Jacob Sullum writes a powerful piece on the subject. We all know vaguely about the modern rash of laws creating mandatory public “sex offender” registries, and most of us think of them as directed at creepy adults who diddle minor children. Many of us know about “Megan’s Law,” the 1996 federal statute that forces the states to create such registries as a condition of receiving federal law-enforcement funds. But did you know that in at least thirteen states, the list of convictions that require lifelong registration as a “sex offender” include things like urinating in public? And 28 states require registration by those who, in their teens, were caught having sex with persons two years older or younger than them. Although the scope differs from state to state, being on one of these public registries generally entails lifelong restrictions on where one can live and work.
Making Light’s readers are probably familiar with the fact that in about nine out of ten sexual assaults against a child, the perpetrators are relatives or acquaintances, not strangers. And the overwhelming bulk of people arrested for sex offenses have no prior convictions for these kinds of crimes. Furthermore, the common claim that sexual crimes against children have a “90 percent likelihood of recidivism” turns out, on examination, to be nonsense; in fact, the rate is about 14% over four to six years, lower than the recidivism rates for burglary or non-sexual assault. But facts appear to make no difference. It’s hard to summarize how completely bonkers the whole business has become.
According to The Dallas Morning News, the sex offender registry in Texas, where Washington lives, includes about 4,000 people who were minors when they committed their crimes, a quarter of whom were under 14. Human Rights Watch interviewed the father of a 10-year-old boy accused of touching his 5-year-old cousin’s genitals. “My son doesn’t really understand what sex is,” he told the group, “so it’s hard to help him understand why he has to register as a sex offender.” This policy of tarring minors as sex offenders undermines a central aim of the juvenile justice system by burdening people with the mistakes of their youth for the rest of their lives.Even more notable is the growth of state laws that authorize involuntary, unlimited civil commitment of sex offenders after they’ve served their sentences. Kansas’s version of this was upheld by the Supreme Court in 1997, and because there isn’t already enough absurdity in this story, the majority opinion was written by Clarence Thomas. The offender in question was originally convicted on the grounds that he could have controlled his behavior and failed to do so; on completion of his ten-year sentence, he was committed because the state declared that he was unable to control himself. For most people committed to establishing a regime of arbitrary and lawless power, enshrining such a contradiction would be enough of an accomplishment. But our modern Supreme Court wasn’t finished; they further ruled that indefinite commitment isn’t a life sentence under another name because the “patient” is “permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired,” and also—it’s the detail work, you know, that separates the pros from the part-timers and dilletantes—that the state isn’t required to provide treatment that might help eliminate the danger. Perfect, really.
Of course, someone is making a tidy fortune off of all this. In Washington state, it was found that taxpayers pay about $26,000 a year to house an offender in prison, but $97,000 annually once they’re committed after serving their term. Sullum concludes:
When you strip away the quasi-medical language, what states are really saying when they indefinitely commit odious individuals like Leroy Hendricks to mental hospitals is this: “Whoops. We should have given this guy a longer sentence.” But it is no mere formalistic quibble to point out that a defendant’s sentence should be imposed at the time of his conviction as determined by a judge within the parameters set by statute. These are basic requirements of due process and the rule of law, and we make exceptions to them at our peril. Clarence Thomas may be confident that preventive detention won’t be extended to “other dangerous persons,” but I am not. It seems to me that all it would take is a new law attached to a new scientific-sounding label invented by legislators or grabbed from the Diagnostic and Statistical Manual of Mental Disorders. How many convicted criminals could qualify for a diagnosis of, say, anti-social personality disorder?I’m not as convinced that “most Americans” are as foolish as all that. Like most of what appears in Reason, the flagship magazine of American libertarianism, Sullum’s article (subtitled “Sex offender laws represent the triumph of outrage over reason”) fits tidily into a narrative of cool rationality under siege by hotheaded, mob-driven democracy. In fact what this issue could use is a little more outrage, right alongside the logic and reason. It could also use more insight into the way moral panics form (a subject on which libertarians are often very good) and a lot more examination of exactly who benefits from this kind of racket. We might even start to notice that pathologies like this, like the unwinnable-yet-unendable War on Drugs, or the modern British obsession with shaming and blaming working peoples’ behavior, act to hollow out, disrupt, and disempower entire parts of society, and to make it easier for other parts of society to reinforce and perpetuate their privileges. But then we’d have to come up with some terms for these “parts of society,” and start looking at the mechanisms by which powerful people, not being fools, regularly exploit opportunities to better themselves and those they regard as their kind, often by reducing the competitive potential of other cohorts. We might have to begin referring to these contending cohorts with crazy terms like, I dunno, “class” or something. But wait, that’s foolish conspiracy-theorizing. Powerful people working together to maintain their prestige and position! That never happens. Nah, the reason Americans get buffaloed into supporting the highest incarceration rate in the world is that People Are Stoopid.
In a 2004 Criminal Law Bulletin article, William Mitchell College of Law professor Eric Janus argued that “sexual predator laws provide a model for undercutting…constitutional protections.” The process, Janus said, starts with a universally despised group of people who, like suspected terrorists, attract no public sympathy. He warned that “we are at risk of becoming a ‘preventive state,’ in which the paradigm of governmental social control has shifted from solving and punishing crimes that have been committed to identifying ‘dangerous’ people and depriving them of their liberty before they can do harm.” To most Americans, I fear, this prospect is not nearly as scary as the possibility that a sex offender lives down the street.