Criminal Justice Resources: Sex Offender LawsBy Ken Strutin, Published on September 28, 2007
At the federal, state and local levels, laws have been enacted to regulate the punishment, supervision and treatment of convicted sex offenders. These laws encompass registration and notification requirements, residency restrictions, and civil commitment.
It began in 1994 with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (BJA), which requires states to implement a sex offender registration program, and amended by Megan's Law (PL 104-145) in 1996 to include a community notification system. In that same year, the Pam Lychner Sexual Offender Tracking and Identification Act (PL 104-236) was passed mandating lifetime registration for certain classes of offenders. See Overview and History of the Jacob Wetterling Act (BJA).
This article focuses on recent developments in the administration and implementation of federal laws and to a limited extent analysis of state and local developments. In addition, selected research on sex offenses, risk assessment, treatment and punishment are noted, along with a section on the new Adam Walsh Act. Since this is a rapidly developing area of law the emphasis is on key publications and resources.
|Blogs and News||Adam Walsh Act||Civil Commitment|
|Registration||Residency Restrictions||Risk Assessment|
|Treatment and Management Programs||Resources|
Blogs and News
Stories about sex offender prosecutions, residency restrictions and commitment hearings are routinely appearing in local and national news sources. Below are some targeted current awareness services on these topics.
Sex Offender Sentencing [Blog]
Prof. Douglas A. Berman, Moritz College of Law at The Ohio State University, reports on news, legislation and case law developments in the area of sex offender sentencing laws. This is one topic group from his Sentencing Law and Policy blog.
"This blog is designed to promote discussion of sex crime defense, including rape, sexual assault, sex offender registration, child pornography and child molestation. The discussion is open to laws, regulations, court opinions, important individual cases and legislative trends." The site is maintained by the Smith Law Offices: Stephen. C. Smith, Esq., Matthew S. Erickson, Esq., and Marrianne Lynch, Esq.
Sex Offender Law Report (Civic Research Institute)
"Sex Offender Law Report sorts through and explains the legal developments, including new federal and state legislation and significant cases that affect the work of attorneys in criminal and civil practice, the judiciary, and treatment, counseling, and corrections professionals."
Sex Offenders Report [Blog]
"Sex Offenders Report is an online sex offender news blog that reports on registered sex offenders, pedophiles, and child predators."
Adam Walsh Act
The Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248) created a national Sex Offender Registration and Notification Program. The Justice Department has issued proposed regulations for its implementation and interpretation: National Guidelines for Sex Offender Registration and Notification; Notice (Fed. Reg. May 30, 2007).
Adam Walsh Child Protection and Safety Act Resource Page" (Office of Federal Defender Services): The Training Division of the Office of Federal Defender Services for the U.S. Courts has compiled a list of current research guides and litigation materials concerning the Adam Walsh Act. The topic areas include: bail, discovery & statute of limitations; Sex Offender Registration and Notification Act (SORNA); civil commitment; and other resources.
Adam Walsh Act Resources (Federal Public Defender WD Pennsylvania)
"This page contains links to resources for understanding and dealing with issues related the Adam Walsh Child Protection and Safety Act of 2006."
Adam Walsh Child Protection and Safety Act - Links Post (Sex Crimes Blog)
"The intention of this post is to provide a comprehensive set of links and documents related to the Adam Walsh Child Protection and Safety Act."
Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (DOJ) and Proposed Guidelines
"These proposed Guidelines released by the Attorney General detail the minimum national standards and offer key guidance to the states, the District of Columbia, territories, and federally recognized Indian tribes, as they implement their sex offender registration and notification policies. By providing an effective and comprehensive national system, the proposed Guidelines will strengthen law enforcement's ability to track and monitor sex offenders."
Involuntary Commitment of Sexually Violent Predators: Comparing State Laws (Washington Institute for Public Policy 2005)
"Seventeen states have laws that authorize confinement of sex offenders identified as 'sexually violent predators.' This paper focuses on three questions: (1) Number of Persons Held Under SVP Laws; (2) Number of Persons Released Under Some Form of Less Restrictive Alternative; and (3) SVP Program Costs."
Sex Offender Commitment Listserv
"A meeting place for defense attorneys in 'sexually dangerous person' or 'sexually violent predator' commitment proceedings. Members may access/share documents (e.g., transcripts, depositions, research literature) and seek advice from and brainstorm with colleagues from around the US on civil commitment issues. Membership and access by approval only."
Sexually Dangerous Person Commitments: Cases of Interest From Other Jurisdictions (CPCS)
This annotated list of court decisions concerning civil commitment draws on cases from across the country in such areas as constitutionality, plea agreements, jury instructions and risk assessment. The web page is maintained by the Committee for Public Counsel Services in Massachusetts.
This section highlights research into the impact and administration of sex offender registration laws. Information about particular state registries can be found on these sites: Dru Sjodin National Sex Offender Public Registry (DOJ) and Megan's Law in All 50 States (Klaaskids 2007).
Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders (SSRN 2007)
"The article deals with a bizarre but common phenomenon: the registration of nonsexual criminals in sex offender registries. The practice has been challenged in a number of cases, but there is much disagreement among courts - often within the same jurisdiction - on its constitutionality, and on the analysis it entails. The issue has recently picked-up steam - reaching some state Supreme Courts (Florida's and Illinois'), and appearing in the popular news media. The article offers a comprehensive analysis of the Substantive Due Process issues involved, showing why registering nonsexual criminal in sex offender registries is a violation of the federal Constitution (both on the part of the States and on the part of the federal government). It also shows that the registration of nonsexual criminals in sex offender registries is a first-rate case-study for negligent policy-making (supported by faulty data), which frequently received a stamp of approval from an often-poor judicial reasoning, itself supported by an impoverished constitutional jurisprudence."
Constitutionality of Strict Liability in Sex Offender Registration Laws (SSRN 2006)
"People are afraid, and it is understandable. One need only hear the heartbreaking account of a child abducted and assaulted, or murdered by a convicted sex offender, to appreciate a community's desire to protect its children from predators living among them. Sex offender registration and notification schemes, which are designed to track the offenders and to protect the community, are motivated by justifiable regulatory intentions; nonetheless, legislators may be guilty of overreaching. This article explores the constitutionality of sex offender registration laws as applied to one specific group of convicted sex offenders - the statutory rapist who has been convicted in one of thirty jurisdictions that employs a strict liability framework. Specifically, this article questions whether strict liability provides a sufficient and constitutional framework for the requirement to register as a sex offender. I draw the distinction between a narrowly constructed sex offender registration system designed to protect the public, and a system marked by a net cast so wide that it captures offenders whose predatory behavior or criminal intent was never proven. This article argues that because of the convergence of several factors, including the recent Supreme Court decisions in Connecticut Department of Public Safety v. Doe and Lawrence v. Texas, the sweeping nature of sex offender registration laws unconstitutionally impacts the strict liability offender."
No Easy Answers: Sex Offender Laws in the US (HRW 2007)
"Human Rights Watch reviewed the sex offender registration, community notification, and residency restriction laws of the 50 states in the United States and the District of Columbia." (p. 13) The results of their study revealed that "sex offender registration, community notification, and residency restriction laws are ill-considered, poorly crafted, and may cause more harm than good." (p. 3)
Sex Offender Registration and Community Notification: A "Megan's Law" Sourcebook (Civic Research Institute 2nd ed. 2006)
This guide contains a vast collection of "federal and state statutes, regulations, and case law governing sex offender registration and community notification."
Silence and the Racial Dimension of Megan's Law (SSRN 2004)
"In the last decade of the twentieth century, every state adopted a new criminal offender community notification law. While critics challenged these provisions on a number of grounds, one potential consequential cost of these laws received no attention: the possibility that they might disparately impose their significant burdens on racial minorities and, particularly, African-Americans. This article breaks this silence about race and Megan's Laws, establishing that community notification provisions do have a significantly disparate racial impact. Using newly gathered statistical data, across multiple jurisdictions, it shows that African-Americans are over-represented on these public registries of criminals. It considers how the contours of these provisions may promote this result, and also explores why this disparity is consequential."
Study in "Actuarial Justice": Sex Offender Classification Practice and Procedure (Buffalo Criminal Law Review 2000)
"In short, with sex offender registration and community notification in effect virtually nationwide, Americans are now engaged in an unprecedented national experiment in actuarial justice. This Article represents an initial inquiry into the procedural machinery involved in this undertaking, and considers what the diversity of procedures adopted by jurisdictions perhaps says about our faith in actuarial justice."
Summary of State Sex Offender Registries, 2001 (BJS 2002)
"This factsheet updates the original Summary of State Sex Offender Registries: Automation and Operation 1998. It summarizes information on the status of sex offender registries in the 50 States and the District of Columbia as they operated in February 2001. Information is presented on the organizational location of the State registries, number of offenders in the registries; their level of automation and capability to receive, store, and transmit fingerprints; whether DNA samples are included in registration procedures; and community notification procedures including use of the Internet to post information on registered offenders."
Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders (SSRN 2007)
"Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Nineteen states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed 'internal exile.' Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America. Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society."
Constitutional Collectivism and Ex-Offender Residence Exclusion Zones (SSRN 2007)
"The US has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the "the peoples of the several states must sink or swim together." The article discusses the continued need for this tenet in the face of state expulsionist tendencies and invokes in support the Court's decisions invalidating state laws barring entry of the poor and solid waste. In both instances, the Court, while acknowledging the exigencies motivating states, invalidated the laws because they betrayed the national imperative of dealing with challenges faced by all states. As the article establishes, a kindred understanding and resolve is now necessary as states seek to isolate themselves from the shared national responsibility of offender reentry."
Controlling Sex Offender Reentry: Jessica's Law Measures in California (SSRN 2006)
"This paper examines current research on the effectiveness of electronic monitoring and residential restrictions in preventing recidivism amongst sex offenders in California, as well as the experiences of other states that have experimented with these techniques. The paper focuses on four questions: 1) What are the trends in California sex offense data and other states with sizable sex offender populations? 2) What does research and other state experiences tell us about the effectiveness of electronic monitoring in preventing recidivism and absconding of sex offenders? 3) What does research and other state experiences tell us about the effectiveness of residential restrictions in preventing recidivism of sex offenders? 4) In light of California's sex offender population, and CDCR's current methods for supervising paroled sex offenders, what challenges would CDCR and other state agencies likely face in implementing expanded electronic monitoring and residential restrictions?"
Impact of Residency Restrictions on Sex Offenders and Correctional Management Practices: A Literature Review (California Research Bureau 2006)
"Today some communities in the United States banish sex offenders from living in their midst, resulting in a difficult dilemma: where can these offenders live, and where can they best be supervised and receive treatment, if available? This report describes local ordinances and state statutes restricting where a sex offender may reside, discusses what research has found so far about the success of these restrictions, considers the impact that these restrictions are having on criminal justice management practices and sex offender treatment regimens, and examines constitutional implications."
Sex Offender Re-Entry: A Summary and Policy Recommendation on the Current State of the Law in California and How to 'Safely' Re-Introduce Sex Offenders into Our Communities (SSRN 2006)
"This paper attempts to provide a comprehensive review of the current and pending sex offender legislation in California, examine their effectiveness or ineffectiveness and any possible loopholes, and conclude with a broad recommendation on where the state of California's law and policies surrounding the safe release and supervision of sex offenders into the community should be heading. In doing so, the paper will rely on current statistics on sex offenders in California, policy recommendations by various organizations on this topic, media profiles and case histories of recent real-life sex crimes, and actual data from the California online sex offender registry to discover the profile of the "real" sex offender in California. This paper will also examine the roll of public outcry and moral panic in the implementation of these laws and the effect this may have had on their specific provisions and eventual effectiveness in order to provide a more comprehensive review of the impetus behind such regulations and hopefully to inform future legislation of the lessons of the past."
Sex Offender Residence Restrictions (Report to the Florida Legislature 2005)
"Sexual violence is a serious social problem and policy-makers continue to wrestle with how to best address the public's concerns about sex offenders. Recent initiatives have included social policies that are designed to prevent sexual abuse by restricting where convicted sex offenders can live, often called "sex offender zoning laws," or "exclusionary zones." As these social policies become more popular, lawmakers and citizens should question whether such policies are evidence-based in their development and implementation, and whether such policies are cost-efficient and effective in reaching their stated goals."
Statement on Sex Offender Residency Restrictions in Iowa (2006)
"The Iowa County Attorneys Association believes that the 2,000 foot residency restriction for persons who have been convicted of sex offenses involving minors does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measures."
Controlling the Offender: Sex, Mental Illness and the Static 99 (SSRN 2007)
"Sexually violent predator (SVP) laws are inherently suspicious because they incarcerate people not because of what they have done, but because of what they might do. The implicit assumption that sex offenders cannot control themselves is contradicted by recidivism data published by the US Department of Justice in 2003. In practice the SVP laws violate due process by relying on an instrument - the Static 99 - that is so inaccurate that it condemns seven individuals for every one that would re-offend. Furthermore, the Static 99 fails to meet the constitutional criteria laid out by the US Supreme Court in Kansas vs. Hendricks, because it does not link an individual's mental illness to his dangerousness."
Evaluating and Improving Risk Assessment Schemes for Sexual Recidivism: A Long-Term Follow-Up of Convicted Sexual Offenders (NIC 2007)
"The validity of seven instruments for predicting recidivism of sexual offenders is investigated. Sections following an executive summary are: abstract; introduction; method; results according to reliability and predictive potency of actuarials, meaningful differences among modern risk assessment instruments, cohesive and meaningful predictive dimensions identified in the extant risk assessment instruments, predictive contribution of the SRA (Structured Risk Assessment) Need framework, relation between age and sexual recidivism, and determining differential predictors for rapists and child molesters; and discussion. Based on this research, a new actuarial tool is being developed."
Notes on the Development of Static - 2002 (NIC 2003)
"The development of a new risk scale for sex offenders is explained. This report has these sections: abstract; the need for a revision of Static-99; overall strategy for revision; results by age, persistence of sexual offending, deviant sexual interests, range of victims/relationship to victims, general criminality, combining and weighting subscales, and scale comparison; and discussion. An appendix provides the coding rules for Static-2002."
Recidivism of Sex Offenders Released from Prison in 1994 (BJS 2003)
This report shows "for the first time, data on the rearrest, reconviction, and reimprisonment of 9,691 male sex offenders, including 4,295 child molesters, who were tracked for 3 years after their release from prisons in 15 States in 1994. The 9,691 are two-thirds of all the male sex offenders released from prisons in the United States in 1994. The study represents the largest followup ever conducted of convicted sex offenders following discharge from prison and provides the most comprehensive assessment of their behavior after release."
- Recidivism Study (TN 2007)
"The body of the report contains analysis based on offenders recommitted, rearrested, or those offenders who did not recidivate within the three year time frame. The report contains information on various data elements including release type, race characteristics, age, days between arrests, number of offenders rearrested but not incarcerated and the average number of offenses committed." This study was prepared by the Tennessee Bureau of Investigation, Crime Statistics Unit.
- Risk Assessment (NLADA)
"Courts have routinely looked (and typically deferred) to forensic clinicians for assistance in assessing the risk posed by individuals to themselves or others. Common in death penalty sentencing and psychiatric commitment proceedings, the practice, although quite controversial, has taken on far greater significance with the enactment in the 1990s of laws in many states permitting the commitment, ostensibly for treatment, of sex offenders upon completion of their criminal sentences."
Sex Offender Risk Assessment (NIC 2006)
"The predictive accuracy of five of the most utilized actuarial risk instruments for sex offenders is reviewed. This report has the following sections: executive summary; introduction; RRASOR (Rapid Risk Assessment for Sex Offense Recidivism); MnSOST and MnSOST-R (Minnesota Sex Offender Screening Tool and - Revised); Virginia Sentencing Commission; Static-99; VRAG (Violence Risk Appraisal Guide); and conclusions."
STATIC-99 Coding Rules (Solicitor General Canada 2003)
"The STATIC-99 utilizes only static (unchangeable) factors that have been seen in the literature to correlate with sexual reconviction in adult males. The estimates of sexual and violent recidivism produced by the STATIC-99 can be thought of as a baseline of risk for violent and sexual reconviction. From this baseline of long-term risk assessment, treatment and supervision strategies can be put in place to reduce the risk of sexual recidivism."
Validity of Static-99 With Older Sexual Offenders (NIC 2005)
"The use of Static-99 risk assessment tool with older offenders is investigated. Sections of this report include abstract, background, method, results, and discussion. Older offenders display 'lower sexual recidivism rates than would be expected based on their Static-99 risk categories' indicating that advanced age should be considered in the overall risk estimate (p. 3)."
Treatment and Management Programs
Association for the Treatment of Sexual Abusers (ATSA)
"ATSA was founded to foster research, facilitate information exchange, further professional education and provide for the advancement of professional standards and practices in the field of sex offender evaluation and treatment."
Center for Sex Offender Management (US Department of Justice)
"Center for Sex Offender Management's (CSOM) goal is to enhance public safety by preventing further victimization through improving the management of adult and juvenile sex offenders who are in the community. The Center for Sex Offender Management is sponsored by the Office of Justice Programs, US Department of Justice, in collaboration with the National Institute of Corrections, State Justice Institute, and the American Probation and Parole Association. CSOM is administered through a cooperative agreement between OJP and the Center for Effective Public Policy."
Managing Sex Offenders in the Community: A Handbook Guide to Policymakers and Practitioners Through a Planning and Implementation Process (CSOM 2002)
"This handbook is designed to assist policymakers and practitioners in the process of assessing, and strengthening, their adult and juvenile sex offender management approaches."
Sex Offender (Civic Research Institute 1995-2005) (5 vols.)
"Leading experts provide a single authoritative guide to principles and practices for criminal justice and clinical professionals... how to plan and implement offender programs -- community-based and institutional everything you need to know about the law -- criminal statutes, enforcement, sentencing, corrections, probation, parole, and professional liability; innovative treatment therapies and recommended applications; programs for preventing recidivism and protecting the community"
Sex Offender Programs/Strategies (BJA)
"Sex offender programs/strategies represent various approaches used to prevent convicted sex offenders from committing future sex offenses. These approaches include different types of therapy, community notification, and standardized assessments. Sex offender programs/strategies are administered in prison and/or in the community to manage sex offenders."
State Sex Offender Treatment Programs: 50 State Survey (Colorado Department of Corrections 2000)
This national survey covers "sex offender treatment and management programs. Areas surveyed included legislative influences on state programs as well as program structure within state prison systems. Many states also provided curriculum, assessment tools, standards of care and other materials used within their programs."
This is a collection of government libraries, private publishers and other sites that have additional materials on sex offender laws and related research.