If a convicted child molester moved into the house across the
street, I'd want to know. But I'd also want to know if my new neighbor had
been convicted of homicide, assault, robbery, burglary, larceny or fraud.
Which suggests one of the problems with sex offender
registration laws, the focus of two cases the U.S. Supreme Court is
scheduled to hear on Wednesday. These laws -- which require sex offenders
who have served their sentences to report their whereabouts to the
government, which passes the information on to the public -- are both too
narrow and too broad.
They are too narrow because they do not cover a wide range of
potentially dangerous characters whom citizens might want to avoid. They are
too broad because the sex offender label sweeps together serial predators
with individuals who pose little or no threat to the public. For example,
Alaska's law, one of the two the Supreme Court will consider, applies to
people convicted of possessing child pornography.
The main rationale for singling out sex offenders is the
assumption that they are especially likely to commit new crimes. Sex
offenders "will immediately commit this crime again at least 90 percent of
the time," a California legislator warned in 1996.
The Bush administration -- which filed a brief in defense of
Connecticut's registration law, the other statute the Supreme Court will
consider -- is a bit more cautious. "When they re-enter society at large,"
says Solicitor General Theodore Olson, "convicted sex offenders have a much
higher recidivism rate for their offense of conviction than any other type
of violent felon."
The brief cites data from the Bureau of Justice Statistics,
which show that rapists are more likely to be rearrested
than other offenders are. But that does not mean they are more
likely to be rearrested.
Among prisoners released in 1994, 46 percent of rapists were
arrested again for any offense within three years, compared to 62 percent of
violent felons generally. Recidivism rates for nonviolent criminals were
even higher: 79 percent for car thieves, 74 percent for burglars.
Even if we focus on repeats of the same offense, rapists do not
stand out. Less than 3 percent of them were arrested for a new rape in the
three years covered by the study. By comparison, 13 percent of robbers, 22
percent of (nonsexual) assaulters, and 23 percent of burglars were arrested
again for crimes similar to the ones for which they had served time.
Studies that cover longer periods and include other kinds of sex
offenders find higher recidivism rates, but still nothing like those claimed
by politicians. The National Center on Institutions and Alternatives cites
three large studies, covering tens of thousands of sex offenders, that
reported rearrest rates for sex offenses ranging from 13 percent to 19
It seems that the vast majority of people forced to register as
sex offenders are actually former sex offenders who
will not repeat their crimes. Indeed, Connecticut's online Sex Offender
Registry proclaimed that "the Department of Public Safety has not considered
or assessed the specific risk of reoffense with regard to any individual
prior to his or her inclusion within this registry, and has made no
determination that any individual included in this registry is currently
According to the U.S. Court of Appeals for the 2nd Circuit, that
was precisely the problem. The court ruled that Connecticut's registration
law violates the Due Process Clause because it does not give offenders an
opportunity to challenge the presumption that they are public menaces.
In the Alaska case, the U.S. Court of Appeals for the 9th
Circuit did not address the due process issue because it concluded that the
statute was an ex post facto law, unconstitutionally imposing punishment on
offenders who committed their crimes before it was passed. As evidence of
the law's punitive effect, the court cited, among other things, onerous
requirements similar to those of probation: Many offenders have to register
in person with police four times a year for the rest of their lives.
The court also noted that "by posting the appellants' names,
addresses, and employer addresses on the Internet, the Act subjects them to
community obloquy and scorn that damage them personally and professionally,"
making it difficult for them to find work and lead normal lives. One need
not have sympathy for sex offenders to wonder whether this is a sensible way
to encourage their rehabilitation.