The contexts and politics of evidence-based sex offender policy

Abstract

Since the 1990s, popular tough-on-crime legislation has featured the violent sexual recidivist (Lynch, 2002). Passing new laws that tighten surveillance and other restrictions on sex offenders lets policy makers signal their concern with crime and their solidarity with victims and their families (Barker, 2007). Many believe it is too politically dangerous to question a sex offender policy. Nonetheless, correctional authorities and policy makers at every level recognize the associated fiscal costs and therefore need empirical support for making the best use of constrained resources (Cate, 2010). “The policy implications of residence restrictions on sex offender housing in Upstate NY” (Socia, 2011, this issue) is an important step forward for the study of sex offender punishment and for those who seek sensible policies in this area. Socia (2011) does an excellent job of grounding his work in the criminological literature on recent sex offender policy innovations. This knowledge base has grown exponentially in the last 5 years, providing ample evidence of the unintended consequences of popular policies. He also makes important connections to the policy realm, indicating why policy makers should consider implementation issues related to residency restrictions. Put simply, Socia demonstrates that the unintended consequences of residency restrictions far outweigh the single uncertain benefit they might provide. Socia measures effects on availability, affordability, and social disorganization. He finds that sex offenders who must move into the least restricted neighborhoods under the most severe residence restrictions have few housing or rental options. If these few sparsely populated neighborhoods do not contain enough housing for all sex offenders who might have to move there, then homelessness likely will increase, which further inhibits the ability to manage and support them in the community. Overall, the tendency of such laws is to prevent sex offenders from living in urban areas. Socia suggests that these limitations might increase sex offender recidivism rates because of the lack of treatment facilities, employment opportunities, and public transportation options available. He also suggests a possible benefit. Limiting sex offenders’ ability to live in the densest, disorganized neighborhoods might keep them out of communities that are not equipped for them in terms of services and social control. However, this benefit might be outweighed by the disruption of social supports, so Socia advises against new residency restrictions. A great strength of this featured research is its generalizability. By examining counties that are representative of the typical parcel density found throughout the United States, the results will be applicable to most policy makers. However, contextualization and interpretation must take place before this research and its ilk can be of direct use in the policy realm. Although useful for policy makers and advocates, the article does not deeply engage with the political realities faced by those who would amend or oppose such restrictions. This methodologically rigorous study is one piece of the big picture that reform-minded policy makers need. In addition to the effects of such laws on reentry (which are well described by Socia's [2011] article and the other work cited within it), policy makers need to know how residency restrictions laws build on registration and notification laws and how communities respond to sex offender laws. By viewing this contribution in the context of other examinations of such sex offender policies, I highlight several important implications for future research and policy making. Too often, scholars, advocates, and even community members focus on implementation problems with sex offender laws without taking into account the symbolic role of lawmaking. Efforts to translate criminological knowledge into policy making thus tend to misunderstand the motivations of those who oppose the reforms. Sociology in the Durkheimian tradition describes the powerful drive to use law to send messages (Durkheim, Lukes, and Scull, 1983). Similarly, historians have drawn our attention to important complexities in the framing of sex crime as a problem throughout the 20th century (Freedman, 1987; Jenkins, 1998). Jenkins and others suggested that lawmakers who passed sex offender laws in the early 20th century might have known that the new laws were not likely to address the sex crime problem, but they could not resist the public pressure to do something, demonstrating the kind of arousal and soothing that Murray Edelman (1985) described as a feature of symbolic politics ( Jenkins, 1998: 72). Contemporary penology continues to recognize the symbolic role of law making as a means of fortifying solidarity. Mona Lynch (2002) argued that sex offender policy making is based on an emotional drive and serves an expressive role. Specifically, Lynch examined legislative rhetoric and documented expressions of disgust, fear of contagion, and pollution avoidance. Sex offenders play a role in constructing and preserving boundaries between the pure and the dangerous, and they reflect on sociocultural anxieties and discomforts surrounding sexuality, family, and gender roles. Notification and residency laws might be perceived as “governing through crime,” as they focus on the notion of “intolerable risks” by reifying the image of the monstrous sex killer and rely on “democratic penality” by providing information about sex offenders to the public and then expecting parents and others to do the policing (Simon, 2000, 2007). Altogether, this scholarship means that criminologists must take these powerful social structures and tendencies into account when trying to bring their work into the public sphere; bare implementation data cannot counter emotion successfully. Therefore, one of the first interpretive steps for criminologists is to explain the overly broad basis of contemporary sex offender laws. Two parts to this argument are particularly important for applying the featured research to public policy, which include the realities of sex offender recidivism and the undifferentiated approach to sex offender risk that characterizes current polices. Contemporary sex offender laws expect past offenders to be future offenders. Two kinds of methodologically rigorous research contradict these expectations about recidivism, which include prospective follow-up studies of large samples of released offenders and meta-analyses that combine multiple studies to allow for large sample analysis. The Bureau of Justice Statistics collected recidivism data on two thirds of all inmates released from state prison systems in 1994 (Langan and Levin, 2002). After a 3-year follow-up, state prisoners had almost a one-in-two chance of a new conviction. Drug offenders had the highest recidivism rates (60.5%), and of violent offenders, robbers had a 46.5% recidivism rate. Of the released sex offenders, the sex offense recidivism rate was only 5.3%. Although this low sexual recidivism of adult sex offenders challenges our conventional wisdom, it is extremely well established (Zimring and Leon, 2008). Hanson and Bussiere's (1998: 351) meta-analysis of numerous recidivism studies with an average follow-up of 4 to 5 years found “[o]n average, the sex offense recidivism rate was 13.4% (n = 23,393; 18.9% for 1,839 rapists and 12.7% for 9,603 child molesters).” Similarly, a 2004 analysis of 10 follow-up studies confirmed the low rate of 14% after 5 years (Harris and Hanson, 2004). Thus, sex offenders as a group present low risks of sexual reoffense. However, not only do contemporary laws mistake general risk, but also they fail to make meaningful distinctions among offenders. This tendency has been exacerbated by federal laws that require states to adapt their registration laws to the national model. The federal Adam Walsh Child Protection and Safety Act (2006) assigns people convicted of sex offenses to one of three tiers. Tier assignment determines inclusion in the community notification Internet database and, by extension, the impact of residency restrictions on offenders.1 In the federal approach and in many states, the tier level is established by the offense without consideration of the particular individual's risk of reoffense (Harris, Lobanov-Rostovsky, and Levenson, 2010). Thus, if an individual with a long history of violent offenses pleads down to a minor sex offense, then he automatically will be deemed “low-to-moderate risk.” In contrast, an individual with no previous criminal justice contacts and no other warning signs in his background who pleads to a charge of unlawful sexual contact automatically will be in the higher risk tier. This approach to sex offender risk determination and registry placement, although statutorily mislabeled “risk based” in many states, is actually conviction-based. Recent analysis of the impact of Adam Walsh Act implementation shows that registrants are reclassified into higher risk categories not supported by known risk factors (Harris et al., 2010). This classification ignores a deep research base that provides the basis for individualized risk predictions (Hanson and Morton-Bourgon, 2009). Some states, such as New Jersey and Washington, use risk assessment tools to classify sex offenders. In these states, experts use factors associated with future sexual offending to place individuals along a continuum of low to high risk of future dangerousness. These assessments inform placement into the sex offender registry as well as treatment and supervision decisions for the offender when released in the community. They create a smaller, more targeted group of offenders whose housing would be restricted under residency laws, but unfortunately, this selection is not the norm. Policy makers considering residency restrictions need to understand the low risk and undifferentiated group of offenders who will be subject to these restrictions. Furthermore, they need to understand the likely impacts on communities, social service, and criminal justice agencies. Socia's (2011) work uses concentrated disadvantage, residential stability, and ethnic heterogeneity as measures of social disorganization. He offers meaningful modes of comparison across neighborhoods of capacities for social control. The results show that residency restrictions impact socially disorganized neighborhoods the most, regardless of the size or scope of the particular restrictions. This finding is important for several reasons, which Socia discusses. Scholars of inequality will be particularly troubled by the impact of sex offender laws on vulnerable communities. Several recent articles have examined the collateral consequences of these laws on particular communities (Hughes and Burchfield, 2008; Hughes and Kadleck, 2008; Mustaine, Tewksbury, and Stengel, 2006; Zevitz, 2004). Socia shows how widespread these laws are likely to be. However, social disorganization could be examined more deeply. Although empirically supported for quantitative analysis, the measures used to account for social disorganization are proxies for the actual capacities we wish to examine. A deeper account of neighborhood capacities would aid both research and policy analysis in at least two ways. First, measures of neighborhood cohesion, specifically the informal control of sex offenders, should account for the presence of religious communities and other social institutions. Parole historically has been an informal mechanism in which community members pledged support through employment and other means. Furthermore, an emerging social movement surrounding sex offender reentry highlights the role of churches in providing oversight and opportunity for returning sex offenders. In addition, related to restorative justice, which has deep roots in North American culture, several communities offer specific programming for returning sex offenders that are known as Circles of Concern or Circles of Support and Accountability (Wilson, Picheka, and Prinzo, 2005). These typically work directly with local probation and parole departments and treatment practitioners to provide supervision and support to offenders. They often are instigated under the auspices of local religious communities. These groups also can be considered an off-shoot of the sex offender containment model, which is a federally promoted approach to sex offender management that involves multiple state and community actors in addressing sex offenders in the community (English, Pullen, and Jones, 1996). As a result, attention to the possibilities for community institutions that could provide informal social control would expand our understanding of the relative social organization of neighborhoods. This in turn can help policy makers by identifying institutions that should be part of the policy-making process or at a minimum should be consulted as stakeholders that will be affected by residency restrictions and other sex offender policies. Such identification might provide new partners for sex offender reentry. In addition to providing direction for additional quantitative measures, attention to neighborhood factors through qualitative research can deepen our understanding of how punishment practices shape society. For example, sociologist Monica Williams has studied community responses to sexually violent predator (SVP) placements. In-depth interviews with state officials, residents and local officials in five communities that have dealt with SVP placements have suggested that public hostility toward sex offender reentry reflects contestations over government versus citizen responsibility, the best strategies for achieving public safety, and the meaning of citizens’ rights (Williams, 2010). Williams found that these responses reflect a process by which people express their positions in the ongoing negotiations that constitute the politics of crime control (see also Barker, 2007). For policy makers, this research also demonstrates the need to have information about which neighborhoods will be “burdened with sex offenders” as well as which institutions within the neighborhood should be points of contact for policy makers and state officials who are enacting new laws. Work like that of Williams (2010) also might provide particular pathways to successful state and local communications and partnerships for sex offender policies. In addition to the further exploration of residency restrictions on communities, policy makers should know about the legal and institutional impacts of these laws. Sex offender laws highlight the disconnect between the front and back ends of criminal justice systems as well as between law makers and law implementers, and it further concentrates discretion on the front end (Leon, in press). More research is needed here, but available evidence already shows the burdens borne by social service and correctional institutions as a result of registry and residency restrictions. Conviction-based registration and the related residency restrictions on juveniles in Delaware illustrate this impact (Leon, Burton, and Alvare, in press). We find that the various state agencies that deal with delinquent youth in Delaware cannot place youth in the community once names are publicized through the sex offender registry. Foster families who are willing to take such youth often cannot because of the residency restrictions that are tied to the registry and prohibit “sex offenders” from living within 1,300 feet of schools, parks, and other designated areas. The Division of Child Mental Health describes systematic placement failures resulting from registry and residency laws. For example, a teenage girl was refused a place in a treatment program within Delaware because it was too close to a school. The law as written would allow such a youth to attend the school that triggered the residency restriction but not live in a treatment facility near the school despite the fact that the girl would be under much stricter supervision in the facility than she would be if merely attending the school. Even when foster families or treatment programs either are not excluded by the registry-defined residency restrictions or choose not to recognize them,2 they might decline to subject themselves to the stigmas that accompany notoriety through the public registry. Thus, for a combination of reasons, including the sentencing judge's orders as well as a lack of community placement alternatives, many sexually offending youth from Delaware are in residential placements, which means institutional confinement. Of these youth, most are out of state because residency restrictions obstruct in-state treatment facilities. In the 2009 fiscal year, Delaware spent more than $5 million to send 62 youth out of state for sex-offense–specific residential treatment. These high costs in terms of time spent in detention away from families as well as the financial costs to the state only can be justified if the youth are serious offenders who cannot be treated in the community and pose a high risk of reoffense. But the recently completed Delaware Youth Needs Evaluation shows that most are low-risk youth who would benefit most from non–sex-offender treatment provided in a community setting (Burton, 2009). Although it will be a tougher sell, policy makers also might be interested in the constitutive effects of restriction laws and how they undo many of the public education efforts the same policy makers and their constituents support. Beyond the tangible effects on individuals, communities, and institutions, sex offender laws reinforce outdated notions that allow sexual violence to continue. Several scholars of rhetoric and philosophy draw our attention to these effects. For example, Pamela Schultz (2005) analyzed detailed interviews with convicted sex offenders and found that framing them as monsters not only dehumanizes them and robs them of the capacity for choice, but also it undermines treatment. Similarly, Douard (2008–2009: 33) argued that “[t]he media's and lawmakers’ framing of sex offenders as monsters, and the incorporation of the monster framework into legal proceedings through the use of psychiatric testimony and diagnoses, results in a nearly invisible, unjust deprivation of liberty.” Numerous scholars across the disciplines have emphasized the way sex offender laws like residency restrictions provide a false sense of security, promoting the idea that the bad guys can be identified easily and isolated. Given the reality that most sexual crimes are committed by familiars, policies that constitute sex offenders as monstrous “others” distract us from real dangers (Finkelhor, Hammer, and Sedlak, 2004). Socia (2011) acknowledges that policy makers often will lack the ability to evaluate residence restrictions statistically when faced with public pressures to “do something.” He thus recognizes that symbolic responses often take over those with Policy makers therefore would benefit from more of how or residency restrictions is to address sexual As a result, policy makers need to be equipped with the of they need to know that current residency restriction laws almost the risk categories in a registration and notification laws. For example, to new restrictions could be best as resources to on the Although I to approach would be to the need to on the vulnerable groups that feature so in contemporary punishment This could take the of the costs of new residency restrictions with the of local for By directly one use of resources with that the of policies, might their solidarity with groups without also to policies like residency restrictions. 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