"Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry

"By Guy Hamilton-Smith - Law grad, civil rights activist, and author writing about criminal justice, sex offense policy, media, and culture.Dec 12, 2017

Perhaps the most irrefutable statement that can be made about modern day America is this: we have a penchant for putting people in cages. More than any other nation on the planet, we rely on incarceration as the fix for our social ills.

America’s unprecedented prison boom spawned advocates who work tirelessly to put the police state toothpaste back into the tube. As a result, despite a steady media diet of cops and robbers police procedurals, the rhetoric on crime policy has begun to shift. The country appears to be approaching something akin to apostasy. We have begun to lose our faith in imprisonment as an effective response to problems like drug addiction. For the first time since the data was tracked, state and federal prison populations declined in 2014, albeit slightly, from historic highs.

Yet amidst this wave of reform, one group of people continue to languish in the collective “harsher is better” mindset: sex offenders.

The American journalist H.L. Mencken once said that

The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

Mencken was right: if you’re interested in defending human freedom, get ready to spend a great deal of time defending people you might not like. The guns of oppression are aimed at the friendless before they swing to the connected and moneyed.

And no one is more friendless than those on the sex offender registry.

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical.

The forebears for modern sex offender registries and so-called “sexual psychopath laws” first appeared in late 1930s California, and largely targeted LGBTQ individuals. What began as relatively simple lists of individuals convicted of crimes grew in the wake of two high profile murders of children in 1937, which spawned a moral-sexual panic: simultaneously horrifying and captivating the nation.

Operating on the premise that the American public had a right to know about the sordid pasts of those it deemed miscreants, registries began to spread from state to state, city to city, arguably arriving in modern form in the wake of the grisly rape and murder of Megan Kanka in New Jersey in 1994 — the namesake for Megan’s Law (the colloquial term by which sex offender registries are most commonly known).

Perhaps owing to our puritan roots, it has been said that everyone in America lies about sex, because everyone lies about the designs that they have on their neighbors’ bodies.

In 2003, in a case titled Smith v. Doe, the United States Supreme Court was asked to consider whether the Alaskan sex offender registry was so punitive as to be constrained by the ex post facto clause of the United States Constitution, which is meant to stop punishments from being increased after the fact. In asserting — falsely, as has been conclusively demonstrated — that the risk of re-offense posed by sex offenders was “frightening and high,” the Court green-lit a cross-country, decade-long race to the bottom in denying those on the registry essential and time-honored legal protections.

Despite having been given two recent high-profile opportunities to revisit its holding and erroneous factual assertions, the Supreme Court has so far chosen not to do so. Worse, in the concurring opinion in 2017’s Packingham v. North Carolina, the conservative wing of the Court reaffirmed Smith’s central fallacy, which laid the foundation for present-day sex offender registries. Justice Anthony Kennedy, who authored the majority opinion in both Smith and Packingham, remained silent on the elephant in the room that was given life by his authorship in Smith: the erroneous assertion on re-offense rates.

In the wake of Smith, sex offender registries and their attendant restrictions have grown at a brisk clip. The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 today. Research has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal.

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