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Risky Policies: How Effective Are Restrictions on Sex Offenders in Reducing Reoffending?

10-13-2014 Massachusetts, National:

Sex offenders are one of the most reviled groups of felons. In the past few decades, there has been a dramatic increase in laws and regulations governing virtually every facet of their lives. The policy decisions about how to deal with sex offenders flow largely in one direction: restrict them as much as possible. This one-sided approach has created a complex web of restrictions that ultimately causes more harm than good.

Differentiating sex offenses from other types of offenses is perfectly rational. Further, government should try to address those harms by creating policies that will reduce offenses. In light of what we know today about sex offenses and sex offenders, it is possible to reduce the rate of recidivism, but the policies currently in place are not the answer. They are reactive, based often on outdated misconceptions, and far too broad.

Evidence-based practices have become common in almost all areas of public policy, because it is now well established that conventional wisdom is often inaccurate. But though there is an abundance of empirical data about sex offenders and reoffending, our policies are created without reference to the data. Rather, our policies are based on anecdotal information and inaccurate beliefs about sex offenders and reoffending. As a result, current policies do not address the problems they are seeking to correct. In most instances, the policies are ineffective; in many instances, they also create conditions that may increase the risk of reoffense.

Sex Offender Registry

Perhaps the most common restriction placed on sex offenders is the obligation to register. Every state has a registry that requires sex offenders to register with some frequency and dictates what information will be made available to the public. Though there are many other restrictions placed on sex offenders, the registry provides a good lens through which to evaluate the effectiveness of these policies.

In 1999, the Massachusetts Legislature created the current version of the Sex Offender Registry Board [“Board”]. A sex offender is defined as anyone convicted of an enumerated sex offense. G. L. c. 6 § 178C. The Board decides whether someone qualifies as a “sex offender” and then classifies them. The Board also disseminates information to the public about offenders. See G. L. c. 6 §§ 178C-178Q; 803 C.M.R. 1.00.

There are four possible outcomes to the classification process. The Board may determine that an offender poses no risk to reoffend, in which event the offender is not required to register. If the Board determines that an offender poses some risk of reoffense, he will be classified as either a Level 1, 2, or 3 offender. Level 1, 2 and 3 offenders are considered, respectively, to have a “low,” “medium,” and “high” risk of re-offense, and to pose an increasing danger to the public. G. L. c. 6 § 178K (2)(a)-(c). The Board is required by statute to promulgate regulations that govern how they conduct these evaluations; the regulations must weigh, but are not limited to, certain factors enumerated by the Legislature. G. L. c. 6 § 178K.

All sex offenders, regardless of levels, are regularly[1] required to update their residential address, any secondary address, and employment or attendance at a post-secondary institution of higher learning. Level 1 offenders are required to register by mail. Their information is not available to the public in any form. Level 2 and 3 offenders must register in person, at a police station. Information concerning Level 2 and 3 offenders is available to the public and is posted on the internet.[2] Additionally, Level 3 offenders are subject to “active” dissemination, which involves a “community notification plan” where police departments notify organizations and individuals in the community which are likely to encounter such a sex offender. G. L. c. 6, § 178K(2)(c). In addition, “[n]eighboring police districts [are required to] share sex offender registration information of level [three] offenders and may inform the residents of their municipality of a sex offender they are likely to encounter who resides in an adjacent city or town.” Id. Regardless of one’s level, all sex offenders are subject to criminal penalties for failing to register, which can encompass anything from registering late or failing to update one’s information. G. L. c. 6 § 178H.

Most offenders must register for life. G. L. c. 6 § 178G. However, an offender may move to lower his classification or be relieved of his obligation altogether. 803 CMR 1.37A-1.37B. On the other hand, the Board may move to increase an offender’s level any time after classification upon receiving new information indicating an increased risk to reoffend. 803 CMR 1.37C(10).

Additionally, an offender’s level may affect other aspects of his life. A growing number of residency restrictions prohibit Level 2 and 3 offenders from living within a certain distance from parks, schools, or other places. See e.g. General Ordinances of the Town of Barnstable, Chapter 147, Article IV, § 147-12 (C); Ayer Town By-Law, Article XLIX. A person classified as a Level 2 or 3 offender can never seal his criminal record. G. L. c. 276 § 100A(6). No Level 3 offender may live in a nursing home, G.L. c 6 § 178K(e), though the Supreme Judicial Court has said this provision is facially unconstitutional in certain, if not most, situations, Doe v. Police Cmmr. of Boston, 460 Mass. 342 (2011). No sex offender, regardless of level, may operate an ice-cream truck. G.L. c. 265 § 48. Any sex offender subject to lifetime registration is prohibited from receiving any federally assisted housing. 42 U.S.C. § 13663.

Do All Convicted Sex Offenders Pose a High Risk to Reoffend?

Registration and its collateral effects were designed to address a serious concern: the risk of sex offender recidivism. But since creation of the registry, we know more about sex offenders than when the law went into effect, and we also know more about the effectiveness of the registry in preventing ..Continued.. by Eric Tennen of Swomley & Tennen, LLP

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