Submitted by Max Murray, Soc. 220, Spring 2018:
Sex Offender Registry Reformation
U.S. Senator Richard Burr
Sex Offender Registry
This memo seeks to expose the current implementation of the sex offender registry, both national and state-based, as an outdated and potentially dangerous social policy that was born of an irrational and reactionary fear to criminal acts against children. You should take every step within your power to adjust this policy through limiting access to the registry to law enforcement, adjusting the content that is displayed within the registry, and eliminating the biased and extrajudicial punishment mechanisms that the sex offender registries use to propagate the prison industrial complex that currently fuel the American justice system. It is incumbent on you, North Carolina’s representative in the federal legislature, to enact or help enact policy that benefits your constituents; and your duty and obligation to consider the consequences of leaving this broken system running and draining humanity away from thousands of North Carolina residents and U.S. citizens.
introduction and problem definition
Despite its core focus on protecting innocent members of the population the sex offender registry has developed into a social problem that effects people on an individual, social, physical, and environmental level. This is an issue that effects every aspect of society: from the individuals on the registry to the communities in which they reside. Registrant lives are forever altered because of their experiences running afoul of the law. These people are placed on a national list for life that can be referenced via the internet at any time, and as a result can be treated completely differently than their non-registrant counterparts in areas like employment, housing, education, socializing, and child rearing. These issues are serious and extend far beyond the prescribed prosecution handed down by the judicial system that these individuals went through.
The march toward a more open and available sex offender registry was sparked by the highly media profiled disappearances of a few children in the ‘80s and ‘90s. The public’s reaction to these high-profile cases was, understandably, anger and frustration with a system that did not sufficiently discourage or punish these crimes against the most vulnerable members of the populace. This anger and frustration manifested into policy that was reactionary and punitive in its design: now convicted or non-acquitted individuals are placed onto a database that is accessible to any person with an internet connection. Depending on the state as well as the crime their name may be later expunged from the list: but in the information technology age that social stain becomes very difficult to wash out. This was originally designed to be a database accessible to law enforcement exclusively, but this plan gained such momentum because of the anger and frustration with these social problems that the result is a system that swung too far in the opposite direction.
This memo will examine the history and problems associated with this policy: its reactionary and emotional genesis, the extrajudicial and punitive nature of the registry, and the severe impact that this has on every registrant regardless of their committed crime. My interest in this subject was sparked by the reporting done by APM for the podcast “In the Dark.’ This true-crime serial examines the case surrounding Jacob Wetterling’s disappearance in 1989. Following Jacob’s disappearance his mother, Patty Wetterling, became heavily involved in sculpting sex offender legislation. Patty Wetterling has expressed regret at the course that legislation has taken: she believes that the policy has created problems for both people on and off the list. Policy on this matter needs to be revised because of the misplacement of justice against people who are registered sex offenders: vindictive revenge has taken the place of rehabilitation and measured punishment. This flies in the face of the original intent of the U.S. judicial system; that crimes should be met with punishment that fits that crime and from there the individual can be rehabilitated and reintegrated into society. This arguable injustice is an issue that needs to be addressed and you can make a positive, incremental, change to these policies and social misconceptions. As you make your way through this memo, please exercise an empathetic approach to these issues: there is no question that premeditated and calculated sexual assault is an abhorrent crime that should be punished. The legislature must decide whether punishment for sexually based offenses should merit extrajudicial and overly punitive, for lack of a better term, “bonus” punishment. Should the mistakes an individual make, sometimes before they are old enough to be considered an adult, follow them around like a chain around their ankles for the rest of their days or do we have room in our society to trust in a rehabilitation approach rather than a simply punitive one? Do we seek revenge or justice? This memo will follow an analysis of my methodology and source material with an examination of the validity of those sources, a deep dive on the issue as the research presents it, a list of recommended potential solutions and their perceived viability, and finally another call to action to encourage you to make an effective impact on the legislative landscape surrounding this issue now that you have a clearer picture of the facts surrounding it.
My research was conducted by analyzing a variety of articles and sources; these ranged from the APM podcast “In the Dark” to scholarly and peer-reviewed journals. I have attempted to show each side within this debate respect and scholarly understanding without letting emotional reaction dictate my opinion. Most of my research was gathered through the online journal database EBSCO but information on both state and national sex offender registry databases was taken from each of their respective websites.
Patty Wetterling’s son Jacob was abducted, raped, and murdered in an extremely high- profile case in 1989: despite this tragedy and her subsequent role in shaping legislation related to sex offenders she is one of the sex offender registry’s most vocal critics and openly recognizes the panic and fervor that led to the formation of these lists. In an interview with APM surrounding the recording of the podcast In the Dark Patty says that there is, “a false sense of ‘These are the bad guys’, when the reality is most sexual abuse happens within the family…and those don’t end up on a sex offender registry.” Patty also mentions that the original intent behind these sex offender registries was to provide law enforcement with identification database tools (Thompson, 2016). That toolset was given over to the public after some iterative legislation; Wetterling believes it has become too easy for people to view those on the registry as the boogeyman out to attack their loved ones and that some individuals that do not necessarily belong on this list have had their lives permanently impacted by their inclusion on it. This mutated version of the legislation has largely been the result of sensationalism and a frightened public seeking to act: the original intent to require sex offender registry on a law enforcement list, the Jacob Wetterling Act, was adjusted at the last minute because of another high-profile case: Megan Kanka. After her kidnapping and murder Kanka’s parents reached out to the team putting together the legislation, which included Patty Wetterling, and asked if they may include a caveat in the bill that law enforcement “may notify community upon the release of a violent offender” (Baran, 2016). Patty Wetterling admits that she believed, even at the time, that this addendum may be abused by law makers in the future but that she did not have the heart to deny another victimized family something that may help bring them peace (Baran, 2016). This admission shows that even the genesis of the legislation concerning sex offender registries was colored by an emotional response that overrode legal concern. One tiny change made to the policy set the tone for how the legislature would handle the issue from then on: sex offender-based policy would be more about notifying the public of these offenders rather than providing them rehabilitation help and reintegration into society.
The current state of sex offender registries across the country allow for any citizen with an internet connection to see whoever is on that list regardless of crime committed: the crimes range from serious cases like the rape and murder of Jacob Wetterling to consenting teenage partners in states with outdated and overly rigid statutory rape laws. North Carolina’s own policy requiring registration ranges from convictions for first degree rape to incestual but consensual sex between “near” relatives. (Stein, 4, 2014). This is a wide brush with which to paint sexual offenders: there is certainly a differing degree of malice between rape and consensual incest. Lumping criminals from this wide of a background together to be judged by the court of public opinion has been the result of a steady march away from the original intent behind the legislation meant to help police enforce the law. That original intent has been distorted through the culmination of fear and anger that has manifested itself in some socially problematic ways.
In 2006 President Obama signed a new piece of legislation regarding the sex offender registry that required individuals’ passports to be marked if they were on the list as serious offenders. This legislation was a result of the International Megan’s Law, an effort to curb child sex tourism and abuse throughout the world, and stem directly from national legislation written in response the kidnapping, rape, and murder of Megan Kanka in 1994 (Meiners, 34, 2009). While this more open transparency was lauded by some it served as the final straw in a system seemingly designed around extrajudicial punishment to others. These marks were emblematic of the policy approach toward sexual offenses as a whole: the attitude that the time spent within jail as mandated by the court system was not enough and society should be punishing these offenders even after they have served their time and reintegrated. There are no other crimes that require such stringent and public marking within the United States (Baran, 2016). The national sex offender registry not only allows access to their database via their website, but they now also have a smart phone application that allows you to see in real time the sexual offenders in “close proximity to the mobile device” (U.S. Department of Justice Website). Meiners argues on page 32 that this tendency toward extrajudicial punitive action is not an accidental injustice performed against these people but a result of the prison industrial complex and an intentional means of keeping people trapped in the for-profit prison system. This perspective is firmly rooted in both conflict and feminist sociological perspectives, and while the origins of this social policy did originally stem from good intention it is unquestionably being abused by those in power today. Meiners also points to the potentially flawed authority that the government has in judging what constitutes as a sex offense, mentioning that the retroactive nature of the sex offender registries means people can be placed on these lists for crimes that we no longer consider crimes like sodomy (Meiners, 2009, 38). Many states had laws on the books outlawing sodomy until a supreme court decision in 2003 banning those types of laws (Meiners, 2009, 39). If the government has so recently displayed vestiges of homophobia then how are they to be trusted with the disclosure of such a registry that has severe negative impact on those placed on it? This policy needs to be reexamined and reformed to remove some of these glaring gaps that can be used to marginalize groups and maintain negative social systems like the prison industrial complex.
The violations against personal privacy through the constant and immediate accessibility that the internet provides are not the only means of marginalizing the entire population of widely defined sexual offenders. The severity of the impact on sex offender registrants cannot be understated: in the age of the internet their placement on one of these lists, even if it is temporary, will be a stain upon their name for the rest of their lives. There is no erasing that history from the prying eyes of finance institutions, work places, potential housing, and their communities. Some may see this as a punishment that fits the crime, but it can sometimes take a more vindictive and vengeful route that goes beyond justice. According to Meiners the rules surrounding placement on the sex offender registry can often lead to problems attaining employment and housing based on the proximity of these things to children (Meiners, 2009, 36). These restrictions can lead to a more difficult path toward reintegration into society after their sentencing: registered sex offenders often have such a hard time finding a standard place to live that they must stay in areas highly concentrated with other sex offenders. Communities like this that are highly homogenized with shared negative experiences like prison time, registration on the sex offender list, and social ostracism all of which could lead to a feedback loop of negative emotions and resentment. In “The List” Stillman highlights the effects of the sex offender registry on a couple of individuals; though this is not necessarily the experience that every registrant will have it does point to some extremely problematic individual experiences that are certainly not unique. According to Stillman youths are often prosecuted as adults, regardless of actual age, when a sexually based offense has occurred (Stillman, 52, 2016). As a counterpoint to this tendency of over punishment Stillman points toward the recidivism rate for these youths convicted of sexual offenses: 95% of youth that are charged with sex crimes do not re-offend. Most child offenders are uninformed and curious children who expressed that curiosity in a way that, while certainly unacceptable, should not be dealt with through lifelong punishment. This misguided and heavy-handed implementation of justice can lead to some seriously concerning social and policy-based outcomes. North Carolina’s own policy on child registration demands that they semi-annually renew their registration until the day they turn 18: imagine the social impact a policy like this must have on youth within your state that made a poor decision out of natural sexual curiosity and ignorance (Stein, 10, 2014). Powell notes that regularly conducted interviews between well trained police officers and reintegrated sex offenders serve as an effective means of keeping offenders from re-offending: the problem with this comes from a lack of training and competency on the part of police officers. Police are often undertrained for these interviews and therefore not able to conduct them effectively (Powell, 256, 2014). While less common PPGs, penile plethysmographs, are still implemented as a tool for designing treatment plans for sex offenses in the United States. This process tracks the rigidity and circumference of the patient’s penis while they are shown inappropriate images. Though the motivation for the implementation of this process is to aid in the rehabilitation of the convicted, in cases like Anthony Metts’ it served only to humiliate, drain money from the offender, and serve as an obtuse requirement imposed by the state (Stillman, 55, 2016). These life changing impositions on convicted offenders are an ineffective means of imposing vengeful and extrajudicial punishment on a certain subset of convicted criminals because of the emotional, fear-based, reactions society has to the audacity of their crimes. If these punishments are how society feel these crimes deserve, we need to become more transparent with that punishment or change our approach immediately.
The solution to this problem is found in re-evaluating the entire sex offender registry, and specifically the public’s access to it. Once again, the example of Patty Wetterling must be examined: her story is a micro-level view of the trajectory our social policy needs to take to address this problem. Like any emotional and empathetic human being, Patty Wetterling’s reaction to the disappearance of her son at the hands of a child predator was fearful, angry, and reactionary. This reaction led to her entering the policy making field and designing legislation tailored around sexual offenders: a pursuit where she has undeniably accomplished some fantastic work. But as mentioned earlier even Patty recognizes that some of the results of her legislation and the legislation that was build upon its foundation is both ineffective and implements morally questionable elements. Besides the already discussed problems with the reactionary motivation, it also targets the completely incorrect population. Stillman, Meiners, Baran, and Thompson’s pieces all point to the fact that stranger adults are the exceptions to the rule of who commits sexual offenses: primarily these offenses are committed by close family members or friends. This means that the primary purpose of the sex offender registry as it currently exists is inherently flawed in that it provides information about individuals who are the least likely to commit crimes against random people in the community. The solution to this problem is to enact legislation, legislation that you can have a hand in crafting, that reverts the sex offender registry back towards Patty Wetterling’s original intention: as a resource for police forces to reference and track to help identify potentially dangerous subjects and it needs to move away from an extrajudicial tool for the community to impose social punitive action.
Your position as a U.S. senator enables you to make changes from a top down perspective while simultaneously influencing other policy makers and, as a result, the social consciousness. This unique positioning allows you to tackle the issue head-on and your status as an establishment Republican figure allows you to change the opinions of a base that may be more firmly entrenched in a family values mentality that could contribute to the irrational fear of stranger danger associated with the registry. Broadly you should be discussing these issues with your constituency and fielding questions from them about the registry: open dialogue like this is a key aspect of changing social opinion on a firmly entrenched fear. More specifically legislation should be drafted that either restricts current access, a practice which I think might fly in the face of your base’s political beliefs or rescinds certain aspects of previous legislation. Again, I am aware that this may not appeal to the traditional values of you and your base, but the problem is pervasive enough and impacts citizens on a far-reaching level and so putting aside politically selfish motivations will be necessary moving forward. A bi-partisan effort is required here and reaching across the aisle, as I am doing in this memo to appeal to you, will be necessary to accomplish what needs to be done regarding this policy. While changing the policy may have some political consequences for you or any one else who decides to aid in this change, maintaining the status quo will not only allow the current problems with this policy to go on; it will continue the slow and steady march towards more extrajudicial and punitive action and imposition that has been ongoing since the ‘80s.
I am fully aware that a bi-partisan effort to relax the restrictions on sex offenders carries with it the possibility of ruffling some feathers on both ends of the political spectrum. If you solidly come down in support of reshaping legislation surrounding sex offender registries, then you should expect to lose support from your base and face heavy opposition from the democratic party as well. This is a divisive issue and will not be resolved without upsetting people at both ends of the political spectrum. A unilateral and committed approach on this issue is extremely important and that dialogue must start by placing our personal political differences aside and examining this issue logically and thoughtfully. Our social beliefs and fears in this situation have created some extremely entrenched opinions that will be difficult to sway: the way we affect change here is through a unified, systematic, and patient approach focused on the ideas of rehabilitation rather than punishment and by selling new policy as an equally stringent alternative that is limited to the purview of law enforcement.
The current state of sex offender registry legislation in the U.S. is mired in a history of reactionary and fear-based decision making, a motivation to maintain this policy tied to the prison industrial complex, and has severe and life long consequences for those placed on the list for any amount of time. It is incumbent upon you to do everything that you can to adjust policy to be less about extrajudicial punitive action and more about maintaining the safety of your constituency. I implore you to either introduce legislation to work towards that goal or to support legislation from your fellow law makers that seeks to do that. We can come together on this issue to adjust some serious misconceptions that have colored policy for decades: allowing this misconception to further influence policy would be a dire mistake and action must begin on this issue as soon as possible if these social views are going to change any time soon. I have included a list of the sources I consulted in drafting this memo, I hope you will consider them as well as others in your decision. Thank you for your time.
Baran, Madelaine. (Producer) (2016, October 4th). In the Dark [Audio Podcast] Retrieved from https://www.apmreports.org/story/2016/10/04/in-the-dark-6
Meiners, E. R. (2009). “Never Innocent: Feminist Trouble with Sex Offender Registries and Protection in a Prison Nation”. Meridians: Feminism, Race, Transnationalism, 9(2), 31-62.
Olivia Lowenberg, S. (2015, October 30). “’Senior Salute’ Earns Labrie One Year in Jail and Lifetime on Sex Offender Registry”. Christian Science Monitor.
Patty Wetterling on Sex Offender Registries [Interview by J. Thompson]. (2016, October 3). Retrieved March 28, 2018, from https://www.youtube.com/watch?v=YXUSjY6DIhw
Powell, M., Day, A., Benson, M., Vess, J., & Graffam, J. (2014). “Police Officers’ Perceptions of Interviewing Offenders on Sex Offender Registries”. International Journal of Police Science & Management, 16(4), 255-266. doi:10.1350/ijps.2014.16.4.344
United States Department of Justice National Sex Offender Public Website. Retrieved from https://www.nsopw.gov/en-US/Home/Mobile
Stein, J. (2014). The North Carolina Sex Offender and Public Protection Registration Programs (United States, North Carolina Department of Justice, Attorney General’s Office). Retrieved May 5, 2018, from http://docs.ncsbi.gov/Sex-Offender/SexOffenderRegPrograms.aspx
Stillman, S. (2016). “The List”. New Yorker, 92(5), 50-63