Sex
Offender Registry Policy Evaluation and Revision
Carolanne
Hines
CRJU
7413
7
December 2013
Introduction
The
sex offender registry was authorized by the Adam Walsh Child
Protection and Safety Act of 2006 to “To
protect children from sexual exploitation and violent crime, to
prevent child abuse and child pornography, to
promote Internet safety, and to honor the memory of Adam Walsh and
other child crime victims” (42
USC §16911).
As the name of the policy indicates, it is in memory of Adam Walsh,
a six-year-old boy who was kidnapped in a Florida mall and
decapitated. Adam Walsh is the son of John Walsh, the long time
presenter of “America's Most Wanted”. On July 27, 1981, Reve
Walsh, Adam's mother, left him playing in the toy section of Sears in
the Hollywood, Florida mall while she stepped away to the lamp
section to browse. When she returned to the toy section, he was
missing, and Reve Walsh asked managers to call for him over the loud
speaker. After two hours with no luck, police were called. Nothing
was known of Adam's whereabouts for two weeks until fishermen found
his severed head around Vero Beach. In the light of Adam's death, his
father, John, became an activist including adding the photos of
missing people to milk cartons and fliers, and created the show for
which he is most well known, “America's Most Wanted.” (“Police”,
2008). John Walsh's activism, in addition to many other high profile
cases involving the abduction and sexual exploitation of children and
minors, lead to the inception of the Adam Walsh Act.
The Act's aims to fulfill several purposes:
- “Police have a list of likely suspects should a sex crime occur in the neighborhood in which a registered offender lives
- Parents have information that will enable them to heighten their vigilance and to warn their children to stay away from particular people
- Limit offenders’ access to children and their temptation or ability to commit new crimes” (HRW, 2007)
The Adam
Walsh Act sets forth specific requirements and definitions for those
who have been convicted of a sex offense. It focuses mainly on
offenders who have committed a sex offense against minors. It
excludes adult sexual offenses, consensual sexual offenses, foreign
convictions of sex offenses, etc (42
USC §16911).
The Act
requires sex offenders to keep current registration in
cities/jurisdictions where he or she is employed, in school, and
resides. This part of the act is referred to as The Sex Offender
Registration and Notification Act (SORNA). When registering, the
offender must provide their name, SSN, home address, workplace
address, school address, license plate number. In addition, the
physical appearance of the offender will be documented as well as a
current photo, DNA sample, copy of his or her driver's license or ID
card, and finger prints. However, only specific information is
allowed to be made publicly available; SSN, workplace, school, prior
arrests not resulting in conviction, and any other information the
Attorney General feels should not be made public will not be
available to the public (42 USC
§16911).
In
addition to registering, certainty entities within the community
where the sex offender registered will be notified of his or her
presence. These entities include law enforcement and probation,
agencies that require employment related background checks, social
service agencies who deal with minors, volunteer agencies who deal
with minors, or any agency who requests the information (42
USC §16911).
The Act
creates a tier system for sex offenders determined by the severity of
the crime. There are three tiers, each with specific crimes listed
for a sex offender to be designated to that tier.
Tier I
is the lowest level of the sex offender registry and generally
offenses include receiving child pornography, or any other “minor”
offenses related to under aged people. Definitions differ from state
to state. Offenders are required to register for a number of years
designated by the state, however federally it is required to be more
than 15 years. If the offender recidivates, the registration period
will be longer. The offender is required to present themselves for
renewal of their registration ever year (Rinehart, 2006).
A Tier
II sex offense is defined by being sentenced to more than one year in
prison. Different states have different requirements for length of
registration. For instance, Connecticut requires Tier II offenders to
register for 25 years. Offenses include sex trafficking, coercion and
enticement, abusive sexual contact, creating child pornography,
soliciting a minor for prostitution, etc. The offender is required to
present themselves for registration renewal every six months
(Rinehart, 2006), (42 USC §16911).
Tier III
sex offenses are the most sever types of offenses. Generally, Tier
III offenders are required to register for life. Offenses include
aggravated sexual abuse or abusive sexual sexual contact greater than
that prescribed by Tier II. Offenders must renew their registration
every three months (42 USC §16911).
If any
jurisdiction refuses to carry out these measures or implements them
improperly they will lose 10% of their federal funding for that year
(42 USC §16911).
Problem
Statement
As with any new policy, especially policies that are designed to
assuage the public's fear and outrage over an act, there are
criticisms over lack of policy planning and evaluation. Because of
the hideous nature of sexual crimes against children and the
incredible amount of public outcry to legislators to “do something
about it”, this Act was created.
Unplanned Change
Other than the Adam Walsh case, there were several other cases which
prompted and incited public outrage. The 1989 sexual assault and
murder of 10 and 11 year old brothers William and Cole Neer by
Westley Allan Dodd, who later became notorious with how prolific his
appetite for abducting, sexually assaulting, and murdering children
was (Dake, 2014). Or, the disappearance of Jacob Wetterling which
lead to the Wetterling Act, or more commonly known as Former
President Bill Clinton's Crime Act which aimed to control sexual
predation upon children and minors. Then Megan's Law Passed, then Pam
Lychner's Act, and so forth (“Federal Sex Offender Legislation”,
2014).
As with any unplanned change, there tends to be unanticipated future
consequences as well as being “ineffective and wasteful of valuable
public resources”. In policy research, unplanned change is defined
as “a reaction to a crisis, a dramatic incident publicized by the
media, a political opportunity, a lawsuit against criminal justice
officials, or an untested set of assumptions about a specific
problem” (Welsh & Harris, 2013).
The first few pages of the Adam Walsh act are in memoriam to
children who have been lost due to sexual violence. It shows the good
intentions of the Act, however it also shows the emotionalism that
has been included in this act. Emotional, knee jerk reactions leave
no room for planning, logic, or reason. This type of policy making
leads to a lack of an empirical foundation and/or a foundation based
on theory (Mears, 2010).
Effects on Juveniles
For
instance, one of the unconsidered consequences of the Adam Walsh Act
is that it subjects juveniles to the same penalties as adults, even
though motivations may differ. New York forfeits federal funding
because they refuse to uphold the parts of the Act pertaining to
juveniles. As of 2011 only 15 states were in full compliance. As
Shannon C. Parker states in her study, “Thirty-four states
subject juveniles adjudicated delinquent in juvenile court to
registration and notification.30 Of the thirty-four states that
subject juveniles to registration, eighteen permit public
notification of registered juveniles’ information. Additionally,
twelve states do not allow juveniles to petition for modification or
removal of their registration. In twenty-one of the states requiring
juveniles to register, there is no minimum age below which juveniles
are exempt from registration. In states where there is no minimum
age, young children actually appear on the registry, and therefore a
lack of minimum age is not a trivial matter. For example, Delaware,
one of the states with no minimum age, had approximately 639
juveniles registered as sex offenders, with fifty-five children under
the age of twelve—and a handful even as young as nine years old”
(Parker, 2014).
There have been
many suggestions by psychologists that to punish children for sexual
exploration, which is deemed normal developmental behavior, is
unethical and will scar them developmentally. A UCLA study showed
that 77% of children engage in sex play, 61% had engaged in sex play
with another child. These sex play behaviors did not consist of
coercive or forceful contact, nor is it associated with adult deviant
sexual behavior. In addition, the DSM does not recognize child sex
play as a sign of pedophilia. In addition, some children who have had
to register on the sex offender registry have been bullied, go
through depression, have trouble in school, and are suicidal (Parker,
2014).
One such case is
that of Brandon M – “Brandon M.’s case is an example. Brandon
was a senior in high school when he met a 14-year-old girl on a
church youth trip. With her parents’ blessing, they began to date,
and openly saw each other romantically for almost a year. When it was
disclosed that consensual sexual contact had occurred, her parents
pressed charges against Brandon and he was convicted of sexual
assault and placed on the sex offender registry in his state. As a
result, Brandon was fired from his job. He will be on the registry
and publicly branded as a sex offender for the rest of his life. In
his mother’s words, “I break down in tears several times a week.
I know there are violent sexual predators that need to be punished,
but this seems like punishment far beyond reasonable for what my son
did'” (HRW, 2007).
From a court's
perspective, there have been several decisions both pro and con of
having juveniles register as sex offenders and whether or not it was
constitutional. In Smith v. Doe, 538 U.S. 84 (2003)
the Supreme Court held”[the] Sex
Offender Registration Act is nonpunitive, its retroactive application
does not violate the Ex Post Facto Clause.”
Conversely, in Graham v. Florida 560 U.S. ___ (2010), the
Supreme Court that it was unconstitutional for juvenile sex offenders
to be sentenced to life without parole in that it violates the Eighth
Amendment's “cruel and unusual punishment” clause. Similarly, in
Roper v. Simmons, 543 U.S. 551 (2005), the Supreme
Court ruled juveniles cannot be subject to the death penalty.
Building on these two decisions, the Ohio Supreme Court held in In
re C.P., that requiring a
juvenile to register as a sex offender for life is unconstitutional
under the Eighth Amendment.
Human
Rights Watch Study – Stigmatization of Sex Offenders
The
Human Rights Watch (HRW) completed a comprehensive view of the Adam
Walsh Act and found several glaring problems with the policy:
- “The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
- Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety. Harassment of and violence against registrants have been the predictable result;
- In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families” (HRW, 2007).
One of
the major points HRW discusses is how the registration affects those
who are on it. Being on the sex offender registry is akin to having
“a scarlet letter” emblazoned upon their chest. Generally the
language used to describe the offense does not give any indicator to
what the offense actually was and often leads the public to believe
the worst. One of the interviewees, Jameel N., in this report state
“When people see my picture on the state sex offender registry they
assume I am a pedophile. I have been called a baby rapist by my
neighbors; feces have been left on my driveway; a stone with a note
wrapped around it telling me to “watch my back” was thrown
through my window, almost hitting a guest. What the registry doesn’t
tell people is that I was convicted at age 17 of sex with my
14-year-old girlfriend, that I have been offense-free for over a
decade, that I have completed my therapy, and that the judge and my
probation officer didn’t even think I was at risk of reoffending.
My life is in ruins, not because I had sex as a teenager, and not
because I was convicted, but because of how my neighbors have reacted
to the information on the internet” (HRW, 2007).
From my
own experience, having a brother on the sex offender registry, I have
had firsthand experience of how stigmatizing it can be. My brother's
experience was extremely similar to Jameel N.'s. He served time for
his offense, is on probation, goes to group therapy. He is not high
risk for recidivating for a sexual offense. In the last 10 years
since his release from prison, he has not had a stable job, has not
been able to find housing outside of my parent's home, has
psychological issues from his ordeal and difficulty maintaining
friendships and relationships when he discloses he is on the sex
offender registry. It exposes individuals to harassment and
difficulties in becoming a productive member of society once released
from prison.
Residency
requirements also pose issues for sex offenders. Many cities have
requirements for sex offenders to not live within a specific amount
of feet from a location where children may congregate such as a bus
stop, school, or daycare. In addition, many rentors refuse to rent to
sex offenders. They may also have difficulties rooming with friends
and family because the do not want their addresses to be listed on
the sex offender registries. This causes many sex offenders to
abscond or become transient (Ennis, 2008) (HRW, 2007).
Policy
Evaluation Hierarchy
When assessing whether or not a policy is effective, there are
logical steps listed by Mears. The gist behind the evaluation
hierarchy is that if the questions presented in the evaluation are
not adequately answered, then it would not be advisable to proceed to
the next level in the hierarchy. Sometimes, there is a lack of
information to make a satisfactory judgment, however the heirarchy
guides policy makers and researchers through the process in the best
and most thorough way possible. There are five main steps: needs
evaluation, theory evaluation, implementation/process evaluation,
outcome/impact evaluation, and a cost-efficiency evaluation (Mears,
2010).
Needs Evaluation
The Adam Walsh Act,
although based in emotionalism and public reactions to high profile
crimes, acts as a glue for other similar policies that came before it
such as Megan's Law and the Wetterling Act. Obviously, there was a
need for action in order to control the growing epidemic of sex
crimes – a real social problem exists. However, policy makers do
not have a great deal of training in research and there is a lack of
communication between policy makers and researchers. This creates
ineffective policies. When the Adam Walsh Act was implemented, it
begs the question – was there a proper needs evaluation conducted?
There are three
main components to a needs evaluation:
- “Are existing efforts insufficient to address [the problem]?”
- “Are existing efforts to address [the problem] not only insufficient, but also not amenable to correction?”
- “In comparison to existing efforts to respond to some assumed or documented social problem, is the proposed or newly implemented policy a needed substitute or supplement?” (Mears, 2010).
At the time the Adam Walsh Act was made into law, there were other
pieces of legislation that created sex offender registries as well as
notification systems. The Jacob Wetterling Act in 1994 created
guidelines for states to track convicted sex offenders and required
that violent predators be monitored for life and general sex
offenders to be monitored for 10 years. In 1996, Megan's law allowed
sex offender registration records open for the public. In the same
year, the Pam Lychner Sex Offender Tracking and Identification Act of
1996 created a national registry with the FBI. These acts, along with
incidental acts that modified other pieces of legislation to prevent
internet access to incarcerated sex offenders, and so forth, were not
as all encompassing as the Adam Walsh Act which acted as a large cast
net for any type of sex offender from the mundane and humiliating
public urination charge and juvenile offenses, to dyed-in-the-wool
truly violent sexual predators (“Federal Legislation”, 2014). The
prior acts suggest there definitely was a need, however the pertinent
question is whether or not they were effective enough? If the prior
policy is ineffective because of one reason or another, should it be
eliminated altogether and just have a modified Adam Walsh Act? Or
simply amend the policy that is in place now and eliminate the Adam
Walsh Act?
Theory Evaluation
Although the Adam Walsh Act is a knee-jerk policy created out of
several highly publicized cases, it is firmly rooted in
criminological theory.
The sex offender registry is firmly rooted in rational choice and
deterrence theory. Rational choice theory is based upon economic
theory, specifically the expected utility principle – “people
will make rational decisions based on the extent to which they expect
the choice to maximize their profits or benefits and minimize the
costs or losses” (Akers & Sellers, 2013). For a sex offender,
would the benefits of committing the act outweigh the punishment. As
mentioned before, the sex offender registry is extremely punitive –
with this are the hopes that it will be a greater deterrent on both a
specific and general level.
The Adam Walsh Act also has some validity in routine activities
theory. Routine activities theory states that for a crime to occur
there must be “motivated offenders, suitable targets of criminal
victimization, and absence of capable guardians of persons or
property” (Akers & Sellers, 2013). By having sex offenders
register, people in the vicinity are better able to gird themselves
to reduce their suitability as a target as well as acquiring more and
better guardianship (i.e. a dog, firearm, alarm system, etc.). In
addition, the registry is theorized to decrease the motivation of the
offender due to immediate knowledge of their presence within the
community – if any sex crimes do occur, the registered offenders
will be the first ones law enforcement agencies visit.
However,
all of this assumes that the run of the mill sex offender is a
rational being. There have been many studies conducted concerning
recidivism rates among sex offenders, specifically pedophiles or
violent sexual predators. Because of definitional and jurisdictional
differences, recidivism rates for sex offenders vary widely between
studies. In the Neller and Petris study, they narrowed recidivism
rates for sexually violent predators to 13%-14% after a short term
follow up (4-6 years) and 30%-40% on a long term scale (20-25 years).
It is difficult to determine whether or not a sex offender will
recidivate. One study shows that recidivism rates were higher for sex
offenders who went through treatment – 52% recidiviated compared to
the 13% recidivism rate for those who did not attend treatment
programs (Neller & Petris, 2013). A study conducted in Germany
shows that “a lack of self-control (i.e., the tendency to pursue
short-term, immediate pleasure to the neglect of long-term
consequences) to be the sole factor in understanding and predicting
criminal activity” (Strüber
et al, 2008). In addition, there may be a biological predisposition
toward aggressive sexual behaviors in relation with brain structures
and malformations. Strüber states in his study that “prefrontal
disruption consistently occurs across anatomical and functional
studies with a wide range of clinical and forensic populations, which
are characterized by emotional dyscontrol and impulsivity/aggression,
suggesting that prefrontal dysfunction may predispose to impulsive
aggression and violence.”
In sum – there are several factors at place, both psychological
and biological that may cause a person to be inherently sexually
violent. Because of this, they are not rational. Basing this policy
in theory is well and good, however if the group of people who are
being dictated by this policy do not make rational decisions, nor
care about ramifications for said decisions, then any theoretical
foundation is void. At this point, this policy serves more as a tool
for law enforcement agencies than a deterrent.
Implementation/Process Evaluations
An implementation evaluation “document[s] whether a policy
delivers the appropriate amount and types of operations, decisions,
services, and activities to intended targets in a high-quality
manner” (Mears, 2010). For SORNA, an implementation evaluation
would be whether or not it fulfills its goals and objectives.
Goals Evaluation
The five main goals/principles of the criminal justice system are
incapacitation, deterrence, rehabilitation, retribution, and
rehabilitation. These are essentially the bread and butter to the
system; any criminal justice policy that is a criminal sanction will
follow most of these principles. In addition to these principles,
there are also normative goals for criminal sanctions including
proportionality, equity, parsimony, and humane treatment (Welsh &
Harris, 2013).
The Adam Walsh Act fulfills some of these goals, but also falls
short on other goals. For instance, it acts as incapacitation in that
the offender must register and have his or her residents confined to
specific locations. Probation for sex offenders also acts as a means
of incapacitation.
The Act also serves as a means of both general and specific
deterrence – specific for the offender, and general for those who
are considering committing a sexual offense but are deterred from
doing it because of the registry and other punitive measures put into
place.
The Act, most of all, is retributive in every respect. The
registration process is retributive in that the offender must hand
over their information to the authorities for them to post it on a
public website for all to see. This includes potential employers,
neighbors, schools – everyone. The type of stigma and public
shaming involved with being a sex offender can range from passive
aggressiveness, to assault, vandalism, discrimination, etc. In sum –
instead of being punished by the government for a crime, the offender
is being punished by all of society.
For offenders who have mandatory counseling as part of their
sentencing, there may be some rehabilitative benefits. There is not
any real empirical evidence if this type of counseling works. As for
restoration, the act falls short. Instead of allowing the offender to
become a functioning and productive member of society, it stigmatizes
them and separates them from society. They are unable to find gainful
employment, maintain residence, and contribute to society.
When it comes to normative goals, whether or not the Adam Walsh Act
follows these goals is debatable. For instance, proportionality has
been discussed when it comes to juvenile offenders. But what about
those who did not commit “serious” crimes. For instance, a
15-year-old girl was taking nude photographs of herself, and sending
them to her boyfriend. When it was found out, she was charged as a
Tier II sex offender (Zimmer, 2008). Or, like the case of Wendy
Whitacker who is now a registered sex offender for consensually
performing oral sex on her nearly 16 year old boyfriend when she was
17. And finally, the oft cited urinating in public.
Parsimony is another of the normative goals that the Adam Walsh Act
seems to overlook. Parsimony is “the principle of using the least
drastic and expensive measure needed to produce a specific objective”
(Welsh & Harris, 2013). The Justice Policy Institute provides a
fiscal breakdown of what SORNA would cost states the first year it
was implemented, compared to the 10% loss of federal funding:
Fig
1. Table of initial cost of implementation of SORNA for individual
states compared with their 10% federal funding
It begs the question, is prison sentencing not enough and is this
grand expenditure on a program with no empirical backing truly worth
it?
Another
normative goal to be discussed in reference to the Adam Walsh Act is
whether or not the policy is humane. The Supreme Court decided in
Smith
that sex offender registration did not qualify as cruel and unusual
punishment because it was “non violent”. However, the
registration itself puts individuals in the cross hairs for potential
violence. In 2006, a Nova Scotia man, Stephen Marshall, looked up
names and addresses on the Maine sex offender registry and proceeded
to seek them out and kill them. He killed two individuals on the sex
offender registry – William Elliot, 24, and Joseph Gray, 57
(“Suspected Killer”, 2006).
The Human Right's Watch study states in regards to violence against
offenders, “Registrants and their families have been hounded from
their homes, had rocks thrown through their home windows, and feces
left on their front doorsteps. They have been assaulted, stabbed, and
had their homes burned by neighbors or strangers who discovered their
status as a previously convicted sex offender. At least four
registrants have been targeted and killed (two in 2006 and two in
2005) by strangers who found their names and addresses through online
registries. Other registrants have been driven to suicide, including
a teenager who was required to register after he had exposed himself
to girls on their way to gym class. Violence directed at registrants
has injured others. The children of sex offenders have been harassed
by their peers at school, and wives and girlfriends of offenders have
been ostracized from social networks and at their jobs” (HRW,
2007).
Objectives Evaluation
The
declaration of purpose in the Adam Walsh Act states “to
protect the public from sex offenders and offenders against
children, and in response to the vicious attacks by violent predators
against the victims listed below, Congress in this Act establishes a
comprehensive national system for the registration of those
offenders” (42
USC §16911).
This part of the act specifically creates SORNA – the registry
itself.
There are four specific and measurable components when determining
the objectives of a policy: time frame, target population,
result/outcome, and criterion or measurement for success (Welsh &
Harris, 2013).
When
the Adam Walsh Act was signed into law in 2006, jurisdictions were
given 3 years to fully implement SORNA. If jurisdictions did not
implement SORNA they would forfeit 10% of federal funding given to
them on an annual basis (42
USC §16911).
As of now, all 50 states have a sex offender registry.
Implementation of SORNA was mandatory throughout the U.S. and
territories. Native American Nations were encouraged to create a
registry, as well. As of 2012, over 120 tribes participate in SORNA
(“Indian Tribes”, 2014). However, some states, like New York, do
not fully implement SORNA in terms of juvenile sex offenders
(Parker, 2014).
The
desired results for the Adam Walsh Act was to have a lower instance
of sex crimes against minors by having known offenders register,
which allows the registered offenders to be monitored, tracked, and
called upon as a suspect if any sex crimes happen in the area in
which they are registered (42
USC §16911).
The criterion used to measure the effectiveness is by the number of
new sex crimes reported in addition to the recidivism rates of
existing offenders. This can be difficult to obtain because nearly
50% of sex crimes are not reported. By having a registry, and knowing
that the perpetrators will be listed, can cause some victims
trepidation about reporting if they know the perpetrator or are
related to the offender. Additionally, definitions of laws have
changed which changes the dynamics of how sex offenses are reported
(Prescott & Rockoff, 2011).
However, with such a widespread policy, there are bound to be
cracks. Consider sex offenders who refuse to register and simply
disappear. Law enforcement has jus.01 lost track of them. This type
of behavior is called absconding. There have been problems with sex
offenders absconding in major metropolitan areas. For instance, in
2009 Atlanta P.D. had lost track of more than 250 sex offenders in
the metro area (Judd, 2009). In southern California, there are 350
sex offenders unaccounted for (Thompson, 2013)
Outcome and Impact Evaluation
Outcome and impact evaluations deduce the different levels of
outcomes and ensure the policy is associated with the outcome.
Essentially – it needs to be known whether or not the policy
actually works. There are no assumptions or causal claims – it
needs to be backed empirically. For instance, if SORNA were to be
considered effective, there would need to be a direct decrease in sex
crimes and recidivism rate. The reduction in sex crimes would be from
the deterrent properties of the policy, and recidivism rates would go
down as a result of deterrence and hyper-vigilance. The figures
presented as evidence of effectiveness would need to be unbiased from
a third party researcher with no stakeholders involved in the
research to ensure it is unbiased. In addition, it would have to
fulfill the goals and objectives initially created in the policy's
nascent stages.
Cost/Benefit
Analysis
To answer these
types of questions posed above, a cost-efficiency or a cost/benefit
analysis should be performed. A cost-efficiency evaluation “involves
the same type of logic” and is the metaphorical comparison between
apples and apples. A cost/benefit analysis “is used to determine
which of several approaches that target qualitatively different
outcomes” or the metaphorical apples to oranges comparison. There
are six steps to a cost/benefit analysis: “state the policy
question, identify the perspective of analysis, identify all relevant
costs and benefits, assign values to cost and benefits, compare the
costs and benefits of one or more policies, and assess the
sensitivity of the results to critical assumptions and detail all
relevant assumptions and limitations” (Mears, 2010).
Because of how
complex sex offender policy is, the easiest way to determine monetary
effectiveness is to perform a cost/benefit analysis. This way, all
factors will carry a monetary tag. Using the amounts listed in Fig.
1, on a national level, the implementation of SORNA cost nearly $500
million. The study conducted by the Justice Policy Institute showed
that many states were struggling to rationalize the costs. The
technology alone will cost states $85,000 annually. Treatment
programs and maintenance of sex offender's registration information
to databases would cost states another $100,000 annually. Because of
SORNA, overall expenditures on personnel, software, prison space,
court and administrative costs, law enforcement costs, and other
ancillary costs saw increased expenditures (“What will it cost”,
2014). These types of costs are direct costs – they are “they are
closely related to the primary objective of the policy” (Mears,
2010).
But there are also
the benefits to be considered such as SORNA being a tool for law
enforcement, peace of mind by the public knowing sexual predators are
on a registry and being monitored, mandatory sentencing, knowing
policy makers are seeing that there is a problem, etc.
Sexual violence
comprises of only 3.7% of all reported crimes. Nearly 50% of all
sexual violence is not reported. Another study shows a paltry 19% of
sexual crimes being reported. Fortunately, during the years of
1999-2005 sexual violence showed a 69% decrease – a full year
before the Adam Walsh Act was enacted. Because of differing rates of
recidivism, it is difficult to determine whether or not it is mainly
offenders who are recidivous or new offenders committing these
crimes. One study quotes 87% of individuals arrested for sex crimes
had no prior record (HRW, 2007). Because of the varying figures and
under reporting, it is difficult to put a finger on the actual cost
of the crime.
These types of costs would be considered indirect costs –
“by-products, multipliers, spillovers, or investment affects of the
policy” (Mears, 2010). Some of them, such as pain, fear, anxiety,
and suffering are intangible costs and difficult to quantify. Victims
also experience other costs that are not even calculated in most of
these incidents – therapy, medical bills, lost productivity,
insurance, etc. (Daigle, 2012). Mears recommends proceeding without
including these costs because there is no market for this.
Another type of
cost/benefit analysis that can be used in regards to sex offender
legislation is a risk assessment. What is the risk of not having this
policy, especially considering it deals with an extremely dangerous
subset of the criminal population? For instance, the state of New
Jersey implemented the Registrant Risk Assessment Scale (RRAS) in
1995, before SORNA's use of the tier system. The RRAS focuses on four
different factors to determine risk: seriousness of past offenses,
offense history, characteristics of the offender, and community
support. Offenders were graded and depending on their grade they are
placed on a tier scale with Tier I being the lowest risk and Tier III
being the highest risk (Lanterman et al, 2014). In addition to tools
such as RRAS and other legislation available, would it be detrimental
to not have SORNA? With each states having their own type of
registration and assessment policies before the implementation of
SORNA, does this extra “layer” act as a loss prevention or
reduction tool in addition to current state and federal legislation
and is it worth the additional costs?
There are
shortcomings to a cost/benefit analysis. Many of the monetary values
that would normally be difficult to place may sometimes build on
implausibilities or assumptions. Even the ever changing reported
recidivism rates of sex offenders is an assumption, but it is
necessary.
One way the
National Institute of Justice aims to perform a cost/benefit analysis
on SORNA is to outsource it and the group who provides the best
analysis wins a prize (“SORNA Challenge”, 2013).
Policy
Implementation
Truthfully, it
would wasteful and foolish to throw away this concept altogether.
Sexual violence is a real and horrible thing. But for there to be one
effective, catch all program, there needs to be a program overhaul
with a hardened empirical backbone in place. For this to happen the
program needs to be redesigned.
There are some
points to be considered in the beginning stages of designing a
program:
- “The problem or need to be addressed”
- “It's etiology and theory that explain how these causes to work to produce the problem”
- “Possible interventions, including interventions that have already been tried”
- “Goals and objectives” (Walsh & Harris, 2013).
- Target populations
The main problem is
creating a sex offender registry that is effective in preventing
recidivism, while avoiding the problems the current registry system
faces such as incidental crimes causing people to be branded as a sex
offender, absconding, technology, and other issues that may come up.
There are many
criminological, psychological, and physiological theories that
address deviant and criminal sexual behavior. In addition, fiscal
restrictions create issues in the implementation of the current
registration program.
There have already
been many attempts to remedy the sex offender situation including
psychological treatment, punitive measures, incapacitation, and other
methods. Maybe it would be best to try a different combination.
Some of the
barriers to the creation of a new sex offender monitoring program
would be advocates of the current program, fiscal barriers,
technological barriers, sex offenders themselves, victims under
reporting incidents, and many other unforeseen variables that can be
anticipated.
Objectives for this
new program:
- Noticeably decrease the recidivism rate
- Keep at least 99.9% of non-incarcerated sex offenders monitored electronically (.01% accounts for those who abscond for whatever reason)
- Create a registry that would provide law enforcement with sex offender's addresses and information, but limit public access to specific information so as to not endanger the offender
- Provide treatment and rehabilitation to sex offenders who will benefit
- Having psychological assessments conducted on sex offenders before release to determine if they will recidivate
- Keep known violent sexual predators incarcerated.
- Create special correctional facilities in each state for solely sex offenders.
- Create a new protocol for juvenile offenders on a case-by-case basis.
- Violent sexual assaults by minors will be handled differently than innocent sexual exploration that has been thoroughly documented in children, or any other type of “Romeo and Juliet” incident.
- The minimum allowed age for an individual on the sex offender registry will be 13.
- Juvenile records will remain sealed unless psychological evaluations suggest the juvenile is a violent sexual predator.
Action
Planning
An
action plan is simply a blueprint of how to implement a program or
policy. It has clear details of the how the program will be
implemented, when (including a time frame) it will be implemented and
in what stages, and how personnel are to be added and coordinated
(Welsh & Harris, 2013).
In
addition to the action plan, a resource plan also needs to be
created. A resource plan ensures expenditures are properly allocated
at the proper times to the correct groups. Luckily, if a new sex
offender registry program is to be implemented, it can use the same
resources as the previous one – it can utilize the same computer
networks, reporting, etc. Also, law enforcement has already been
trained on how to deal with sex offenders. Federal funding is already
given to states for the sex offender registry, it simply needs to be
reallocated, with main expenditures used for reorganization and
monitoring systems (Welsh & Harris, 2013).
A
visually appealing and concise way to organize these two plans, with
who is doing what task, is in a Gantt Chart. However, with an
overhaul this large and multidimensional, it would take hundreds of
law enforcement personnel, policy makers, and other staff to fully
implement the program.
Policy
Implementation and Monitoring
With
this type of program, monitoring and data collection are key. Because
one of the main goals for this program is to have an empirical
backbone, ensuring data is collected and analyzed allows benchmarks
and the creation of progress reports.
For a
program on this scale, it would be best to do a trial run in one
state. For this, researchers and law enforcement personnel need to
work hand in hand to ensure all facets of the program are being
monitored. As mentioned above, New Jersey has correctional
institutions set up specifically for sex offenders with psychological
evaluations (RRAS) in place for offenders. Welsh and Harris list four
ways for data to be collected including observation, records, staff
data, and data from participants.
The
program itself would need to start in the correctional institution
set aside for sex offenders. There needs to be a different system of
treatment and rehabilitation for offenders depending on their type of
offense. For instance, violent sexual predators, who obviously pose a
risk to the general public, will not be released.
There
will be no need for a Tier III sex offender. Anyone who falls into
that tier will be incarcerated due based on risk assessments. What
would be considered Tier II sex offenders will receive therapy while
incarcerated. They will serve the time given to them. For a Tier II
offense, the minimum sentencing guideline would be at least five to
ten years. For a Tier I offender, their case will be reviewed, and if
the charge is menial (the ubiquitous and oft cited public urination
charge, or a college freshman who got caught streaking, etc) and
these offenders pose no real risk, after having a psychological
evaluation to determine this, will receive a sentence of what the
judge feels is best based off the crime and risk assessment.
For the
sex offender registry, the main details – name, address, physical
description, and all other identifying information – will be kept
within law enforcement. The general public will be notified if a sex
offender has moved into the immediate area (approximately 1-3 mile
radius), without specific details given on their address. Potential
employers who perform a background check will be notified of the
charge. By having these measures in place, it ensures individuals who
have been rehabilitated and released back into the general public
will not be publicly stigmatized – it allows them to become
functional members of society. New technology such as RFID chips or
GPS tracking will be used on Tier II offenders. This allows law
enforcement to monitor the whereabouts of known offenders so that if
a sex crime does happen, the past locations of potential known
perpetrators can be accessed. Having this electronic 24-hour location
monitoring will serve as both a tool for law enforcement and a
deterrent for offenders.
The same
personnel can be used; they already have training in how to interact
and deal with sex offenders. A simple change in duties and maybe some
additional training will be all that is needed. For the test
institution, sex offenders in other correctional institutions need to
be transferred to the “new” institution, and the inmate
population that currently resides at the institution that will be
used for sex offenders will be disseminated into other institutions.
The main
expenditure other than personnel would be technology. The monitoring
equipment would need to be acquired for existing sex offenders. In
addition, servers and other storage mediums would need to be
purchased or reallocated.
Evaluating
Outcomes
Evaluation
of this program will be conducted like a research project. Data will
be collected, analyzed, and interpreted.
The main
sources of data will come from law enforcement agencies and
probationers reporting any incidents of recidivism as they occur.
Also, psychologists who are conducting tests will also provide data
and insight, as well. Because the program is being tested in only one
state, data collection and analysis will not be some overwhelming
task with large amounts of errors and oversights. In addition, fiscal
monitoring will take place to ensure this program will not exceed
budget limitations. It will also provide a cost estimate to other
states for planning and implementation purposes.
Data
will be collected on a specific survey-style form. Variables for the
evaluation will differ depending on what “stage” the offender is
in. If the offender is still incarcerated, data will be provided by
psychological personnel who are observing and treating offenders.
Variables will include whether or not the offender is violent,
remorseful, indifferent, or any other indicator that may be helpful
for both treatment and data analysis as well as basic demographic
data (age, gender, race, socioeconomic status, etc). For offenders
who are not incarcerated, their probationer will collect data
including living situation, employment status, criminal activities
(both relating to sex offenses and non-sexual offenses). A database
will be maintained with all information collected on a particular
offender both in and out of prison will be accumulated. This data
will be analyzed to see if there are any trends for recidivism that
can make it more predictable or any other indicators that will help
law enforcement apprehend monitor potential offenders.
Assessment
Outcomes
Assessments
should happen quarterly – this will allow for “real time” data
analysis for the program, rather than annually where it would be more
difficult to alter the program if the data shows there is a problem.
If data
shows that parts of the program need to be modified, these aspects
can be tweaked, and in a few years after the program has been
implemented in the test state, and it is shown to be successful
during its “test run”, it can be implemented on a national level.
The
recidivism and sex crime rates in other states will be used as an
impromptu “control group” for this evaluation. Essentially, the
sex crime and recidivism rates in the test state will be compared to
the rates of other states or national data.
A
meta-analysis will be used to analyze the collected data every
quarter. Data analysis programs such as SPSS can be used to organize
the data and multi-variate analysis including regression models,
Chi-Square, and other methods to determine significance. One way to
assess the results of data analysis is an impact evaluation – it
compares actual outcomes against desired outcomes. Another method of
assessment is a performance evaluation, which allows researchers to
“collect and analyze outcome information on... a permanent basis”
(Mears & Harris, 2013). Another assessment that can be used to
determine the success of the program is a cost effectiveness analysis
so that results can be quantified into a monetary value and compared,
as mentioned above.
If the
program is shown to be successful and implemented on a national
level, data collection and analysis will still be ongoing. The
program will be out of beta testing; data will probably only need to
be analyzed in totality every year. This will keep law enforcement,
researchers, and policy makers abreast of any new trends or concerns.
Conclusion
Patty Wetterling,
Jacob Wetterling's mother, said “People want a silver bullet that
will protect their children. There is no silver bullet. There is no
simple cure to the very complex problem of sexual violence.” SORNA
has been analyzed and criticized by domestic and international groups
for its disregard of human rights as well as its ineffectiveness. The
program design presented in this paper allows for a more
offender-focused policy. If offenders are monitored by law
enforcement more through GPS or RFID tracking, it can be hypothesized
that recidivism rates will decline. Better research and data
collection/analysis methodology will allow for more accurate violent
sexual predator identification in the future in addition to better
monitoring and treatment for mid-level sex offenders.
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