Some in Law Enforcement, Legislatures, Find Federal Sex Offender Registration Laws Too Broad, Onerous
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders. The Houston Chronicle (September 21, 2009) featured a front page article by Renee C. Lee (“A Long Wait to Get Past Crime”) which reported that there are approximately 3,600 registered juvenile sex offenders in the State of Texas, according to the Texas Department of Public Safety. The newspaper noted that eleven of these juveniles were ten years of age when they were registered.
The increased number of juveniles being compelled to register as “sex offenders” when convicted of any sex-related offense is a direct result of the 2006 Adam Walsh Child Protect and Safety Act. Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. SORNA applies to all 50 states, the District of Columbia, the five principal U.S. territories (Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the federal Indian tribes whose jurisdictions are defined by the statute.
But with its frequency of application to juveniles, SORNA has triggered a growing debate among child protection advocates who favor registration of all sex offenders regardless of age and some who say the registration law creates more harm than good when it comes to juvenile sex offenders. A growing number of law enforcement officials have weighed in on the debate saying the by placing so many relatively minor sex offenders—such as most juveniles—in the sex offender registry limits their ability to track far more dangerous sex predators. And some state legislatures such as California, already faced with dire fiscal restraints on their budgets, have begun to seriously question the costs involved in tracking non-dangerous, especially juvenile. sex offenders through sex offender registries.
In a March 1, 2008 article (The Walsh Act And Its “SORNA” Implications), we reported about the growing dissatisfaction in Texas among “an unlikely coalition of law-and-order conservatives: victims’ rights advocates, prosecutors, and ‘tough-on-crime’ legislators. These critics now believe that SORNA is too costly, unnecessarily strict, and has the potential of harming the very victims it was designed to protect.”
Our article pointed to critical comments by Sen. Florence Sharpio, R-Plano, and Assistant District Attorney Bill Hawkins against SORNA as reported in a February 18, 2008 article in the Houston Chronicle. Sen. Sharpio, one of the state’s leading proponents of sex offender registration, told the newspaper: “We think our laws are strong enough.” Hawkins agreed, saying: “When the pendulum swings, it tends to swing pretty hard. There are an awful lot of sexual assault cases, and then there are kids who engage in sex at an early age. [SORNA] wants to put them all together.”
Take the case of 18-year-old Phillip A. reported by CNN last April. He had been dating a 16-year-old girlfriend for two and one-half years when they broke up following an argument. In a sophomoric act to “get even,” he sent a nude photo the girlfriend had sent to him to a number of her friends and family members. He was tried and convicted for possessing “child pornography” and must now register as a “sex offender” until he is 43 years old.
As reported by www.examiner.com recently, “a teenage boy who gets convicted of having sex with his underage teenage girlfriend is labeled a rapist on the sex offender registry… An underage teenage girl who texts a nude photo of herself to a boyfriend is now registered for distributing child pornography the same as …the Ohio minister convicted of distributing pornographic images of prepubescent minors in sexually explicit conduct. Both the hormonally- charged children and the perverted adults are branded as sex offenders on the same sex offender databases, and their images are spread across the internet for the rest of their lives, despite obvious differences in the situations as well as studies showing that the reoffender rate of juvenile is only 10 percent.”
These kinds of travesties notwithstanding, some child protection advocates remain staunch supporters of SORNA and related state sex offender registration laws. For example, Laura Ahearn, the executive director of Parents for Megan’s Law and the Crime Victims Center, told Chronicle reporter Renee Lee: “Once a juvenile introduces violence into sexual behavior, it’s hard to rehabilitate. They are worthy of registration.”
The problem with “experts” who run non-profit advocacy groups like Ms Ahearn is that they are generally terribly biased and make a career of misinforming the public.
Children who commit sex offenses overwhelming commit them against other children. According to the National Child Abuse and Neglect Data System (NCANDS) operated by the University of New Hampshire, there was a 40 percent decline in sexual assault case against children between 1991 and 1999. During that same period, the U.S. Justice Department put the decline rate even higher at 56%. Similarly, the FBI’s Uniform Crime Reports and the National Crime Victimization Survey reported a 67% decrease in sexual assaults of teenagers between 1998 and 2004.
The NCANDS and the U.S. Department of Health and Human Services both reported continuing declines at sexual assaults against children through 2006. These long term rates of declines were preceded by a 15-year period of annual increases in child sexual assault cases. The downward turn of sexual assaults against children began in 1991, some 15 years before the enactment of SORNA and a litany of other state Megan Laws, which clearly indicates that sex offender registration laws had nothing to do with the declines.
These declines have to do with two factors child protection advocates refused to accept. First, sex offenses, especially those against children (and even more so in cases of those offenses committed by children), are typically one time offenses; and, second, sex offenders are more receptive to “treatment” than most hardeded criminals. For example, University of Law Professor Franklin Zimring found after exhaustive studies that juveniles who commit non-sexual offenses are twice as likely to become sex offenders as adults compared to juveniles who commit sex offenses. Last year the National Geographic Channel, in its excellent documentary “Prison Nation,” found that 60% of all prison inmates released nationwide will recidivate within three years while the U.S. Justice Department put the nation’s recidivism rate at a lower 43 percent with less than 15% of those being for sex offenses.
In the immediate wake of a case like Phillip Garrido, the man charged with kidnapping Jaycee Lee Dugard, it is difficult to argue that “treatment” works for sex offenders, but the reality is that it does. For example, the State of Washington leads the nation with penal sex offender treatment programs and they offer impressive data to support those programs: 2.7% of the sex offenders who did not receive treatment and released from prison were convicted of a sexual felony within six years while only 1.8% of those who received treatment were convicted of a sexual felony within six years. The figure is even less for those offenders who wanted treatment but couldn’t get it – 0.t6%. Prisons in the United States, Canada and other Western countries who offer serious state-of-the-art sex offender treatment programs report that only 9.9% of sex offenders who participate in these programs re-offend with new sex crimes while 17.4% of those who do not receive treatment re-offend with new sex crimes
“There’s pretty good evidence that if you pick out the right kind of people, who feel badly about what they’ve done, you can alter those patterns,” said Roxanne Lieb, director of the Washington State Institute for Public Policy.
Nonetheless, the Phillip Garrido case inspires either a desire to lock up sex offenders forever or kill them. But, these ancient emotions rooted in a collective human desire for revenge do not realistically address the sex offender problem.
“The reality is this: Nothing beats intelligence,” said Robert Packard, a clinical forensic psychologist and past president of the Washington Association for the Treatment of Sexual Abusers. “We spend no money on trying to understand how to do better – how to evaluate and treat offenders better.”
At least the Texas Legislature is trying to address the SORNA problem in a deliberate manner in light of the fact that all states must comply with its requirements by July 2010 or lose federal funding. The Chronicle’s September 21, 2009 report stated that Texas lawmakers have requested an compliance extension until after the 2011 legislative session during which SORNA will be thoroughly examined.
“We’re not sure if we’re ready to pass the Adam Walsh Act,” Sen. John Whitmire, Chairman of the Senate Criminal Justice Committee, told the newspaper. He added that parameters of sex offender registration “should be left up to the states” and not mandated by federal legislation such as SORNA.
Theresa Tod, director of the Texas Network of Youth Services, agrees that not only is SORNA too restrictive but that the state’s current sex offender registry, which went online in 1997, is too demanding because it requires juvenile sex offenders to not only publish their mug shots and address but the schools they attend as well.
“I feel this is totally inconsistent with the way we as a society have determined is the right way to deal with juvenile behavior,” she told the Chronicle. “To protect children from public derision is our job.”
While Texas law requires juveniles to register for 10 years after they leave the juvenile system as opposed to adult sex offenders who must register for life, the stigmatization problems associated with sex offender registration can have a lifetime of adverse impacts on a juvenile’s adult life. Dr. Bob McLaughlin, who is associated with a Houston juvenile sex offender treatment program called ADAPT Counseling, told the Chronicle that juveniles are “more amendable to treatment than adults and can be rehabilitated” and sex offender registration, especially the kind under SORNA, undermines the prospects of treatment and rehabilitation.
Admittedly, Texas’ juvenile sex offender registration laws are not as draconian as SORNA and those in many other states. The Chronicle reported that judges in Texas have “judicial discretion” in three areas of juvenile sex offender registration. First, they can waive the registration requirement; second, they can order removal if the juvenile petitions for removal; and, third, they can defer a decision on registration depending upon the completion of court ordered therapy. Lisa Capers, a deputy director with the Texas Juvenile Probation Commission, straightforwardly told the newspaper that this judicial discretion distinguishes Texas from other states and “allows the court to try to rehabilitate and not target and label them [juveniles] as sex offenders.”
The Chronicle correctly took pains to point out that the Texas Legislature has a consistent habit of tweaking the state’s sex offender registration law—more often than not in an adverse way. The 2009 Legislative Session was no different, as pointed out by the Texas Criminal Defense Lawyers Association (TCDLA) releases a legislative summary of new or amended laws enacted during each session. The TCDLA set forth the 2009 tweaking of the sex offender registration laws:
- HB 2153: Relating to certain registration requirements imposed on sex offenders. Amends Tex. Code Crim. Pro. Art. 13.31 to expand venue options for the prosecution of those who fail to register as sex offenders to either the county in which the person was required to register or the county in which the person was found. Further, amends Tex. Code Crim. Pro. Art. 62.051(f) to require sex offender to register no later than seventh day after release from custody. Further, amends Tex. Code Crim. Pro. Art. 62.05(c) to require sex offender to list the address where he intends to reside, or, if the person is homeless, to list a detailed description of geographical location where he will reside. Further, adds Tex. Code Crim. Pro. Art. 62.051(j) to require a sex offender released without being released to a particular parole office to report no later than the seventh day after release to the local law enforcement authority and to continue to report every thirty days until he has a physical address. Finally, amends Tex. Code Crim. Pro. Art. 62.055 to require a sex offender who becomes homeless to report to law enforcement within seven days and every thirty days thereafter.
- SB 689: Relating to restriction on the use of the Internet by sex offenders and to the reporting, collection, and exchange of information regarding these offenders. Amends Tex. Code Crim. Pro. Art. 42.12 by adding Section 13E and by adding Tex. Gov’t Code Art. 508.1861 to provide that a sex offender who either used the Internet or an electronic device to commit his offense or who has been assigned a risk level of three to prohibit the person from using Internet to 1) access a commercial social networking site, 2) communicate with any individual concerning sexual relations under the age of 17, or 3) communicate with another individual he knows to be younger than 17 years of age—all of which may be modified if the conditions interfere with employment or if the sex offender has a child younger than 17 years of age. Further, adds Tex. Code Crim. Pro. Art. 62.001(11) to define “online identifier” to include the email address or name used by a person on an instant messaging, or social networking site. Further, adds Tex. Code Crim. Pro. Art. 62.0061 which allows commercial social networking sites to obtain from the Texas Department of Public Safety public information from state’s sex offender registry as well as any online identifier used by a registered sex offender. Further, amends Tex. Code Crim. Pro. Art. 62.051 to require sex offender registration form to include any online identifier of a sex offender. Finally, adds Tex. Code Crim. Pro. Art. 62.0551 that requires sex offender to report any change or establishment of an online identifier within seven days.
- SB 2048: Relating to the establishment of a centralized sex offender registration authority in certain counties in this state. Adds Tex. Code Crim. Pro. Art. 62.0045 which allows county commissioners court in a county with a population of more than 100,000 to create a centralized registration authority where all sex offenders would be required to register.
These changes in the state’s sex offender registration laws reflect that the Texas Legislature, like so many other state legislative bodies dominated by a law and order agenda, continuously operates under the flawed premise that all sex offenders, no matter the circumstances of their offense, are “dangerous” and pose unnecessary risks to society. In effect, all sex offenders should be treated as though each is a potential Phillip Garrido.
This flawed legislative reasoning makes for bad public safety policy. There are nearly 674,000 registered sex offenders in this country (more than the populations of Vermont, North Dakota or Wyoming)—and most are not dangerous, pose no risk to society, and will not commit new crimes. The international group Human Rights Watch was cited by the prestigious journal The Economist (Aug. 6, 2009) which found “at least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of ‘distributing child pornography’ to include teens who text half-naked photos of themselves to their friends.”
To understand the impact of such sex offender registration laws, The Economist reported that the above category of “sex offenders” in the State of Georgia would be barred from living or working within 1,000 feet of a community swimming pool, school, skating rink, church or park while the City of Miami maintains an exclusion zone of 2500 feet. States likes Georgia routinely create travesties by applying these laws in a nonsensical way such as to a mother convicted of being a “party to the crime of child molestation” after she permitted her 15-year-old daughter to have sex with the boyfriend the daughter eventually married. The mother will now be classified as a “sex offender” for the rest of her life.
The Wall Street Journal reported recently that there are 20,000 registered sex offenders on parole (and a total of 90,000 registered sex offenders) in the State of California—the home of the infamous Phillip Garrido. The newspaper reported California officials, including the state’s attorney general, have begun to question the cost-effectiveness of its sex offender registration laws and are seriously considering rejecting increased federal funding for these laws. Of the registered sex offenders on parole in that state, a recent study by the Attorney General’s Office found that only 9% of them posed a “high risk” for re-offending while 29% posed a “moderate” to “high risk” of re-offending.
Similarly, The Economist reported that there are 17,000 registered sex offenders in the State of Georgia (Texas has more than 57,000, according to the National Center for Missing and Exploited Children), and the state’s Sex Offender Registration Review Board found that just over 100 of the 17,000 could be classified as “predators”—or, put simply, classified as dangerous and posing a significant risk to society.
The website www.NetFamilyNews.org reported in August 2009 about sex offender registration laws and concluded that “disinformation and fear are not conducive to calm, constructive discussion about young people’s online activities—in families or in policymaking circles. Overreaction by parents causes kids to go into online stealth mode (which gets easier and easier with proliferating access points and connected devices) at a time when parent-child communication is very much needed. Focusing too much on registered sex offenders causes people to forget that most child sexual exploitation is perpetrated by people the victims are related to or know in their everyday lives, most likely people who haven’t been arrested, much less convicted, and therefore not people in sex-offender registries.”
The exceptional cases like Phillip Garrido create near mass hysteria and allow the 24-hour cable news channels to recycle misinformation upon misinformation through a laundry list of child sexual abuse “experts” who personally profit from the mass hysteria and misinformation spawned by cases like Garrido. We agree with The Economist which cited three primary arguments calling for the “reform” of sex offender registration laws in America:
“First, it is unfair to impose harsh penalties for small offenses. Perhaps a third of American teenagers have sex before they are legally allowed to do so, and a staggering number have shared revealing photographs with each other. This is unwise, but hardly a reason for the law to ruin their lives. Second, America’s sex laws often punish not only the offender, but also his family. If a man who once slept with his 15-year-old girlfriend is barred for ever from taking his own children to a playground, those children suffer.
“Third, harsh laws often do little to protect the innocent. The police complain that having so many petty sex offenders on registries make it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries. Public registers drive serious offenders underground, which makes them harder to track and more likely to reoffend. And registers give parents a false sense of security: must sex offenders are never even reported, let alone convicted.”
The Economist, and an increasing number of prosecutors and law enforcement officials, are correct in saying that most sex offender registration laws, especially those in Texas, should be redesigned to target the most dangerous offenders who pose a significant public safety threat rather than lumping all sex offenders together, including the ones who pose no real threat to Texas children. Laws that prohibit sex offenders from working or living near so many designated public places should be repealed because there is no legitimate evidence that protect society in any way.
There is too much anger, hatred, and fear in our society today. We are socially paralyzed by the “monsters in the dark” we create as a way to hurt and discriminate against other. These negative, primal human emotions have caused people to push lawmakers to the brink of extremism in passing laws, especially those relating to “protecting our children,” that make no sense and never allow a person to pay their debt to society and move on to a productive lifestyle. Public safety policy is served by rational, reasoned debate—not fanaticism and extremism driven by fear.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair