Observations Electronic monitoring data on reductions of technical violations and returns to prison indicate the possibility of a more effective and humane way to supervise high-risk offenders. But the only effective way for that to happen is to staff a real-time, 24-365 operation where there are experts to evaluate the data points and to come […]
Observations The history of sexual and physical violence directed to women offenders (especially during childhood) is considerable. Add neglect, and it indicates that most have challenging histories. The Harvey Weinstein incident and additional stories of abuse pale in comparison to the numbers involved. Yet we say nothing, do nothing, and within the confines of the […]
A Supreme Court ruling in June overruled the conviction of a sex offender for violating his probation after posting on Facebook. But that opens up a new legal minefield over limitations on internet access for anyone convicted of a crime, warns a Washington, DC attorney.
Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service.
In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.
While the majority opinion and concurrence seems grounded in—and specific to—sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts.
Lester Packingham pleaded guilty to having sex with a 13-year-old girl when he was 21. Eight years after his conviction, Lester bragged on Facebook about a happy day in traffic court, using the screen name of J.R. Gerrard, and exclaiming:
“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent…Praise be to GOD, WOW! Thanks JESUS!”
A police officer tracked down court records, obtained a search warrant, and correctly identified “J.R.” as an alias for Lester Packingham.
He was subsequently convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds.
According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.
Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD—all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.
But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.
There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions. Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior. Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.
And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?
There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes. For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.
Web restrictions for these defendants are now also in play in a post-Packingham world.
The intention of the judges seeking to restrict web access in these cases is understandable. They want to remove potential tools of victimization from the hands of convicted criminals. But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.
We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net—likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.
In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.
To some, this may be an uncomfortably high price to pay for web freedom.
On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.
While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release.
So, somewhat ironically, the next Lester Packingham may find himself spending more time in prison because of his inability to convince a judge that self-restraint on the computer can adequately replace judicially-imposed restraints.
Perhaps the safer bet here is on technology – that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights.
James Trusty is a Member at Ifrah Law, PLLC, where he leads the White Collar Practice Group. He was formerly Chief of the Department of Justice Organized Crime & Gang Section, and has spent 27 years serving as either a local or federal prosecutor. He also teaches criminal Justice courses at University of Maryland (Shady Grove). He welcomes comments from readers.
The state supreme court said sex offenders convicted before a 2012 law was enacted cannot be compelled to adhere to registration protocols required under the law.
Nearly 4,000 crime victims will be affected by a Pennsylvania Supreme Court ruling this week that bars the retroactive extension of registration requirements for sex offenders, reports PennLive.com. State Victim Advocate Jennifer Storm said her office is reaching out to all of them as it tries to gauge the impact of that ruling, which the divided court issued Wednesday in a Cumberland County case. The majority ruling by Justice Kevin M. Dougherty established that state officials can’t increase the amount of registration time required for sex offenders who were convicted before the Sex Offender Registration and Notification Act was adopted in 2012.
Several convicted sex offenders had filed legal challenges to retroactive registration orders. Dougherty found that the SORNA requirement that offenders must register with state police is a “punishment” and so cannot be increased retroactively. Storm said her agency is working with its legal teams to determine how the Supreme Court decision will affect 3,929 sex crime victims who receive SORNA notifications for older cases. Victims can call her office at 800-563-6399.
The Washington Post says that Supreme Court Justice Samuel Alito Jr.’s concurring opinion this week in a sex-crime case “reflects a common misrepresentation of sex offender recidivism.” Alito wrote that sex offenders “are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” The case involved a registered sex offender in North Carolina who was arrested for posting his photo on Facebook, a violation of a 2008 state law banning convicted […]
The Washington Post says that Supreme Court Justice Samuel Alito Jr.’s concurring opinion this week in a sex-crime case “reflects a common misrepresentation of sex offender recidivism.” Alito wrote that sex offenders “are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” The case involved a registered sex offender in North Carolina who was arrested for posting his photo on Facebook, a violation of a 2008 state law banning convicted sex offenders from accessing websites where minors can sign up. The court ruled the arrest was a violation of his First Amendment rights.
The Post says Alito’s reference to sex offender rearrest trends is “quite misleading.” In fact, federal Bureau of Justice Statistics data suggests that only those convicted of homicide have a lower rate of rearrest for the same crime (within five years of release) than sex offenders. The BJS rearrest figures for violent crimes: homicide, 2.1 percent; rape or sexual assault, 5.6 percent; robbery, 13.1 percent, and assault, 34.4. The figures were even higher for some nonviolent crimes–auto theft and larceny, 41.4 percent, and drugs, 51.2 percent. The Post concludes that Alito used outdated data going back to the 1980s.
Subtitle Should we notify the community about violent offenders released from prison? Author Leonard Adam Sipes, Jr. Thirty-five years of speaking for national and state criminal justice agencies. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Post-Masters’ Certificate of Advanced Study-Johns Hopkins […]
Sex Offender registration laws haven’t improved community safety or reduced the numbers of victimized children. Even the mother of Jacob Wetterling, whose murder led to the passage of the 1994 law, agrees that it’s time for a second look, writes a former clinician.
As momentum around criminal justice reform builds nationwide, sex offenders are one population that is consistently left out of the conversation.
As of 2008, there were 737,000 individuals living on the sex offender registry in the United States, according to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking—almost double the 386,000 registered individuals in 2001.
After the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act was passed in 1994, as part of President Bill Clinton’s Omnibus Crime Bill, registration became a federal mandate for individuals convicted of a number of different categories of sex offenses.
Megan’s Law, passed in 1996, added a community notification component. With the passage of the Adam Walsh Child Protection and Safety Act (or SORNA), the number of register-able offenses broadened and average lengths of registration increased. The intervening years between their inception and the present have not shown these laws to be effective in accomplishing their goals of community safety or reducing the number of children who are victimized.
So why aren’t champions of prison and sentencing reform talking about it?
The current laws were all enacted with the best of intentions. Parents, afraid for their children, overwhelmingly supported policies that they believed would keep their communities safe. But as we have seen in the case of the War on Drugs, policies so deeply rooted in fear and misunderstanding will never be successful. In the meantime, they are causing a great deal of harm.
Despite what researchers at the University of Chicago Booth School of Business call a “lack of empirical evidence for the recidivism-reducing benefits of registration and notification,” these laws persist and cause a number of problems. The Chicago researchers point to the financial costs associated not just with those convicted and their families, but with the taxpayers who subsidize their registration and supervision.
Additionally, they point out, neighbors of those on the registry often suffer loss in property value, based simply on physical proximity.
Placement on the registry does not take into account individual risk level, meaning that people are assigned to a somewhat arbitrary term of registration, along with a tier, based solely on the broad category of crime they committed.
Much advocacy work has been undertaken in recent years to address the labeling and registry of juveniles convicted of sex offenses, citing data about low recidivism rates and discussing the harm done to young people who end up registered and greatly restricted when they pose little risk to the public.
This work has already been successful, with some states beginning to remove juvenile offenders from the registry. These same arguments can be made for large portions of the adult men and women who are currently registered across the United States.
Despite the oft-cited “frightening and high” language* that is used to describe recidivism rates for individuals who have committed sex offenses, current data suggests that recidivism rates, particularly for new sexual offenses, are incredibly low—especially when compared to other types of criminal behavior.
For example a California Corrections Department report found that of registrants returned to prison, a staggering 92% were rearrested on parole violations, while less than 1% were re-incarcerated for a new sexual offense. A 2003 brief from the Bureau of Justice Statistics cites a 5.3% recidivism rate over the first three years of release for high-risk offenders (those who have committed rape or sexual assault) with their likelihood of recidivism declining steadily over time.
For individuals classified as low-risk, those numbers are much lower: “About 97.5% of the low-risk offenders were offense-free after five years, about 95% were still offense-free after 15 years,” the report said. Compare this to the fact that more individuals (3%) convicted of felonies with no sex offense on their record (who are not, therefore on the registry) will commit a sex offense within 4.5 years of release.
I am not advocating for the laws to be thrown out entirely. But it’s time for a serious cost/benefit analysis.
And this call for reform has some surprising advocates. After her eleven-year-old son Jacob was abducted and murdered in 1989, Patty Wetterling began fighting for the implementation of a national registry. But in the intervening years, Wetterling has become a staunch supporter of smarter laws and policies. She saw firsthand the way that these laws could take on a life of their own, and have serious collateral consequences.
We need an honest accounting of which parts of these laws are functional and which are not. It’s a conversation that we should be having, for a number of reasons. Men and women on the registry often struggle to find and maintain stable housing or employment, due to their registration status.
Some researchers and treatment providers suggest that these “collateral consequences,” as they are often called, may actually increase the likelihood of recidivism by encouraging “social withdrawal and heightened anxiety…common precursors to reoffending.”
While it is certainly important for law enforcement to be able to effectively monitor violent and high-risk individuals, these individuals represent a minority of those on the registry. When we register people who don’t pose a serious risk to the community, we spread already scarce resources even more thinly.
Likewise, current systems perpetuate a myth that “violent strangers” are largely responsible for committing these insidious sexual offense—and, if we can only identify and isolate them, they can be managed.
The reality is much more complicated.
More than 90% of those who sexually offend are known to their victim. In fact, the stricter our laws become around sexual offenses and those who commit them, the more likely will a victim be discouraged from reporting abuse at the hands of a friend or family member, fearing the repercussions of registry and notification.
If we truly want to make our communities safer and to reduce the number of new victims of sexual offense, then we need to pursue practices and policies that are based on evidence and not rooted in fear.
By using individual risk-assessments to sentence and register individuals and engaging in primary prevention programs, we may actually begin to improve the safety of our communities— and of our children.
Sophie Day is a graduate student completing Masters in Social Work at the University of Pennsylvania. She has done clinical work with men convicted of sex offenses as well as policy research related to the laws currently on the books.
*This language, which comes from a U.S. Supreme Court decision written by Justice Kennedy in the 2002 case McKune v. Lile, 536 U.S. 24, 33, is based on an 80% recidivism rate for untreated offenders. This data point comes from a Department of Justice report which cites as its source an article from Psychology Today, a mass-market magazine and not a peer-reviewed journal. The article’s author was not a researcher, but a practitioner who offered treatments within California prisons and was writing the article to encourage people to use his services. He offered no data to backup the 80% recidivism that he quoted (Ellman & Ellman, 2015).