Judges Are Starting to Question Overzealous Sex-Offender Laws

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There’s a stark divide between lawmakers and experts when it comes to laws which restrict where registered sex offenders can live. Cities and states all around the country have enthusiastically banned offenders from living too close to schools — and introduced other, similarly oriented restrictions — on the grounds that such legislation is a common-sense way to help keep kids safe. Experts, on the other hand, have insisted that these laws at the very least don’t reduce recidivism, and could have the opposite of the intended effect, increasing the odds of sex offenders victimizing more children.

The expert consensus is pretty firm. The Association for the Treatment of Sexual Abusers, for example, has come out strongly against residency restrictions for two reasons: One, these restrictions wrongly assume that sex offenders target strangers rather than acquaintances, when the latter is far more common (despite the established trope of the creepy dude in the trenchcoat standing at the edge of the playground, waiting to spirit a kid off to his windowless van). Two, as the ATSA put it in a 2014 policy paper, “these laws often create more problems than they solve, including homelessness, transience, and clustering of disproportionate numbers of offenders in areas outside of restricted zones. Housing instability can exacerbate risk factors for reoffending.” Overall, there’s literally zero empirical evidence that housing restrictions reduce the rates of sex-offender recidivism.

These claims have mostly fallen on deaf ears: Who wants to be seen as arguing “for” sex offenders? But a decision handed down by the U.S. Court of Appeals for the 6th Circuit last week suggests that at least some judges are starting to operate from a more evidence-based approach.

As Reason’s Jacob Sullum notes, the question before the court was whether it was kosher for the state of Michigan to have amended its Sex Offender Registration Act, or SORA, in 2006 and 2011 to introduce new restrictions that applied to previously convicted sex offenders. Six plaintiffs on the state’s sex-offender registry — five of them men — argued that in doing so, the state violated the Constitution’s ban on so-called ex post facto laws, or laws that are applied retroactively.

The court agreed, but also went further, offering what Sullum describes as a “scathing” assessment of Michigan’s tangle of restrictions on sex offenders:

“What began in 1994 as a non-public registry maintained solely for law enforcement use … has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders,” the court notes. Among other things, the Michigan legislature in 2006 barred registrants from living, working, or “loitering” within 1,000 feet of a school, a rule that effectively banishes sex offenders from large swaths of densely populated cities such as Grand Rapids (see map). “Sex Offenders are forced to tailor much of their lives around these school zones, and, as the record demonstrates, they often have great difficulty in finding a place where they may legally live or work,” the court says. “Some jobs that require traveling from jobsite to jobsite are rendered basically unavailable since work will surely take place within a school zone at some point … These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of ‘loitering.’”

It’s important to keep in mind that because the category of “sex offender” has become so bloated — because courts can easily apply the label for many different reasons — that a good deal of the people subjected to these restrictions aren’t, by any reasonable definition of the term, dangerous sex predators. The details vary from state to state, of course, but Reason notes that Michigan introduced a tiered system in 2011 designed to correspond to a given offender’s threat level to the public. And while all of the plaintiffs in the current case were assigned to the most “dangerous” tier, some of them didn’t commit crimes which would seem to warrant the designation: “one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend,” writes Sullum, “while another was convicted of ‘a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald’s.’”

But even for offenders who did commit more serious crimes, there just isn’t evidence these restrictions do more good than harm, and the court’s cost-benefit language is notably similar to the ATSA’s: “The punitive effects of these blanket restrictions … far exceed even a generous assessment of their salutary effects.” In other words, the court is acknowledging that sex offenders in Michigan were likely hindered, in important ways, from getting their lives back on track, for no good reason. And if you buy the ATSA’s logic, there’s at least a solid circumstantial case to be made that this could have increased the rate of recidivism.

One way to test this theory, albeit not in a dispositive manner, would be to look at how frequently sex offenders in Michigan recidivate, and how that percentage has changed alongside changes to the relevant laws. Unfortunately, the 6th Circuit notes that “Michigan has never analyzed recidivism rates despite having the data to do so.” It’s easier — politically at least — to just layer restriction atop restriction without stopping to ask whether doing so is making anyone safer.