The Pursuit of Safety - Sex Offender Policy in the U.S., Vera Institute, 2008
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THE PURSUIT OF SAFETY Sex Offender Policy in the United States Tracy Velázquez Vera Institute of Justice September 2008 Suggested citation: Tracy Velázquez. The Pursuit of Safety: Sex Offender Policy in the United States. New York: Vera Institute of Justice, 2008. This report was prepared by the Vera Institute of Justice under grant 2006-WP-BX-K329 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Opinions expressed in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice or the Vera Institute of Justice. © 2008 Vera Institute of Justice. All rights reserved. Additional copies can be obtained from the communications department of the Vera Institute of Justice, 233 Broadway, 12th floor, New York, New York, 10279, (212) 334-1300. An electronic version of this report is available for download on Vera’s web site, www.vera.org. Requests for additional information about the research described in this report should be directed to firstname.lastname@example.org. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice ii Executive Summary acquaintances. In addition, a concurrent overall decrease in violent crime makes it difficult to identify the Local, state, and federal policymakers have paid ever influence of the sex offender legislation on reductions in more attention to sex offenses over the past 20 years. In sexual offending. And several policies—particularly the wake of several high profile crimes by strangers residency restrictions and community notification—may against children in particular, they have crafted a have negative impacts on public safety due to the growing body of legislation intended to protect the impediments they create to successful reintegration of public from sexual predators. This legislation has offenders who have completed their sanctions. expanded the scope of crimes that qualify as sex Registration itself appears to somewhat reduce offenses, over the past decade more than doubled the recidivism, but not for offenses against strangers. number of people required to register as sex offenders, Electronic monitoring has shown some positive increased sentences for people found guilty of sex outcomes in some jurisdictions while having little offenses, and established strategies designed to manage impact in others, particularly those where it has been convicted sex offenders after their incarceration. recently implemented. And while effective at Examples of these latter strategies include registration, incapacitating offenders, civil confinement is four times community notification requirements, residency as expensive as incarceration and to date has not been restrictions, electronic monitoring, and civil particularly successful at treating offenders. commitment. The proliferation of these responses has generated Finally, it appears that the public opinion that often drives policy in the sex offender realm is based on the little consensus about which available strategies are belief that sex offenders are dangerous strangers who are most effective. Consequently, many policymakers apt to victimize children and re-offend. In reality, concerned about using public funds to maximize however, most sex offenders don’t re-offend, and the outcomes (consistent with the principles of fairness and definition of a sex offender is broad and encompasses justice) understandably are confused about their options different types of offenses, some more severe than for deterring would-be offenders, reducing recidivism, others. Moreover, children are more at risk of and incapacitating the most dangerous offenders. With being sexually victimized by a family member or other support from the Bureau of Justice Assistance (part of person known to them than they are by a stranger living the U.S. Department of Justice, Office of Justice a block away from their home or school. Programs), the Center on Sentencing and Corrections at the Vera Institute of Justice conducted a nationwide review of current sex offender laws, policies, and trends. This report represents the results of that systemic analysis. Analysis reveals that the public supports current national legislative focus on responding to sex offenses and presume that these responses have contributed to the drop in sex offenses that has been recorded in recent years. However, it is unclear whether any of these measures have had a significant impact on sex offense rates. In large part, this is because most policies are aimed at predation by strangers, whereas sex offenses are more often committed by family members and The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice iii Acknowledgments readers Dennis Alexander and Jill Levenson and to the many state correctional agencies that provided data on My sincere appreciation goes out to the following Vera their offender population. And finally, thanks to the staff: Christine Scott-Hayward, for serving as Appendix many people doing original research in sex offender Wrangler; Maggie Peck, Jessica Peña, and Amanda policies, an unglamorous topic but one that has a Rogers for their assistance compiling the appendix; significant impact on public safety and the criminal Alison Shames and Dan Wilhelm for their editorial justice system. Without their work this report would not suggestions; and the excellent Vera communications have been possible. staff Patrick Kelly, Abbi Leman, and Robin Campbell. Thanks also to Vera interns Ali Syed, Natane Edited by Patrick Kelly and Robin Campbell. Eaddy, Lisa Rickmers, and Anjali Nadig and outside The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice iv Table of Contents Executive Summary ..................................................................................... iii Acknowledgments........................................................................................ iv Introduction ................................................................................................ 1 Historical Background .................................................................................. 2 Current Issues in Sex Offender Policy ............................................................ 4 Sentencing.................................................................................................. 8 Sex Offender Registries ............................................................................... 10 Community Notification ............................................................................... 14 Residency Restrictions................................................................................. 19 Electronic Monitoring .................................................................................. 21 Civil Commitment ....................................................................................... 24 Pursuit of Safety: Are We Safer? .................................................................. 29 Guide to the Appendices ............................................................................. 30 Appendices ............................................................................................... 31 The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice v Introduction • Stricter Sentencing: Mandatory sentences and longer sentences without parole or early release At present, there are more than 636,000 registered sex offenders in the United States—approximately one in are becoming more widespread. • 1 Enhanced Registration Requirements: More 500 Americans. However, given that 99 percent of all information is being collected on offenders, the sex offenders who have been released from prison are list of crimes for which registration is required men, it is perhaps more meaningful to state that more has grown, and registered offenders are being than one in 160 adult males are registered sex required to update registration information at offenders—and to point out that this figure has more more frequent intervals. 2 than doubled over the past decade. Although there is no • Expanded Community Notification: While way to know the total number of sex offenders in all specific community notification requirements state and federal prisons due to variations in state data vary considerably from state to state, the collection and registration requirements, sex offenders practice of notifying the community of the clearly represent a significant percentage of all inmates. presence of sex offenders has become more From data that was gathered via public sources and widespread. direct communication with state correctional • More Residency Restrictions: Residency departments, most states indicate that between 10 and 20 restrictions have ballooned over the past five percent of prisoners are sex offenders; however, in some years. However, these restrictions appear to 3 states, the rate is as high as 28 percent. have few concrete advantages and significant While high-profile sex crimes routinely grab negative impacts on offender reintegration and headlines, the question of how well current sex offense laws are working rarely has been examined. This report public safety. • Spread of Electronic Monitoring: In recent provides an overview of sex offense policies, identifying years, global positioning system (GPS) key trends and examining what is known about the technology increasingly has been used to effectiveness of different approaches at meeting their monitor the activities and whereabouts of sex aims. Following a brief history of sex offender laws and offenders. a discussion of some of the current issues in the field, • Growth of Civil Commitment: Many states the report examines six significant trends in recent sex now keep high-risk sex offenders locked up offender legislation: indefinitely—even after they have served the maximum prison term—through court orders placing them in facilities that provide some 1 National Center for Missing & Exploited Children, Registered Sex Offenders in the United States per 100,000 Population (map), March 25, 2008. Some states register offenders at conviction, while others don’t require registration until the offender is no longer institutionalized in a correctional or mental health facility. 2 Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose, “Recidivism of Sex Offenders Released from Prison in 1994,” Bureau of Justice Statistics: November 2003, NCJ 198281; U.S. Census estimates, population age and gender 2007; http://www.census.gov; Devon B. Adams, “Summary of State Sex Offender Registries,” Bureau of Justice Statistics (Fact Sheet): March 2002, NCJ 192265. Earlier estimates from 1997 of 1-2 percent of the adult male population can no longer be considered valid due to the expansion since then of crimes now considered registerable. 3 Utah Department of Corrections data provided via e-mail; “Sex Offenders in Prison,” Minnesota DOC Backgrounder: February 2006, http://www.doc.state.mn.us/publications/documents/sexoffenderbackg rounder_000.pdf. level of sex offender treatment. In our examination of these trends, we also discuss the effectiveness (in terms of improvements to public safety and reduced recidivism rates), the costs, and the legal challenges to specific policies. Finally, we have included sex offender legislation for every state in the appendix. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 1 Please refer to these tables for more information on Historical Background 4 statutory regulations. THE FIRST WAVE OF U.S. SEX OFFENDER LAWS: 1937 – 1955 Who is a Sex Offender? While sex crimes—and the punishment of those For the purposes of this report, a sex offender is a person crimes—have long been a part of the fabric of our who has been convicted of a crime that requires society and our penal codes,6 modern sex offender registration as a sex offender. legislation in the United States can be traced to the There are numerous such crimes. Federal guidelines period between 1937 and 1955, when, in response to call for the registration of people convicted of sexual several high-profile crimes, 26 states enacted “sexual abuse or aggravated sexual abuse. They also call for the psychopath” laws. These laws generally committed registration of people convicted of a number of other people who were guilty of what are now referred to as crimes when a minor is involved, including kidnapping sex offenses to psychiatric facilities. Many of these laws or false imprisonment except by a parent; criminal were later struck down by the courts on due process sexual conduct; solicitation to engage in sexual conduct grounds. Others fell into disuse as hopes for a “cure” for or practice prostitution; use in a sexual performance; and “sexual psychopathy” diminished and punishment and production or distribution of child pornography.1 incarceration came to be viewed as a more appropriate Many states have gone beyond the federal response to sex offenders.7 The practice of requiring offenders to register began guidelines by extending the list of crimes that require registration. Among the offenses that have been added to in the 1930s in response to the increased mobility of state registration lists are voyeurism, public exposure, criminals. At the time, offender registries were viewed adultery, giving obscene material to a minor, displaying primarily as tools for law enforcement, which needed a obscene material on a bumper sticker, and bestiality. In way of keeping track of high-risk offenders.8 Registries some states, a person can be required to register as a sex were generally operated at the local level; they primarily offender for possessing computer-generated images of targeted gangsters rather than sex offenders. In 1937, virtual children; in other states, registration is required Florida enacted the first statewide registration law for only for those who possess images of actual people certain felons.9 The first state registration law that under age 18. focused specifically on sex offenders was passed in The Adam Walsh Act of 2006 adds additional federal California in 1947. By the end of the 1980s, 12 states registration guidelines that will expand the definition in had enacted sex offender registration laws; none of these a number of ways; for example, a registerable sex states distributed offender information to the public. offense now will include any criminal offense that has an element involving a sex act or sexual contact with another person. While states are not legally obligated to adopt the federal definition (or other provisions of the Act), they stand to lose federal funds if the Act is not implemented by July 2009.5 4 State appendices are generally current as of February 2008 and may have been amended since that time. Please refer to each state’s complete statutes for the most up to date information. 5 Public Law 109-248—July 27, 2006, 120 STAT. 587. 6 The Code of Hammurabi, dating from the 1700s B.C., specifically mentions incest as a punishable crime. 7 Simon A. Cole, “From the Sexual Psychopath Statute to ‘Megan’s Law’: Psychiatric Knowledge in the Diagnosis, Treatment, and Adjudication of Sex Criminals in New Jersey, 1949-1999,” Journal of the History of Medicine Vol. 55 (2000): 292-314. 8 Wayne A. Logan, “Sex Offender Registration and Community Notification: Past, Present and Future,” New England Journal on Criminal and Civil Confinement 34, no. 1 (2008): 3-16. 9 U.S. Department of Justice. United States Attorneys Manual, Title 9 (Criminal Resources Manual) article 1934, appendix D. http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm 01934.htm. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 2 THE SECOND WAVE OF SEX OFFENDER LAWS: 1989 – 2008 New Jersey enacted Megan's Law, which required active The past 20 years have witnessed a steady expansion of into a locality. Many of these laws were later emulated legislation around sex offenses in response to a number in states around the country. community notification whenever a sex offender moved of high-profile child abductions, sexual assaults, and murders. Among the most notable of these incidents are 1994: Sex Offense Legislation Attains Federal Level the following: with the Jacob Wetterling Act. In 1994, the federal government responded to the increase in state sex • • In 1989, Jacob Wetterling, age 11, was offense legislation by enacting the Jacob Wetterling kidnapped from his neighborhood in St. Joseph, Crimes Against Children and Sexually Violent Offender Minnesota. No perpetrator was ever charged, Registration Act. This law calls for states to implement a and Jacob has never been found. registry of sex offenders and those convicted of certain Also in 1989, a 7-year-old Tacoma, crimes against children.10 Over the next few years, a Washington, boy was sexually mutilated by a number of key amendments were added as well: sex offender who had been released on bail. • • In October 1993, Polly Klaas, age 12, was 1996: A federal version of Megan's Law sexually assaulted and murdered after being requires states to establish a community kidnapped from her home in Petaluma, notification system. Also, the Pam Lychner California. The perpetrator was a paroled sex Sexual Offender Tracking and Identification offender with a long rap sheet. Act of 1996 requires lifetime registration for In July 1994, Megan Kanka, age 7, was recidivists and offenders who commit certain sexually assaulted and murdered by a convicted aggravated offenses. sex offender after being kidnapped from her • • • 1998: An amendment to the Jacob Wetterling neighborhood in Hamilton Township, New Act calls for stricter registration requirements Jersey. for sexually violent offenders; registration of In February 2005, Jessica Lunsford, age 9, was federal and military offenders; registration of abducted from her Homosassa, Florida home nonresident workers and students; and state and raped by a convicted sex offender. She later participation in the National Sex Offender died after being buried alive in a trash sack. Registry. • 2000: The Campus Sex Crimes Prevention Act In the aftermath of each of these crimes, the state where requires sex offenders to report information the incident occurred responded by passing legislation. regarding enrollment or employment at an In 1990, for example, in the wake of the Tacoma killing, institution of higher education and to provide Washington State passed the Community Protection Act, this information to local law enforcement a comprehensive set of laws that increased prison terms agencies.11 for sex offenders, established registration and notification laws, and authorized civil commitment of sexually violent predators. Similarly, Minnesota implemented a state sex offender registration act in 1991 in response to the abduction of Jacob Wetterling. California passed its “three strikes” law in 1994, largely in response to the murder of Polly Klaas. Also in 1994, 10 Note that Constitutional limits on the power of the federal government prevent it from actually requiring states to implement specific provisions. Instead, it penalizes states that do not comply with these laws by withholding 10 percent of the Justice Assistance Grants it usually provides—an amount that can range from approximately $100,000 (in Wyoming) to $5 million (in California). 11 http://www.ojp.usdoj.gov/BJA/what/2a1jwacthistory.html The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 3 2005: States Follow Florida’s Lead with Tougher government does not have the authority to prosecute a Penalties, More Restrictions. Soon after the murder of person who fails to re-register when moving from one Jessica Lunsford, in 2005, Florida passed what has come state to another. 15 to be known as Jessica’s Law. This law increased As is true of other federal sex offender laws, the minimum sentences and registration and monitoring federal government cannot directly require states to requirements and created restrictions on where sex implement SORNA provisions. Instead, the legislation offenders can live. Thirty-three states have since passed specifies that states that fail to implement its provisions some version of Jessica’s Law. California’s version, within three years of its passage stand to lose 10 percent which is fairly typical, calls for mandatory minimum of their Justice Assistance Grant funds. For many states, prison sentences of 25 years to life for child molesters complying with SORNA guidelines will require when the victim is under the age of 14; the elimination significant legislative changes. of all “good-time” credits (reduced prison terms for good behavior) for sex offenders; lifetime electronic monitoring of convicted sex offenders; and the creation of a 2,000-foot “predator-free” zone around schools and parks.12 Current Issues in Sex Offender Policy SORNA: The Next Wave of Federal Legislation. In The recent wave of sex offender laws has spurred 2006, Congress passed the Sex Offender Registration discussion about the impact of those laws on the and Notification Act (SORNA), which is also known as criminal justice system—especially in light of the drop the Adam Walsh Child Protection and Safety Act, in in crime rates over the last few decades and the public’s memory of a boy who was abducted from a mall and strong support for strict sex offender laws. murdered in 1981. In an indication of the tremendous support for this legislation, both houses passed it on a WHAT IS BEHIND THE RECENT WAVE OF SEX OFFENDER LAWS? voice vote. SORNA further extended the federal government’s influence over the direction and scope of sex offense policy. It called for increased registration requirements for states; it also called for a number of studies (to date unfunded) on sex offender policies.13 Finally, SORNA attempted to create a federal civil commitment program. The viability of this provision may be in doubt, however; at least one federal court has held that such a program is unconstitutional.14 Another SORNA provision may also be in doubt: federal courts in two states have held that the United States There have been numerous efforts to account for the recent wave of sex offender laws—especially in light of the fact that violent crime rates, including those for sex offenses such as rape, have been in decline for 30 years (see figure 1).16 Some sociologists believe that the recent wave of sex offender laws has been the result of a “moral panic,” an exaggerated public response to a perceived threat.17 However, as figure 2 shows, 93 percent of offenses against children are committed by family members and acquaintances; the “stranger danger” crimes, which spurred the creation of most sex 12 Summary from http://www.83yes.com/provisions. Actual initiative language was over 17,000 words long. 13 An excellent resource on this is the National Conference of State Legislatures, http://www.ncsl.org/standcomm/sclaw/sorna.htm. Key provisions of SORNA are included in the appendix. 14 United States v. Comstock, case no. 5:06-HC-02195-BR (E.D.N.C. Sept. 7, 2007). The court ruled that the federal government must meet a higher burden of proof than the states when arguing that civil commitment is an appropriate course of action 15 United States v. Robert D. Powers, case no. 6:07-cr-221-Orl31KRS, U.S. District Court, Middle District of Florida, Orlando Division, April 18, 2008. 16 Shannan M. Catalano, Ph.D., ”Criminal Victimization, 2005,” Bureau of Justice Statistics Bulletin, NCJ 214644, U.S. Bureau of Justice Statistics, U.S. Department of Justice: September 2006. 17 E. Goode and N. Ben-Yehuda, “Moral Panics: Culture, Politics and Social Construction,” Annual Review of Sociology, 20: 1994, 149171. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 4 offense laws, are relatively rare. These observers argue which a parole board (or other entity) exercises that changes in the media—in particular, the rise of 24/7 discretion in determining a person’s release from cable news stations and Internet news sites—have incarceration.19 Figure 2 increased public awareness of sex crimes, with the result Sexual Assault by Age and Type of Offender* that many people now believe that crimes against children are on the rise. According to this viewpoint, Acquaintance Family member policymakers have simply responded to the public’s Figure 1 7.0% Crime Trends, 1975-2005 Victimizations per 1,000 pop. over age 12 9.8% 4.7% Stranger 3.1% 27.3% 60 52.9% Victimizations per 1,000 50 48.3% 58.7% 40 66.0% All violent crime 30 61.1% 20 10 0 42.4% 34.2% Rape, victim 12 and older 48.6% 24.3% 11.5% 1975 - 2005 Adults demand for countermeasures. As one legislator recently they heard on the news, ‘What are you doing about 6 to 11 yrs old up to 5 yrs old Age of victim told a group of researchers, “I can’t go anywhere without someone asking me about some [sex offense] All 12 to 17 juveniles yrs old * Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics, Bureau of Justice Statistics (NCJ 182990), 2000 that?’”18 Some also point out that the first wave of sex offender laws in the United States—the one that Some have speculated that the new determinate occurred between 1937 and 1955—also coincided with a sentences are on average shorter than the flexible major advance in communications, the advent of sentences that preceded them, as the flexible sentences television as a presence in the national media. had made it possible for parole boards to keep high-risk According to another point of view, there in fact offenders in prison for longer periods. The most recent may be more high-risk sex offenders on the streets today wave of sex offender legislation was, in this view, a than in the past, despite the overall decrease in crime response to the increasing numbers of sex offenders rates. Proponents of this view argue that determinate being released from prison. sentencing laws—laws that specifically define the amount of time that a person will serve for a given crime—have created a situation in which some high-risk COSTS ASSOCIATED WITH RECENT SEX OFFENDER POLICIES sex offenders are released earlier than they would have The recent wave of sex offender policies has not been been under prior indeterminate sentencing systems in cheap. The average annual operating cost per state 18 Lisa L. Sample and Colleen Kadleck, “Sex Offender Laws: Legislators’ Accounts of the Need for Policy,” Criminal Justice Policy Review, 19: 2008, 40-62. 19 W. Lawrence Fitch and Richard J. Ortega, “Law and the Confinement of Psychopaths,” Behavioral Sciences and the Law 18: 665-678. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 5 inmate (any offense) in 2001 was $22,650; in 2005, 23 approximately 48 percent for all offenses.24 Another states and the federal system were operating at or above study found that people arrested for sexual offenses had 20 capacity. And even alternatives to incarceration like a five-year offense-specific re-arrest rate (the rate at electronic monitoring carry significant equipment and which they were re-arrested for the same crime within supervision costs (around $10 - $14 per offender per day five years) of 6.5 percent. Only people arrested for for equipment alone, according to one recent state homicide had a lower five-year offense-specific re-arrest 21 report ). In addition, some states have had to hire rate (5.7 percent); the rates for robbery, burglary, and additional staff to track down offenders who are not in public order offenses were 17.9 percent, 23.1 percent, compliance with registration requirements. and 21.4 percent, respectively.25 A 1994 study by the In combination with other financial pressures, these U.S. Department of Justice found that 24 percent of sex costs have placed some state budgets under serious offenders were convicted of another crime (including strain. In Nevada, for example, the state prison director but not restricted to sex offenses) within three years; in recently told the press that the state needs emergency contrast 46.9 percent of all offenders were convicted of funding to meet legislative mandates for sex offender another crime within this period.26 registration.22 And in California, higher incarceration Some observers have expressed caution about rates, increased supervision, and the growth of civil drawing conclusions from such findings. In particular, confinement as a result of Jessica’s Law are costing the some have suggested that the underreporting of sex state hundreds of millions of dollars. As a result, many offenses complicates efforts to form an accurate picture policymakers are being forced to re-evaluate some of the scope of sexual re-offending.27 In addition, there recent sex offender laws. has been little research on recidivism rates for people convicted of non-violent (but registerable) sexual SEX OFFENDERS AND RECIDIVISM offenses such as possessing child pornography or Many sex offender policies are predicated on the soliciting an underage prostitute. assumption that re-offense rates for sexual offenses are Recidivism rates also appear to differ between higher than those for other felonies. The text of different categories of sexual offenders. One study found California’s version of Jessica’s Law, for example, that people arrested for rape had the highest offense- states that “sex offenders have very high recidivism specific re-arrest rate (5.8 percent) of any category of rates…dramatically higher…than any other type of sexual offender.28 Researchers have been investigating violent felon.”23 the characteristics of the “prototypical sexual recidivist.” However, there is a significant body of research that appears to contradict this proposition. One recent study The authors of one recent meta-analysis characterized such people as “not upset or lonely.” Rather, they wrote, found that sex offenders had a five-year recidivism rate of 24.5 percent for all offenses and a 2.8 percent recidivism for sexual offenses; in contrast, other felony offenders had a five-year recidivism rate of 20 James J. Stephan, “State Prison Expenditures, 2001,”Bureau of Justice Statistics Bulletin, 2004: NCJ 202949; Paige Harrison and Allen Beck, “Prisoners in 2005,” Bureau of Justice Statistics Bulletin, 2006: NCJ 215092. 21 “Electronic Monitoring of Sex Offenders: 2006 Report to the Legislature,” Minnesota Department of Corrections, February 2006. 22 Brendan Riley, “Nevada Prison System Needs Funds to Track Sex Offenders,” The Nevada Appeal, April 8, 2007. 23 “Official Voter Information Guide, California General Election, Tuesday November 7, 2006.” 24 “Sentencing in Washington State: Recidivism Rates,” Washington State Institute for Public Policy, Document No. 05-08-1203. 25 Lisa L. Sample and Timothy M. Bray, “Are Sex Offenders Dangerous?” Criminology and Public Policy, 3, no. 1: 59-82. 26 Patrick A. Langan et al., “Recidivism of Sex Offenders Released from Prison in 1994.” Bureau of Justice Statistics: 2003; U.S. Department of Justice, Bureau of Justice Statistics, “Recidivism of Prisoners Released in 1994: Reports on the Rearrest, Reconviction, and Reincarceration of Former Inmates Who Were Tracked for Three Years After Their Release from Prisons in 15 States in 1994,” NCJ 193427: 2002. 27 Bob Edward Vásquez, Sean Maddan and Jeffery T. Walker, “The Influence of Sex Offender Registration and Notification Laws in the United States,” Crime and Delinquency 54, no. 2 (2008): 175-192. 28 Lisa L. Sample and Timothy M. Bray, “Are Sex Offenders Different?” Criminal Justice Policy Review 17, (2006): 83-102. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 6 the prototypical sexual recidivist “leads an unstable, policymakers will be forced to craft policies without a antisocial lifestyle and ruminates on sexually deviant clear definition of success. 29 themes.” There are a number of risk assessment tools that can help identify such high-risk offenders—a topic that is discussed in greater depth in the companion to this report, Treatment and Reentry Practices for Sex 30 PUBLIC MISPERCEPTIONS ABOUT SEXUAL OFFENDING There is some evidence that the general public, in spite of its strong support for tough sexual offense laws, is not Offenders: An Overview of States. well-informed about the nature and extent of sexual STRONG PUBLIC SUPPORT FOR STRICT SEX OFFENDER POLICIES offending. One recent study, which compared survey Whatever is behind the most recent wave of sex offender significantly overstates both the rate at which convicted laws, it is clear that there is strong public support for sex offenders re-offend and the proportion of sexual strict policies. California’s version of Jessica’s Law, assaults that are committed by strangers (see figure 3, which was created by citizen initiative, passed in 2005 below). These findings led researchers to conclude that with 70 percent of the vote. A 2006-2007 telephone public misperceptions “present a clear challenge to survey of American adults found that 94 percent of policymakers seeking to create empirically based respondents felt that tough punishment for sex policies that meet the public’s expectations.”32 responses with published data, found that the public offenses—especially those that involved children— Figure 3 should be a “top national priority for state and federal policymakers.” Most survey Survey Question Published Public Data Average respondents also supported making the names What percentage of sexual assaults of adults do you believe were committed by strangers? 27% 49% What percentage of sex offenders do you 36% believe come to the attention of the authorities? 46% What percentage of adult sexual offenders do you believe were sexually abused as children? 28% 67% What percentage of convicted sex offenders do you believe will commit another sexual offense? 14% 74% What percentage of rapists do you believe reoffend in a sexual manner? 20% 74% What percentage of child molesters do you believe re-offend in a sexual manner? 13% 76% and addresses of sex offenders publicly available; placing restrictions on where sex offenders can live; and incarcerating those convicted of sexual assault, rape, indecent exposure to a child, or accessing or distributing child pornography.31 The one area of public opinion on sex offender policies that could be more fully examined is recidivism. What does the public consider to be an acceptable recidivism rate for sex offenses involving children? And does this rate differ from the acceptable recidivism rate for sex offenses against adults? Without a clear understanding of the level of risk that Americans are willing to accept, 29 R. Karl Hanson and Kelly E. Morton-Bourgon, “The Characteristics of Persistent Sexual Offenders: A Meta-Analysis of Recidivism Studies,” Journal of Consulting and Clinical Psychology 73: No. 6, 2005: 1154-1163. 30 Reagan Daly, Treatment and Reentry Practices for Sex Offenders (New York: Vera Institute of Justice, 2008). 31 Daniel P. Mears, Christina Mancini, Marc Gertz, and Jake Bratton, “Sex Crimes, Children and Pornography: Public Views and Public Policy,” Crime and Delinquency Feb. 2008: online only. 32 Timothy Fortney, Jill Levenson, Yolanda Brannan, and Juanita N. Baker, “Myths and Facts about Sexual Offenders: Implications for Treatment and Policy,” Sexual Offender Treatment 2, No. 1: 2007. Answers were obtained from people waiting in line at the Florida Department of Motor Vehicles. It should be noted that the most commonly given public answer (mode) for percent of offenders that recidivate was 90 percent. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 7 Sentencing 1993 and 2000 was accompanied by a drop in sex crime rates during the same period.34 The claim that these two SUMMARY developments are related is fairly widespread. However, The increase in sentence severity over the past 20 years this statistic has not been confirmed with empirical data, isn’t unique; rather, it’s part of a broader public policy and it remains unclear what (if any) causal relationship shift that has occurred in the United States. For sex exists between tougher sentences and the drop in sexual offenses, the shift has resulted in more people being offense rates. In fact, some recent research suggests that incarcerated for longer periods of time for a wider range the incarceration of sexual offenders has little or no of crimes. Some victim advocates feel that long impact on sexual and violent recidivism following mandatory sentences increase plea bargaining and release.35 This in turn suggests that any positive impact reduce crime reporting; court innovations and costs may of tougher sentences is probably due to those sentences’ drive future sentencing trends. incapacitating function and possibly due to their deterrent effect. OVERVIEW Opposition to tougher sentencing policies has come Over the last decade and a half, the use of mandatory from some unexpected quarters. In Connecticut, for minimum sentences for sex offenders has grown example, Connecticut Sexual Assault Crisis Services considerably. While efforts to create “three strikes” rules Inc., a statewide coalition of community-based rape and impose tougher sentences were widespread crisis programs, published an opinion piece in April throughout the 1980s and 1990s, the package of policies 2008 opposing three strikes legislation on the ground that is known as “Jessica’s Law,” the first version of that it may lead to reduced victim reporting. Executive which was passed in Florida in 2005, has recently Director Nance Kushins wrote that “many victims reinvigorated the push for longer mandatory minimum wanted the person they trusted or loved to get help, not sentences. Florida’s law more than doubled the for the offender to spend a mandated lengthy or life mandatory minimum sentence for sex offenses against sentence behind bars.”36 The National Alliance to End children; 33 states have now passed some version of the Sexual Violence has expressed concern about mandatory law. It appears that high-profile cases, rather than an minimum sentences. According to a recent position increase in crime, have been responsible for the most paper, mandatory minimum sentences may lead recent push for tougher sex offender sentences: prosecutors to not file charges, to file charges for a government figures show the rate of sexual assaults lesser crime, or to reduce the charges as part of a plea against adolescents between the ages of 12 and 17 bargain. They may also discourage those who have been plunged 79 percent from 1993 through 2003, and the assaulted by someone they know from reporting the number of substantiated sex-abuse cases involving crime.37 children of all ages fell 39 percent in the same period.33 TRENDS AND IMPACTS The impact of longer sentences, three strikes rules, and lifetime supervision has not yet been rigorously evaluated. It is clear that the 400 percent increase in convictions for sex offenses that took place between 33 Wendy Koch, “Despite High Profile Cases, Sex Offense Crimes Decline,” USA Today, Aug. 24, 2005. 34 “Sex Offenders: Will Tough New Laws Do More Harm Than Good?” CQ Researcher 16, no. 31: 2006, 721-744. 35 Kevin L. Nunes, Philip Firestone, Audrey F. Wexler, Tamara L. Jensen, and John M. Bradford, “Incarceration and Recidivism Among Sexual Offenders,” Law and Human Behavior 31, no. 3: 2007, 305-318. 36 Nancy Kushins, “Why Three-Strikes Could Harm Sex Assault Victims,” Hartford Courant, April 25, 2008. 37 “Community Management of Convicted Sex Offenders: Registration, Electronic Monitoring, Civil Commitment, Mandatory Minimums, and Residency Restrictions,” Position Paper by the National Alliance to End Sexual Violence, http://www.naesv.org/Policypapers/communitymanagementofconvict edoffenders.html. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 8 A study of Utah’s mandatory prison sentences as the difference in age between the two parties falls appears to corroborate such claims: Of 905 cases that within a defined range (usually three to four years). began the judicial process with a mandatory prison Another recent sentencing development that runs charge for a sex offense, 791 continued forward with at counter to the trend toward tougher sentencing is the least one charge that was not dismissed. Of these 791 launch of sex offender courts modeled after other cases, over one-third had sentences that were reduced or problem-solving courts (such as drug and mental health 38 dismissed, often through a plea bargain agreement. courts). In 2006, the New York State Unified Court Utah rescinded several mandatory minimum sentences System became the first jurisdiction in the nation to pilot for sex crimes against children in 1996, thus bucking the sex offender courts. In these courts, defendants are national trend. A recent report by the state’s sentencing placed under an extensive monitoring regime that commission concluded that doing so has since made it involves multiple meetings with the judge. The judge is possible for the state to handle sex offenders on a case- assisted by a specially trained team of prosecutors, by-case basis, thus incarcerating high-risk offenders defense attorneys, victim agencies, probation officers, without holding low-risk offenders longer than public treatment providers, and court personnel. This team safety demands. undergoes a comprehensive training program and People who have been convicted of a violent sex participates in regular interagency meetings to ensure offense are not the only ones who have felt the impact of that cases are resolved in a timely manner, victims and sentencing changes. Many states also require people the public are safe, and that offenders are held who are convicted of misdemeanor sex crimes to register accountable post-conviction.39 These courts are currently as sex offenders. While registration (and the community being expanded and evaluated. notification and residency restrictions that usually go with it) are not considered punitive, as future sections discuss, they can have a significant impact on a person’s life. Although this may be appropriate for serious offenders, lawmakers may want to consider the policy implications around legislating short sentences with prolonged registration requirements. Policymakers interested in equity will want to avoid sending such mixed messages. Sex offender sentencing appears to be tempering with respect to so-called “Romeo and Juliet” offenses, however. Following the highly publicized case of a young man who was incarcerated following consensual oral sex with a teenage girl, several states, including Connecticut, Florida, Indiana, and Texas, have begun to reduce sentences for statutory sex crimes. Usually, these new laws do not consider the act to be an offense so long CONCLUSION While the impact of longer sentences and “three strikes” legislation on public safety remains a subject of debate, there is no question that the fiscal impact will be significant. Prison populations and costs are rising at a time when many states are struggling to balance their budgets. California’s version of Jessica’s Law, which was enacted as a citizen initiative, received 70 percent of the vote, despite ballot language stating that the initiative could cost the state several hundred million dollars—even without taking prison construction costs and the cost to local governments into account. It remains to be seen whether the public and policymakers will pull back their support for tougher sentences if the correctional costs associated with mandatory minimums continue to rise. On the other hand, it is possible that the deterrent 38 “Case Processing Analysis: Utah’s Mandatory Prison Sex Offenses,” Utah Sentencing Commission. The report notes that the data system does not explicitly identify instances of plea negotiations but looks for evidence of such in terms of charge reduction and dropping. effect of mandatory minimums—particularly in conjunction with the other stringent sex offender laws 39 http://www.courtinnovation.org/upstateinnovation.spring06.html. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 9 outlined elsewhere in this report—will result in fewer increasing residency restrictions and shorter periods in new arrests and, consequently, lower incarceration costs. which they must report changes. State costs for tracking In addition, civil commitments following prison these missing offenders will continue to rise. sentences (discussed in detail below) are further incapacitating high-risk offenders. In order to keep their OVERVIEW civil commitment programs constitutional, states may be As noted in the discussion of the history of sex offender forced to beef up their prison treatment programs to laws, a number of states had local sex offender registries demonstrate a “good faith effort” at rehabilitation. Such prior to 1994, when the federal government set forth treatment programs would likely reduce the number of guidelines for state sex offender registries in the Jacob sex offenders who re-offend after being released. Wetterling Act. Today, sex offender registries are used Given the high costs of civil commitment (four in all 50 states.40 In addition, all 50 states make some times that of prison) and the possibility of continuing portion of registry data available to the public, omitting legal challenges to the practice, legislators will likely data that might be used fraudulently (such as social look for other ways to incapacitate high-risk offenders. security numbers) or that might identify victims. Longer mandatory sentences or very long indeterminate sentences that give parole boards significant latitude STATE TRENDS with high-risk offenders are two obvious alternatives. All state registries are now electronic and feature More prison-based treatment, which could alleviate the information that makes it possible to identify the need for longer sentences, is another. New York’s offender and his or her place of residence. Regulations problem-solving sex offense courts are worth watching, specifying how often this information must be updated too: if they have positive outcomes similar to those of and what kinds of information must be submitted vary the drug, family, and mental health courts on which they from state to state and according to the seriousness of a are modeled, it could lead to a significant shift in the person’s offense. In general, recidivists and aggravated way sex crimes are treated in the future. offenders are subject to stricter registration requirements. Many states mandate registration for a variety of non-violent offenses as well. Sex Offender Registries As is true of other aspects of sex offender policy, the registration of sex offenders has been challenged in SUMMARY the courts. Many contested cases have involved people All 50 states now have electronic sex offender registries who were required to register as sex offenders despite that connect with the Dru Sjodin National Sex Offender not having been convicted of a specifically sexual Registry. While registries have a small positive impact offense. For example, one New York man who had pled on recidivism by offenders who know their victims, they guilty to second degree kidnapping for his role in a appear to have virtually no impact on crimes against gang-related crime involving a 16-year-old was told that strangers. New federal guidelines broaden the range of he would have to register as a sex offender years after offenses for which an offender must register, increase completing his sentence. The man’s attorney the amount of personal data collected on offenders, and create a system of tiers based on offense, rather than dynamic risks. Some states include people convicted of non-violent crimes in their registries. Rates of registration noncompliance are rising as registrants face 40 Because of their status as sovereign nations and the lack of a financial incentive such as justice assistance grants, few Indian tribes have implemented sex offender registries on their reservations. However, SORNA states that either tribes must implement a tribal registry or the state or states in which they are located will be given jurisdiction to do so. A number of tribes applied for and received grants to create or update their registries in spring 2008. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 10 successfully contested his registration. However, in a and Notification Act (SORNA), will increase the separate case (also in New York), a judge ruled that it is registration requirements for many states that wish to for legislators, not the judiciary, to determine whether remain in compliance with federal guidelines (and 41 kidnapping should be a registerable offense. In general, sex offender registries are not therefore remain eligible for full federal funding of Justice Assistance Grants). These new guidelines are considered punitive; if they were, it would be impossible listed in the appendix of this report. Among the most to impose additional registration requirements on people notable changes in registration requirements are the who had already been sentenced or who had already following: served a prison term, as the additional registration requirements would then qualify as ex post facto new • Reduces from ten to three the number of days in punishments. There are a few notable exceptions, which authorities must be notified of a change though: in one case, the Missouri Court of Appeals ruled of address or other status and requiring that this that the state was wrong to require people whose be done in person; convictions pre-dated the state’s registration law to • forms of communication they might use register as sex offenders. A Kansas court issued a similar 42 (especially forms of electronic communication); ruling in 1996. While much of the recent growth in the use of sex Requires offenders to submit information on all • Requires offenders to submit additional offender registries has followed federal guidelines, a few personal information, such as a full criminal states have acted on their own by imposing additional history and additional biometric identifiers; registration requirements. For example, some states • Creates different tiers of offenders based on the require offenders to provide all electronic identities and nature of the offense and defines registration addresses. Also, several states are looking into special requirements for each tier; registration requirements for sex offenders living in • Requires the registration of juveniles whose offense is comparable or more serious than the mobile homes. federal offense of aggravated sexual abuse. FEDERAL GUIDELINES The 1994 Jacob Wetterling Act requires states to register It is expected that these requirements will impose an any offender who has been convicted of a sexually additional burden on law enforcement. In addition, it is violent offense, as well as any person who has been likely that employment obligations and transportation convicted of certain crimes involving a child victim. (See sidebar for definitions of terms.) There is a minimum registration requirement of 10 years for all registrants. Recidivists and sexually violent predators are lifetime registrants. All states currently comply with these requirements. The Adam Walsh Child Protection and Safety Act of 2006, also known as the Sex Offender Registration 41 Ofer Raban, “Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders,” William & Mary Bill of Rights Journal 16: 2007. Raban also discusses the data upon which the decision was made to include kidnapping as a registerable sex offense, and concludes that proponents of registration overstated the percentage of kidnappings that involved a sex offense. 42 State v. Myers, 260 Kan. 669 (1996). The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 11 issues will make it difficult for some offenders to satisfy stricter and more frequent in-person reporting requirements.43 ANALYSIS OF IMPACTS Evidence suggests that the registration of sex offenders Frequently Used Terms, U.S. Code Title 42, Chapter 136, Subchapter VI, § 14071: Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program Sexually violent offense A criminal offense that includes sexual abuse (forcing an individual to engage in a sexual act either by threat or because the individual is unable to consent due to mental or physical incapacity), or aggravated sexual abuse (forcing an individual to engage in a sexual act by use of force or threat thereof). Sexually violent predator A person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. Predator An individual who seeks out victim who is a stranger, or who establishes or promotes a relationship with another person for the primary purpose of victimization. Criminal offense against a minor Any of the following offenses when it involves a minor: • Kidnapping or false imprisonment, except by a parent • Criminal sexual conduct • Solicitation to engage in sexual conduct or practice prostitution • Use in a sexual performance • Any conduct that by its nature is a sexual offense • production or distribution of child pornography Required to register All those convicted of a sexually violent offense or criminal offense against a minor are required to register. Sexually violent predators must register for life. is not correlated with a significant increase in public safety. Most recent studies have combined sex offender registration laws with community notification laws, making it difficult to ascertain the impact of each set of laws individually. However, one recent paper has attempted to address this issue by examining those states that, for a period of time, had registration requirements 44 but did not make registry information public. Looking at crime data from the National Incident-Based Reporting System, researchers found that registration laws alone did reduce recidivism. However, this reduction was confined primarily to offenders who lived near their victims and knew them as family or friends— perhaps, the researchers hypothesized, because law enforcement is better at monitoring these types of offenders.45 There was no evidence of a decrease in crimes against strangers as a result of registration—a striking result, given that most recent registration laws were enacted in response to crimes committed by one state, the number of rapes increased. They strangers. concluded that registration had no net effect on rapes. Another study compared the number of reported However, they also noted the possibility that any rapes before and after the implementation of sex offender registration and notification laws in 10 states. deterrent effect of registration may have been offset by The authors found that in six of these states, there was increased attention to offenders by law enforcement no statistically significant change; in three states, there (resulting in more arrests). If true, this would mean that was a decrease in the number of reported rapes; and in the registration requirement is serving a dual public 46 safety function which is not reflected by the statistics. 43 These problems are likely to be exacerbated by residency restrictions, which have pushed many registered offenders into rural areas and urban areas isolated from public transportation. See the section on residency restrictions for further discussion. 44 JJ Prescott and Jonah E. Rockoff, “Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?” National Bureau of Economic Research Working Paper No. 13803 (http://www.nber.org/ papers/w13803): 2008. 45 The authors considered the possibility that lower reporting rates (as opposed to fewer offenses) might be responsible for this decrease: victims (and the parents of child victims) might not want the offender to have to register for a variety of reasons. However, they felt that this alone could not account for the decrease in recidivism. 46 “The Influence of Sex Offender Registration and Notification Laws in the United States.” In a 2006 study, the Washington Institute for Public Policy compared the recidivism rates among registered sex offenders who followed the registration requirements and those who failed to do so. They found that sex offenders with a failure-to-register conviction had sex offense recidivism rates that were 50 percent higher than those of people who had complied with registration requirements (4.3 percent recidivism for those who did not register versus 2.8 percent for those The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 12 who did). In addition, the recidivism rate for all felony “failed to provide support for the assumption that offenses increased from 22.9 percent for those in juvenile sex offending was a harbinger of adult sex compliance with registration requirements to 38.5 offending . . . in Racine it would be just as efficient to 47 percent for those that were not. The relationship create a ‘potential sex offender registry’ composed between these findings and the efficacy of registration solely of young men with juvenile contacts for auto remains unclear, as does the role of additional factors theft.”49 (such as differences in offender characteristics). There has been relatively little research into the CONCLUSION question of whether juvenile sex offenders are likely to Sex offender registries appear to be most effective as become adult sex offenders—despite the fact that monitoring tools for law enforcement (as distinct from SORNA calls for the mandatory registration of some their use as tools for notifying the general public about juvenile offenders. Much of the evidence that does exist the presence of sex offenders in the community—a topic suggests that the connection between juvenile and adult that is discussed in the next section.) In addition, while sex offending is tenuous. One recent study examined most registered sex offenders are first-time offenders— recidivism rates for incarcerated juvenile sex offenders, and most will not re-offend—there is some evidence that and found that only five percent of incarcerated juvenile sex offender registries slightly reduce the number of sex offenders were re-arrested for another sexual offense sexual re-offenses against victims who are known to the within 10 years. However, the study also found that offender. incarcerated juvenile sex offenders were re-arrested for The Washington Institute for Public Policy’s finding non-sexual offenses at fairly high rates (between 31 and that sex offenders with a failure-to-register conviction 47 percent, depending on the severity of the original have higher recidivism rates suggests that policymakers offense).48 Another study examined people born in and law enforcement alike should be concerned about Racine, Wisconsin, in the 1940s and 1950s. Researchers relatively high rates of non-compliance with registration found that among juveniles with a felony sex offense requirements. (A report by Parents for Megan’s Law, a (the type of offense that what would likely lead to nonprofit victims’ rights group, found that on average, mandatory registration under SORNA), 15.4 percent of 24 percent of registered sex offenders fail to comply boys and 11.1 percent of girls went on to have an adult with registration requirements, with the result that record of contact with the police for sexual misconduct. authorities do not have accurate addresses for these As it turned out, though, having any juvenile record of people.50) Many states have indicated that they don’t contact with the police—and in particular, a record of have the resources to track down offenders. The state of multiple contacts with the police—was a much better Florida, for example, which has a comparatively high predictor of adult sex offending. Conversely, only four rate of compliance with registration requirements, has 11 percent of males with an adult record of contact with the full-time employees charged solely with tracking down police for sexual misconduct had a record of juvenile non-compliant registrants.51 sex offenses. The authors concluded that these findings 47 Robert Barnoski, “Sex Offender Sentencing in Washington State: Failure to Register as A Sex Offender, Revised,” Washington State Institute for Public Policy Document No. 06-01-1203A. 48 Dennis Waite, Adrienne Keller, Elizabeth L. McGarvey, Edward Wieckowski, Relana Pinkerton and Gerald L. Brown, “Juvenile Sex Offender Re-Arrest Rates for Sexual, Violent Nonsexual and Property Crimes: A 10-Year Follow-Up,” Sexual Abuse: A Journal of Research and Treatment 17, no. 3: 2005, 313331. 49 Franklin E. Zimring, Alex R. Piquero and Wesley G. Jennings, “Sexual Delinquency in Racine: Does Early Sex Offending Predict Later Sex Offending in Youth and Young Adulthood?” Criminology and Public Policy 6: no. 3: 507-534. 50 http://www.parentsformeganslaw.org. Please note that the methodology for this report was unavailable. 51 Garrine P. Laney, “Sex Offender Registration and Community Notification Law: Recent Legislation and Issues,” Congressional Research Service Report to Congress, 2007: doc. Code RL32800. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 13 Policymakers need to consider the possibility that increasing the frequency with which offenders are required to update their registration in person may result about the effects of registration and community notification on juvenile offenders. It is possible that new technologies will render many in increasing the number of offenders who fail to of these questions moot: At bottom, registration exists to comply, given the many practical obstacles to registering help keep track of an offender’s whereabouts. Electronic in person. The same holds for imposing stiffer residency monitoring (discussed in detail below) could eventually restrictions and increasing public access to registration provide law enforcement with a way of knowing not just information, both of which have been shown to where an offender should be, but where he or she negatively impact offenders’ ability to maintain a life in actually is—in real time. However, as we explain below, the community. this technology does have some drawbacks; in addition, To clarify these issues, it will be necessary to learn because electronic monitoring data is not currently more about the differences between those who do and available to the public, registration may still be those who do not comply with registration requirements: necessary for purposes of community notification. Are those who don’t register less likely to be in However, it may turn out that electronic monitoring treatment? Are they more likely to be homeless or makes more sense—especially for high-risk offenders— jobless? Are they more likely to have a serious mental than an intensive registration regimen with which illness or to abuse drugs or alcohol? Are they more offenders find it difficult to comply. likely to have committed a more serious offense? Only with more research will it become possible to determine whether the apparent trade-off between better data on Community Notification those who comply with registration and fewer complying registrants is a positive one. Also of concern are the additional expenses states SUMMARY Community notification makes people feel more secure; are likely to incur by penalizing people who are non- many indicate that, after being notified that a sex compliant with tougher registration laws. In one recent offender is moving into their neighborhood, they take case, a Texas man was sentenced by a jury to 55 years in actions to keep themselves and their families safe. prison for failing to notify authorities of a change in However, evidence is mixed on notification’s address within one week. (He missed the deadline by a effectiveness in reducing sex offenses. One study few days.)52 Because SORNA calls for registrants to showed it had a deterrent effect on would-be offenders, update address information within three days, it may and another showed reduced recidivism in that state, force states to choose between not enforcing the law and albeit during a time of increased participation in re-incarcerating offenders who are otherwise law- community-based treatment and reduced recidivism for abiding. all sex offenders, including those not subject to Finally, the recent push toward registration of community notification. Administering a community juveniles needs to be carefully evaluated. Youth differ notification system can easily become a real burden for from adults in many respects, and very little is known law enforcement and probation and parole officers. In addition, notification has a destabilizing effect on offenders; in some cases, it has even resulted in 52 James Burt Breeden v. The State of Texas, no. 05-06-00862-CR, 2008 Texas App. LEXIS 2150. The offender had one prior conviction of failure to register, which enhanced his sentence. Also at issue was whether living in a car in the parking lot of the apartment building that was his registered address constituted a change of address; the court ruled that it did. vigilantism against them. In at least one state, the public appears to have become somewhat more tolerant of offenders living in the community, which may mitigate some of the negative impacts of notification. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 14 OVERVIEW that feature some portion of the information contained in Community notification policies were developed in the sex offender registries. In addition, some states (such as belief that citizens would be better able to protect Louisiana) require offenders to go door to door to themselves if they could identify convicted sex identify themselves and provide information about their offenders in their communities. Similarly, it was background, while other states (such as North Carolina) assumed that offenders would be more likely to be law- have a passive notification system, wherein information abiding if they knew they were being watched. The is only provided when a community member requests it. practice of community notification traces its origin to Many states also calibrate their community-notification Mountlake Terrace, Washington, where, in 1989, a efforts according to the risk-level of individual police chief decided to notify his community about the offenders, indicated by a standardized risk assessment imminent release of a sex offender who, while in prison, tool. An offender who has been assessed as high-risk, had documented plans to sexually molest school for example, might then become the focus of a robust children. This act was followed in 1990 by state community notification effort that includes contacting legislation that formalized the practice of community the local media and distributing notices to parents with notification. children in local schools. See the appendix of this report At the federal level, the Jacob Wetterling Act authorized states to voluntarily implement community for more detailed description of state statutes. The nature and amount of information that is notification laws in 1994. In 1996, the Act was amended provided through community notification also varies to create Megan’s Law, which penalizes states that do from state to state. Rhode Island, for example, does not not implement community notification laws by provide information on low-risk offenders on its web withholding federal funding. As a result, all 50 states site, while Colorado only provides online information on now practice community notification—though the recidivists and sexually violent predators. Some states threshold at which notification is required in any given only indicate the block or general vicinity in which a sex case can vary considerably from state to state. offender lives (as opposed to providing a precise Generally, community notification laws have been upheld as constitutional; the courts have said that these laws simply make it convenient for community members address) in an effort to prevent harassment and vigilantism. A number of states recently have taken steps that go to access information that is already publicly available. considerably beyond federal requirements. In Maryland, However, in April 2008, the Missouri court of appeals new laws require officials to notify the superintendent of ruled not only that people who were convicted of sex any school district to which a sex offender moves; the offenses prior to 1995 (when that state’s registration law superintendent, in turn, is required to send notices to the was enacted) were not required to register, but also that principals of all schools within one mile of the sex the state police were prohibited from publishing offender’s home. In Illinois, people with children who photographs and other identifying information marry or cohabitate with a sex offender who is not the concerning such people on the state sex offender parent of the children are required to notify the child’s 53 website. other parent; being married to or cohabiting with a sex offender can then be used as grounds for a modification STATE TRENDS Community notification models can vary considerably from state to state. All states now have public web sites 53 Jane Doe v. Thomas Phillips, Missouri Court of Appeals Western District, Case Number: WD68066: April 1, 2008. of custody arrangements.54 54 This may not technically constitute community notification, but it is worth noting as a policy that is likely to have an impact on recidivism; this is because children are much more likely to be sexually abused by someone they know, such as a stepparent or family friend, than they are by a stranger in a schoolyard. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 15 Finally, a number of states have introduced e-mail for a period of four-and-a-half years; after controlling and telephone notification systems. In these states, for a number of variables, researchers concluded that people can ask to receive electronic notices or calls from extensive community notification had no direct effect on the local sex offender registry whenever a sex offender whether offenders were recommitted to prison. moves into their neighborhood. Some alerts provide A 2005 Washington State study that examined the detailed information; others refer those who want to impact of community notification and registration learn more to the state web site. statutes did find a significant reduction in felony sex offense recidivism between the late 1980s (seven FEDERAL GUIDELINES Megan’s Law, passed in 1996 as an amendment to the Jacob Wetterling Act, authorized each state to develop procedures to notify citizens when sex offenders are released into the community. The SORNA legislation of 2006 makes explicit how states should implement notification. It directs states to provide information on sex offenders to law enforcement agencies; any school attended by the offender; any school that employs the offender; any public housing agency where the sex offender resides; each law enforcement jurisdiction where the sex offender resides, goes to school, or works; and within the offender’s local jurisdiction, any agency responsible for conducting employment-related background checks, any social service entities that are responsible for protecting minors in the welfare system, any volunteer organizations where contact with minors or other vulnerable people is possible, and any organization, company, or person who has asked to be notified pursuant to procedures established by the jurisdiction. SORNA also directs states to provide the public with information on sex offenders through the Internet (specifically through the National Sex Offender public web site) or by contacting a law enforcement official in the jurisdiction where the sex offender is registered. percent) and 1999 (two percent). However, for a number of reasons researchers were not able to establish a causal link between the reduction in recidivism rates and notification and registration laws. For one, both Washington State and the nation as a whole experienced an overall drop in crime rates in the period under study. Researchers also noted that high rates of incarceration during the study period had incapacitated many sex offenders and likely accounted for part of the observed reduction in recidivism rates. Finally, researchers found that the metrics used to determine the degree of community notification in any given case were not accurate predictors of recidivism.55 Studies that have examined the impact of community notification in isolation from registration suggest that notification laws have a deterrent effect. In other words, while the prospect of being subject to community notification if convicted of a sex offense may not reduce recidivism among convicted offenders, it probably does discourage some would-be sex offenders. A recent retrospective study of Minnesota’s community notification program shows a significant decrease in sexual recidivism (but not general recidivism, which made up the bulk of re-offending) following the implementation of their version of Megan’s Law. It is difficult to draw conclusions that could be applicable nationwide, however. First, there was a large drop in ANALYSIS OF IMPACTS Although there have been numerous studies of the impact of community notification on recidivism, the evidence is inconclusive. One study, for example, recidivism both for those subject to registration and those who weren’t; it was unclear what aspects of their community notification program resulted in decreased recidivism; and there was an increase in the availability tracked all adult male sex offenders released from prison in Wisconsin between September 1997 and July 1999 55 “Sex Offender Sentencing in Washington State: Has Community Notification Reduced Recidivism?” Washington State Institute for Public Policy, Doc. No. 05-12-1202: 2005. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 16 of treatment during the same period of time which highest risk sex offenders will make citizens pay less couldn’t be controlled for. More research on this attention to the risks posed by other sex offenders, such significant drop in recidivism will not only tease out as those who may be known to and trusted by the what aspects of community notification are worth victim.” Most respondents felt that notification focusing on in the future, but also allow policymakers to requirements should apply to juvenile offenders as well examine the role treatment may be able to play in as adult offenders.58 reducing sexual re-offenses.56 It appears that there is a link between community Another survey asked members of the public what information about sex offenders they believed they notification and individual protective behavior on the should have access to. Over half said that a photo of the part of the public. A recent study conducted in several offender should be made available and that the public states found that people who were actively notified that a should know the offender’s name; the age of any sex offender had settled in their community (e.g., those victims; the offender’s HIV/AIDS status; the make and who were notified by a telephone call, an email alert, or model of the offender’s vehicle, along with its license offenders who were required to introduce themselves plate number; the offender’s home address; and the door-to-door) were more likely to take steps to protect identity of anyone the offender lives with. Less than half themselves and their family members. In states where believed the public should have access to the address of notification was passive (where it was up to the the offender’s employer; the offender’s home phone individual to obtain information about sex offenders in number; or the offender’s fingerprints. Three percent did his or her community, typically by visiting a web site), not believe that the public should have access to any of researchers did not observe any increase in protective this information. Over three-fourths believed that all sex behavior. Researchers were careful to point out that offenders should be subject to the same notification increases in individual protective behavior do not procedures.59 necessarily lead to lower rates of sexual victimization.57 Still other studies have examined attitudes toward Taken together with the fact that most sexual offenses community notification among law enforcement (and re-offenses) involve perpetrators and victims who personnel. A Wisconsin study found that while most know each other, this observation suggests that police officers believed that the registration process had community notification that promotes individual made it easier to share information among different law protective behavior may only result in a small reduction enforcement agencies, most were skeptical of the in the overall rate of sexual victimization. benefits of community notification. Two-thirds There have been several studies of public attitudes expressed concern about the amount of work that was toward community notification. Researchers at the required by the community notification system; in fact, Washington State Institute for Public Policy found that many felt it was an “unfunded mandate” that increased 78 percent of Washington residents surveyed said they their workload.60 The same researchers who surveyed felt safer knowing about convicted sex offenders in their law enforcement officers in Wisconsin also surveyed communities; about 80 percent considered the probation and parole officers in that state. They found notification law to be important. However, 40 percent were concerned that “alerting the community to the 56 Grant Duwe and William Donay, “The Impact of Megan’s Law on Sex Offender Recidivism: The Minnesota Experience,” Criminology 7, No. 2: May 2008, 411-446. 57 Victoria Simpson Beck and Lawrence F. Travis, III, “Sex Offender Notification: A Cross-State Comparison,” Policy Practice and Research no. 7, 2006: 293-307. 58 “Community Notification as Viewed by Washington’s Citizens: A 10-Year Follow-up,” Washington State Institute for Public Policy, Doc. No. 08-03-1101: 2008. 59 Jill Levenson et al., “Public Perceptions About Sex Offenders and Community Protection Policies,” Analyses of Social Issues and Public Policy 7, No. 1: 2007, 137-161. 60 Richard G. Zevitz and Mary Ann Farkas, “The Impact of Sex Offender Community Notification on Probation/Parole in Wisconsin,” International Journal of Offender Therapy and Comparative Criminology, 44, no. 1: 2000, 8-21. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 17 that many officers carried large caseloads of sex name on an Internet registry. Two sex offenders were offenders and were responsible for a wide range of murdered in Washington State in 2005 by a man who activities, including making press calls announcing the claimed to be an FBI agent warning them about a “hit release of an offender, facilitating treatment groups, list” of registered sex offenders that they were on; it is organizing community notification meetings, and believed that the assailant targeted the two men after reaching out to victims. Many officers reported spending finding their names on a public registry. significant amounts of time and effort trying to locate A 2007 report by Human Rights Watch featured housing for offenders and help them meet their basic interviews with sex offenders who have found it difficult needs, which often was made more difficult due to to maintain a basic standard of living as a result of community resistance as a result of notification. One community notification.64 The report also highlighted officer told of a case in which a person who had agreed some of the challenges involved in using community to provide housing for a sex offender received death notification to provide the public with an accurate sense 61 threats. Numerous studies and news reports suggest that of the risks they face. To cite just one of these, the discrepancy between the present age of the offender and community notification makes it more difficult for sex the age of the victim at the time of the offense grows offenders to re-integrate into society after being released over time. This may lead someone looking at an Internet from prison, which may contribute to increased registry to mistakenly conclude that a young adult who recidivism rates and undercut the laws’ deterrent was convicted of consensual (but illegal) intercourse 62 effect. A survey of Kentucky sex offenders found that having their name listed on the public internet registry with a teenager years ago is a middle-aged pedophile. Awareness of the negative effects of community had an impact on a significant number of them: 42.7 notification appears to be growing among the general percent lost a job; 45.3 percent lost or were denied a public. The Washington State Institute for Public place to live; 47 percent were harassed in person; and Policy’s survey of public attitudes found that 84 percent 28.2 percent had received harassing or threatening phone of survey respondents thought that community 63 calls. Surveys in Florida, Indiana, Connecticut, and notification could make it difficult for sex offenders to Kansas have produced similar results, and in 2008, the establish a new life, find a job, or rent a house. Association of Washington Cities asked the state to Significantly, the survey also found that over the past 10 study whether there is a link between homelessness and years, the proportion of respondents who believe that sex offender registration and community notification. In sex offenders should be given every opportunity for a a few extreme instances, there have been confirmed or new start as law-abiding citizens has increased by 15 suspected cases of vigilantism as a result of the public percent—from 49 percent in 1997 to 64 percent in 2007. disclosure of the identities of sex offenders: In 2006, a In addition, the proportion of respondents who said they Maine sex offender was killed by a man who found his became frightened after learning that a sex offender lived nearby dropped from more than two-thirds in 1997 61 Zevitz, “Sex Offender Notification: Assessing the Impact in Wisconsin,” National Institute of Justice, Research in Brief, NCJ 179992: 2000. 62 Prescott and Rockoff, “Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?” 63 Richard Tewksbury, “Collateral Consequences of Sex Offender Registration,” Journal of Contemporary Criminal Justice, 21, No. 1: 2005, 67-81. While the author refers to the consequences as a result of registration, they are listed in this section because it is the public access to the registry that caused the negative consequences; we consider this to be a form of passive public notification, as registration with law enforcement alone is unlikely to result in significant negative outcomes. to about one in four today.65 CONCLUSION Public support for community notification laws remains strong, and the laws appear to accomplish one of their 64 “No Easy Answers: Sex Offender Laws in the U.S.,” Human Rights Watch 19, no. 4: 2007. 65 “Community Notification as Viewed by Washington’s Citizens.” The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 18 primary goals: to help members of the public take steps offenders from coming within 2,500 feet of a restricted to protect themselves and their families from known sex area. offenders. They also appear to have some deterrent effect. However, it is unclear to what extent they reduce STATE TRENDS recidivism; in fact, in some cases they may actually The number of states with residency restrictions on sex increase recidivism by making it much more difficult for offenders has grown exponentially in the past 10 years. sexual offenders to re-integrate into society after being Prior to 2000, only five states had such restrictions; now released from prison. Recent surveys show that there is a 30 do. Of the 30 states with residency restrictions, five growing public awareness of this problem, so it is prohibit offenders from coming within 2,000 feet of a possible that changing attitudes will mitigate the restricted locale; two prohibit them from coming within negative effects of community notification. 1,500 feet; and 12 prohibit them from coming within 1,000 feet. In the remaining 11 states, offenders are Residency Restrictions SUMMARY required to maintain a distance that is less than 1,000 feet, variable, or undefined, or there are special prohibitions on specific locations (such as college dormitories).66 Of the 30 states that currently have Even absent any federal mandates or guidelines, there residency restrictions, only nine specify that the sex has been an explosion in state and municipal residency offense that led to the restriction must have involved a restrictions imposed on registered sex offenders in the child. Some state ordinances have effectively banished past decade. Purportedly to keep offenders away from sex offenders from entire cities, where population places frequented by children, many of these restrictions density makes it almost impossible to avoid violating are so broad that sex offenders (many of whom did not residency restrictions. commit an offense involving a child) are effectively Some cities and counties have their own residency banished from cities large and small. Studies have restrictions in addition to state restrictions. In some shown that these restrictions have no positive impact on instances, the adoption of local restrictions has triggered recidivism, and they reduce public safety by a domino effect, as each city or county passes tougher destabilizing and stigmatizing offenders trying to restrictions than its neighbors to avoid becoming a local reintegrate into the community, often driving them haven for sex offenders. In some cases, state authorities “underground” and out of contact with support systems have been forced to step in to address the problems and law enforcement. posed by such patchwork legislation. In Washington State, legislators worked with the Association of OVERVIEW Washington Cities to hammer out compromise Restrictions on where registered sex offenders can live, legislation (passed in 2006) that combines a statewide work, and travel aim to keep them away from potential 880-foot exclusionary zone around restricted locales child victims. Restrictions have been implemented on with a ban on local and state sex offender ordinances. both the local and the state level and may apply to Similarly, Kansas placed a ban on local residency schools, child care facilities, playgrounds, athletic fields, restrictions between 2006 and 2008, thus providing state bus stops, parks, public pools, video arcades, and other places where minors congregate. In general, state restrictions require offenders to maintain a specified distance—usually between 500 and 2,000 feet—from a restricted area. Most municipal ordinances prohibit 66 M. Meloy, M. Miller, S., and C. Kurtis, “Making Sense Out of Nonsense: The Deconstruction of State-Level Sex Offender Residence,” American Journal of Criminal Justice, expected publication date: 2008. Data on numbers of states having restrictions and actual restrictions may vary slightly from appendices due to ongoing updating of these documents to reflect the most recent changes in state laws. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 19 officials with a chance to study the issue. In 2007, the FEDERAL GUIDELINES Kansas Sex Offender Policy Board recommended At present, there are no federal guidelines regarding against the institution of residency restrictions. In a residency restrictions. The Adam Walsh Act directed the report, the policy board noted that the Iowa County U.S. Attorney General to study the impact of residency Attorneys Association had concluded that that state’s and employment restrictions on sex offender recidivism residency restrictions were “contrary to well-established rates. However, as no funds were appropriated for this principles of treatment and rehabilitation of sex purpose, the study has yet to be undertaken. offenders,” and that they were “compromising the safety of children by obstructing the use of the best known ANALYSIS OF IMPACTS corrections practices.” In addition, the Iowa County In spite of their popularity, there is no evidence that Attorneys Association noted that offenders were residency restrictions are effective in reducing becoming homeless, ceasing to notify the authorities recidivism by sex offenders. Rather, the evidence about address changes, and simply disappearing as a suggests that residency restrictions are in fact result of the restrictions.67 Residency restrictions have been challenged detrimental to public safety. A recent study of sex offenders in Minnesota examined the impact of repeatedly in the courts in recent years. This trend seems residency restrictions on recidivism. Researchers found likely to continue—perhaps to the point that it will that, of the 3,166 sex offenders who were released from significantly limit the ability of states to impose Minnesota correctional facilities between 1990 and residency restrictions. In some states (such as Iowa) 2002—a period when the state did not have residency residency restrictions have been upheld. However, in restrictions—224 had been re-incarcerated for a new sex 2007 the Georgia Supreme Court ruled that the state’s offense by January 1, 2006. After taking a closer look at residency restrictions were unconstitutional.68 The California Supreme Court is expected to rule on that state’s residency restrictions in 2008.69 It seems likely these 224 cases, researchers found that none of the offenders had established contact with a child victim in an area that would be likely to fall within an that residency restrictions will face increasing challenges exclusionary zone under a typical residency restriction if they come to be seen as depriving people of law. And there were only three cases in which the constitutional rights or effectively forcing sex offenders offender established contact with a victim at what likely to move to other jurisdictions.70 would have been a prohibited locale under a typical residency restriction law; one of these involved an adult victim, while the other two involved cases in which 67 Kansas Sex Offender Policy Board, January 8, 2007 Report. A report in the Des Moines Register on January 22, 2006, reported that since the state's residency law took effect, more sex offenders are eluding tracking by authorities. The paper reported that 298 sex offenders were unaccounted for in January 2006, compared to 142 on June 1, 2005. 68 The court’s opinion was based on a “takings” argument: in other words, it argued that a restricted offender who owns property should not be required to move if a school, daycare center, or other restricted locale is subsequently built nearby. 69 Specifically, the court will consider whether California’s residency restriction “violates the ex post facto clauses of the state and federal Constitutions, has been impermissibly retroactively applied, constitutes an unreasonable parole condition, impinges on the petitioner's substantive due process rights, and is unconstitutionally vague.” In re E.J. on Habeas Corpus, S156933 70 Corey R. Yung, “Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders,” Washington University Law Review 85: 2007, 101-160. contact was established more than 10 miles from the offender’s residence. The study also confirmed that most sexual offenders have a pre-established relationship with their victims: in about two-thirds of the 224 cases studied, the offender was either related to the victim or gained access to the victim through a common acquaintance such as a girlfriend, wife, coworker, or friend.71 71 Grant Duwe, William Donnay, and Richard Tewksbury, “Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism,” Criminal Justice and Behavior 35, No. 4, 2008: 484504. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 20 A number of studies have sought to determine the two years since it passed its version of Jessica’s whether sexual offenders seek out residences near Law, California has seen a 44 percent increase in sex potential victims in order to facilitate re-offending. One offenders reporting that they are transient.76 Colorado study found that molesters who did re-offend did not appear to live any closer to parks or schools than CONCLUSION those who did not re-offend. An Arkansas study found There is little empirical evidence that residency that child molesters appeared to live closer to areas restrictions, as currently implemented, protect public frequented by children than adult rapists; however, there safety. Residency restrictions push sex offenders to the was no evidence that this circumstance had any impact fringes of communities, making it less likely that they on recidivism.72 A survey of sex offenders revealed that will be able to obtain housing, find a job, and receive many offenders considered restrictions to be ineffective: social support. Restrictions may also make it difficult for several pointed out that if they wanted to re-offend, they otherwise law-abiding offenders to comply with could often walk or drive to a distant neighborhood registration requirements—especially those that involve where they were less likely to be recognized. One frequent, in-person reporting. offender also observed that residency restrictions do not prevent offenders from living near children.73 Evidence also suggests that residency restrictions As more is learned about this subject, it may turn out that residency restrictions can be effective when imposed on a case-by-case basis. It is also possible that actually compromise public safety by making it more effective electronic monitoring of people who pose a difficult for offenders to re-integrate into society. high risk of predatory behavior could reduce the Residency restrictions often force offenders to live in perceived need for stringent residency restrictions. areas where there are few opportunities for employment, Finally, the finding that most children are abused by few social services, poor access to transportation, and someone they know and trust rather than a stranger in few housing options. One researcher has used mapping the park suggests that better public education should software to show that the 2,000-foot residency play a role in keeping children safe. restrictions that were ushered in by California’s version of Jessica’s Law leave almost no place for a sex offender to live in the entire city of San Francisco.74 Similarly, a Electronic Monitoring mapping study in Orange County, Florida, concluded that 95 percent of residential dwellings are within 100 feet of a school, park, daycare center, or bus stop, and that 99.6 percent are within 2,500 feet of these locations.75 As a result, it appears that more and more offenders are becoming homeless or going “underground” by not reporting their whereabouts. In 72 Jill Levenson, “Sex Offender Residence Restrictions,” Sex Offender Law Report, in press. 73 Jill S. Levenson and Leo P. Cotter, “The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step From Absurd?” International Journal of Offender Therapy and Comparative Criminology 49 (2): 2005, 168-178. 74 Meghan Stromberg, “Locked Up, then Locked Out,” Planning, Journal of the American Planning Association: January 2007, 19-25. 75 P.A. Zandbergen and T.C. Hart, “Reducing Housing Options for Convicted Sex Offenders: Investigating the Impact of Residency Restriction Laws Using GIS. Justice Research and Policy, 8 (2), 2006: 1–24. SUMMARY Recent advances in technology have inspired a growing number of states to pass legislation either requiring or authorizing electronic monitoring of sex offenders in the community. There are no federal guidelines for electronic monitoring. Electronic monitoring is expensive in terms of both equipment and staff time; however, it shows promise in being able to improve supervision, particularly of high-risk offenders. Research results to date have been mixed, with a few studies showing decreased recidivism (and some 76 Michael Rothfield, “Jessica’s Law May Increase Crime Risk,” Los Angeles Times, February 22, 2008. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 21 anecdotal accounts of improved supervision) but most attending therapy sessions and keeping away from a showing no significant advantage. Some of the lack of victim’s house) and provide law enforcement with a improved results may be due to problems in record of the person’s movements and activities, should implementing new technology; in addition, offenders he or she become a suspect in a crime. (especially those who are compliant) are resistant to wearing the device, which is conspicuous and prone to malfunction. It is still an emerging technology and is a policy that deserves continued study. STATE TRENDS The electronic monitoring of sex offenders has increased dramatically in the past decade. According to the OVERVIEW Interstate Commission for Adult Offender Supervision, Electronic monitoring (EM) is a technology that makes many states, electronic monitoring is statutorily required it possible to track a person’s whereabouts by means of a for sex offenders—particularly high-risk offenders. In portable electronic device, usually an ankle bracelet other states, judges determine whether to use EM on a combined with a cell-phone-sized transmitter. It is used case-by-case basis. EM is commonly imposed as a in a variety of law enforcement applications. There are condition of parole or probation as well; in this context it two types of EM technology: passive (the unit simply is used for both the short-term monitoring of low-risk records the person’s movements and is downloaded at people and as a lifetime parole condition for high-risk regular intervals) and active (the unit transmits the offenders. person’s location in real time). Active systems can be 35 states now use GPS monitoring technology.78 In In some states (such as New Jersey), high-risk sex modified to transmit an alarm whenever the monitored offenders who had already been released from prison person violates certain conditions—if he or she leaves and were not subject to civil commitment have been the state, for example, or leaves the tracking unit behind, retroactively required to participate in electronic or comes within a certain distance of a victim’s monitoring. In other states, offenders have successfully residence or a school. Today, global positioning systems challenged electronic monitoring that was imposed (GPS) are gradually replacing the older radio frequency retroactively. In North Carolina, for example, 25 systems (which were typically only able to confirm offenders to date have been allowed to remove their EM whether the monitored person was at home.) As an equipment. In one of the most recent cases, attorneys example, in California, GPS tracking equipment in 2007 argued that being forced to wear EM devices represents was leased at a cost of $8.75 per day for active units and a form of punishment, in that the devices are heavy, $5 per day for passive units. There are significant conspicuous (particularly if an audible alarm is set off additional personnel costs for reviewing and analyzing by accident), and require the monitored person to be in data.77 his or her home for six hours every day to recharge the Electronic monitoring aims to prevent recidivism by creating a fishbowl effect, in which the monitored unit.79 Washington State prohibits the retroactive application of EM. person realizes that he or she is (or has the potential to be) under constant surveillance. It can also help detect whether the monitored person is in compliance with the terms of parole or probation (such terms might include 77 “An Assessment of Current Management Practices of Adult Sex Offenders in California,” California Sex Offender Management Board Report to the Legislature and Governor’s Office, January 2008. This report also includes excellent information on registration, community notification, and residency restrictions. 78 “GPS Supervision Update,” Interstate Commission for Adult Offender Supervision, http://www.interstatecompact.org/LinkClick.aspx?fileticket=lU6GvR muPwM%3d&tabid=105&mid=431. The California Assessment cited above places this figure slightly higher. 79 “Monitors Taken Off Four Sex Offenders,” The News & Observer, April 29, 2008. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 22 FEDERAL GUIDELINES offenders) who were electronically monitored showed a There are no federal guidelines that govern the statistically significant reduction in absconding, application of electronic monitoring devices to technical violations, and re-offending. The Florida study registered sex offenders. The Adam Walsh Act was different from most earlier ones in that it authorized (but did not appropriate funding for) a concentrated on people who had committed more measure that would assist states, local governments, and serious offenses and followed them over a longer period Indian tribes in carrying out EM programs for sex of time. The authors concluded that their finding “bodes offenders. well for EM’s anticipated use for sex offenders.” 82 In its first six months, California’s new GPS ANALYSIS OF IMPACTS program showed virtually no difference in recidivism Researchers are currently studying the impact of EM— between a group of high-risk sex offenders on GPS especially the new GPS systems—on sex offender monitoring and a group that was not; the GPS group, in recidivism rates. Thus far, the results are mixed. In one fact, showed a slightly higher rate of absconding and recent survey, officials in seven states said that GPS assault crimes.83 During the study period, however, there technology had improved the quality of supervision of were significant challenges in implementing the sex offenders; however, most states indicated they were program. These ranged from slow Internet connections still evaluating this technology.80 In a recent report to the and a lack of proper computer equipment for parole New Jersey governor and legislature, the New Jersey officers, to difficulty forming collaborative relationships State Parole Board indicated that during the initial pilot between parole and law enforcement, to false readings phase of the state’s GPS monitoring program, 19 from equipment. While there were reports of parole monitored people had been charged with a new, non- officers using GPS data to identify problematic behavior sexual crime or a technical violation of parole conditions (frequenting youth events, for instance), officers also (including the refusal to wear or maintain the GPS expressed concern that they might be held liable if, equipment). Only one monitored offender had been following a criminal incident, they were accused of charged with a new sexual offense (rape); data from the incorrectly analyzing GPS data that indicated an offense monitoring device will be used to aid in the was imminent. In Tennessee, researchers did not find any investigation. These figures suggest a reduction in recidivism rates, although the scope of the reduction is statistically significant differences between a control not clear. group and those on EM with regard to number of Another Georgia study of violent male offenders violations, new charges, or days before violation. While who were placed on EM after being released from prison officers believed that EM was a useful tool in also found a positive impact on sex offense recidivism monitoring offenders, offenders themselves experienced rates. While being subject to EM appeared to have little morale issues while on EM. Those who had been in effect on recidivism rates among the general population compliance prior to being placed on EM felt unjustly of offenders (both sex offenders and other violent punished when they were then compelled to wear the offenders), sex offenders who were monitored were less likely to return to prison than those who were not monitored.81 And Florida offenders (including sex 82 80 Interstate Compact data. Table did not indicate in what way officials believed their supervision to be improved. 81 Mary A. Finn and Suzanne Muirhead-Steves, “The Effectiveness of Electronic Monitoring with Violent Male Parolees,” Justice Quarterly 19, No. 2: 2002, 293-312. “Under Surveillance: An Empirical Test of the Effectiveness and Consequences of Electronic Monitoring,” Criminology and Public Policy 5, No. 1: 2006, 61-92. 83 Implementation and Early Outcomes for the San Diego High Risk Sex Offender GPS Pilot Program,” UC Irvine Center for EvidenceBased Corrections, Working Paper, Nov. 2007. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 23 monitoring device; some may have acted out as a equipment is removed.86 And in a recent interview, the result.84 Director of Downstate Operations for New York State Division of Parole reported that due to the many areas CONCLUSION (like subways and tunnels) unreachable by GPS and the While longer sentences and the increasing use of civil interference from the multitude of electronic and radio commitment are likely to delay the release of many sex devices, they have abandoned the use of GPS offenders, most will eventually be released. EM holds monitoring of sex offenders in New York City.87 Given the promise of protecting public safety while avoiding the fallibility of EM equipment and the possibility of many of the negative effects of other policies— noncompliance, EM technology is probably best viewed especially as the technology develops. It is also possible as an enhancement to—rather than a replacement for— that advances in technology will make EM systems less traditional supervision, monitoring, and risk assessment intrusive for offenders, thus boosting morale and methods. improving compliance. On the other hand, it is also possible that EM will be used to “widen the net”—supervising offenders who Civil Commitment could be successfully supervised in the community without this technology. This would likely raise costs SUMMARY without improving public safety. As California’s Sex Faced with releasing offenders whom they felt could not Offender Management Board emphasized in a recent be safely managed in the community, policymakers in report, EM is most cost-effective when restricted to many states have enacted laws to have violent sexual high-risk sex offenders, such as those with a history of offenders at the end of their sentence “civilly violent offenses, male pedophilia, drug or alcohol use committed” to an extended detention if they are declared associated with sexual offending, arousal around to have a mental condition that makes re-offending children, high impulsivity, offense planning, fixation, or likely. Such civil commitment, although effective in multiple victims. Recidivism for this relatively small but incapacitation, is expensive, as its constitutionality rests very high-risk group in California is currently over 50 on the provision of treatment during confinement. Few 85 percent. As a recent high-profile incident in Washington civilly committed offenders have ever been deemed sufficiently treated to be returned to the community. State shows, however, that EM is not a panacea: In April Given the opposition of professional groups such as the 2008, a convicted rapist was released from prison and American Psychiatric Association and persistent legal told to live under a bridge after state officials were challenges, changes in civil commitment processes, unable to find housing for the man. The man treatment protocols, and sentencing will likely be subsequently removed his EM device and absconded. A necessary. Advances in treatment and monitoring may former victim learned of the incident on the evening also improve the ability to manage high risk offenders in news and contacted the authorities, as neither state or the community. local law nor department of corrections policies required that former victims be notified in cases when EM 86 84 “Monitoring Tennessee’s Sex Offenders Using Global Positioning Systems: A Project Evaluation.” Tennessee Board of Parole and Probation and Middle Tennessee State University, April 2007. 85 “Assessment of Current Management Practices,” Ibid. http://www.king5.com/topstories/stories/NW_042508WAB_rape_vict im_KC.9e417065.html 87 Interview with Angela Jimenez, Manhattan office of New York State Division of Parole, August 27, 2008. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 24 OVERVIEW In 1990, Washington State launched the new era of People who are mentally ill and an imminent danger to civil commitment when it revamped its existing civil themselves or others have long been subject to commitment statute as part of a sweeping overhaul of involuntary commitment to a psychiatric facility, the state’s sex offender laws. In the revision, as in all regardless of whether they are criminally involved. Civil civil commitment statutes enacted since then, civil commitment of sex offenders differs from this type of commitment was imposed following, rather than instead involuntary commitment in several ways. First, the of, a criminal penalty. Offenders in Washington and person must already have committed a violent sexual elsewhere become eligible for civil commitment if they offense. Second, he or she must be deemed to have a are deemed to be sexually violent criminals who have a mental or psychological condition (which does not need psychological or behavioral condition that increases to meet standard definitions of mental illness) that their risk of committing sexual violence upon release makes them unable to control their sex offending into the community. This is determined through a risk behavior. assessment process. Generally, there is a hearing as well, The policy of civilly committing sex offenders is in during which the offender may present evidence that he its second incarnation in the United States. It was first or she can live in the community without re-offending. used in the late 1930s, beginning with Illinois’ “act to Although states differ on whether committed offenders provide for the commitment and detention of criminal are confined to a psychiatric facility, a correctional sexual psychopathic persons,” which focused on people facility, or some hybrid, in all cases committed people diagnosed by psychiatrists to be “criminally sexually must receive some form of sex offender treatment. 88 psychopathic.” Following this diagnosis, an offender would be given a jury hearing. If found to be a criminal LEGAL CHALLENGES sexual psychopath with a propensity to commit sex The constitutionality of civil commitment has been offenses, he or she would be committed to the tested several times. In 1996, an offender in Kansas psychiatric division of the Illinois State Penitentiary successfully appealed his civil commitment on due “until such person shall have fully and permanently process grounds; the state did not show he suffered from recovered from such psychopathy.” By 1960, 26 states a volitional impairment rendering him dangerous beyond and the District of Columbia had some version of a his control. A year later, the U.S. Supreme Court “sexually dangerous person” statute that included reversed a separate decision of the Kansas Supreme provisions for civil commitments rather than Court. The Kansas Court declared the state was required 89 punishment. Most of these states had rescinded these to prove the person was both mentally ill and a danger to laws by the 1980s, however. This was due to a number himself or others. It then determined that the Act's of factors, including a growing awareness that sexual definition of “mental abnormality” did not satisfy what it offenders were not per se mentally ill and that offenders’ perceived to be the “mental illness” requirement in the right to a criminal trial were being side-stepped. There civil commitment context. Upon appeal, however, the was also a general shift in attitude which saw U.S. Supreme Court disagreed, ruling that Kansas’ incarceration as more appropriate. definition of “mental abnormality” satisfied substantive due process requirements for civil commitment.90 The U.S. Supreme Court also indicated that its 88 “Recent Statutes: Criminal Law-Sex Offenders-Civil Commitment for Psychiatric Treatment,” Columbia Law Review 39, no. 3: 1939, 534-544. 89 Raquel Blacher, “Historical Perspective of the ‘Sex Psychopath’ Statute: From Revolutionary Era to the Present Federal Crime Bill,” Mercer Law Review 46: 1995, 889-920. decision hinged on whether the Kansas Act was punitive—as Justice Kennedy stated in his concurring 90 Kansas v. Hendricks, 521 U.S. 346 (1997). The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 25 opinion, “whether civil confinement were to become a 91 mechanism for retribution or general deterrence.” If it modality. Vermont lawmakers ultimately rejected the sex offender civil commitment legislation. were punitive, then the Act would constitute double Another civil commitment case from Kansas jeopardy (tried/punished twice for same crime) or be reached the U.S. Supreme Court in 1996. In this case, unconstitutional on ex post facto (a retroactive new the Supreme Court vacated a decision in which the state punishment) grounds. In his majority opinion, Justice said it was sufficient to show the offender had an Thomas used “legislative intent” to determine that the antisocial personality. The Court disagreed, stating that Act was not punitive, as the provision of treatment was “there must be proof of serious difficulty in controlling included in the law. In his minority dissent, Justice behavior.” 95 This decision has led states to move toward Breyer indicated that he believed the court should look more robust assessments and documentation in civil at both purpose and effect, noting that treatment was not commitment cases. begun until years after the crime was committed and that the state must consider less restrictive alternatives if the STATE TRENDS intent truly was not punitive.92 To date, the Supreme Before 1998, only eight states had civil commitment Court has continued to uphold the majority opinion. statutes specific to sex offenders; the number is now up Stated legislative intent aside, a recent research to 20. The per person costs of civil commitment for sex study explored whether civil commitment primarily offenders in 2006 ranged from a low of about $42,000 in serves to ensure that offenders receive the punishment Florida to $166,000 in California. The average cost per they are perceived to deserve. Study participants were inmate in jails and prisons generally is roughly a fourth given different hypothetical scenarios involving a sex of the civil commitment costs.96 California recently built offender about to be released; most participants chose a 1,500 bed facility at an estimated cost of $400 million; civil commitment when they perceived the offender this construction predates the implementation of didn’t receive a sufficiently long sentence, independent Jessica’s Law, which expanded the list of offenses that of the stated likelihood of re-offending.93 This appears to could result in civil commitment. Since then, the number be in line with actual efforts to institute civil of people referred for civil commitment evaluations in commitment in Vermont in 2006. The bill was opposed California has risen from about 50 to 750 per month.97 by the Vermont Psychiatric Association (VPA), which New York’s new civil commitment law, signed in said it was “a way to keep people locked up who had March 2007, also applies to a very broad range of completed their jail terms” and a “misuse of a process offenses. How many of those offenders will be long used to treat people with mental illness.”94 recommended for commitment, and therefore how much According to the VPA, the bill was a reaction to a recent it will cost the state, has yet to be seen. The new law case in which the sentence of a person convicted of child also has several notable provisions. Treatment is molestation was felt by the general public and mandated earlier in the process, during incarceration. policymakers to be too short, rather than as a treatment People who committed a “sexually motivated felony,” a 91 Ibid, at 373 (Kennedy, J., concurring). Edward P. Ra, “The Civil Confinement of Sexual Predators: A Delicate Balance,” St. John’s Journal of Legal Commentary 22, No. 1, 2007:335-372. 93 Kevin Carlsmith, John Monahan, and Alison Evans, “The Function of Punishment in the ‘Civil’ Commitment of Sexually Violent Predators,” Behavioral Sciences and the Law 25: 2007, 437-448. 94 Rich Daly, “Lawmakers Reject Civil Commitment for Sex Offenders,” Psychiatric News 41: no. 6: 2006, p. 21. The Vermont Psychiatric Association’s stance was in line with their national affiliate; the American Psychiatric Association has called civil commitment a “misuse of psychiatry.” 92 new crime, are also subject to civil commitment. Finally, the burden of proof in New York is “clear and convincing evidence” of a likelihood to re-offend; based on prior court decisions, this portion of the legislation 95 State v. Crane, 918 P.2d 1256, 1258 (Kan. 1996). “A Profile of Civil Commitment Around the Country,” New York Times, map and graph, March 3, 2007. 97 Laura Mansnerus, “Locked up in Limbo,” The Nation: December 31, 2007. 96 The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 26 applies both to those convicted and to those who were ANALYSIS OF IMPACTS Civil commitment is intended to incapacitate offenders not convicted due to mental incompetence.98 who are most likely to commit sexually violent crimes may come under judicial scrutiny, particularly as the law All civil commitment facilities offer treatment, upon their release. As of the fall of 2006, approximately although there have been few people who have been 2,700 people (cumulative) had been civilly committed “cured”: only about 12 percent of those who have been across 18 states.102 Of these, about 400 have ever been held for evaluation or committed have been discharged discharged or granted conditional, supervised, or or released. Between 1990 and 2006, only 250 civilly transitional release, and many states have discharged no committed offenders were released; however, about half or very few civilly committed offenders. Community of those were discharged not due to progress on their placements for those who have been released are treatment but because of legal or technical grounds.99 In difficult to find: The Kansas offender whose case keeping with the non-punitive intent of civil became Supreme Court precedent was first moved to a commitment, many states are moving toward placing group home upon his release. After neighbors and treating offenders in the least restrictive manner complained, he was relocated to a rural house near a appropriate. Texas, for example, uses only outpatient horse pasture, then back to a facility on the campus of civil commitment. the state mental hospital. California houses some men leaving civil commitment in trailers outside prisons.103 FEDERAL GUIDELINES There are no federal guidelines for states on civil commitment of sex offenders. Although the 2006 Adam Walsh Act authorized civil commitment for federal prisoners deemed to be “sexually dangerous people suffering from a serious mental illness, abnormality, or disorder which causes him to have serious difficulty in refraining from sexually violent conduct or child molestation if released,” a federal district judge subsequently held that Congress did not have the authority to confine people leaving federal prisons.100 This decision was based on the view that civil commitment was not a necessary and proper extension One question that arises is whether the “right” people are being civilly committed. A study of Florida’s system concludes that the answer there appears to be yes. This review of the process by which offenders are referred to Florida’s Sexually Violent Predator Program indicated that the state was appropriately recommending those most likely to recidivate, based on comparisons to several widely used risk assessments. Of 5,931 potential candidates for civil commitment, about 6.5 percent were referred to the next stage of evaluation.104 A subsequent study that found the more dangerous offenders among this population were in fact recommended for commitment.105 Washington State also sought to examine whether of Congress’ power to prosecute federal crimes. In addition, the Supreme Court concluded that the statute violated due process: the law required proof of appropriateness for civil commitment to be based on “clear and convincing evidence,” but the court ruled that the standard of “beyond a reasonable doubt” applies to all federal prisoners.101 98 Peter Dunne, “New York’s New Sex Offender Management and Treatment Act,” New York Criminal Law Newsletter 06, No. 1: 2008, 11-14. 99 Monica Davey and Abby Goodnough, “Doubts Rise as States Hold Sex Offenders After Prison,” New York Times, 3/24/2007. 100 “Locked up in Limbo.” 101 U.S. v. Comstock, Case 5:06-hc-02195-BR: 2007. people recommended for civil commitment represented the highest risk for re-offending. Its 2003 study looked at new arrests for those who had been referred for civil commitment but for whom no petition had been filed (usually because the attorney general or prosecuting 102 New York Times, ibid. The figure given in The Nation at the end of 2007 was 4,000. 103 “Doubts Rise,” ibid. 104 Karen Lucken and William Bales, “Florida’s Sexually Violent Predator Program: An Examination of Risk and Civil Commitment Eligibility,” Crime and Delinquency 54, no. 1: 2008, 95-127. 105 Jill Levenson, “Reliability of Sexually Violent Predator Civil Commitment Criteria,” Law & Human Behavior, 28(4): 2004, 357369. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 27 attorney felt that he or she would not be able to prove would be on timely, evidence-based one or more of the statutory criteria for commitment). treatment.109 • From 1990 through 2002, more than 8,000 cases were Enact criminal sentences that reflect more reviewed. Of these, more than 400 were referred to accurately the need for longer incapacitation, prosecutors and just under 200 petitions were ultimately and ensure that current sentencing ranges are filed. The study found that candidates for civil being used effectively. Another possibility commitment did in fact have a higher rate of recidivism. would be more flexible sentencing, which takes More than half had a new felony case, and almost a into account dynamic factors such as age of fourth (24 percent) committed a felony sex offense. The offenders, whether they have completed 106 treatment, etc.110 same percentage failed to register. • Ensure that there are effective individualized CONCLUSION treatment plans for civilly committed offenders Keeping people who are unable to control their criminal so they will have the best chance to be impulses from re-offending is vital to public safety. rehabilitated to a point where they can safely Civil commitment statutes are increasingly being used to return to the community.111 • reduce recidivism among sex offenders, both through Use least restrictive alternatives wherever incapacitation and treatment. Yet civil commitment has possible.112 This might include expanding also been criticized. Some see it as an attempt to outpatient commitment or using outpatient “impose punishment after the State makes an commitment as an intermediate step for patients 107 improvident plea bargain on the criminal side.” returning to the community. States might also Others have complained that it is inappropriately used to settle a explore the possibility of using outpatient score when prosecutors feel cheated out of a longer commitment as an alternative to prison in sentence or to avoid public or media outcry over the suitable cases.113 • release of a sex offender who has completed a 108 Ensure that civilly committed people have a mechanism to petition for their release and have sentence. their status re-evaluated regularly.114 Several published articles have suggested ways to improve outcomes and ensure that civil commitment statutes meet tests of constitutionality: Even with advances in treatment and monitoring, there will likely be a population of offenders who should • Return to the first iteration of civil commitment, remain confined indefinitely. The chair of the American in which an offender goes through either civil Psychological Association’s Task Force on Sexually commitment or criminal proceedings but not Dangerous Offenders has recommended that “societal both. This would make civil commitments less concern about the protection from dangerous sex likely to be used or seen as punishment, since offenders be met through customary sentencing the focus from the start of institutionalization alternatives within the criminal justice system” rather 106 Cheryl Milloy, “Sexually Violent Predators in Washington State: Recidivism of Sex Offenders Recommended But Not Accepted for Civil Commitment Filing,” Washington State Institute for Public Policy, 107 Kansas v. Hendricks (Kennedy, J. concurring), 108 Peter C. Pfaffenroth, “The Need for Coherence: States’ Civil Commitment of Sex Offenders in the Wake of Kansas v. Crane,” Stanford Law Review 55: 2003, 2229-2266. The author cites the transcript of Kansas v. Crane. 109 Ibid. Ibid. 111 “Civil Commitment: A Delicate Balance,” ibid. 112 Ibid. 113 “Outpatient Commitment’s Next Frontier: Sexual Predators,” Psychology, Public Policy and Law 9, No. 1/2: 2003, 159-182. 114 “Civil Commitment: A Delicate Balance,” ibid. 110 The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 28 than though civil commitment.115 But what about when notification seems to have a modest deterrent effect and the sentence has already been decided and is possibly a positive effect on recidivism, but it also has a subsequently deemed inadequate to protect public negative effect on reentry. Several studies have shown safety? Some people in this position themselves feel that residency restrictions to have no impact on recidivism they cannot be trusted to be in the community: “I’m very and to cause major problems for sex offenders trying to afraid of just being out there,” stated one offender in a find viable places to live and work. Electronic 116 California civil commitment facility in an interview. Better treatments, including chemical and monitoring holds promise for improving supervision, but it is too early to tell whether it will reduce recidivism. pharmaceutical options to reduce urges to re-offend, Finally, civil commitment, although successful at may one day transform civil commitment from a dead incapacitating dangerous offenders (again, at a very high end to a way station on the path to reentry. Until then, cost), has shown little success in “curing” offenders. however, policymakers will likely continue struggling to Sex offender policies involve a complex mix of manage the most dangerous offenders when they come criminal justice, psychology, sociology, and politics. to the end of their sentences. This makes it hard to determine to what extent current approaches are creating safer communities and developing the right mix of sanctions and supports for In Pursuit of Safety: Are We Safer? offenders, or whether they are part of a wave of “punitive populism” that is reaching high tide and destined to ebb. As rates of violent sex crimes have fallen over the past It is hard to deny the cyclical nature of sex offender 20 years, so too have rates for all violent crime. This is laws in America, at least in the 20th and 21st centuries. good news for public safety but confounding when it The current cycle may be different, as advances in both comes to discerning the impact of sex offender monitoring technology and behavioral science may legislation—especially as violent sex offenses appear to increase the percent of offenders who can be have been in decline prior to the implementation of most successfully and safely re-integrated into the sex offender laws. community. Such policies, though, are still downstream The success of sex offender laws is also difficult to responses. The next challenge will be to go upstream determine because they are generally aimed at protecting and develop policies to discover precursors to offending children from convicted sexual predators—a category of behavior and create appropriate interventions. These, in offense that represents a small fraction of the total the end, may be the most successful at reducing sex number of offenses committed. offense rates. As this report has shown, current sex offender That the public continues to focus on a small policies appear to have only modest impacts on deterring minority of sex offenses—those committed by would-be offenders or reducing recidivism of convicted strangers—and overestimate the risk that most offenders offenders. Longer sentences keep offenders pose is a genuine public policy concern. It is hoped that incapacitated but only delay recidivism (and are very the growing body of research on sex offenses will help expensive). Registration appears to slightly reduce re- move this important field of criminal justice forward offenses by acquaintance offenders. Community toward fair and effective public policies. 115 Karin L. Moran, “Civil Commitment for Sexually Violent Predators: A Growing Debate in New York State,” The Bulletin of the New York Psychiatric Association, Winter 2005-06. 116 Abby Goodnough and Monica Davey, “For Sex Offenders, a Dispute Over Therapy’s Benefits,” New York Times, March 6, 2007. The Pursuit of Safety: Sex Offender Policies in the United States Vera Institute of Justice 29