The editors of the Criminal Law Journal take great pride in publishing the following article, which was authored by Aimee E. Kaloyares, a law student at Southern University Law Center. Ms. Kaloyares won one of the three Honorable Mention prizes in the 2012 Competition for the Student Papers in the Criminal Law and/or Criminal Procedure, sponsored by the Criminal Law Section of the State Bar.
In 1992, the Sex Offender Registry Online database was made available to the public in the State of California. However, in the years to follow, the altruistic goal of informing the public has given way to the registry serving to pin a scarlet letter of punishment onto every sex offender. Websites such as sexualoffenders.com2 and meganslaw.ca.gov1 are updated daily and allow us to run background checks for free. Parents, children and neighbors alike all know how to do a sex offender registry search and frequently run the names people they know through the database.
The Sex Offender Registry is now an ineffective tool in topping crimes of sexual violence because the registry pressures communities to assume the responsibilities of the police allowing the public to further punish released felons by denying them basic rights likes residency or housing. The Sex Offender Registry (SOR) needs to be relegated back to an internal police registry, and in its place, Sex Offender Courts can be created to effectively regulate individuals convicted of sex crimes. By replacing the SOR with Sex Offender Courts, the criminal justice system can focus on addressing the crime and criminal: making communities safer rather than placing the responsibility on communities to keep the community safe from sexual violence. There is no doubt that crimes of sexual violence devastate victims, their families and communities. However, tools like the SOR fail to keep communities safe or halt the recidivism rate amongst offenders.
Sex offender registration programs were first instituted in California in 1947. California legislators created registry programs to protect the 35 million people residing in the state of California from crimes of sexual violence. Originally, registration in California was lifelong, but those who registered were not subject to community notification. In 1989, eleven-year-old Jacob was abducted by a stranger in the woods near his home, prompting Congress to respond by passing the Jacob Wetterling Act in 1994, which required all states to implement a sex crimes against children offender registry.3 This Act mandated that persons classified as sexually violent predators register and verify their addresses with their home state quarterly, for life.4 However, at this point registrants still enjoyed anonymity because the Jacob Wetterling Act did not compel states to release information about the registrants to the public.
Seven-year-old Megan Kanka was raped and murdered in 1994 by her neighbor, a pedophile convicted two times for previous sex crimes.5 One month later, in an effort to prevent repeat instances, Megan's Law was enacted, changing the offender registries in every state from a local law enforcement tool to a public access registry. Megan's Law commanded that local police in every state perform community notifications. While Megan's Law required the release of offender information, states could still exercise their decision in what private offender information was made public: name, picture, address and conviction record were the only common elements.
Thirteen years after Megan's Law was enacted, on the twenty-fifth anniversary of the abduction of six-year-old Adam Walsh, the Adam Walsh Child Protection and Safety Act was signed by President George W. Bush.6 Title I of the act implemented the Sex Offender Registry and Notification Act (SORNA), which replaced the provisions of the Jacob Wetterling Act with the National Sex Offender registry in its cotemporary form.7 Federal penalties for crimes committed against children were strengthened by creating three tiers for classifying offenders.8 Tier one is comprised of the least dangerous offenders who must register for 15 years and verify their information every year. Tier two is comprised of moderately dangerous offenders that must register for twenty five years and verify their information every six months, and Tier 3 is comprised of the most serious offenders who register for life and who must verify their information every three months. Further, SORNA established criteria that each state must use and release to the public: offender's name, address, date of birth, place of employment, photograph and sex crimes convictions.
Under the provisions of SORNA, the SOR is a tool intended to prevent crimes of sexual violence by strengthening the nationwide network of sex offender registration and notification programs by closing potential gaps and loopholes that existed under prior laws.9 However, this public notification systems does not combat the crime of sexual assault for two reasons: (1) knowing where a sex offender lives and works does not stop him from perpetrating a crime, and (2) statistics conclude that the majority of offenders are not reported or convicted, allowing an offender to continue perpetrating their crimes. Anticipating the initial sex crime and halting recidivism cannot be achieved through the use of the SOR because, as a tool, it cannot predict or prevent crime.
First, it must be noted that less than half of sex offenders released from prison, approximately 46%, were re-arrested within three years of their release for a second crime10. The 1997 Department of Justice study revealed that in a 46% nationwide recidivism rate, only 18.6% of released sex offenders were re-arrested for a violent offense. No statistic was or is currently available to show if the violent offense was a sex crime or that the SOR 11 contributed to the low 46% recidivism rate.12 The Center for Sex Offender Management (CSOM) reported in 2004 that arrest for sex crimes represented 1% of all arrests nationally.13 Ten years after the introduction of Megan's Law, it is clear that communicating information nationally about where a sex offender works and lives does not prevent recidivism.
Secondly, sex crimes are a notoriously underreported, and sex crimes represent a category of crimes that have a very low conviction rate. The provisions of SORNA have the goal of preventing and combating sex crimes, but it is unclear how the SOR can accomplish that goal. According to the CSOM, many victims hesitate to report instances of a sex crime because the victims do not want to make a private matter public, feel ashamed, are worried that they will be blamed for what happened and are embarrassed. Understandably, victims of sexual violence fail to come forward and report the crime. However, polygraph tests administered in Connecticut, Florida, Ohio, Oregon, and Colorado all conclude that sex offenders perpetrate their crime numerous times against several victims before they are arrested.14 A notable study conducted in 2001 in Colorado revealed that the sample group of offenders, with at most two known offenses, had an average of 110 victims and committed 318 offenses before being convicted.15 The SOR is a database of convicted offenders, making it a wholly ineffective tool because, as the Colorado study illustrates, many offenders commit numerous sex crimes undetected.16
In light of the very low recidivism rate for registered sex offenders, and the very high instance of sex crimes occurring undetected before conviction, it becomes clear that registering and focusing on convicted offenders on the SOR fails to prevent or stop sex crimes. The SOR fails to serve as an effective crime prevention tool because the SOR does not report offenders until they are convicted.
Sarah Tofte's Human Rights Watch article entitled "No Easy Answers"17, the first comprehensive study of the public safety impact of the SOR, states:
"Even for people who have committed serious offenses, that fact alone is not determinative of their future danger to society, nor can that factor be the basis on which an individual is effectively stripped of their rights … states have not established process by which registration requirements are keyed to an individualized determination of whether a particular offender poses a risk of future re-offending." 18
The study further identifies the fact that in 2007 there are over 600,00019 registered sex offenders including offenders convicted of consensual sex between teenagers, public urination and prostitution.20 These offenders, after receiving punishment for their crime, are not likely to re-offend. Likewise, communities fail to protect citizens by focusing on the SOR as a tool which warns the public of sex offenders under the conclusion that past offenders will commit the same crime again. Intuitively, these conclusion seem logical but they fail to provide protection from the crime of sexual violence because the SOR focuses on known offenders without being able to prove that they pose a threat. Patty Wetterling, mother of Jacob Wetterling stated,
"I based my support of broad-based community notification laws on my assumption that sex offenders have the highest recidivism rates of any criminal. But the high recidivism rates I assumed to be true do not exist. It has made me rethink the value of broad-based community notification laws..."21
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Wetterling identifies the misconception that by knowing who sex offenders are via the SOR, the public can be safe by focusing on registered offenders only. This misconception seduces the public into believing that the SOR is an effective tool. Tofte further discusses the distorted recidivism statistics used by proponents of SORNA, finding that lawmakers simply equated past criminal guilt to a protection of future crime.
The continual focus on convicted criminals facilitates the concealment of undetected criminals. Furthermore, the ineffectiveness of the provisions of SORNA in preventing sex crimes places a responsibility on the community to police sex offenders. In essence, the public feels justified in policing registered sex offenders because there is a public safety interest in monitoring sex offenders. It follows that where the SOR identifies these criminals, communities then feel that there will never be another tragedy like Megan or Jacob because the community has the power to stop a sex offender from committing a sex crime. Although, after having analyzed true sex crime statistics, it is apparent that the SOR is not the correct tool for accomplishing that goal.
Certainly, communities are not the place where the power to stop a sex offender from committing a sex crime should be placed. It is a public misconception that because sex offender information is publicly available that the public possesses the power to use that information. Registered sex offender David S. said that he knew the minute his information was registered online because his neighbor went to his home "and asked if I was a pedophile, because she had centered our zip code to search the database, and my name and picture appeared."22 David S.'s neighbor assumed the role, which the public feels compelled to serve, of finding the offenders that live nearby and taking on the responsibility of supervising those offenders. Simply because a neighbor has the information readily available, many times they feel compelled to take action.
Emily L., daughter of a sex offender convicted of indecent exposure to a minor in Florida, identified this gap between public perception of how the SOR functions by saying, "The public needs to know there is a difference between a sexual OFFENDER and a sexual PREDATOR. You can't tell that from the website that my father is a sexual offender, but he is not a predator."23 Regardless of a propensity towards being a sexual predator or sexual offender, the result is that Emily's father's name, age, address, picture and convictions are placed on the internet so that the public can have notice that it needs to protect itself from him.24
In his societal impact paper, Robert E. Freeman-Longo states, that sex offender registry legislation was passed too quickly as a response to public horror at the crimes of several sex offenders.25 The passage of these laws has had the long-term effects of giving the public the impression of feeling safer. In reality, knowing is not enough because focus on known offenders ignores the possibility of new offenders. Freeman concludes, "These laws have not demonstrated their ability to prevent sex crimes or make communities safer, and it is not likely they will."26
In 2006, Proposition 83 was passed in California, which sought to require all registered sex offenders to wear a global positioning anklet device (GPS) and to enforce a 2,000-foot restriction around all children's schools and parks.27 There are approximately 8,000 new assigned registered sex offenders in California each year, however, only 1,000 are fitted with GPS anklet devices because they are deemed at high risk for recidivism.28
Proponents of the GPS residency restriction argue that the best feature of the monitoring system is that it protects registered offenders from unjust persecution by giving the police a tool to eliminate a suspect immediately.29 This argument ignores the fact that the GPS program allows the police to investigate under the presumption of 'guilt until proven innocent,' which is a violation of the criminal justice system's values. Further, the GPS residency restriction restrictions studies "suggest that residency restrictions would have, at best, only a marginal effect on sexual recidivism."30
The result of residency restrictions is that registered sex offenders are separated from resources that will help them to rejoin productive society, enabling them to avoid recidivism. The SOR creates a divide between a released offender and the community, simply by performing the community notifications. Community notifications prevent sex offenders from being able to integrate into their communities, where the purpose for the notifications, preventing recidivism, is not served by the SOR. Moreover, Fred Berlin, a John's Hopkins University Associate Professor of psychiatry, commented on residency restrictions by saying "Most offenders and their families, want a new start… They don't want to be disenfranchised from their neighbors… They and their family don't want to be stigmatized."31 Our criminal justice system generally functions on the principle that punishment is justified because it rehabilitates the offender. If the SOR simultaneously punishes offenders for having committed a sex crime and prevents them from resources that offer rehabilitation, that goal is not met.
Due to the ineffectiveness of the SORNA laws, the SOR must be relegated back to a police access only registry. In place of the SOR, sex offender courts (SOC) should be created to implement and properly manage criminals convicted of sex offenses. Current practices in the California Drug Courts and California Mental Health Courts can be utilized to structure the SOC's. When creating the structure of a specialized court, two aspects become integral in forming the mechanics of the court: whether participation is voluntary and whether participation can lessen or eliminate an offender's jail sentence.
Metal Health courts are controversial because participants can voluntary participate or be involuntarily compelled to participate. Involuntary participation works with mentally ill participants because their disease responds to medication. In many cases, forcing mentally ill patients to take their medication and attend therapy serves as a catalyst for their recovery. Sex offenders cannot be forced to take medications and attend therapy; their "dysfunction" is not necessarily a mental illness. Forced treatment fails to alleviate the urges sex offenders have because their participation must be voluntary and must address the stimulus that spurs each individual to commit a sex crime: power and control issues, past abuse, etc. Voluntary participation is necessary with sex offenders because they must desire recovery and internally commit to rehabilitating themselves.
Drug courts solicit voluntary participation from addicts who want to recover from their addiction. Participation means that an addict pleads guilty to the crime but, in lieu of a sentence, that court places the addict in treatment programs that will benefit the addict. Successful completion of the program often means the sentence is suspended and many times the conviction is dismissed or expunged. Failure to complete the program could mean that a jail sentence is enforced and often times a criminal is required to pay the costs associated with their involvement in the drug court programs. However, strong public sentiments will not support a program that does not punish sex offenders. The heinous nature of sex crimes creates the public opinion that sex offenders need to be punished.
When creating the SOC, the best combination of current specialized court practices would be to employ voluntary participation with access to rehabilitative programs as part of sentencing requirements and require registration on a police access only SOR. Failure to voluntary participate means that a sex offender would be sentenced through the conventional criminal justice system. Regardless of participation in SOC, sex offenders will be placed on a police access only SOR, which will enable police to access sex offender information as an investigate tool, rather than the contemporary SOR, which is a tool for criminalizing every act of a sex offender. The challenges that the SOC court will face are similar to the challenges the Mental Health Courts and Drug Courts face. The costs involved in creating a new court are unlikely to receive full public support because sex offenders are a class of criminal, like drug addicts and the mentally ill, that the public does not want to privilege with tax spending.
Although the challenges are daunting, that does not mean that they are not easily resolved. Many of the costs associated with the prosecution of sex crimes could be paid for by state fines like traffic tickets or parking tickets. Furthermore, in the interest of the public safety, specialized funds could be allotted by state governments to rehabilitate sex offenders with the hope of making communities safer. Through the abolition of the current SOR, many of the expenses associated with the maintenance, notification and tracking of sex offenders will no longer exist. These funds could easily be re-designated to the SOC.
More than simply shifting programs and funds around, finding experience in the field of sexual violence will require a more holistic approach to changing the criminal justice system. Rape Crisis Centers, organized under the California Coalition Against Sexual Assault, currently provide prevention education in communities and schools. These educational courses can easily be offered to police and investigators, allowing them to better understand sex crimes as well as sex criminals. Furthermore, as a requirement of attorney and judicial appointment to the SOC, the California Bar could require attorneys to take continuing education courses on sex crimes. This requirement would sustain the experiences of attorneys but also ensure that they continue to learn about sex crimes as the crimes evolve. With educational support and specialized courts, sex offenders can be effectively managed with an understanding of their potential recidivism and of the challenges they face upon release.
Statistically, 1 in 4 women and 1 and 6 men will be sexually assaulted.32 In the United States, 15 out of 16 rapists will never spend a day in jail. These staggering statistics show that perpetrators of sexual violence escape the criminal justice system. Analysis of the SOR notification system has proven it an ineffective tool in stopping crimes of sexual violence because the SOR cannot predict future crime. The SOR can only inform the public of the occurrence of a past conviction, leading the public to pin a scarlet letter of guilt upon offender who has already served time for their conviction. The SOR needs to be relegated back to an internal police registry and its place the SOC's need to be created to manage sex offenders.
* Aimee E. Kaloyares is a second year student at Southern University Law Center located at 2932 Lexington Drive, Baton Rouge, LA 70808. For further information, please contact Ms. Elaine Simmons in the office of Records and Enrollment department at Esimmons@sulc.edu or by phone at (225)771-2552.
1. Sexual Offenders The Nationwide Network.com,
http://www.sexualoffenders.com/statedatabases/louisiana_sex_offender_registry.htm
(September 7, 2011).
2. The official State of California public sex offender registry. California State Police Public and Safety Services,
http://www.meganslaw.ca.gov/
(September 7, 2011).1.
3. History of sex offender legislation via the Megan's Law Home page. State of California Department of Justice,
http://www.meganslaw.ca.gov/sexreg.aspx?lang=ENGLISH
(September 7, 2011).
4. Establishment of the Sex Offender Registry portion of this site provides information about the legislative history and present problems with the Sex Offender Registry.
Missouri State Highway Patrol : Missouri Sex Offender Registry,
http://www.mshp.dps.mo.gov/MSHPWeb/PatrolDivisions/CRID/SOR/ factsheet.html
(September 7, 2011).
5. Megan's law history and facts. State of California Department of Justice,
http://www.meganslaw.ca.gov/sexreg.aspx?lang=ENGLISH (September 7, 2011).
6.Id.
7. Megan's law history and facts. State of California Department of Justice,
http://www.meganslaw.ca.gov/sexreg.aspx?lang=ENGLISH (September 7, 2011).
8. Missouri State Highway Patrol : Missouri Sex Offender Registry,
http://www.mshp.dps.mo.gov/MSHPWeb/PatrolDivisions/CRID/SOR/factsheet.html
(September 7, 2011).
9. U.S. Department of Justice Department of Justice Programs,
http://www.ojp.usdoj.gov/smart/pdfs/sorna_faqs.pdf (September 7, 2011).
10. 2009 Reporting Statistics. RAINN: Rape Abuse and Incest National Network,
http://www.rainn.org/ (September 7, 2011).
11. Id.
12. Id.
13. CSOM, Fact Sheet: What You Need to Know About Sex Offenders (2009)
http://www.csom.org/pubs/needtoknow_fs.pdf
14. January 2006 Report to the Ohio Criminal Sentencing Commission,
http://www.publicsafety.ohio.gov/links/ocjs_SexOffenderReport.pdf
(September 7, 2011) page 5.
15. Id. at 10.
16. Id. at 10.
17. Tofte, Sarah. No Easy Answers: Sex Offender Laws in the US,
http://www.hrw.org/sites/default/files/reports/us0907webwcover.pdf
(September 7, 2011).
18. Id. at 122.
19. Although the study recognizes that there are 600,000 offenders, there are no statistics that provide a breakdown of what classes of sex crimes are represented by the 600,000 offenders.
20. Tofte, Sarah. No Easy Answers: Sex Offender Laws in the US,
http://www.hrw.org/sites/default/files/reports/us0907webwcover.pdf
(September 7, 2011) pg. 146.
21. Tofte, Sarah. No Easy Answers: Sex Offender Laws in the US,
http://www.hrw.org/sites/default/files/reports/us0907webwcover.pdf
(September 7, 2011) pg. 58.
22. Id. at 59.
23. Id. at 58.
24. Freeman- Longo, Robert E., Revisiting Megan's Law and Sex Offender Program: Prevention and problem,
http://www.appa-net.org/ eweb/docs/appa/pubs/RML.pdf
(September 7, 2011) pg. 6
25. Id. at 11.
26. Wartell, Julie. Residency Restrictions: What's Geography Got to Do With It,
http://www.nij.gov/maps/gps-bulletin-v2il.pdf (September 7, 2011).
27. Legislative Analyst's Office; California's Nonpartisan Fiscal and Policy Advisor,
http://www.lao.ca.gov/ballot/2006/83_11_2006.htm (February 11, 2012).
28. Wartell, Julie. Residency Restrictions: What's Geography Got to Do With It,
http://www.nij.gov/maps/gps-bulletin-v2i1.pdf (September 7, 2011).
29. Id.
30. Id.
31.2009 Victim Statistics. 'RAINN: Rape Abuse and Incest National Network,
http://www.rainn.org/ (September 7, 2011).
32.2009 National Crime Statistics. RAINN: Rape Abuse and Incest National Network,
http://www.rainn.org/ (September 7, 2011).
Orange County Criminal Defense Attorney in California
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Scalia was a good man and a brilliant justice but he was
also very, very conservative. He believed the Constitution should be
interpreted through the meaning of the language used when it was written and
modern usage should play no role. He was always "tough on crime" but
very collegial. Scalia’s unlikely
friendship with Justice Ruth Bader Ginsburg was a great example. Despite their
standing as the intellectual giants of the left and right, Ginsburg and Scalia
had formed an uncommon bond on a court where close friendships outside of
chambers is rare.
