TCS Daily

Megan's Flaw

By Douglas Kern - July 18, 2005 12:00 AM

Megan's Law and its progeny -- the sex offender registration and notification laws on the books in all fifty states -- are godsends for those of us who prefer to live in pervert-free communities. You can't easily sell that nice new house at market value when all potential buyers are thirty seconds of web surfing away from discovering Mulberry Lane's Tattooed Little Secret. But do these laws serve any other purpose? It isn't clear that sex offender registration laws deter crimes. And however good an idea these laws may be, and however settled their constitutionality may be, it's hard to escape the fact that such laws penalize sex offenders simply for having the status of sex offenders. Worst of all, these laws are band-aids on a severed artery. The real question is not where we should house our habitual sexual offenders, but why we allow habitual sexual offenders to pollute society in the first place.

The appalling examples of Joseph Duncan and John Couey should disabuse anyone of the notion that sex offender registration presents any significant obstacle to the determined deviant. Couey and Duncan were both under different forms of court control when they ("allegedly") committed their horrific acts. Precisely what protection did that control provide? Admittedly, these laws give the police a list of the usual suspects to round up. But where's the evidence to suggest that these laws prevent motivated bad guys from committing further crimes?

I know of no successful legal attack against the constitutionality of well-drafted sex offender registration laws. They have been shown to be tools of civil regulation, not criminal punishment. But let's not kid ourselves. Our system of law is predicated on the belief that men should be tried for what they have done, not for what they might do or for what they are prone to do. Megan's Law creates a quasi-punitive regulatory system that penalizes citizens for the risks they ostensibly present to the community -- even after the criminal system of justice has, in principle, punished those citizens for the actions that demonstrate such risks. In our quest to protect our families and communities from sex offenders, we have embraced laws that turn a popular principle of legal fairness on its ear.

That hypocrisy doesn't bother me at all. I have never believed that criminal punishment restores justice to the community and renders the criminal fully fit for social reintegration. Upright citizens are entitled to be judged by their actions, but convicted criminals have a lesser claim to such a presumption. And the worse the crimes committed, the lesser the claim.

Consider "class 3 sex offenders" or "sexual predators" or "habitual sexual offenders," Aren't those labels God's way of saying that maybe these folks belong somewhere other than a free and decent society? There's no solution to the problem of where you house a sexual predator. Who do you hate so much that you would inflict a repeat violent rapist upon them as a neighbor? What community will not suffer fear, resentment, and decreased property values when a sex offender moves in? Double-stealth extra-strength probation won't reassure nervous buyers. The only good housing solution for habitual sex offenders is a prison cell.

I'm not just worried about homeowners. Much as I detest sex predators, I will grant that it is virtually impossible for them to live normally in society, once released from prison. Few employers will hire them. Ordinary people will shun them. The likelihood of abuse from vigilante action is significant, and at all times the disgust of law-abiding citizens is keenly felt. So sex predators can stumble along in a world in which they are both detested and constantly exposed to temptation -- or they can stay in prison. Which would you choose? Are you sure?

Admittedly, sex offender lists could stand some careful revision. Most sex offender lists conflate minor sex offenses with serious sex crimes. The nineteen year old who engages in consensual sex with a fourteen year old may be a creep, a louse, and deservedly a felon, but even I would blanche at calling him a sex offender in the same breath as Couey and Duncan. It would be better to confine sex offender registries to criminals who commit sex crimes of violence (or, in the case of child molestation, violence by imputation).

Sex offender apologists err grievously, however, when they dismiss the value of sex offender registration laws because the recidivism rates for sexual offenders are (contrary to popular belief) lower than the recidivism rates for any other crime except murder. Those statistics appear to be broadly true, but they convey less information than you might think. As noted above, the phrase "sex offenders" comprises perpetrators of low-level crimes like solicitation. The recidivism rates for those perps may be quite low, but who cares? Moreover, recidivism rates don't differentiate between elderly and non-elderly offenders. Society probably doesn't have much to fear from the 81-year-old-guy who left prison ten years ago after serving thirty years for raping children. Sex offenses can entail long sentences, thus producing decrepit offenders who may not live long enough to commit new crimes. How does this information help us figure out what to do with the 37-year-old rapist? Finally, recidivism rates only measure crimes for which the perpetrator was caught and found guilty of a sex offense. Sex offenses are under-reported crimes -- which is unsurprising, as the victims of sex offenses are often young, terrified, or humiliated. Moreover, ex-cons get smarter and more careful after a stint in the pen. And many bad guys will take advantage of evidentiary problems to arrange plea bargains that don't result in convictions for sex offenses. I know, because I cut such deals in my county prosecution days. Some of those deals still keep me up at night.

Only a fool takes solace in "low recidivism rates" for sex offenders.

Non-elderly violent sex offenders present an intolerable risk to society. And while knowing is half the battle, putting bad guys away is the other half. Yes, my pervert-enabling friends: the mass incarceration of sexual predators will be expensive. It will deprive many ex-cons of any significant chance at rehabilitation. It will deprive society of many contributions that recovered sex offenders could make. It will shame and stigmatize the families, friends, and loved ones of sex offenders. I don't care. No community in America deserves to be the guinea pig for social experimentation in the care and feeding of violent sex criminals. And no sex offender should live a life that combines the boundless contempt of society with infinite opportunities to commit further atrocities. Megan's Law? It's better than nothing, but I prefer Kern's Standard: Punish and rehabilitate the low-level offenders, punish and stigmatize the mid-level offenders, and eliminate the violent sex monsters. "Notifications" and "offender lists" are for sissies.

The author is a lawyer and TCS contributing writer.


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