child pornography is inclined to abuse children, so it is best to lock them up for as long as possible. But the USSC’s recidivism data suggest that belief is mistaken.

The commission tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a “non-contact sex offense” (which would include possession of child pornography). But just 1.3 percent had been arrested for a “contact sex offense.” Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.

The researchers noted that their results “challenge some commonly held beliefs about sexual recidivism and have implications for policies designed to manage the risk posed by convicted sexual offenders.” Such findings are clearly relevant, for example, in assessing the merits of state laws that require sex offenders to register for periods ranging from 10 years to life.

The premise of those publicly accessible databases—which invite ostracism, harassment, and violence while undermining rehabilitation by making it difficult to find housing and employment—is that all of these people pose a continuing threat. The evidence shows that assumption is faulty even when limited to people who have committed predatory crimes. It is especially erroneous when applied to nonviolent sex offenders.


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