« Curious reminder of limits of empirical evidence showing federal sentencing disparity before modern guideline reforms | Main | Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense »

December 12, 2017

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

The title of this post is the title of this notable new In Justice commentary authored by Guy Hamilton-Smith. I quoted the title in full because it is all worthy of reflection, as is the entire commentary that follows. Here is an excerpt:

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

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

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

The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 today. Research has found that sex offender registries have a disproportionate impact on minorities.

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

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized.  A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.  Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison.  In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison.  Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug. It is a feature.

December 12, 2017 at 10:26 AM | Permalink


So where is your federalism god now?


6th holds that even if a person isn't obligated to comply with registry requirements for state law purposes he can be made to comply with those requirements for federal purposes.

Posted by: Daniel | Dec 12, 2017 1:29:26 PM

Registries are regulatory quackery. They should taken down without any further study. They would not have helped the little girls after which they were named. Megan opened the door to her neighbor, and was taken. Jessica slept in her bed, with her plush blue dolphin. She was taken. Police already knew about the sex offender who took her, and visited him across the street. She was alive in his closet during the police visit. Political correctness killed little Jessica. You lawyers are 100% to blame for both losses. You allowed these vicious predators to be loosed on our little girls. The guy was such a coward, he could kill Jessica in person. So he put her in a bag, and buried her alive. She suffered greatly, and a long time.

Then, these registries are incompetent and obsolete. See the Chinese. They have large stadium size video displays. They project the photos and personal information of notorious jay walkers. The toilet paper dispenser in the park toilet has facial recognition. If you are on a registry of people who used more than a meter of toilet paper, it will lock down. The Chinese also have social desirability scores in a database, similar to our credit scores. If you buy work boots, it goes up. If you buy a video game it goes down. So what? When you apply for a job, they look these scores, and factor them into hiring decision. I do not know if dating sites publish the social desirability scores of its members. I would certainly demand it before dating a Chinese girl, and I certainly would look up their jaywalking registry first.

So lawyers, go ahead and support the Democratic Party, the party of the registry and of quack government make work. Don't complain about the park toilets in the USA, however. I warned you about them, in this comment.

Posted by: David Behar | Dec 12, 2017 2:16:45 PM

What's so sad about this well written,fact based story is the author of this story. Himself a sex offender on the registry. What does this say about the state of sex offender reform in our nation? Our supreme court having a full repository of academic, scholarly knowledge along with mountains of empirical research at it's fingertips simply ignores its responsibilities, and its sworn duty to our constitution. If I were an attorney, a judge, etc; I would be deeply saddened by our top to bottom refusal to defend our constitution and the people it was designed to serve. I bow to you Guy Hamilton-Smith. You are righteous in my eyes and in the words of our constitution!

Posted by: tommyc | Dec 12, 2017 3:12:34 PM

I have proposed a registry of registry proposers. These are many, animal cruelty, domestic abusers, bullies, sexists, racists, homophobes, Islamophobes. All registry proposers are Democrats, and many are lawyers. The real intent is to generate government make work jobs. Go to the PA SOR. It states that any harassment of the people on the registry is a criminal offense. You may not even criticize a serial child rapist without getting arrested by the lawyer run criminal justice system.

Then all service and product providers shall boycott the people on the registry of registry proposers. Let them live off the land, under 19th Century conditions. Let them go to the toilet outdoors in winter. To deter.

Posted by: David Behar | Dec 12, 2017 4:11:40 PM

Not to mention the impact the registry has on family members. When my wife wants to go see her family in the Philippines, I can never accompany them, it is just not possible with the Intel-Pol travel notifications.
Another issue is the coming implementation of Read ID, where everyone will need to have a passport just to travel by commercial air. Now since they are going to mark Registered Sex Offenders passports, I can only imagine how that will lead to issue when just trying to catch a commercial flight. The making of passports of course is straight out of the Nazi playbook.

Posted by: Steve | Dec 12, 2017 4:14:10 PM

The registry is a witch hunt.
Cruel and unusual punishment.
There is a current John Doe vs. Director of TN Bureau of Investigation (the registry) and Wm. E. Haslam, Govenor of TN,
case just filed in Nashville TN. It addresses John Doe's increasing retroactive restrictions on the registry as well as a lot of issues that all registrants have to deal with, in-person registration, fees, boundary requirements, loss of jobs, being labeled "violent" on the registry when one's crime had nothing to do with violence, etc.
The registry must be taken down, statistics prove it serves no purpose except to increase the state coffers by taking money from those who can least afford to pay.

Posted by: kat | Dec 12, 2017 4:19:40 PM

What's it going to take? Will former sex offenders need to band together just as black panthers, organized laborers, feminists, etc., and others have done to rise up against these laws?

Posted by: william r. delzell | Dec 13, 2017 6:10:29 PM

No. They will have to get more money for election campaigns.

Posted by: David Behar | Dec 13, 2017 6:28:41 PM

William. It has started.

Here is a Hollywood propaganda movie.


Posted by: David Behar | Dec 14, 2017 3:22:33 AM

Can anyone give an example of fear based, broad brush legislation that has actually worked as intended?


Posted by: Huh? | Jan 7, 2018 2:21:50 PM


So, out of one side of it's mouth the 6th Circuit says Michigan's Sex Offender Registration Act (SORA) violates the Constitution's ban on ex post facto laws, yet finds that a defendant in Tennessee must register under the SORNA?

In the Michigan case the 6th Circuit said:

"While the statute's efficacy is at best unclear, its negative effects are plain on the law's face....SORA puts significant restrictions on where registrants can live, work, and 'loiter,' but the parties point to no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects. Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive effects of these blanket restrictions thus far exceed even a generous assessment of their salutary effects."

I don't get it.


Posted by: Huh? | Jan 7, 2018 2:36:30 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB