Monday, September 28, 2009

The Problem With "Megan’s Law"

Several weeks ago, I read an article in the Economist that criticized the way sexual offenders are registered in the United States. With the arrest of Roman Polanski yesterday in Switzerland on an American warrant, I figured this might be a good time to talk about this.

First, some background: in 1994, in response to popular outrage over the kidnapping, rape and murder of seven year old Megan Kanka by repeat sexual offender Jesse Timmendequas, the Federal Government passed the Sexual Offender Act of 1994 (informally known as “Megan’s Law”). This law requires that all sexual offenders register with the police and that this information be made publicly available. As a result of this law, anyone can now find out where all of the sexual offenders live in their town.

And that’s where the Economist article comes in. The Economist took the position that this law unfairly stigmatizes lesser offenders by lumping them in with more serious offenders. According to the Economist, this is unfair to these criminals, thus, the government should amend the law to remove lesser offenders from the list of offenders who are reported.

Now I’m not sympathetic to that position. Even lesser sexual crimes are a reason to be concerned. And I certainly don’t like the idea of the government deciding for us what constitutes a dangerous sexual offense and what doesn’t. But there is something to the article, and that something was revealed to me during this past month as I watched a friend of mine shop for a house.

Every single house she found seemed to have a sexual offender somewhere nearby. Indeed, in a town of around half a million people, every single neighborhood had at least one sexual offender in it.**

Now as a decent sized, single male, this doesn’t bother me. But for your average female or a family with kids, this has to be a terrifying prospect. After all, who wants to live near someone who might be looking to rape them or their children? Indeed, my suspicions were confirmed when my friend reported that anyone who she told about a sexual offender living near any house would instantly say: “I wouldn’t buy that house. That’s not safe, and you’ll never be able to sell it.”

And this is, in fact, very rational. If there is one thing I’ve learned working as an attorney, it’s that most criminals are repeat offenders and sexual criminals all the more.

So what does the Economist have right? They’re right that you can’t tell what exactly the individual offenders did. Why does this matter? Because there are many types of sexual offenses. Some of them clearly are more dangerous than others: are you living across the street from a serial rapist or child molester or was this guy convicted of having sex with a sixteen year old when he was nineteen? Was the crime fifty years ago or last week? Was there more than one crime? In some states, doctors (particularly psychologists) or attorneys who are caught having sex with their clients can be charged with sexual offenses. Are such offenders dangerous to their neighbors?

Unfortunately, all the police reports will disclose is name, address and title/felony class of the conviction. And while this may sound sufficient to sort out who is dangerous and who isn’t, the truth is that most sexual crimes are lumped together into one or two felony classes, and thus are completely indistinguishable without details. For example, in one state in which I’ve practiced, a violent rapist who got out of prison last week for crimes he committed five years ago would appear as John Doe, 123 Main Street, Convicted of Sexual Assault Class 1. But a man who was convicted of sleeping with a sixteen year old when he was nineteen in 1902, would be described the same way. One is clearly a danger, the other is not. Yet, you can’t tell, so you need to assume the worst to be safe.

In another state in which I’ve practiced, a psychologist who sleeps with a patient might be described as Sexual Assault Violation of Position of Trust, the same description that would be given to a teacher who raped a seven year old student. Again, one is a clear danger, another is not, and you would have no way to know which is which.

By failing to provide this information, not only does it become extremely difficult to buy homes (and to sell certain homes), but it becomes impossible for people to make rational use of the information provided. Rather than knowing if your neighbor is a true danger, you currently need to assume the worst and act accordingly. And with sexual offenders living everywhere, that can become quite expensive and quite destructive for society at large -- and forget selling your house if you live next door.

The only way to solve this problem is to either remove the lesser offenders from the list, as the Economist urges, or to add the details needed to make rational judgments and let people evaluate the danger for themselves.

** In response to a question from Jed, here are some statistics to consider. According to DOJ numbers, in 2008, there were about 700,000 registered sex offenders in the United States. That works out to about 425 per 100,000 people. That means in a town of 500,000 people, you're talking about 2,100 spread around town. The town I'm in right now is officially 194 square miles. That means there are just over one sexual offender per square mile if you average it out.

The problem is that only a small number of these people are dangerous, but you have no way to know which ones that would be because the disclosures do not give enough information to decide. That's why I'm saying they need to give people more details.


LawHawkSF said...

Andy: I agree that this has to be cleared up. Megan's Law is a positive thing, but it needs some revision. Even before there was a Megan's law, we had the "roundups." In California, whenever there was a sexually-related crime committed, all the MDSOs (mentally-disordered sex offenders)would be rounded up for questioning. But like Megan's Law, it made no distinction in what an MDSO was.

As everyone who has read what I've written, I have no tolerance for sex offenders. But I had to work largely pro bono for a young man who made a really stupid mistake, and was going to be labeled MDSO because of it. As dumb young people are wont to do, he had drunk a few too many beers. When nature called, he knew better than to pee in public. So while his buddies were in the 7-11, he decided to relieve himself in a large beer bottle in the car. Stupid all the way around.

But he didn't count on the Church Lady walking past, looking into every darkened car in the lot (it was nearly midnight, and the lot was not well-lighted). After months of pretrial motions and on the day to pick the jury, the District Attorney finally agreed to change the charge to disturbing the peace. If we had lost, he would have been declared an MDSO, rounded up every time a sex crime was committed, and subsequently placed on Megan's List for the rest of his life. As it currently stands, he would have been listed no differently from a serial rapist.

AndrewPrice said...

Lawhawk, I have tolerance for sex offenders either, and the only reason this really struck me was the home search. It was shocking how hard it was find a house without a sexual offender a couple doors down. And despite my best efforts, I couldn't for the life of me sort out the dangerous ones from the not-so-dangerous ones because the law here groups them all together.

Tennessee Jed said...

Andrew - I don't know if I understood you completely, but it appears that in a town of half a million, every neighborhood has at least one. Maybe my concern is what constitutes a neighborhood? That just seems like there are WAY too many sex offenders. Perhaps there are statistics which would indicate how many offenders per million people which might put that in a better perspective.

AndrewPrice said...

Jed, See the update (footnote) above.

Writer X said...

Is there any sort of digging into public records that a person could do on his own that's relatively quick and inexpensive (or free)? And what does a person do if they've already purchased a home and a sexual offender moved into the neighborhood after the fact? (happened in my neighborhood, although thankfully the guy isn't next door.)

I agree that more public details should be available but how do you weigh a person's privacy with the public's right to know or does this really matter? It seems like such a straightforward idea that I wonder why it hasn't been done already.

AndrewPrice said...

Writer X, There is usually nothing you can do to get more information. Theoretically, you could go the court house and look up the records (or dig through newspaper archives if your paper has them), but then you don't even know in what city/state the guy committed the crime or in what year -- so it becomes virtually impossible to find.

There is a privacy interest, except that these guys are already required to be revealed as offenders and their crimes were (at one time) public records. So I'm not sure there really is much of a privacy interest to be concerned about.

I suspect this hasn't been done because either (1) it would cost a lot more to change the reporting systems to collect more information, (2) someone has raised privacy concerns and everyone got queasy, or (3) with the law only finally requiring all jurisdiction to have databases available by July of this year, it's possible people just haven't run into this enough yet to realize the problem -- I never thought about it until we realized we couldn't figure out who was dangerous and who wasn't.

Finally, if one moves into your neighborhood, there is nothing you can do about it. They have a right to be there and they are not obligated to disclose any more information than gets disclosed.

Individualist said...


There are plenty of websites that will perform background checks on people for a fee. In my work as an internal auditor we would obtain these reprots on people the company worked with if there was reported likely instance of fraud. These people were usually employees or contractors who had signed a waiver to do business with us. However I noted from the sites that one did not have to obtain any legal paperwork to get the report since the court record is a matter of public record. The site would do backgraound checks in all 50 states if you paid for it.

I guess if you are an individual who dated a 16 year old when you were 19 20 years ago and had to remain on a list that did not differentiate you from a child rapist you could use this yourself to avoaid the stigma. You could obtain the results yourself, post them online and maybe even ask the state agency to place a link next to your name on their list.

Not sure if it would work but it might be good advice for a client with these problems. MAybe.

Then again any further publicity may be a bad idea anyways. I don't know.

AndrewPrice said...

Individualist, My understanding is that the state registry databases are not set up to accept more information at this point, but that would certainly be good advice if possible.

The problem with doing the background checks is when you are looking at buying a house, for example, you would need to check dozens of guys (which can start to run hundreds of dollars). Also, as a homeowner, you can't make potential buyers do this. Thus, they may simply see who lives next door and walk away.

Still, that might be an answer for anyone concerned about a particular neighbor -- assuming the background check revealed more than just the charges (also I know that many states don't have computerized records available for search, and thus won't be included).

But again, why put people through that? Why not just include the details on the registry?

MegaTroll said...

Interesting article. I like that Commentarama always has something different from what everybody else is covering. Plus you guys always give great analysis.

I haven't thought about this issue, but I totally see the problem. Giving more information would help homebuyers, homeowners, the public, and even the guys who aren't as serious criminals as the rest. It makes sense to me. I wonder why they don't change it?

AndrewPrice said...

Thanks Mega, we do try to touch upon a broad selection of topics. And what would be the point of just repeating what people see everywhere else.

I'm not really sure why they haven't changed this. I suspect its a money issue, but it could also be an issue that is only now surfacing. We'll have to wait and see if anyone starts talking about this.

Individualist said...


You can pay to have someone go to the courthouse to research the records.

This is prohibitively expensive and finding another house would be easier.

AndrewPrice said...

Individualist, As you note, it would be very expensive -- and most buyers won't even do it.

But even if you wanted to, there is no guarantee that the guy committed the crime in your jurisdiction. He could have done it ten states away, and then moved to your state. You might not even be able to find out where he committed the crime.

All in all, I think it would be better for everyone if they included more information right away in the registration disclosure.

Individualist said...

I agree with you on that.

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