Since the early 1990s, several laws have been passed to protect the community from recidivist sex offenders through enhanced sanctions and supervision. These include registration and community notification laws, residence restrictions, global positioning system (GPS) tracking, community supervision for life, and civil commitment. Most of these policies are enacted after highly-publicized crimes, such as the kidnapping, rape, and/or murder of a child by a stranger. Registration and community notification laws are the primary way to supervise and monitor sex offenders living in the community. The three federal acts that provide guidelines for registration and notification of sex offenders include the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (1994), Megan’s Law (1996), and the Adam Walsh Child Protection and Safety Act of 2006.
The Jacob Wetterling Act is named after an 11-year-old Minnesota boy who was kidnapped in 1989 while riding his bike home from a convenience store. Jacob’s abductor was never identified, though many in the community speculated that he was a sex offender living in a halfway house in town. Congress passed the Jacob Wetterling Act as part of the Federal Violent Crime Control and Law Enforcement Act of 1994, requiring each state to create a registry of sexual offenders.
While the Jacob Wetterling Act allowed states to track the whereabouts of sex offenders, it did not provide information to the community about those offenders. In July 1994, 7-year-old Megan Kanka was raped and killed by a recidivist sex offender living across the street from her. Megan’s parents said that if they had known a sex offender was living in the neighborhood, they would have warned their daughter and she would not have died. As a result of their campaigning, Megan’s Law was enacted on a state and then a federal level in 1996. Together with the Jacob Wetterling Act, these are known as registration and community notification laws (RCNL).
The goal of RCNL is to protect community members by providing them with knowledge about sex offenders who may be at risk to reoffend. RCNL guidelines vary from state to state, though all follow a similar procedure. Once convicted or released from jail or prison, offenders must register with the police or other designated agency. Offenders provide the agency with a photograph, fingerprints, name, home address, place of employment or school, and in some states a DNA sample. The state assesses offenders’ risk levels (high, moderate, or low), which will determine (1) how long an offender will need to remain registered, and (2) who should be notified about the offender. All states now have sex offender registries online and these can be accessed by the general public. States vary on a number of procedural issues, including the types of offenses for which someone should be included on the registry (e.g., some include non-sexual offenses such as kidnapping); whether they applied the law retroactively to those convicted prior to its enactment; the length of time offenders must remain on the registry (varying from 10 years to life); about whom the community should be notified; whether offenders can be expunged from the registry after a certain period of time; the time period with which to register after conviction or reregister after moving; the method of notification; sanctions for failing to register; whether juvenile sex offenders are included on the registry and, if so, whether the community is notified about them; and the method of risk assessment.
Most states assess the risk of sex offenders through either an offender or offense-based approach. Offender-based approaches utilize actuarial assessment tools, which allow for the evaluation of offenders through interpretation of standardized scores on risk assessment instruments. Risk is assessed based upon a number of static (stable) and dynamic (changeable) characteristics of the offenders. Alternatively, offense-based risk assessment determines risk based on the offense for which the offender is convicted and is less precise than offender-based assessments.
Sex offenders began challenging the constitutionality of RCNL soon after its inception. Their primary argument was that RCNL is punishment and therefore was unconstitutional on four bases: double jeopardy, ex post facto application of the law, bill of attainder, and cruel and unusual punishment. The courts, however, found that registration is not punishment and therefore is constitutional as a means of public protection.
Historically, states have had discretion as to how they implemented RCNL. However, the Adam Walsh Child Protection and Safety Act (AWA), which was passed in 2006, set national standards for registration and notification. The AWA is named after Adam Walsh, who in 1981 was abducted from a shopping center and killed. The AWA was signed on the 25th anniversary of his abduction. A significant component of the AWA is the Sex Offender Registration and Notification Act (SORNA), which provides national standards for all sex offenders regardless of the state in which they live. Although the AWA required all states to enact RCNL statutes in compliance with SORNA guidelines by July 2009, none had done so by that date. Still, only a handful of states are compliant and it is unclear how many states will ultimately modify their guidelines.
There are several criticisms of SORNA, including excessive sanctions for failure to register, mandated use of the offense-based risk assessment, notification for all offenders (rather than just high-risk offenders), and registration and notification of juveniles. Additionally, the cost of implementing SORNA has been prohibitive because it requires states to reclassify offenders, expand enforcement personnel, and increase judicial and correctional costs. Empirical studies of RCNL show little or no reduction of recidivism as a result of the legislation. Some studies have shown that community members take additional steps to protect themselves from sex offenders in the neighborhood, but that is usually a small subset of the community (such as single mothers with small children). The efficacy of the AWA has yet to be empirically tested, but legal scholars have called it misguided, harmful, overbroad, constitutionally questionable, and potentially harmful to juvenile offenders. The future of the AWA is unclear, though there is no doubt RCNL will continue.
- Levenson, J. S. and D. A. D’Amora. “Social Policies Designed To Prevent Sexual Violence: The Emperor’s New Clothes?” Criminal Justice Policy Review, v.18 (2007).
- Meloy, Michelle, Kristin Curtis, and Jessica Boatwright. “Policy-Makers’ Perceptions on Their Sex Offender Laws: The Good, the Bad, and the Ugly.” Criminal Justice Studies, v.26/3 (2013).
- Terry, K. J. and J. Furlong. Sex Offender Registration and Community Notification: A “Megan’s Law” Sourcebook. 2nd ed. Kingston, NJ; Civic Research Institute, 2008.
- Wagner, Catherine. “The Good Left Undone: How to Stop Sex Offender Laws From Causing Unnecessary Harm at the Expense of Effectiveness.” American Journal of Criminal Law, v.38/2 (2011).
- Wright, R. G., ed. Sex Offender Laws: Failed Policies, New Directions. New York; Springer, 2009.
- Zgoba, K., P. Witt, M. Dalessandro, and B. Veysey. “Megan’s Law: Assessing the Practical and Monetary Efficacy.” Washington, DC: National Institute of Justice (2008). https://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf (Accessed October 2013).
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