Will Sex Offense Registry Changes be Part of Criminal Justice Reform?

The killing of George Floyd at the hands of law enforcement has sparked outrage and mass protests across the nation. Calls for police reform have created yet another divide among the American public. As we move toward what will likely be significant changes to the criminal justice system, will individuals on the sex offense registry be included in those reforms?

Why So Many Laws?

Throughout history the level of outrage associated with various types of criminals has changed, yet the moral disgust directed at sex offenses and sex offenders has remained constant. We use terms like “sexual predator” and “monster” indiscriminately to refer to individuals who have committed crimes ranging from minor sexual offenses to violent sexual assaults that end in murder. We pass laws to control sexual offenders based on the most high-profile and serious cases, yet most offenders do not fit these categories.

While legal control over sexual behavior can be traced to the earliest of civilizations, the 1980s and 1990s is when sex offense legislation began its dramatic rise in the U.S. There was an increase in the number of child sexual abuse cases prosecuted by the courts and recounted in the media. The high-profile disappearance of Jacob Wetterling, the sexual assault and murder of Megan Kanka, the abduction and murder of Amber Hagerman, and the kidnapping and murder of Polly Klaas were all presumed to involve children brutally harmed or murdered by previously convicted sexual offenders. These events launched a new wave of stranger-danger panic and get-tough legislation which remains today, despite minimal, if any, impact on sex offense recidivism or community safety.

What is the Sex Offender Registry?

Our current sex offense registry is the result of various amendments and enhancements. It started with The Wetterling Act, was amended to Megan’s Law, and in 2006 became The Adam Walsh Act which rewrote the federal standards for registration and notification, resulting in SORNA (Sex Offender Registration and Notification Act).

Since the early 1990s, several states have kept a registry accessible only by law enforcement. What many states employ now under SORNA is a 3-tier system that requires registration of sex offenders for various lengths of time. Tiers are primarily determined by the type of offense committed, as opposed to an assessment of the offender’s risk of recidivating. Tier 1 offenders register annually with law enforcement for 15 years, Tier 2 offenders register semi-annually for 25 years, and Tier 3 offenders register every 3 months for life.

There are several concerns with the implementation of SORNA:

• Not all states use this method of registration. For example, Texas puts almost all individuals convicted of a sexual offense on a lifetime registry with no regard for risk of re-offense.
• Many states notify the community about a registrant’s location. Depending on the state, notification may involve a letter to community organizations or members, website notification, or it may mean a billboard or advertisement in the newspaper with the individual’s identifying information.
• The number of sexual offenses requiring registration expanded considerably under SORNA, which means public identification of individuals for offenses that were previously not publicized.
• An individual’s tier level and length of registration requirement may change retroactively as crime classification changes. For example, John Q. who was convicted in the 1980s (pre-registry) for sexual assault of a minor was not required to register at the time of his plea. When the registry was created, John Q. was added to the registry for 10 years — again, this was not part of his original plea agreement. When SORNA was implemented in his state of residence, John Q. was moved to Tier 3 which means lifetime registration and often community notification.

SORNA has resulted in a net-widening effect, wherein all types of sexual offenders (regardless of their risk level) are required to register, so that law enforcement monitoring of the most serious offenders is impeded. While this type of legislation provides a sense of community empowerment and community safety, does a registry keep us safe?

Does the Registry Keep us Safe?

According to the National Center for Missing and Exploited Children, at the end of 2018 there were almost 1 million registered sex offenders in the United States. Research tells us:

• Individuals convicted of sex offenses have very low recidivism rates, about 5 percent in most research.
• The longer an individual remains in the community offense-free, the less likely they are going to recidivate.
• Community-based treatment, intensive supervision programs, and broad-based community notification are ineffective for low risk offenders.

Research also reveals that registration and community notification negatively impact an individual’s likelihood of successfully reintegrating into the community. By widely labeling someone a sex offender for 25 years or more, SORNA makes it more difficult for that person and their family to find housing, employment, and participate effectively in marriage and family roles, which undermines rehabilitative endeavors.

SORNA was created under the public’s assumption of high recidivism rates, and the idea that greater public knowledge about one’s whereabouts and identity would mean greater public safety. The public now has a lot of information about even low-tier offenders. Despite the collateral consequences of the registry for registrants, research finds little to no impact of a registry on future crime rates, and no deterrent effect for current registrants. Society has publicly labelled almost 1 million individuals to feel safer, without any actual increase in safety as related to sexual victimization.

Consequences for Registrants

Registrants are never free of the collateral consequences of their offense. They are permanently and publicly branded as sex offenders. This results in difficulty locating housing (especially in regions with restrictions on where registrants may live), difficulty obtaining employment, difficulty contributing to the parenting of their minor children and success of their family, and difficulty reintegrating into all aspects of a functioning society.

Desistance from offending is encouraged by reintegration into the community, stress management, and a stable lifestyle through supportive friends and/or family, employment, and residential stability. All of these are significantly disrupted by registration and community notification. Registrants and their families worry about vigilantism and harassment, report high stress, avoid activities, feel isolated, have difficulty finding employment, face challenges locating housing, experience loss of friends, and community stigma.

Additionally, failure to adhere to the registration protocol is a felony punishable by fines and/or imprisonment. In fact, failure to register can result in a longer sentence than the original offense. This may be as simple as not advising law enforcement within 3 days of a change to one’s personal information. Many states consider a failure to pay registration fees the same as a failure to register. But without any or stable employment, not all registrants have the financial means to register: in Georgia, a registrant will be required to pay more than $10,000 in registration fees alone.

An important part of reintegration is finding stable employment as it facilitates economic independence and security, reduces the likelihood of recidivism, and thereby increases community safety. There is a significant relationship between unemployment and recidivism and there are tremendous hurdles encountered by ex-offenders to find secure employment that is not temporary or does not pay below the poverty line. When one’s employer is listed on the public registry, it is a huge disincentive to hire a registrant. As well, many states have policies that limit access to financial and social needs-based resources for convicted sex offenders.

If there is no link between community notification laws and reduction in recidivism, and labeling and stigmatizing only serves to disrupt reintegration with clearly documented negative impacts, then we need to consider reforming policies.

What Changes Can be Made?

As we consider criminal justice reforms, how can individuals convicted of a sexual offense be included? How can we balance community safety and protection with reasonableness of legislation as these laws have become a greater burden on the registrant and their family than the value of public knowledge obtained?

Based on what we know, there are some clear potential changes to be made through evidence-based policy-making:

• If we know that the longer an individual remains in the community offense-free, the less likely they are to recidivate, then this should be reflected in the length of time one is on the registry. If the U.S. moves forward with a public registry, there need to be mechanisms for removal based on participation in treatment, risk assessment, and length of time offense-free. The registry should not be a blanket lifetime punishment for an ever-widening list of crimes ranging from statutory offenses to possession of child pornography to violent rape.
• These laws are a major obstacle in reintegration, and the longer the period of registration, the greater the challenges. We need to reconsider the monitoring of individuals who are no longer a risk or low risk. There is no legitimate safety reason for the public to have access to this information.
• Programs that focus on job skills and promoting gainful employment in proximity to one’s residence are important. As well, removal of one’s place of employment from the registry would increase the likelihood of employment.
• Reduction of transience could be assisted by removal of residency restrictions which are not linked in any meaningful way to sex offense rates.

Laws continue to be passed as though we are in an epidemic of sexual offenses as legislators and politicians continue to focus on stereotypical cases that generate fear in the public. This diverts attention from the structural elements that perpetuate sexual victimization. America needs an evidence-based understanding of the circumstances that lead to offending, the factors that may reduce future offending, and a realistic understanding of how legislation impacts public safety. Laws should not be passed merely because they serve to increase the public’s feelings of safety or boost the ratings of get-tough-on-crime politicians. Criminal justice reform needs to involve registry reform.