Thursday, June 13, 2013

Failure to Register: Are Violations Overblown?

“As a crime of omission, each failure to report ordinary life events
is an opportunity for registrants to commit a new felony.”
Over the last two decades, registration for sexual offenders in the US has become the law of the land. It seems intuitive that tracking known sexual offenders should reduce sexual abuse, but with data indicating that sexual offense recidivism is much lower than widely believed and as many as 95% of arrests for sexual abuse are first time offenders, there are legitimate controversies about the sex offender registry, as well as valid questions about how efficacious it is to register and track known sexual offenders.
A growing body of research indicates sexual offender registration is not very effective in reducing sexual offending. There are persuasive arguments that the registry results in more harm than good, especially for juveniles. A number of organizations have been particularly critical of registration for juveniles, most recently Human Rights Watch. David Prescott wrote about juvenile registration in a recent SAJRT blog. Some scholars suggest the sex offender registry is not making society safer but, rather, is the misguided result of government abdication to moral panic.
The Sex Offender Registration and Notification Act (SORNA) requires strict registration requirements and includes severe penalties for failure to register (FTR). Many states are not in full compliance with SORNA, in part because of the burdensome cost of compliance and, perhaps, because the classification system required by the Adam Walsh Act is not supported by research. Still, significant public resources are expended to ensure compliance with registration. But, the question remains: is FTR actually a risk factor for reoffending?
A 2006 report from the state of Washington suggests that FTR offenders recidivate at a rate 50% higher than compliant sexual offenders. However, upon closer review of that data, five-year felony sexual offense recidivism rates for compliant offenders were 2.8% compared to 4.3% for offenders with FTR citations.
Similar low rates of sexual reoffending are well established in the literature. Trending research appears to support the contention that sexual offender registration and notification is not effective in reducing recidivism, and mounting research also indicates FTR does not predict sexual reoffending.
These findings are consistent with a 2010 study by the Minnesota DOC that indicates FTR is not significantly related to either sexual recidivism or general recidivism, but is, not surprisingly, a predictor of future FTR. If research continues to confirm these conclusions, it would seem public policies compelling registration are misguided, and severe criminal penalties for FTR are unwarranted.
Jill Levenson (with others) has conducted extensive research on FTR, providing compelling evidence that concerns about FTR are broadly unsupported. In a recent post on the listserv of the Association for the Treatment of Sexual Abusers (ATSA—6/5/13, reprinted with permission), Jill wrote this review of most FTR studies:
FTR seems to be related to general criminal recidivism rather than sexual recidivism, which makes sense in that it is, for some offenders, about general self regulation rather than sexual deviance. Over time FTR has become the most common recidivism offense for RSOs, probably because it is so easily detected and proven. However, there are a multitude of possible explanations for FTR (especially as registration rules have become more complex): inadvertent or negligent noncompliance, confusion about requirements, poor general self-regulatory or life-management skills, a tendency toward rule violation, and outright rebellion against registration mandates… It is important to know that FTR is not equivalent to absconding…
There are NOT 100,000 missing sex offenders as often declared by media reports who inaccurately attribute the statistic to NCMEC and USMS (who also still report 100,000 missing despite knowing that empirical data do NOT come close to supporting this). It is important for all of us to try to correct this myth each time we see it.
ATSA member Robin Wilson added that FTR could affect scoring on the (actuarial risk assessment instrument) Stable-2007 for lack of “cooperation with supervision,” and therefore FTR could have some effect on risk tools, but it may not mean much treatment-wise. For professionals who are routinely sampling dynamic risk in clients in a systematic way, there would likely already be indicators that an offender was slipping in the more clinically oriented domains.
From my viewpoint in Minnesota, FTR is perhaps the most frequent “new offense” with young men who have to register—an observation supported in the literature. Consistent with Jill’s contention, my sense is that most FTRs are likely the result of disorganization and carelessness, and probably not deliberate avoidance.
FTR may, with higher frequencies, snare younger or single guys because such adults are more frequently moving, living with various friends and relatives, changing jobs, attending school, buying cars, traveling, etc. These events might occur dozens of times when young adults are in their teens and twenties.
Even first-time FTR can carry severe penalties, with typically some jail time and five or more years being added to an offender’s registration period. The stakes go up for any repeat non-compliance. A second registration error typically results in mandatory incarceration and the potential of lifetime registration. Most violators are prosecuted under state laws, but FTR might also be a federal crime.
FTR is a crime of omission. Because registerable events are inherently benign, unlike say the commission of accessing child pornography or using illicit drugs, it is easy for registrants to be less than appropriately cautious about the omission of FTR. Registration may seem akin to completing a change of address card for the post office but, of course, of immeasurably greater import. As a status offense, each failure to report ordinary life events is an opportunity for registrants to commit a new felony.

How and why are registrants non-compliant?
It is not just important to understand how registrants are non-compliant, but to more closely examine why. Juveniles can get lulled into not thinking about registration because while they are on juvenile probation it is common for adults or probation agents to maintain a juvenile's reporting requirements. Adults would be wise to strongly encourage juveniles get into the habit of self-reporting registry updates.
It is likely that registration is not an easy discussion for registrants to have with unknowing family and friends. It’s also a tough topic for new relationships. It may be necessary to coach guys on how to explain registration—especially to housemates—so offenders don't avoid registration for fear of social consequences.
Many registrants have offenses that are revealed in public records, making it difficult to get a job or qualify for an apartment. Most offenders will be banned from public housing, apartment complexes, or on-campus housing. These restrictions may result in even more frequent changes in housing or employment than is common for young adults.
In locales with both registration requirements and residency restrictions, independent housing might be unattainable. Registrants who don’t have a permanent address need to know how to properly register in their jurisdiction. Homeless registrants typically must report weekly to local law enforcement. Each week is another opportunity for non-compliance.
For registrants who can find housing, a frequent lapse is not having their names on an apartment mailbox (or being barred from doing so because they are not named on a lease). Compliance letters requiring an offender to reply are often undelivered, and are returned to state compliance authorities by the US Post Office marked as “addressee unknown.” In such cases the registrant doesn’t even realize such letters were returned, constituting non-compliance.
A final recommendation to mitigate consequences of FTR: The burden of proof for compliance is on the offender. Registration updates via US mail typically leaves the offender with no personal proof of timely compliance. Registrants would be well advised to personally deliver registration updates to local authorities (typically a law enforcement agency, if/when that’s an option), ask someone in authority to sign and date the registration update form, and retain a copy.
Regardless of how offenders register, they would be wise to maintain a file folder with a copy of every registration, creating a personal history of compliance. Such documentation may become a “get out of jail free” pass for offenders that need to prove compliance, or at least demonstrate their track-record of conscientious effort. Perhaps some jurisdictions will offer an online registration option for offenders to maintain a history of registry updates, assuming registrants are not restricted from using the Internet.
FTR is not simply “failing to register” but, perhaps, most often the failure to register in a timely manner. Recently one of my clients was 10 days late registering a change in employment. Unable to offer an acceptable excuse, he was sentenced to six months in jail, five years probation, and five years was added to his registration period. His last offense was when he was 14. He was first put on the registry at age 15, for 10 years. One year short of his first registration expiring, he is now an adult felon, and the event restarted his original registration period. In Minnesota, incarceration, for nearly any reason, resets the registry clock back to zero. If he maintains perfect compliance for 15 more years, he’ll graduate from the registry when his son graduates from high school, if he’s allowed to raise his son.

FTR: unjust and misguided public policies
If FTR does not contribute to risk for sexual reoffending, and risk diminishes with age, then lengthy periods of registration are not really reducing recidivism or making communities safer. Being required to register for decades is, in reality, retribution with interminable opportunities for FTR. Prudent public policies are compromised when violations of the “civil” requirements of registration carry severe criminal penalties so damaging that offenders may never recover.
The social challenges attached to being a “sex offender” and FTR by proxy, are extensive, insidious, and unrelenting. Just when offenders believe conscientious effort and time will eventually put the “SO” label and stigma behind them, one mistake can result in felony FTR becoming lifelong evidence of a previous registerable offense—even if it occurred as a juvenile. With felony FTR, most guys will never wake up from the subsequent housing, employment, and social nightmares. Compromised stabilities undermine the pro-social principles of Good Lives and other well-established tenets of recovery.
The sex offender registry was conceived to help prevent recidivism, but evidence now indicates that it may contribute more to unwarranted public fear than to prudent public safety. Professionals familiar with extant research can help to educate colleagues about FTR myths and facts and, by helping clients to recognize FTR hazards, we can mitigate some of the counterproductive consequences of sex offender registration. Perhaps most importantly, the registry has morphed into misguided public policies that divert limited public resources away from truly productive measures to reduce sexual offendingprimary prevention.
Jon Brandt, MSW, LICSW
Caldwell, M.F., Zemke, M.H., & Vittacco, M.J. (2008). An examination of the sex offender registration and notification act as applied to juveniles. Psychology, Public Policy and Law, 14, 89-114.
Letourneau, E.J. & Armstrong, K.S. (2008). Recidivism rates for registered and nonregistered juvenile sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 20, 393-408.
Letourneau, E.J., Bandyopadhyay, D., Sinha, D., & Armstrong, K.S. (2009). The influence of sex offender registration on juvenile sexual recidivism. Criminal Justice Policy Review, 20, 136-153.
Letourneau, E.J., & Miner, M.H. (2005). Juvenile sex offenders: A case against the legal and clinical status quo. Sexual Abuse: A Journal of Research and Treatment, 17, 313-331.
Letourneau, E.J., Bandyopadhyay, D., Armstrong, K.S., & Sinha, D. (2010). Do sex offender registration and notification requirements deter juvenile sex crimes? Criminal Justice and Behavior, 37, 553-569.
Levenson, J.S., Ackerman, A.A., & Harris, A.J. (2013). Catch me if you can: An analysis of fugitive sex offenders. Sexual Abuse: A Journal of Research and Treatment. DOI: 10.1177/1079063213480820
Levenson, J.S., Sandler, J.C., & Freeman, N.J. (2012). Failure-to-register laws and public safety: An examination of risk factors and sex offense recidivism. Law & Human Behavior, 36, 555-565.
Levenson, J.S., Letourneau, E., Armstrong, K., & Zgoba, K. (2010). Failure to register as a sex offender: Is it associated with recidivism? Justice Quarterly, 27, 305-331.
Levenson, J.S. & Harris, A.J. (2012). 100,000 sex offenders missing… or are they? Deconstruction of an urban legend. Criminal Justice Policy Review, 23, 375–386.
Tewksbury, R., Jennings, W.G., & Zgoba, K. (2012). A longitudinal examination of sex offender recidivism prior to and following the implementation of SORN. Behavioral Sciences and the Law, 30, 308-328.
Zgoba, K., & Levenson, J.S. (2012). Failure to register as a predictor of sex offense recidivism: The big bad wolf or a red herring? Sexual Abuse: A Journal of Research and Treatment, 24, 328-349.
Jill Levenson’s SAJRT guest blog (7/21/11) about the efficacy of SORN.