2007:Introduction
Legislatures cite the so-called high recidivism rate of sex offenders to implement Megan’s Laws to justify laws requiring sex offenders to register and having their information being disseminated to the community. However, whether people convicted of sex crimes actually possess a dangerous risk of recidivism remains doubtful.
This paper will critically question the justification of reliance on recidivism studies by both state and federal legislatures in implementing Megan’s Laws. Part II outlines the history of Megan’s Laws and presents the claims of recidivisms made by the legislatures. Part III first demonstrates how Megan’s laws do not take in account the variation in recidivism rates among studies. It then shows how studies do not represent the actual majority of those convicted of sex crimes. Finally, this part analyzes the harm created by Megan’s Laws that outweighs any beneficial value on the community when an offender has a low recidivism rate. Part IV confutes potential opponents’ arguments that because sex offenses are underreported, the actual recidivism rates could be higher and that it is better to err on the safe side for children’s sake. Part V concludes that the discrepancy of studies suggests that compulsory notification laws are overbroad by assuming high recidivism rates by all sex offenders. Because recidivism rates vary depending on the characteristics of the sex offenders, Megan’s Laws are justified only for selected types of offenders who commit particular sex offenses. The heavy burden put on those who pose little risk to society outweighs the usefulness of Megan’s Law for the other categories of sex offenders.
Sex Offender Legislations and Recidivism
The public and the media contributed to the hasty legislations aimed at reducing the so-called skyrocketing sex offense recidivism. Today, 50 states and the federal government use registration and community notification programs in an attempt to track sex offenders and protect the community.2
The federal statutes provide only minimum requirements for registration, database maintenance, and community notification for the states.3 Each state is free to determine which sex offender must register, what information they must provide and disclose, and the general standards and procedures.4
States have either a “compulsory” registry system or a tier system.5 In the compulsory approach, states require offenders guilty of specific crimes against a minor, violent and nonviolent sexual offense, and felonies committed for a sexual purpose to register.6 Offenders who commit incidental exposure can be lumped together with offenders who commit rape-murder.7 The offender’s risk of recidivism is not a material element under law, all it takes to be on the registry is a conviction of selected crime.8 However, the fact that one is registered inevitably makes the public believe the offender is dangerous.9
Other states have a system based on risk of recidivism. Often, this system is a three-tier classification system.10 New Jersey, for example, assesses registered sex offenders’ risk of reoffensing and places them in one of three tiers: Tier 1 (low risk), Tier II (moderate risk), and Tier III (high risk).11 In this category of notification laws, an agency or individual is authorized to assess which offender will have to be notified to the community, and in what manner.12 States vary again in their evaluation of the dangerousness of an offender. Some operate a sophisticated system of assessment, while others leave the discretion to the law enforcement agencies. Some states, such as Massachusetts, have a board of licensed psychologists or psychiatrists (those with specialized knowledge of the forensic mental health system and those with specialized knowledge of sex offenders) and those with specific expertise in areas of criminal justice, probation, victims of sexual abuse.13 Other states merely allow their law enforcement agencies to assess which tier to put the offenders in.14 This allows a “broad discretion” on the local law enforcement agencies, which has a high potential of discrepancy of treatment for similar sex offenders across a state.15
Based on the arguments made below, the appropriate approach for notification law should be the narrowest one, using mental health and criminal justice professionals to aid in the evaluating the dangerousness of those convicted of sex crimes which have shown high recidivism rates.
For the reminader of this paper: by Debra J. Patkin, UCLA
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