Sex Offender Regstration

I wrote a paper a bit back for a statewide contest that won me a pretty chunk of cash and a nice little award to frame. I wanted I'd see what LPP thought of my arguments. tl;dr i know...but I'm quite proud of it. As an engineer, I got a kind of special thrill when I trounced a slew of sissy English majors at their own game.
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Medieval Stocks in Modern Times

When someone is convicted of committing a sexual crime, many states force the individual to register his name and address in a list of convicted sex offenders. This information is accessible to the public for the rest of the offender's life. The purpose of this list is to warn others in the area of the presence of a potential danger. Unfortunately, an effect of the list is that offenders are often ostracized from the community and fall prey to humiliation, discrimination, and illegal persecution. On November, 2007 Daniel Sorensen was brutally murdered and decapitated as the result of a “thrill” or “revenge” killing. This was allegedly done because he was a convicted sex offender on the registry (Dickerson).

With all the undesirable effects of these laws comes the following question: What can justify laws that result in such unfavorable consequences? Furthermore, is imposing such a punishment that results in unreasonably harsh treatment even constitutional? After examining the justification of sex-offender registration laws under both deterrence and moral education theories of criminal punishment, I have determined that under deterrence theory, the justification of sex criminal registration is inconclusive, and these registration laws are firmly unjust under a moral education theory of punishment. In addition, the constitutionality of sex offender registration is questionable at best when constrained by the Eighth Amendment.

Deterrence theory, which has roots in utilitarianism, says that a state should pursue punishments in order to deter crime. Punishment is sought to deter in several ways: to prevent future crime on the part of the individual by appealing to the individual's sense of self-preservation, to deter other individuals from unacceptable behavior, and to hinder the criminal tendencies and practices of the individual by making it more difficult for him or her to commit future crime.

There are several aspects of deterrence theory that track the theory behind sex offender registration. The first reason for the justification of registration laws under deterrence theory is that it is a harsh punishment, which deters potential offenders who are afraid of being caught and made social outcasts. This is a clear appeal to a potential offender's sense of self-preservation in that it forces him to weigh the temptation to commit the crime against the chances of being caught combined with the harshness of the punishment. The fear of getting caught and harsh punishments may make the individual think twice before committing a crime. As a result, the likelihood of some crimes being prevented will increase. Another way that sex offender registration deters– and probably the reason it was created in the first place – is that it hinders future offenses of the ex-convict by informing the public of his whereabouts. Law makers most likely reasoned that letting people know the present address of a potential threat will allow them to take necessary precautions to avoid risky situations. Examples of precautions include parents making sure their kids do not have to walk home alone after school, a family warning their kids against socializing with strangers, or even a community agreement to set up a neighborhood watch. If precautions are taken there will be less opportunities for the sex offender to commit crimes, thereby reducing crime. Although the above arguments in support for a deterrent justification for criminal sex offender registration seem compelling on the surface, they do not consider accompanying problems that may also result.

On the other hand, the criminal registry could result in an increase in crime. When an individual convicted of a sex crime is registered, he is usually ostracized from the community and finding a job becomes much more difficult. The lack of a job combined with the need to live is enough to cause an individual to resort to crime out of desperation. Criminal registration could result in an increase in crime simply due to the fact that it prevents a criminal’s reintegration into society. Also, humans are social beings, and naturally will attempt to join a group that will accept them. If an individual who was previously convicted of a sex crime is subsequently ostracized from the mainstream social group of society, he will attempt to obtain acceptance from another social group, most likely a group made up of other peers that engage in criminal behavior. These deviant social sub-groups can lead to increased recidivism on the part of the individual in an effort to procure approval from his new set of peers.

Also, another negative aspect of registry is that the criminal's actions are publicized. Many members of society who know they are living close to a sex offender would be outraged that such a 'horrible' person is free to roam the streets. A few people, outraged at the alleged “injustice” could feel compelled to take revenge upon the criminal for his past actions. This can be done easily since the photo and address of the offender is provided by the list. A prime example of this is the aforementioned murder and decapitation of Daniel Sorensen. In this particular case, the effort to prevent future crimes by the ex-convict resulted in illegal persecution and murder. If the above arguments are correct, criminal registration could not be justified using a deterrence theory of criminal punishment.

The theory behind the passage of the sex criminal registration laws are likely born from deterrence theory. However, in practice they may not be as effective as intended; they may even be counterproductive. A theoretical examination of the effects suggests the following: while crime might be deterred because of the harsher punishment and the warning of the public, the stigmatizing effect that the registration law has can lead to further crime. Since both arguments in support of, and against the justification of sex offender registration under deterrence theory seem equally plausible, it is not clear whether or not deterrence theory would support it. The combination of helpful and harmful forces caused by law would have to result in an actual decrease in crime, and since this cannot be determined in theory, statistical studies would have to be done to conclude whether or not the registration laws are actually successful in deterring crime.

A second justification of punishment is moral education theory. Under this theory, punishment is only justified when it attempts to reform the criminal. Punishment is supposed to represent society teaching the criminal a lesson about unacceptable conduct. It is supposed to be painful in order to convey the seriousness of the crime. However, since education must address the mind, not the body, the punishment should restrict an individual's freedom while not causing physical pain This teaches the criminal that he cannot get his way by transgressing boundaries. Another aspect of moral education theory is that after the criminal is educated, he should re-enter and repair the breach with society. If the individual rejects the lesson, the punishment still remains as deterrence against future crime.

Criminal registration law can be justified by moral education from the following arguments: A punishment needs to convey the seriousness of the crime to the criminal in order for there to be any educative function. Also, since the punishment cannot be physically painful, it should restrict the freedoms of the individual or cause other distress. Sex offender registration does just that by humiliating the criminal. His status in society is subsequently diminished; this teaches him that he must change his ways in order to regain acceptance. The individual is taught that continued transgression of state laws could result in further ostracism from the community. Registration also performs the deterrence aspect of moral education. If the individual rejects the lessons being taught, the registry warns others of his potential threat. It is tempting to think that a moral education theory of punishment justifies criminal registration, but as it turns out there are several things that make such laws unjust under the moral education view.

A slight problem of the criminal registration laws under moral education theory is when the criminal rejects the lesson being taught. In this case, the criminal registration acts as a deterrent against future crime. However, as stated previously, the sex offender registration law’s capability with respect to the prevention of crime is inconclusive. Another, much more concerning problem is that many criminal sexual acts that result in registration are one-time acts that would never be repeated. For example, a person prosecuted for having consensual sex with his underage girlfriend may not perceive the educative nature of the punishment, because once his girlfriend reaches the age of discretion, he will not be committing a crime anymore. In this case, registration serves no educative purpose whatsoever, and could not be justified. Of course, one could reply that even though many sex crimes are one-time occurrences, the offender must still be educated. However, the educative function of criminal registration can be questioned as it is not clear how something like this would teach a criminal that their behavior was wrong. The previous assertion that it teaches a criminal that such acts will lead to being ostracized from society are not very good, because the consequence is permanent. The criminal is not really being taught, because even if the criminal learns the error of his previous actions, the punishment still remains. Registration is more of a perpetual consequence for an offender's previous practices.

Finally, criminal registration completely ignores the goal of redemption that is present in moral education theory. The whole point of moral education is to give the criminal the opportunity to repair the breach with society by showing remorse for his previous transgression. By accepting the terms of social cooperation, the criminal should be accepted by society in turn. However, criminal registration brands the criminal as a being incapable of reintegrating with society, and the result is permanent ostracism. Because the most important goal of moral education theory is to reintegrate the criminal with society, criminal registration is in direct contradiction of that philosophy. Therefore, moral education theory would not justify such a punishment.

Initially, it seems that moral education can justify registering a sex offender, but then it becomes apparent that the reasons against justification are much more compelling. It is extremely apparent that sex offender registration completely disregards any attempt at reintegrating the criminal back into society. Any other arguments supporting the justification of sex offender registration are outweighed because rehabilitation and subsequent reintegration is the fundamental purpose of moral education theory.

It seems that finding justification for registration of criminal sex offenders is difficult to achieve. Indeed the harshness of this punishment might cause one to question the constitutionality of this law. One could even argue that convicts have a legitimate Eighth Amendment claim against being publicly listed as sex offenders on the grounds that it is cruel and unusual punishment.

In O'Neil v. Vermont, Justice Field argued that the Eighth Amendment forbade “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.” In Weems v. United States, the Court used this view to reverse a sentence in the Philippine Islands of fifteen years incarceration at hard labor and more for falsifying public documents (FindLaw). There is a very large disproportion between the crime committed and the punishment imposed when considering a case where an individual convicted of having a sexual encounter with an underage girl – even when it is clear that there was no coercion involved in the encounter – and forced to be forever listed on the same list as serial rapists, subject to relentless humiliation and persecution as a result. In practice, registration is applied to people convicted of statutory rape and to serial rapists. In this case, the same punishment should not be applied to two crimes of significantly varying magnitude because it violates proportionality. Since radically disproportionate punishments have been deemed unconstitutional under the Eighth Amendment against cruel and unusual punishment, the sex offender registration law is unconstitutional, at least for sex offenders charged with relatively minor offenses.

In response, one could argue that although on the surface it seems that the punishment is disproportionate, the criminals charged with two different crimes would still receive different magnitudes of punishment. Arguing that the two criminals need to receive entirely different punishments is like asserting, for example, that jailing a person convicted of malicious destruction of property violates proportionality because serial killers are also put in jail. Just because both the person convicted of a minor crime and the serial rapist have to register, the crimes that they have been convicted of are listed along with their other information, and therefore proportionality is maintained.

Even though the particular crime committed by the offender is listed, there can still be a monumental disparity involved in the registry laws. Consider the following example: A man accused of engaging in sexual acts with another member of his household with affinity to the fourth degree, even if both were at ages of discretion and it was deemed consensual, would be charged with first degree criminal sexual conduct under Michigan law 750.520b (Michigan Legislature). Meanwhile, another man, who is forty years old and is accused of raping a fourteen year old girl would also be charged with first degree criminal sexual conduct under Michigan law. Although it is very clear that there is a large difference in terms of the severity of the two crimes committed, the charge listed on the registry for both criminals would only read “criminal sexual conduct: first degree (MIPSOR).” As such, the two men would be grouped together, receiving the same humiliation, even though one might be a legitimate threat while the other is not. It stands to reason that these two crimes are very different and have very different degrees of transgression on the values of society. Surely a person who has consensual sex with a family member should be punished less harshly than a rapist.

There also seems to be an issue with the stripping of dignity that is the result of sex offender registration. In Trop v. Dulles, removal of the citizenship of a natural born citizen was held to be constitutionally forbidden as an unreasonably cruel penalty because it involved “the total destruction of the individual's status in organized society (FindLaw).” Also, according to FindLaw, “A punishment must be examined 'in light of the basic prohibition against inhuman treatment,' and the [Eighth] Amendment was intended to preserve the 'basic concept . . . [of] the dignity of man' by assuring that the power to impose punishment is 'exercised within the limits of civilized standards.'” One could argue that since registering a sex offender would result in the total destruction of the individual's status in organized society, that sex offender registration would constitute as cruel and unusual punishment, and therefore, be deemed unconstitutional by the Eighth Amendment. Although this argument is very compelling, one could argue that sex offender registration is not intrinsically cruel.

The shunning of an individual on the sex offender list is a result from public misuse of the registration, not from stripping a person of his status in society. The registry is not a tool to be used in order to humiliate the offenders listed. It is only supposed to warn others of the presence of a potential threat, not let them subject the offender to humiliation or even physical violence. The Eighth Amendment only provides protection against the government stripping a person of his dignity, such as the attempted divestiture of a natural born citizen. Since sex offender registration does not strip the individual of any status in society, it is not unconstitutional.

This above argument asserts that since it is the public that is doing the shunning, it is not cruel to impose a punishment that would result in hostile feelings towards the perpetrator. However, is it not just as cruel for a government to officially strip an individual of his dignity, than to do so unofficially and then throw the individual back into a society that shuns and persecutes him? It is not just the nature of the punishment itself that should be examined, but also the potential after-effects that it could have on the individual after the punishment has been served.

In conclusion, it stands to reason that people who have committed lesser sex crimes and are not deemed a continuing threat to society should be able to escape criminal registration under the Eighth Amendment under the principle of proportionality of punishment. Additionally, the act of sex offender registration itself could be labeled as cruel and unusual punishment because of its permanent and detrimental effects on an individual's status in society. That said, it is still not immediately clear whether serious criminals would be granted the same protection under the Eighth Amendment, because there appears to be compelling interest on behalf of the state to inform the public of the presence of a person who might pose a threat.






Works Cited

Dickerson, Brian. "Murdered, Decapitated, Stigmatized." Detroit Free Press (November 14, 2007): <http://www.freep.com/apps/pbcs.dll/article?AID=/20071114/COL04/711140321/1085>

"Michigan Legislature." Michigan State Legislature. 9 Dec 2007 <http://www.legislature.mi.gov/>.

"Michigan Public Sex Offender Registry (MIPSOR)." MIPSOR. Michigan State Police. 9 Dec 2007 <http://www.mipsor.state.mi.us/>.

"U.S. Constitution: Eighth Amendment." FindLaw. 9 Dec 2007 <http://caselaw.lp.findlaw.com/data/constitution/amendment08/index.html>.

Well reasoned, but I can't help but feel that the problems you are experiencing with the sex offenders register is that the information is freely and publically available, which is an open invitation to abuse by the hard of thinking. That the information is gathered in one place and can be checked by, for example, schools taking on new staff, seems to be a sensible precaution.

I'd agree that continuing threat to the community should be better assessed, and that those who don't pose any risk should not be registered, or perhaps be on a different register?

It's also an issue about punishment vs. prevention. It is seen as a punishment to be entered onto the sex offenders register. This needs clarifying.

It IS a punishment Torrenter, one that masquerades as prevention.
The revocation of citizenship was deemed unconstitutional by the SCOTUS, as it permanently destroys an individual's position in society, and completely prevents reintegration (which is a key aspect of US justice law). Registering as a sex offender has similar effects while providing inconclusive safety benefits, yet it remains legal.

I'd broadly agree with your analysis MaddKow. The many examples of the inept use of these types of laws (putting 17 year old boys on the register for having consensual sex with 15 year old girls, for example) show just how abhorrent it is. Many accounts I've read, which suggest that the worst offenders are the most likely to go underground once registered, demonstrate how ineffective.

Bringing sex offenders into society, as has been done by the Canadian group Circles of Support and Accountability seems to me to be a far more hopeful approach then ostracising them further.

I agree that there needs to be more clarity over types of offences. A person with 1 image on their hard drive that they accidently downloaded from a file share site is not a danger to society. Like, for example, a person with 10 000 obscene images in his "my pictures". However career sex offenders need removed from society permanently.

I agree, though it sounds harsh. Rehabilitation? I imagine if society said to me "your sexual attraction to women needs to be cured, so that you can be attracted to men" That's an analogy of what a paedophile must be faced with, and it sounds impossible (to me) anyway.

And it is paramount for any society to protect its children IMO. Incarceration of paedeophiles: A case of ends justifying the means.

Excellent paper Maddkow; I can see why it won, but I don't agree with you.

The father of my grandson is on the registered sex offender list, which I check periodically to see when he's out of jail and when I need to be more vigilant and watchful that he doesn't get contact while I'm in charge of my grandson.

This man was 23 years old when he took 'consensual' advantage of my then 15 year old daughter. He was/is an internet predator who still to this day, preys upon teenagers on the internet. He's fathered other children and goes back to jail frequently. He is now 31.

While checking the registry I have also found a couple of other child predators who have taken up residence in my neighborhood, where I still have a child at home. I have used this information solely to warn my now, 12 year old son, "Just stay away from that person. Never go in his house. Tell me if he ever says anything to you."

True, I don't go out of my way to be friends with these people. Why would I? If you call that ostracizing then so be it. THAT'S THE WHOLE POINT. People who make choices to mess with kids . . . even horny 17 year old boys trying to get in the pants of 15 year old girls should KNOW that they're making choices that can have life long consequences.

If some deranged vigilante goes off and kills a registered sex offender, then that person is guilty of murder and subject to the same prosecution and sentencing as if they'd murdered an upstanding member of the community. I don't see how keeping the sex offender list from the public is going to stop that anyway. The chances of a sex offender being murdered just from being on the list are far less than being murdered just walking to the corner store.

Only in America, @Pink