Registering the Wrong People
Sex offender registries aren’t necessarily a bad idea.
For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars. It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out. That’s not how sex drives work. So they often reoffend. To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do. They’re basically on extremely limited parole for the rest of their lives.
Their lives are basically over. The stigma is the worst our society can dish out. There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life. The best that can be said for such an existence is that it’s not prison.
Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.
But are these people really the ones who get registered?
Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend. A jerk can be registered for grabbing someone’s ass. Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender. A harmless loser will find himself on the registry for calling up a call girl. There really isn’t any rhyme or reason to it any more.
These are not things that have anything to do with the policy underlying sex offender registries. There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape. It’s an unthinking response. It’s a panicked “oh my God think of the children” shouted by people who aren’t actually thinking of the children.
It’s a huge expansion of governmental power, for no good reason. It’s one of the worst penalties the state can impose, and it’s mandated for some of the most minor offenses we’ve got. Clearly, something is wrong.
Fortunately, when the criminal law is stupid, or would have an unjust result, prosecutors have the discretion to do the right thing. We give prosecutors enormous powers to decide whether to charge a crime, what to charge, and what plea and sentence most cases will get. With that power comes the discretion to use it wisely.
So prosecutors have the discretion not to charge registry crimes. Or to take pleas to non-registry crimes, when no policy is served by putting a particular defendant on the registry. But oftentimes, that’s not what happens. An overblown crusader might insist on a registry offense, because by God they’re offended at what happened and want as much punishment as the law will allow. Some prosecutors have a big-government, big-brother attitude — the arrogant belief that they know what’s best, and the best thing is to have long-term intense supervision of someone whose conduct, though not dangerous, offended their sensibilities. But more prosecutors simply don’t think it through at all. They don’t know what the underlying principles are, they don’t understand the purposes and the real-life effects, and they don’t care. Right or wrong, it’s a registry offense, so on the registry you go. They fail to exercise their discretion at all (and by so doing, they abuse that same discretion, hardly ethical conduct).
So, unfortunately, when the criminal law is stupid, or would have an unjust result, you can’t count on the prosecutor to do the right thing.
New York isn’t alone in this. It has become a routine injustice across the United States. People who have no business being on a sex offender registry wind up there, and their lives are destroyed.
And it’s really a civil bit of bureaucracy, not a criminal punishment, so the same protections don’t apply. Ex post facto nonsense is perfectly fine. And there’s no need for due process to determine actual risk, before taking away one’s liberty.
A few years back, in Michigan, there was that case of Justin Fawcett. A teenager, one of many seduced by a teenage girl who described herself as a sexual predator. He was over-charged to begin with by a prosecutor who thought that “consensual” sex among promiscuous teenagers was a felony worthy of putting the kid on the registry till well into middle age. Only after public uproar did the prosecutor back down and agree to a non-registry deal. The deal was struck, the kid got probation, and he went about getting his life back. It was tough, but he was doing it. Time passed. Then the news came out that the state was going to put him on the registry anyway. He’d be a registered sex offender for the next 25 years. He’d only been alive for 20. His life was over. So he killed himself.
Was there any reason for his life to be over like that? Was he a predator, a child molester, a rapist? Nope. Was he someone we needed to worry about, someone who posed a threat to the safety of others? Nope. Was there any reason for him to be on a registry? Nope. No reason other than the fact that an unthinking government said this particular act gets you on the registry.
That was back in 2004. Michigan may have changed its rules somewhat since then, but New York and others are still just as bad or worse.
We’re registering a lot of the wrong people. For the wrong reasons.