When I first became a public defender, I believed the worst punishment that my clients would face would be time in jail. Since then, I've learned that incarceration is not the only — and perhaps not the worst — punishment the criminal justice system can impose. The registration requirements imposed on those convicted of sex offenses are unfairly harsh and punitive, though few recognize them as such.
I had always assumed that sex offender registration was limited to those who committed the most egregious and dangerous offenses. I had also trusted that the Supreme Court was right when, in 2003, it stated that sex offender registration laws are not punishments but merely administrative requirements to protect public safety.
But I realize now that many of my clients would choose to take on more jail time, more fees — anything to avoid being labeled a sex offender for life. That's because our current sex offender registration laws apply an unbending and inhumane one-size-fits-all approach that does not prevent future sex crimes and in fact makes us all less safe.
The registration process appears designed to make people fail. The rules are so complicated that few non-attorneys can keep up with them.
The first registry began in 1947, when California started tracking sex offenders by requiring them to notify police of their whereabouts. For nearly 50 years, only four other states followed suit, until a handful of high-profile child murders in the 1990s began fostering a cultural fear of "stranger danger." In spite of evidence that most sex offenses happen by those known to the victim, this developing panic over the image of nearby, lurking sex offenders led to broader sex offender laws.
In 1994, Congress passed the Jacob Wetterling Act, which was named for a missing boy assumed — but never proven — to have been kidnapped by a local sex offender living in a halfway house. The law required each state to maintain sex offender registries or lose federal funding. In 1996, Megan's Law — named for a 7-year-old who was raped and murdered by a neighboring, repeat sex offender — passed in New Jersey; it required public release of sex offender registry information, which Megan's mother argued would have kept her daughter alive. Just two years later, President Bill Clinton signed a federal version of the bill into law.
Since then, additional sex offender restrictions — including those limiting where sex offenders can live — have emerged across the country. Legal challenges to the registries have failed; in 2003, in Smith v. Doe and Connecticut Department of Public Safety v. Doe, the US Supreme Court decided that sex offender laws — including public notification of sex registry information — are constitutional. As a result, there are now over 800,000 people registered as sex offenders in the US.
Here's what I wish more people understood about sex offender registries.
Far too many people have to register as sex offenders
The category of crimes that require one to register as a sex offender in California — which has more registered sex offenders than any other state— is a grossly overbroad one. It encompasses those who, have been convicted of sexual assault, but also people who committed even minor, misdemeanor conduct. There are the crimes one would expect to see labeled as serious sex offenses — rape, child molestation, sexual assault — but there are also offenses like peeing in public, which can qualify as indecent exposure. Similarly, grabbing someone's butt or masturbating in one's own car also qualify as sex registerable offenses, even though they are punishable as misdemeanors. We may not want to legalize those behaviors, but forcing someone to be labeled a sex offender for life over a misdemeanor that is only punishable at its maximum by six months in county jail is excessive.
The state nonetheless treats all members of this "sex offender" class harshly, regardless of the underlying offense. All "sex offenders" must comply with strict requirements, including regular registration, residency restrictions, and lifetime consequences damaging their personal and professional lives long after they've served their time, including the public shaming of having their names, faces, and addresses plastered online by the government. Reasonable minds may differ about whether some of these restrictions make sense for the most violent offenders, but that's only a fraction of the people affected by sex offender laws.
Complying with the sex offender registry rules is a huge challenge
The registration process appears designed to make people fail. The rules are so complicated that few non-attorneys can keep up with them. In California, a former sex offender with a steady place to live must register annually for life. But whenever he moves, he must register within five days of relocating (it's only three days in some states). If he suddenly becomes homeless (likely because he can't get a job with the public label "sex offender") he must register as homeless within five days and then reregister as homeless every 30 days. In Georgia, it's even worse: A homeless sex offender must register every time he changes sleeping locations within just 72 hours.
Registering itself is a cumbersome process. Oakland Police Department's current voicemail message for sex registration-related inquiries states that in order to register, one must make an appointment at least a month in advance. It is hard to understand how one can be expected to register within five days of changing addresses if an appointment takes a month to set up.
And even if one secures an appointment, he must often wait many hours at the police station — jeopardizing any job he was lucky enough to find — to be seen for the appointment. And when the appointment begins, there are rarely interpreters around or people to assist with reading the technical language. So even if you are, like many of my clients — homeless, mentally ill, and too poor to own a phone — you are nonetheless expected to either call a police station or show up in person, make an appointment over 30 days in advance, wait for hours at the police station on your appointment day (hardly a comfortable place for most of us, let alone someone with a criminal record), read and understand legal jargon on lengthy documents, and continue to do so every few weeks for the rest of your life.
The lifetime registration requirement in many states means that there are people being arrested for failing to register who are elderly and whose offenses dated back decades. I perused the Department of Justice's website for sex registrants listed within a mile of my office in Oakland and found that the average age was 61, with several offenders in their late 80s still listed and required to register. With age comes memory loss — which often means trouble remembering to register. As a result, I've had clients who continue to get arrested regularly for failing to register simply because they cannot remember to do it as frequently as they are required to and end up back in prison, where their health continues to deteriorate.
The real problem emerges once someone fails to register — which can be frequent for people who are homeless, disabled, or elderly. Failing to register is itself a crime — frequently a felony — meaning the punishment for failing to register can be more severe than the punishment for the actual offense. In Georgia, for example, failing to register is a felony carrying a sentence anywhere from a year to 30 years in prison. Yet, the registration laws are notoriously complex in ways that make compliance all but impossible for many who are required to register.
Take, for example, a man I'll call Mario (to protect his confidentiality), who was represented by the Stanford Three Strikes Project several years ago. Mario was a sex registrant because, as a teenager, he inappropriately touched a fully dressed boy on two occasions. After serving his sentence with a clean prison record, Mario was released to a halfway house where he was doing extremely well. He was diligent about registering — to the point that his parole agent complained that he was contacting him too often.
When the funding dried up for the halfway house, Mario learned he would have to leave. He contacted his parole agent and asked how he was supposed to register as homeless, and the parole agent told him that he thought he had 30 days to register. It is true that homeless people must register every 30 days, but Mario becoming homeless for the first time counted as a change of address — which required him to register within just five days.
Eleven days after he became homeless the police asked Mario about his status and arrested him for being six days overdue in registering. Not only was he back in jail, the prosecutor was seeking a life sentence under the Three Strikes Law. A judge ultimately refused to sentence Mario as a three-striker, but he was convicted of the failure-to-register felony and was back in the system — for not knowing laws that even his parole agent did not know.
There's no proof sex offender registries work
Supporters of sex registration laws claim they promote public safety by ensuring that police can track offenders' whereabouts and keep them away from children. But no evidence supports the premise that public safety is thereby enhanced in any way; to the contrary, registration laws frequently lead to homelessness, instability, and more time in prison, all of which lead to a greater risk of future crimes.
My heart has been broken by working with clients who offended decades ago and then lived on the straight and narrow for an extended time
The myth that those who commit sex crimes are more likely to reoffend is pure fiction; numerous studies, including those cited the California Sex Offender Management Board's recent report, noted that sex offender re-offense rate is actually lower than any crime other than murder. Indeed, research shows that only about 5 percent of new sex offenses were committed by previous sex offenders.
My heart has been broken by working with clients who offended decades ago and then lived on the straight and narrow for an extended time. How does it happen that after all those years of obeying the law, these individuals end up reoffending? All too often the answer has everything to do with the sex registration requirements. These individuals had been put back in system because of some (often hypertechnical) failure to register — and that incarceration then threw their lives (jobs, relationships, housing, etc.) into havoc. So they end up as my clients because, with their lives upheaved, they predictably went on to reoffend.
A 2007 Human Rights Watch report determined that sex offender registries do not prevent sex offenders from committing future sex crimes; data show that the best way to prevent crimes — particularly sex crimes — is to promote stability and security for past offenders. Ripping that all away by incarcerating them for failing to register only leaves the public at risk.
Registries aren't the only requirement for sex offenders — they're also restricted as to where they can live
These registration requirements are heavy; but they're still only a piece of our punitive sex offender regimen. On top of all the registration requirements, many states severely limit where anyone labeled a "sex offender" may live. This often means that any sex offender is barred from living within some distance (typically somewhere between 500 feet and 200 feet) of a school, playground, bus stop, or even gym.
In Miami, Florida, local residency restrictions are so harsh — prohibiting sex offenders from living with 2,500 feet of any place children are likely to gather — they have rendered sex offenders homeless; because of the requirements, offenders have nowhere to live, other than remote, isolated places, like under a bridge or on train tracks. This doesn't exactly provide the support and stability research shows they need to avoid future sex offenses.
Imagine someone convicted of a minor sex offense, who moves in with his family to a home carefully chosen to be far enough away from restricted areas. He's doing well, in a rehab program, getting treatment for his behaviors, progressing, looking for a steady job. Suddenly he learns that a part-time daycare center has opened up down the block, so he can't continue to stay at his home. He becomes homeless and loses all the support he had relied upon to get back on track.
Now that he is homeless, his chances of successfully complying with our draconian registration laws are slim, and his risk of arrest for failure to register is high. Not only that, but his instability and lack of support are likely to cause him to commit a new crime. Because of sex offender laws, someone who was doing well after serving his sentence for a crime is suddenly on a one-way path back to prison.
Although California is beginning to loosen these residency restrictions for some offenders following a California Supreme Court case declaring a San Diego blanket residency restriction unconstitutional, many offenders are still subject to these arduous residency restrictions both in California and in other states. The requirements vary widely; in Illinois, someone convicted of a sex offense cannot step foot on a forest preserve, which qualifies as a park.
Some states have recently begun to recognize that residency restrictions frequently push people into homelessness, where they are more likely to commit crimes, and have eliminated them altogether. The former chairman of the Texas House Correction Committee, Ray Allen, who had once fought for tougher sex offender laws, has noted that "we cast the net widely to make sure we got all the sex offenders. Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public."
Even some prosecutors have come to recognize how misguided residency requirements are. Earlier this year, a California bill that would have allowed for local discretion to increase residency requirements was defeated early on after a group including the Alameda County District Attorney and the attorney general's office opposed it, noting that the restrictions "actually increase the risk of sexual recidivism."
Being deemed a sex offender for life carries with it other unwritten penalties. Not only is it infinitely more difficult to get a job or a place to live once one has been labeled a sex offender, but many mental health programs and drug or alcohol rehabilitation programs have policies banning sex offenders. Again, this lack of support and services only furthers the chances that these individuals will end up committing future crimes.
The Brock Turner case is not representative of most sex offender cases
Even though lawyers and policymakers recognize that strict sex offender laws are counterproductive, many politicians continue to cling to false narratives of the dangers of sex offenders — the same fearmongering that led to the expansion of sex offender laws in the 1990s. Atypical cases like Brock Turner's further fuel that sentiment and drum up support for tough sex offender laws. As a result, despite the lack of evidence demonstrating any public benefit to sex offender laws, these stigmatizing, burdensome, and unfair laws persist.
Many politicians continue to cling to false narratives of the dangers of sex offenders — the same fearmongering that led to the expansion of sex offender laws in the 1990s
What makes us great as a society is our ability to apply reason to a vast body of research and knowledge. Yet the fury over the Brock Turner case has created a risk that we shift toward harsher penalties for sex offenses, without looking closely at what kinds of crimes are included in that category. We must avoid "one-size-fits-all" labels for those convicted of a broad range of offenses.
We know that the proven methods of protecting public safety involve moving away from monitoring and shaming those who have committed past offenses, and focusing on ways to prevent sex crimes on the front-end, and on meaningful reentry programs that assist people coming out of prison to get jobs, housing, and support. They may not provide the quick-fix satisfaction that politicians love to sell — but they are the only thing proven to work.
Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.
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