By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In 1994 the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required all states to create programs mandating that certain kinds of sex offenders register with state or local authorities. Congress added teeth to the Act by threatening the states with a ten percent loss of federal anti-crime funding for failure to comply.
Child protection advocates like Marc Klaas, whose daughter (Polly) was brutally raped and murdered in the 1990s by a released sex offender who is currently on California’s death row, offer these reasons for sex offender registration laws:
- Sex offenders pose a high risk of re-offending after release from custody;
- Protecting the public from sex offenders is a primary governmental interest;
- The privacy interests of persons convicted of sex offenses are less important than the government’s interest in public safety; and
- Release of certain information about offenders to public agencies and the general public will assist in protecting the public safety.
Two years later, in 1996, Congress amended the Jacob Wetterling Act with Megan’s Law which mandated “community notification” when a sex offender moves into a given neighborhood. The notification laws make public virtually all private information about sex offenders. Klaas defends “notification” laws on these grounds:
- Assists law enforcement in investigations;
- Establishes legal grounds to hold known offenders;
- Deters sex offenders from committing new offenses;
- Offers citizens information they can use to protect children from victimization.
Then in 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This Act requires the U.S. Justice Department to create a national sex offender database accessible to the public through the Internet allowing nationwide searches about registered sex offenders.
There are currently 700,000 registered sex offenders in the United States. Today more than twenty states have gone far beyond the Jacob Wetterling Act and Megan’s law by enacting “residency restriction laws” which prohibit sex offenders from living within 1,000 to 2,000 feet from schools, parks or child care facilities. Legal challenges to these laws have met with mix results but at least one federal court of appeals rejected a challenge to these laws saying there is no constitutional right “to live where you want.” The end result is that sex offenders in many communities are forced to live in limited neighborhoods—and this practice has prompted some communities to enact city ordinances making these neighborhoods virtually “off limits” to sex offenders.
The city council in New Richmond City, Wisconsin is currently considering what it calls a “safety zone ordinance” which would place a buffer around all the city’s parks, schools, and day care centers thereby practically eliminating any neighborhood for sex offenders to live. With 10,000 registered sex offenders in Pennsylvania, communities all over that state have done or are considering doing precisely what New Richmond City is trying to do. This prompted one federal judge in Allegheny County, Pennsylvania to overturn a local ordinance which prohibited convicted sex offenders from living within 2500 feet of schools, playgrounds, and child-care facilities.
While all of these restrictive “residency laws” and ordinances are being enacted across the country, the American Association of Correctional and Forensic Psychology released a study last year that said these restrictions have absolutely no effect on whether a sex offender is arrested again. These laws are playing particular legal havoc in California where there are more than 100,000 registered sex offenders. California’s Proposition 83, which prohibits sex offenders from living within 2,000 feet of schools and parks, is currently under constitutional challenge before the California Supreme Court, according to the San Jose Mercury News.
Reeling from the mass murders allegedly committed by a convicted sex offender named Anthony Sowell who was arrested in Cleveland last year, Ohio officials have reacted by proposing legislation that would increase monitoring for the worst sex offenders. The classification system in place at the time of Sowell’s arrest involved the following three tier system:
- Tier I is the lowest classification system, Offenders in this tier must register annually for 15 years.
- Tier II offenders are required to register every 180 days for 25 years. This level sometimes requires notification postcards being sent to neighbors.
- Tier III offenders must register every 90 days for life. Notification postcards must be sent to neighbors informing them of the offender’s address.
New legislation being proposed by State Sen. Nina Turner would impose the following key changes in Ohio’s sex offender monitoring laws:
- Tier III offenders would have to register their address every 30 days with local law enforcement being required to confirm the address every 90 days.
- All sex offenders would have to show proof of residency similar to that used in voter registration: photo ID, utility bill, or government check showing address.
- Notification postcards would have to be sent to neighbors once a year on the anniversary date of registration.
The problem with Sen. Turner’s “get tough” legislation is that it does not fund the costs associated with implementing the changes. This will have serious fiscal repercussions at the local level. For example, the Logan County, Ohio, sheriff’s department has seen its budget cut by $ 2 million and has lost 40 positions since early 2008, forcing deputies off serious investigations to make “spot checks” on registered sex offenders in the county.
Ohio’s current official backlash against sex offenders has even reached into the state’s nursing homes. The Columbus Dispatch reported recently that there are more than 100 registered sex offenders living in Ohio’s nursing homes “without other residents and their families knowing about their offenses.” State Sen. Capri Cafaro has introduced legislation that would require nursing home administrators to notify residents, their family members and guardians when a Tier III offender intends to move into the facility.
The Dispatch last year compared “state records of long-term-care facilities with the existing notification list [and] found that 110 nursing-home residents and six employees were registered sex offenders. Fifty-one were concentrated at four nursing homes, including 26 in one facility in Washington Court House.
“Ohio’s number of offenders in nursing home facilities nearly tripled in the past five years, according to Perfect Cause, an Oklahoma-based nonprofit group. Perfect Cause documented at least 60 murders, rapes and serious assaults nationwide in nursing home by residents who are sex offenders, including the rape of a mentally disabled woman in Cincinnati.”
These numbers at first glance seem shocking until they are viewed under the light of objectivity. According to the Center for Disease Control and Prevention, there were 16,100 nursing homes in the United States in 2004 which housed more than 1.5 million residents. Those figures are consistent with U.S. News & World Report findings last month. Sixty “murders, rapes and serious” assaults by sex offenders in this group population is not “shocking” particularly when compared to the 725 complaints of “suspicious deaths” reported in 2007 to South Carolina’s new State Law Enforcement Divisions Vulnerable Adults Investigative Unit which was set up to “investigate abuse, neglect, exploitation and deaths in government nursing homes.” At least 231 of these deaths remain unsolved. Nursing home residents, therefore, face far greater risks of murder, rape and assault from nursing home employees than resident sex offenders.
Faced with harsher “residency” and “notification” pressures, sex offenders are increasingly joining the ranks of the transient and homeless. Dr. Richard Kreuger, a professor of psychiatry at Columbia University, specializes in the treatment and management of sex offenders. He has observed that these offenders “are almost labeled as nuclear waste; nobody wants them in their backyard.” DuWayne Gregory, a New York legislator, underscored this point recently by opposing sex offender homeless shelters in Suffolk County: “We have enough homeless emergency housing shelters, Section 8 housing, sober homes, etc.,” the lawmaker wrote in a letter to 300 civil and religious leaders. “We do not need an entire homeless sex offender shelter dumped in our community, too.”
In the wake of the Jacob Wetterling Act and Megan’s Law, the State of Texas enacted its Sex Offender Registration Program (“SORP”) codified in Chapter 62 of the Texas Code of Criminal Procedure. SORP applies to adult and juvenile sex offenders convicted or adjudicated on or after September 1, 1970. The following personal information is collected by the Texas Department of Public Safety for its database:
- Full name (including each alias)
- Date of birth
- Eye color
- Social security number
- Driver’s license number
- Shoe size
- Home address
- Type of offense committed
- Age of victim
- Date of conviction
- Punishment received
- Supervision status
- Each occupational license held or sought
- Notification if individual is employed
- Pursuing a vocation or attending institution of higher education
- Online identifiers
- Risk level
That’s a lot of personal information collected for a law enforcement database to which the public has access. And the convicted sex offender must register not later than 7 days after his/her arrival in a municipality or county of residence—and most sex offenses in Texas require lifetime registration. The few offenses which do not require lifetime registration require registration until the 10th anniversary of the date of discharge from supervision. Juveniles register for the post-10 years. All sex offenders must register annually while those offenders with two or more convictions for violent sexual offenses must register every 90 days. These requirements apply to the more than 57,000 registered sex offenders in the state of Texas—2.5% of whom through May of last year were identified as “absconded” by state and local law enforcement agencies.
As states continue to impose stricter “residency” and “notification” requirements on sex offenders in response to high profile sex-related offenses, the likelihood of sex offenders absconding will increase. The pressures of living as a perpetual underclass (lifetime registration) simply become too great to bear. But we must point out the fact that many will abscond does not mean they will re-offend as most child protection advocates contend. As we reported last year, a 2008 National Geographic Channel documentary titled “Prison Nation” reported that 60% of all prison inmates released nationwide will recidivate within three years while the U.S. Justice Department says that 43% of them recidivate with less than 15% of those being for sex offenses.
The State of Washington, which highlights its penal sex offender treatment programs, offers impressive data concerning sex offender recidivism. State officials report that 2.7% of the offenders who do not receive treatment during imprisonment will re-offend within six years while 1.8% of those who receive treatment will re-offend during the same period. Prisons like those in Washington, along with some in Canada and other Western countries which offer serious sex offender treatment programs, report that 9.9% of sex offenders who receive treatment re-offend with new crimes as compared to 17.4% of those who do not receive treatment.
Most reputable studies on inmate recidivism have found that sex offenders have the lowest rate of recidivism than any other class of criminal offenders. But it is high-profile and sensationalized cases like Anthony Sowell in Ohio and Philip Garrido in California that shape public policy when it comes to sex offenders. And any time public policy is shaped on the exception rather than the rule, there will be extreme consequences. For example, there are 17,000 registered sex offenders in Georgia but, according to the state’s Sex Offender Registration Review Board, just over 100 of them are deemed “predators” who pose a risk to society yet all 17,000 must bear the “dangerous predator” cross. And last year the California Attorney General’s Office found that only 9% of its registered sex offenders pose a “high risk” for re-offending while 29% posed a “moderate” to “high risk” of re-offending. Translated, that means that two-thirds of the state’s 100,000 registered sex offenders pose very little risk of re-offending yet all 100,000 are treated in the same “high risk” manner.
Clearly the facts do not match the public fears, but, unfortunately, these public fears (which are shaped by misinformation) have painted society into a corner when it comes to handling sex offenders. The latest findings (Feb. 2010) of the National Incidence of Study of Child Abuse and Neglect, a congressionally mandated study conducted by the U.S. Department of Health of Services, found a 38 percent decrease in the number of sexually abused children in this country since 1993. The number of sexually abused children in 1993 was 217,700, and that number decreased to 135,300 in 2005-2006.
“It’s the first time since we started collecting data about these things that we’ve seen substantial declines over a long period, and that’s tremendously encouraging,” said Professor David Finkelhor of the University of New Hampshire in an AP interview. “It does suggest that the mobilization around this issue is helping and it’s a problem that is amenable to solutions.”
Nonetheless, while law enforcement agencies nationwide are faced with tighter budgets and shrinking personnel, state and local governments are increasing pressure on them to monitor a social underclass that does not really pose the level of threat perceived by those in society. We do not have a solution for public fears; we can only present the facts and try to place sensitive issues like this one in proper perspective. Our soap box is not nearly big enough to allay public fears when it comes to dealing with sex offenders.
Ex parte Joselito Mercado, 2003 Tex.App. LEXIS 2886 (Tex.App.-Houston [14th Dist.} April 3, 2003
Ex parte Bryan Scott Chamberlain, 2009 Tex. App. LEXIS 9653 (Tex.App-Fort Worth Dec. 17, 2009)
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair