Sex offender news roundup

Florida sex offenders may possess porn

Florida sex offenders on probation can possess pornography so long as it does not relate to their ''particular deviant behavior pattern,'' the state's Supreme Court has ruled.

The case involved Donald Kasischke, a 61-year-old Miami man with a doctoral degree in gerontology. He was on probation following a year in prison in the sexual molestation of a 15-year-old boy. Probation officers had searched his home and found pornographic photos of young males having sex, but it could not be determined that any were underage.

The ruling involved a condition of Kasischke's release stating that:

"Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs or computer services that are relevant to the offender's deviant behavior pattern.''

The Miami Herald story is here.

Part of national registry ruled unconstitutional

The law making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction is unconstitional, a federal judge in Montana has ruled. The Montana Attorney General will now appeal the ruling to the 9th U.S. Circuit Court of Appeals.

The case involved 58-year-old Bernard Waybright, who was convicted of a misdemeanor sex crime in West Virginia. Waybright traveled to Montana several times without registering there, a violating of the federal Sexual Offender Registration and Notification Act.

The complete ruling in US v. Waybright is here. The news report in the (Montana) Missoulian is here. Analysis and news roundup of the case is here.

Coming soon: Instant sex offender alerts

Want to find out when a sex offender moves into your neighborhood. In Washington, a new system will allow you to get instant "real-time updates" and email alerts. Whoopee!

(Too bad that 90 percent of people arrested for sex offenses do not have a prior record. But these laws presumably make people feel safer.)

It's all part of the Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) program, established by the U.S. Department of Justice under the Adam Walsh Child Protection and Safety Act of 2006. SMART has just issued its final guidelines for implementation, available online here.

Under the new guidelines, all 50 states, plus the District of Columbia, Puerto Rico, and Guam, are required to establish online sex offender databases that are easily searchable by name, zip code, and geographical radius. All states and U.S. territories must also participate in a similar one-stop-shopping federal database, the National Sex Offender Public Website (NSOPW).

Jurisdictions are also "permitted and encouraged" to provide public access to sex offenders' email addresses, by allowing members of the public to query whether a specific email address belongs to a sex offender.

All adult sex offenders and some juveniles as young as 14 are included in the national and state databases. (See this fact sheet for more information on juvenile registration requirements.) Registration is for life for offenders designed as “Tier III,” and for minimum periods of 15 to 25 years for Tier I and II offenders, respectively.

The FBI, which maintains the National Sex Offender Registry (NSOR) database, may freely share registrants' information with "other appropriate databases."

Challenge to juvenile sex offender risk prediction

Harsh federal law on shaky scientific ground

Did you know that each year, about 10,000 children will have to register as sex offenders for life?

That's part of the Sex Offender Registration and Notification Act, embedded in the Adam Walsh Child Protection and Safety Act passed by the U.S. Congress two years ago. Under SORNA, these arrested juveniles will be subject to warrantless searches for the rest of their lives, despite the fact that as kids they did not have the same types of due process rights that protect adults in criminal court.

SORNA marks a huge departure from past juvenile justice practices, which recognized that children are different, and that most juvenile crime is "adolescent-limited."

So, here's some food for thought:

• What if it turns out that this new practice is not just extremely harsh, but paradoxically puts the public at heightened risk by impeding rehabilitation, and consigning kids who would otherwise move on with their lives to the status of permanent social pariahs?

• And what if it turns out that the "scientific" methods the states use to determine which juveniles are at high risk for sexual reoffending are completely worthless?

Well, it looks like both of those things are true.

Prediction tools don't work

This month's Psychology, Public Policy, and Law published an important study showing that the systems in place to determine which juveniles are at high risk for recidivism simply don't do the job.

The researchers followed high-risk juvenile males for an average of about six years. They rated them on the highly touted Juvenile Sex Offender Assessment Protocol (J-SOAP-II) and the risk protocols developed by three states (Texas, New Jersey, and Wisconsin). Not only did the systems not work, but they were not even consistent with each other!

"This finding suggests that a juvenile's assessed level of risk may be more dependent on the state he lives in than on his actual recidivism risk," the authors concluded.

And SORNA's own tiered risk system fared even worse: Juveniles designated as high risk actually recidivated at lower rates than others.

In summary, the researchers concluded that the risk tools that have such important implications for the lives and futures of adolescents are both "nonscientific" and "arbitrary."

Treatment works

Although the efficacy of sex offender treatment among adults is contested, among adolescents the study findings were clear: Developmental factors play a big role in adolescent sexual behavior, and risk for reoffense can be reduced through high-quality treatment.

This is consistent with other recent research showing that even the most intractable offenders can be rehabilitated -- and at a cost far lower than the cost of punishment.

The authors concluded that SORNA as it applies to youth is not only misguided but is likely to do more harm than good:

"The legislation … is based on the assumption that juvenile sex offenders are on a singular trajectory to becoming adult sexual offenders. This assumption is not supported by these results, is inconsistent with the fundamental purpose of the juvenile court, and may actually impede the rehabilitation of youth."

Now, consider these facts:

• Most juvenile sex offenders stop offending by early adulthood.

• Among delinquents, just as many non-sex offenders as sex offenders go on to engage in adult sexual offending.

• At least one in five adolescent males commits a sexual assault. (See Abbey, referenced below.)

What do these facts add up to?

The need for widescale prevention efforts, instead of ineffective stigmatization of a few unlucky individuals. (Funding for such efforts has dropped precipitously, probably not coincidentally to the rise of increasingly punitive sanctions; see Koss citation, below.)

Other challenges to SORNA

Meanwhile, other aspects of SORNA face challenges, and a few such challenges are headed for the U.S. Supreme Court. Specifically, legal challenges assert that SORNA exceeds federal rights by encroaching on state and local decision-making.

As summarized in the current issue of the American Bar Association journal, at least two courts have sided with critics and invalidated some or all of the registry law, and in a third case the new law has been put on hold until arguments are heard. (I reported on one of those cases, U.S. v. Waybright, back in August – the blog post with links is here.)

SORNA-style databases are already being extended to domestic violence offenders, and if they are upheld by the U.S. Supreme Court they are likely to extend even further. That is the conclusion of Wayne A. Logan, a law professor at Florida State University and author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

So, warn your kids now: Don't ever get arrested. You may be publicly stigmatized - and perhaps even subject to warrantless searches - for the rest of your life.

For further information:

Caldwell, M.F., Ziemke, M.H., & Vitacco, M.J. (2008). An examination of the Sex Offender Registration and Notification Act as applied to juveniles: Evaluating the ability to predict sexual recidivism. Psychology, Public Policy, and Law, 14 (2). 89-114.

Abbey, A. (2005). Lessons learned and unanswered questions about sexual assault perpetration. Journal of Interpersonal Violence, 20 (1). 39-42.

Koss, M.P. (2005). Empirically enhanced reflections on 20 years of rape research. Journal of Interpersonal Violence, 20 (1). 100-107.

For further information on the juvenile registration requirements of SORNA, see the U.S. Department of Justice's online fact sheet; this month's Police Chief magazine also has a summary of SORNA that includes the juvenile provisions (online here). The full text of the Adam Walsh Child Protection and Safety Act is here.

The American Bar Association article, "The National Pulse: Crime Registries Under Fire -- Adam Walsh Act mandates sex offender lists, but some say it's unconstitutional," is available here.