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Fallacies and Truths Behind the Sexual Registration Laws – Why They Fail

In the book “Knowledge as Power:” Criminal Registration and Community Notification Laws in America by Wayne A. Logan, (Stanford Law Books (2009)) Mr. Logan proves that criminal registration and notification laws ensure community safety, deter recidivism, or facilitate law enforcement.

Here is a review of that book by Raphael Silva in 2010

Wayne Logan is a legal scholar whose work includes authoritative treatises on criminal law and American justice. His knowledge and perception contribute to the book’s credibility. Knowledge as Power is not an easy book to read. It has the qualities of a textbook, containing case law analysis supported by extensive citations; one-third of the book is comprised of expanded end notes.

The author’s succinct writing style documents law enforcement’s ambivalence regarding presumed utilities of these laws. Numerous resources are cogently used to confirm that unfunded federal mandates for registration of criminals provide nominal incentive for either the maintenance of requisite information databases or the enforcement of registration violations. Studies are referenced showing most registries are unreliable because they are rife with inaccuracies.

The “knowledge is power” quote by Francis Bacon (1561-1626), alluded to in the book’s title, is pertinent. Criminal notification and registration laws are based on information gathering that should empower citizens and law enforcement to perform proper functions. However, Logan extensively reviews the creation of these laws, finding them without proper regard for evidence. Legislators initially intended these laws to address legitimate concerns, but their intentions have been subverted by some who have turned to exaggerating public insecurities, pandering, and generally exploiting opportunities for political gain.

The book illustrates the fallacies and paranoia surrounding misconceptions about sexual crimes. Logan offers numerous studies by agencies (including the U.S. Department of Justice, U.S. General Accountability Office, and state commissions) and private investigative reports that expose the false premises of these laws.

The studies provide compelling insight that:

(1) sex crimes are usually committed by first time offenders;

(2) sexual offenders have one of the lowest rates of recidivism; and

(3) most victims of violent crime are family members, friends, or acquaintances of the perpetrator.

Logan chronicles the demise, through disuse, of early 20th century laws requiring registration of ex-offenders. However, in the late 1980s, a series of horrendous crimes against children generated a near moral panic. The media and some politicians deftly exploited public fears under the pretense of addressing public safety and crime prevention. References to criminals in clinical terms, such as psychopath, were transformed into evocative pejoratives such as predator. High-profile sexual atrocities became a catalyst for emotionally charged reactive draconian laws passed without meaningful debate.

Various state law reactions, such as Washington’s Community Protection Act of 1990 and Minnesota’s 1991 Predatory Offender Registration Act, became an impetus to establish a uniform framework dealing with violent sexual crimes. Thereafter, Congress passed successive legislation — including the Jacob Wetterling Act (1991), Pam Lyncher Act (1996), and Megan’s Law (1996) — culminating in the Adam Walsh Act (2006).

The Jacob Wetterling Act mandated states adopt national standards for dealing with violent sexual offenses or risk losing federal funding for their criminal justice programs and public dissemination of registry information. The Adam Walsh Act introduced retroactive application.

These revitalized laws detrimentally affected an individual’s liberty and privacy rights. The governmental shift of law enforcement to private citizenry raised moral issues concerning the danger of potential vigilante justice without responsibility for collateral consequences. Ironically, registration laws may actually perpetuate violence. They propagate community fear and hatred, at times resulting in harassment and violence against registrants, their families and friends, and sometimes even leading to registrants’ suicides.

Logan also examines how the U.S. Supreme Court disregarded 50 years of precedent by upholding registration requirements. Two cases illustrate the Court’s new direction. In Smith v. Doe, 538 U.S. 84 (2003), it held that criminal offense registration and community notification laws are civil regulations — not criminal punishment. Through reclassification, this decision allowed retroactive application of the law and denied bills of attainder, double jeopardy claims, and right to jury trials.

In Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), the Court considered whether public disclosure of the Connecticut sex offender registry deprived registered sex offenders of a liberty interest and violated the Due Process Clause because registrants were not afforded a hearing to determine if they were “currently dangerous.” The Court held there was no due process right when a state made the disclaimer that no actual determination of dangerousness had been made. Therefore, merely placing an individual on a registry did not violate due process.

Knowledge as Power provides critical analysis of problems with popular criminal registration and community notification laws. Its comprehensive inquiry confirms that legislation based on fear and anger wastes valuable energy and resources when contrasted with a more rational approach. This book credibly debunks the myth that harsh reactionary laws enhance public safety and crime prevention.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
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