Sex Crimes

FL Policy Analyst: Residency Restrictions are Ineffective

A legislative policy analyst today told Florida legislators that sex offender residency restrictions do not work. The analyst cited studies from Minnesota, Colorado and Florida, which found no connection between where sex offenders lived and where they committed new crimes. From the Miami Herald:

Studies show that laws prohibiting sexual predators from living near schools and other places where children congregate do not prevent offenders from committing new crimes and may be counterproductive, a legislative policy analyst told a House panel Tuesday.

Marti Harkness, who specializes in criminal justice issues in the Office of Program Policy Analysis and Government Accountability, said better options would be to bar offenders from smaller zones near places where children gather and keeping tabs on them with electronic monitoring.

Florida prohibits certain sex offenders from living within 1,000 feet of schools, day care centers, parks and other places that attract children, but some local governments have expanded the ban to as much as 2,500 feet, most notably in South Florida.

Those limits made it so difficult for sexual predators to find affordable housing in Miami-Dade County that some offenders have been living under a bridge in view of tourists and others using the span, creating a backlash against the restrictions.

I'm guessing nothing will change in Florida.

New Sex Offender Registration Scholarship

Thanks to Sentencing Law & Policy, we see a new article on SSRN by Amanda Agan (of the University of Chicago Department of Economics) entitled Sex Offender Registries: Fear Without Function? From the abstract:

I use three separate datasets and designs to determine whether sex offender registries are effective. First, state-level panel data is used to determine whether sex offender registries or public access to them decreases the rate of rape and other sexual abuse. Second, a dataset which contains information on the subsequent arrests of sex offenders released from prison in 1994 in 15 states is used to determine if registries reduce the recidivism rate of offenders required to register compared with those who do not. Finally, I combine data on locations of crimes in Washington, D.C. with data on locations of registered sex offenders to determine whether knowing the location of sex offenders in a region help predict the locations of sexual abuse. The results from all three datasets do not support the hypothesis that sex offender registries are effective tools for increasing public safety.

I haven't read the study yet, but this is consistent with every other study that has reviewed the efficacy of registries.

Federal Sentencing Reporter Sex Offender Issue is Out

As Doug Berman notes, the Federal Sentencing Reporter issue dedicated to sex offender issues is out. You can find the details here. I was honored to be one of the contributors and as I noted I have also made my piece available on SSRN. Here is the entire list of articles in the issue:

• Michael O’Hear, Perpetual Panic
• Mary Ann Farkas & Gale Miller, Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals
• Ian N. Friedman & Kristina W. Supler, Child Pornography Sentencing: The Road Here and the Road Ahead
• Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A Two-Decade Retrospective
• Mary Graw Leary, Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty
• Joseph L. Lester, Brandishing the Mark of Cain: Defects in the Adam Walsh Act
• Michael Petrunik, Lisa Murphy, & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness
• Richard G. Wright, From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy
• Corey Rayburn Yung, The Sex Offender Registration and Notification Act and the Commerce Clause

Michael O'Hear, who blogs at the Marquette University Law School Faculty Blog and was the editor for the issue, has also put his editor's observations on SSRN. Here is a taste from the article: 

Legislators who wish to respond to strong public sentiment but who are troubled by the track record of statutes adopted in times of panic should consider a legislative device that reverses the forces of legislative inertia: the sunset provision. When adopted, new criminal penalties can be set to expire within a given period of time. The history of the crack panic, as well as the earlier sex crime panics, suggests that ten years may be an ideal period of time to permit public passions to subside. A decade should also be a good amount of time to permit rigorous evaluation of the effectiveness of new laws. For instance, as Janus and Prentky point out in this issue, the spread of civil commitment laws was rapid in the 1990s but slowed dramatically this decade as the fiscal burdens of commitment became clearer.84 In the current budgetary climate, one wonders how many state legislatures would now be happy to see civil commitments die out quietly under the terms of a judicious sunset provision. To be sure, in the panic atmosphere, a sunset provision may be criticized as watering down the legislature’s condemnation of whatever class of offense or offenders is being targeted. On the other hand, the adoption of a sunset does not necessarily mean there will be a weakening of the legal response to the subject of current public outrage. Indeed, if public concern remains high over an extended period of time and analysis shows that tough penal responses are helpful, then the imminent expiration of one set of penalties may actually facilitate the enactment of even higher penalties. But, if public concern wanes or penal responses are shown to be ineffective, it should be made as easy as possible to redirect scarce criminal justice resources in more fruitful directions.

I wanted to thank Berman and O'Hear for inviting me to take part in the issue. I think all of the articles look really interesting and I look forward to reading them.

Castration in Europe

The New York Times has an article on the debate over castrated sex offenders in some European countries:

Whether castration can help rehabilitate violent sex offenders has come under new scrutiny after the Council of Europe’s anti-torture committee last month called surgical castration “invasive, irreversible and mutilating” and demanded that the Czech Republic stop offering the procedure to violent sex offenders. Other critics said that castration threatened to lead society down a dangerous road toward eugenics.

The Czech Republic has allowed at least 94 prisoners over the past decade to be surgically castrated. It is the only country in Europe that uses the procedure for sex offenders. Czech psychiatrists supervising the treatment — a one-hour operation that involves removal of the tissue that produces testosterone — insist that it is the most foolproof way to tame sexual urges in dangerous predators suffering from extreme sexual disorders.

Surgical castration has been a means of social control for centuries. In ancient China, eunuchs were trusted to serve the imperial family inside the palace grounds; in Italy several centuries ago, youthful male choir members were castrated to preserve their high singing voices.

These days it can be used to treat testicular cancer and some advanced cases of prostate cancer.

Now, more countries in Europe are considering requiring or allowing chemical castration for violent sex offenders. There is intense debate over whose rights take precedence: those of sex offenders, who could be subjected to a punishment that many consider cruel, or those of society, which expects protection from sexual predators.

Doug Berman, at Sentencing Law & Policy, addresses some interesting wrinkles to the story:

I find both remarkable and annoying that the only "study" on this topic cited in this Times article comes from the 1960s.  Can we imagine any other field in which leading research in the field is nearly half a century old?  Of course, I am sure there are more modern studies that the Times might have mentioned, though I am not confident that there have been many (any?) rigorous modern assessments of sex offender castration in the United States, even though chemical castration as a form of alternative punishment has been considered (and used?) widely throughout the nation for well over a decade.

I often stress to my students that modern research on sentencing and punishment is often incomplete and partisan, in part because few people with the interest and energy and money to conduct research in this field are willing to explore ideas and data that may not confirm their pre-existing beliefs.  Though I usually stress this point in conjunction with death penalty research, the apparent lack of data concerning forms of sex offender castration likely also reflects these problematic dynamics.

It certainly is odd that there hasn't been all that much research has been done recently regarding castration, especially given that at least nine states in the U.S. authorize the punishment. Then again, despite the incredible number of sex offenders in America, the studies of recidivism are few and far between.

Victims as Defendants

A few weeks ago, we mentioned a new bill signed into law by New York Gov. David Paterson which shields sexually exploited children from being charged with prostitution. A Stitch in Haste ties together the law with a different case we discussed the other day:

It’s a long-standing principle in the law that “predatory” crimes should not be applied to those whom the law is meant to protect. So, for example, minors usually (though not always) cannot be prosecuted for statutory rape. Due process demands (or ought demand) that someone cannot simultaneously be the perpetrator and the victim of the same crime.

[The new law] [m]akes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York’s dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn’t it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren’t they “incompetent” (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York’s homeless youth identify as gay or lesbian; this source says “more than 20%”). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term “predatory” crimes in my opening sentence (i.e., as opposed to “victimless” crimes)? Should conduct that is not “predatory” ever be a crime in the first place?

Are Sex Offenders Ill?

One of the assumptions that plagues policy discussions about sex offender policy is that sex offenders are mentally ill.  This assumption usually leads to sometimes oppositional conclusions.  First, some believe that offenders are sick, but incurable.  This means they require constant supervision, restriction, and/or incarceration.  Others believe (or at least state they believe) that offenders can be "cured" which means they require constant supervision, restriction, and/or incarceration until they are "cured."  Either way, the result is largely the same.  Steve Erickson recently posted a rather lengthy discussion of how mistaken this assumption is.  I suggest you go check out the whole thing, but here is a key portion:

As mentioned previously, the idea that pedophilia is a mental illness on par with schizophrenia or other strongly biologically caused illnesses of the mind is weak. Yet that hasn't stopped many from suggesting otherwise. And when it comes to the civil commitment of sex offenders, the Supreme Court has concluded that a link between a mental abnormality and volitional control is necessary to justify commitment....

Like most areas of science, behavioral science experts use tests to help them formulate their opinions; and in the area of sex offender assessments, the tests used vary widely and are applied in a variety of clinical and legal situations. But the sheer ease in which these same tests can confirm a mental abnormality in one case and suggest a high risk for recidivism among someone without mental illness in another says a lot about the strange marriage between behavioral science and criminal law.

I agree strongly with everything Erickson posted.  I think his conclusion may be right that whether sex criminals are viewed as "sick" or "evil" may not change their terms of incarceration.  However, I, like Erickson, think it is important to make sure our policies are based upon sound science rather than mistaken assumptions.  There are definitely sex offenders who are mentally ill, but that is true of any criminal population.  However, society doesn't label all thieves "kleptomanics" because a subset of the thief population are, in fact, kleptomaniacs.  Treating all sex offenders as "sick" or "ill" is a mistake that courts, legislators, and policy groups often make.  Hopefully, at some point in the future, a more honest discussion on this issue can occur.

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.

NCJRS Abstracts

Michael Connelly brings our attention to three new NCJRS studies:

• Denial and Minimization Among Sexual Offenders: Posttreatment Presentation and Association with Sexual Recidivism.  This study examines "the relationship between sexual recidivism and posttreatment denial and minimization among sex offenders in Canada."


• Dropout From Sex-Offender Treatment and Dimensions of Risk of Sexual Recidivism.  This study examines "the association between general criminality and sexual deviance and the risk of dropout or expulsion from a sex-offender treatment program."


• Sex Offender Residence Restrictions: Sensible Crime Policy or Flawed Logic?  This paper reviews "research relevant to the effectiveness and impact of residence restrictions for sex offenders and draws implications for practice and policy."

With the demise of Corrections Sentencing, I'll try to post about these abstracts as related to Sex Crimes from time to time.

Around the Web

The Miami-Herald is reporting that homeless sex offenders living under a bridge in Miami are being forced to leave.  And, yes, this is the same group of homeless sex offenders that received national attention a while back.

The Boston Globe has an article which mentions that between July 2006 and June 2007, Massachusetts judges and juries have released 37 convicted sex offenders over the objections of prosecutors.  One judge released a convicted sex offender even though prosecutors and two court-appointed psychologists argued that he posed a threat to children. 

The Wisconsin Radio Network spoke to a psychologist who said "efforts by local governments to restrict where they [sex offenders] can live are misguided."  According to Dr. Salter, these laws are "based on the faulty premise the proximity to a victim will increase the chances of recidivism."  You can also listen to the story here (mp3).

Elsewhere in Wisconsin, state officials are looking to close a loophole that "allowed a sex offender living in a state-run treatment facility to wrongly receive financial aid for room and board."

A Florida fugitive has been wrongly reported as a sex offender.  As the man states, "I am not wanted for sexual assault on a victim under 12 years of age. I am wanted for violation of probation because of a cocaine possession arrest."  Given the stigma of the "sex offender" label, states really need to do their best to make sure they apply it properly (and this is especially true for the registries).

Crime and Consequences reports that Washington lawmakers are proposing new legislation targeting sex offenders.  One law would make it criminal to view (even accidentally) child pornography.  Apparently, people who do accidentally view the child pornography are urged to report it to authorities in the hopes of being granted immunity.  The Seattle Post–Intelligencer has more information.  I'd have to see the bill, but this bizarre strict liability standard for viewing child pornography seems crazy.

Numbers Guy on Sex Offender Recidivism

The Numbers Guy at the Wall Street Journal recently tackled the issue of sex offender recidivism.  Here is an excerpt from the post:

In debates over laws monitoring released sex offenders, it’s common to hear claims that they’re sure to commit more sex crimes. “‘What we’re up against is the kind of criminal who, just as soon as he gets out of jail, will immediately commit this crime again at least 90 percent of the time,” a California legislator told the New York Times in 1996. (Other examples of such rhetoric are collected here.) Fox News — like the Wall Street Journal owned by News Corp. — said of child molesters in 2005, “Not only are they almost certain to continue sexually abusing children, but some eventually kill their young victims.”

But as my print column this week points out, the numbers don’t bear this out. Recidivism rates vary widely depending on which crimes are counted, the timeframe of the studies, and whether repeat offenses are defined by convictions, arrests, or self-reporting....

This isn’t just an academic exercise. The conventional wisdom on sex-crime recidivism, coupled with high-profile sex crimes against children, has helped spur the spate of registry and neighbor-notification laws, even before they could be properly studied for their impact on recidivism rates. Several researchers, including Dr. Doren, say that residency-restriction laws may be counterproductive. Such a constraint “drives them out of their community, and leads to a lack of stability,” said Karen J. Terry, a criminologist at John Jay College in New York. “Those are some of the underlying conditions that caused them to abuse in the first place.” A consensus on how to measure recidivism, and determine its baseline rate, would help evaluate such laws.

I think it is great that this often misunderstood and misreported issue has received some real attention.  I think the Numbers Guy does a pretty good job of showing some problems with studying this issue.  Also, it is good to see some criticism of the unsupported recidivism rates that are often used by policymakers and the media.  I wish the Numbers Guy had looked at the DOJ study which had the odd result of showing that non-sex-offenders actually had a higher rate of committing sex crimes upon release than did sex offenders.  That seemingly anomalous result sometimes adds needed context to discussions of sex offender recidivism.  It would also be nice to see a greater attention paid to breaking down sex offender sub-populations to assess those recidivism rates in context.  Overall, though, I'm happy to see this issue getting a little more coverage.  It's always nice to have the possibility that facts, not fear, will inform policy.

Update: Doug Berman adds his always insightful comments here.