Sex Crimes

Knowledge as Power by Wayne Logan

Wayne Logan, who regular readers know has authored many of the most important articles about sex offender laws, has a new book coming out titled "Knowledge as Power: Criminal Registration and Community Notification Laws in America." This is from the Stanford University Press description:

Societies have long sought security by identifying potentially dangerous individuals in their midst. America is surely no exception. Knowledge as Power traces the evolution of a modern technique that has come to enjoy nationwide popularity—criminal registration laws. Registration, which originated in the 1930s as a means of monitoring gangsters, went largely unused for decades before experiencing a dramatic resurgence in the 1990s. Since then it has been complemented by community notification laws which, like the "Wanted" posters of the Frontier West, publicly disclose registrants' identifying information, involving entire communities in the criminal monitoring process. 

Knowledge as Power provides the first in-depth history and analysis of criminal registration and community notification laws, examining the potent forces driving their rapid nationwide proliferation in the 1990s through today, as well as exploring how the laws have affected the nation's law, society, and governance. In doing so, the book provides compelling insights into the manifold ways in which registration and notification reflect and influence life in modern America.

I'm eagerly awaiting my copy and I hope to post more about it once I have had a chance to read it.

New Sex Offender Notification Article

Mike Connelly sends word of an interesting new article, Sex Offender Community Notification and Community Stratification. From the abstract:

The study articulated findings from mapping and regression analyses that suggested a greater concentration of sex offenders in disadvantaged communities than in more affluent communities. It is suggested that, to the extent that community notification allows residents of more affluent communities to mobilize resources in order to remove identified sex offenders, the geographical clustering of these offenders in areas already facing a greater risk and having fewer resources to manage the problem may increase. The work notes that community notification laws have been passed by the Federal Government and legislature of every State, and, at the very least, these laws require local law enforcement officials to publicize the personal and residential information of known sex offenders. The study examined the relationship between community characteristics and the residential patterns of sex offenders. The authors note that as previous research and other social commentary have begun to assess the effects of community notification on targeted sex offenders and on criminal justice practices and practitioners, but the potential consequences of the policy for different types of communities have received only scant attention. Implications of findings in terms of “concentrated disadvantage” are also discussed. Data were derived from sex offender registry and calendar year 2000 U.S. Census data for two States, Nebraska and Oklahoma. These States were chosen on the basis of geography and their systems of community notification.

Fear of Pedophiles

Dan Filler at The Faculty Lounge continues to post about sex crime issues with an interesting bit about how the government plays on the fear of pedophiles.  Filler was writing in response to this online ad.  Here is what he had to say:

Here's the problem with today's fear-of-pedophilia ad: in its effort to trade on popular anxiety - using existing fear to cause readers to pay attention - it also further produces that fear.  Every time the government waves the bloody shirt of pedophilia, a few more readers will begin to believe that the nation is in a child sexual assault crisis.  And it's simply not clear that this is remotely true.  But by generating that anxiety, more and more voters become open to the sorts of aggressive, repressive regulations supposedly needed to suppress this crime.  Internet speech bans.   Shaming sanctions.  And I won't be surprised if, at some future point, states begin to reguate the dating habits of single moms.  (The data suggest, at least, that this would be the most productive site of intervention.)

Market research may show that you need to employ this radioactive rhetoric to grab the attention of readers.  But it is also true that fear is the tool of authoritarian governments.  I've blogged previously about increasingly aggressive governmental surveillance and policing.  Today's ad is a small component of this troubling agenda.

Filler leaves out the last part of the process (and perhaps the most worrisome). Once these new policies are applied to sex offenders, it is only a matter of time until they are applied in other areas as well. The War on Drugs has illustrated this pattern pretty well. Modern police investigation techniques warranted by the unusual aspects of the drug war have spilled over into ordinary police practice. One day, registration, residency restrictions, community notification, internet use restrictions, and an array of other measures may be applied to a lot of criminals who aren't sex offenders.

Sex Offender v. McDonald's

Several people have sent me this link and it is also covered at SexOffenderResearch.  This is the story:

A convicted rapist fired from his job at a McDonald's after a woman told management he was a registered sex offender is suing the restaurant's owner and the woman, claiming information about him on the state's Sex Offender Registry Board was misused.

Scott Gagnon, 50, of Tewksbury, claims in his suit filed Monday in Middlesex Superior Court that Andrea Quinn of Tewksbury violated language on the board's Web site that says information on sex offenders cannot be used "to commit a crime or to engage in illegal discrimination or harassments of an offender." Doing so could result in jail time or a fine.

Gagnon was released just over a year ago after spending 27 years in prison following his guilty plea to multiple counts of rape. He is suing Quinn for alleged emotional distress and invasion of privacy, and suing McDonald's for alleged breach of contract.

He is classified as a Level 3 sex offender, considered the most likely to re-offend.

The lawsuit seeks a jury trial and unspecified damages.

"What Ms. Quinn did was completely contrary to the rules and regulations of the Sex Offender Registry Board, and in fact we assert that what she did was a crime," said Gagnon's lawyer, William Korman.

Even if his allegations are true, I don't think Gagnon's civil suit will succeed.  However, I think his argument, which has been made before, that using the registry for discrimination or harassment is a crime is an interesting one.  If it is technically true that using the registry in that manner is a crime, I haven't seen a lot of prosecutors willing to prosecute for it.  This is another example of private actors supplementing official government restrictions on sex offenders.  Courts are going to have to start paying attention to how so-called "non-punitive" laws are having very punitive effects in the real world.

The New New York Governor and Megan's Law

Dan Filler at the Faculty Lounge highlighted an unusual characteristic of the new governor of New York: he has been a vocal critic of Megan's Law:

In the U.S. House, Megan's Law passed by a415-3 vote - and only one Representative (Mel Watt of North Carolina) expressed any concerns about the law.  Several New York legislators felt a bit freer to articulate their anxieties about the law.  Then-Senator Paterson spoke at least once questioning the efficacy of the bill, noting that because the majority of sexual assaults occur within the home, relatively few ever result in conviction.  This small insight might seem so minor as to be unworthy of mention.  But because opposition to Megan's Law was so politically radioactive, his willingness to offer up any critique at all was notable - for several reasons.    First, he was willing to publicly articulate concerns about a third-rail issue.  Second, his critique - ineffectiveness - was sound.  Even if Megan's Law helped reduce recidivism among those on the rolls,  the overwhelming majority of offenders would never be convicted - and therefore never subject to Megan's Law.  Finally, he was pragmatic - the bill was going to pass ovewhelmingly and he appears to have ultimately voted for the bill (as did all but one of his fellow critics).

This is all consistent with what we're hearing about Paterson more generally.  Progressive and pragmatic.

As Filler notes, Patterson didn't vote against New York's Megan's Law, but he did make a criticism that shows some insight into the efficacy problems that most legislators haven't shown concern for in debating sex offender policy.

Interesting New Article on Registration and Notification Laws

J.J. Prescott, of Michigan, and Jonah Rockoff, of Columbia Business, have posted a very interesting empirical study concerning the efficacy of sex offender registration and notification laws on SSRN.  Here is the abstract:

In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public. Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes. We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism.

As Dan Filler at Faculty Lounge notes, one of the most interesting findings is that the laws seem to work best as a deterrent for potential criminals rather than as a means of discouraging sex offender recidivism:

To the degree that individual offenders have control over their actions, notification functions as a deterring punishment (notwithstanding the fact that the Supreme Court has happily embraced the fiction that Megan's Law isn't punishment at all).  To the degree that the an individual's conduct really is beyond rational control, offenders will reoffend notwithstanding the existence of registration and notification laws.   (It remains possible that notification empowers potential victims - that is a separate and complicated issue.)

This provides a real dilemma for supporters of registration and notification laws.  Citing Prescott and Rockoff's study to show the value of these laws undermines the legal fiction that has been created that registration and notification are not a form of punishment. On the other hand, there is an equal dilemma for those attacking these laws: they may be able to buttress their legal attacks that registration and notification are punishment, but they may have to concede the laws serve an important law enforcement function.

Michael Connelly raises a notable objection at Sentencing Law & Policy to the article:

The authors use reported offenses as their base but deal poorly with the likelihood that the increased attention to these crimes will lead many victims not to report. Their section on this possibility is very cursory and ignores the simple measure of looking at reports by victim before and after institution of the laws. Their results on their face would be exactly what we would predict if the often feared failure to report "Dad," "Unc," or Coach or Reverend rose as a result of those individuals' likely subsequent vilification in the community. Interesting paper but more work is needed before accepting its results.

Connelly's objection has a fair amount of anecdotal support since many many victims and defendants have remarked that the plea bargaining process has been altered by the registration requirements that a guilty plea entails. I could imagine a similar dynamic could occur in the initial decision to report. I think the article is great overall although I'm still trying to digest all of the data.  I highly recommend checking it out for yourself.

Around the Web

Capital Defense Weekly reports that in Iran, two sisters accused of adultery will be stoned to death.  The conviction is "based on video of the two women merely in the presence of men who were not their husbands or otherwise related to him."

Law enforcement officials in the Sacramento, California area have launched a program that sends out live e-mail alerts regarding sex offender's whereabouts.

California's Jessica's Law inadvertently contributed to a sex offender being released on parole last year. An appellate court ruled that a district court correctly dismissed prosecutor's attempt to have the man declared a sexually violent predator and commit him to a state mental hospital indefinitely because the man was in "unlawful custody" when the petition was filed.

Vigilantes in Evansville, Indiana set a man's property on fire and wrote "GET OUT PERV" on his garage door.  However, they had the wrong address. Police say the fire and writings were likely intended for a man who lived nearby.

How Appealing reports that the Ninth Circuit has issued its ruling that a former police officer’s First Amendment rights were not violated when he was fired for running a sexually explicit Web site.

Maine Legislature Responding to Court Ruling

Last week, I blogged about the rather surprising decision by the Maine Supreme Court.  It looks like the legislature is taking appropriate measures to comply with the decision:

The Legislature's Criminal Justice Committee had planned to meet next month to discuss expanding Maine's law requiring sex offenders to provide officials with their home addresses.

Instead, members of the panel will consider scaling back the law to avoid violating the state's constitution.

The change follows the Maine Supreme Judicial Court's decision Tuesday to allow a constitutional challenge to the law. Two of the nine justices suggested in a concurring opinion that registration has become punishment in addition to serving as a public safety measure.

Resolution of the reinstated case could invalidate registration requirements for hundreds of offenders who committed their crimes between 1982 and 1992 and are covered by the registration law because it was made retroactive.

"We have been saying for years that being placed on the registry had a punitive effect, and the court's decision finally acknowledges that, at a certain point, that's what it has become," said Walter McKee, president of the Maine Association of Criminal Defense Lawyers and the Kennebec County Bar Association.

A principle of constitutional law is that the penalty for a person committing a crime cannot be made more severe after that person has already been convicted.

The legislative committee is scheduled to meet Oct. 23.

It will be interesting to see how Maine chooses to adapt its laws.  The state could revert to laws that have been upheld elsewhere (ie the original Alaska statute upheld in Smith v. Doe), abandon registration altogether, or try to find a compromise.  I expect the last option will be the outcome, but the debate should be interesting regardless of the result.

Another Interesting Newsletter from Wisconsin

The Federal Defender Services of Wisconsin have another interesting newsletter with a long article about registration under the AWA.  Here's a taste:

The Sex Offender Registration and Notification Act creates extensive duties for persons convicted of sex offenses. These duties include registering with the appropriate jurisdictions, updating registration when there are any changes, and appearing periodically in person to confirm registration information.   Registration information is shared with other agencies, and much of it must be made available to the public through publicly accessible offender websites.

The article is entirely factual but provides a wonderful one-stop resource for someone looking to learn the basics of the AWA.

Sentencing Law & Policy has posted about the same newsletter here.

Registration Decision in Maine

Thanks to everyone who emailed me about this decision.  Here is a news account about what happened:

Maine’s sex offender law could be unconstitutional because it retroactively increases criminal punishments for people who already have completed their sentences for sex crimes, the state supreme court said Tuesday.

The decision, a setback for the sex offender registry, comes less than two years after a 20-year-old Canadian man killed two sex offenders in Maine after randomly getting their names from the state’s online sex offender registry.

Since the shootings, there have been legislative debates about the registry, including efforts to eliminate it altogether.

An anonymous John Doe sued after being notified — a week before the shootings took place — that his name had to be placed in the registry.

As I've noted before, sex offender restrictions are often passed in the wake of a particularly tragic crimes committed by sex offenders.  This is one of the few instances where a shocking story has helped generated a backlash against the restrictions.   The decision itself has a couple of interesting ideas.  The decision's attempts to distinguish a prior Maine case and the USSC decision in Smith v. Doe was particularly interesting:

In Haskell, we said that SORNA did not restrict the movements and activities of the registrants “in any way.” Id. ¶ 15, 784 A.2d at 11. Likewise, the Supreme Court found that the Alaska Act “does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Smith, 538 U.S. at 100. The Court noted that “[t]he record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords...."

In this case, the allegations are that Doe has reason to believe that he will lose his job, that his wife will leave him to protect her family, that his neighbors will attempt to remove him from the neighborhood, and that he fears violence. Accepting the truth of these allegations, as we must when reviewing a case decided on a motion to dismiss, see Persson, 2001 ME 124, ¶ 8, 775 A.2d at 365, we cannot say that these are all things that could otherwise occur through the use of routine background checks.

Because of the procedural posture of the decision, there was no definitive assessment of the constitutionality of the law as it currently exists.  However, this portion of the decision really forces lower courts to confront the real-world effects of registration and notification.  This has often been the poorest portion of previous rulings about registration laws as judges have tried to separate secondary effects from their opinions.  It will be interesting how this case moves forward and how it may affect decisions in other states.