THE PURSUIT OF SAFETY
Sex Offender Policy in the United States

Tracy Velázquez
Vera Institute of Justice
September 2008

Suggested citation: Tracy Velázquez. The Pursuit of Safety: Sex Offender Policy in the United States. New
York: Vera Institute of Justice, 2008.

This report was prepared by the Vera Institute of Justice under grant 2006-WP-BX-K329 awarded by the Bureau of
Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also
includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims of Crime. Opinions expressed in this document are those of the
author and do not necessarily represent the official position or policies of the U.S. Department of Justice or the Vera
Institute of Justice. © 2008 Vera Institute of Justice. All rights reserved.
Additional copies can be obtained from the communications department of the Vera Institute of Justice, 233
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Requests for additional information about the research described in this report should be directed to
contactvera@vera.org.

The Pursuit of Safety: Sex Offender Policies in the United States

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Executive Summary

acquaintances. In addition, a concurrent overall decrease
in violent crime makes it difficult to identify the

Local, state, and federal policymakers have paid ever

influence of the sex offender legislation on reductions in

more attention to sex offenses over the past 20 years. In

sexual offending. And several policies—particularly

the wake of several high profile crimes by strangers

residency restrictions and community notification—may

against children in particular, they have crafted a

have negative impacts on public safety due to the

growing body of legislation intended to protect the

impediments they create to successful reintegration of

public from sexual predators. This legislation has

offenders who have completed their sanctions.

expanded the scope of crimes that qualify as sex

Registration itself appears to somewhat reduce

offenses, over the past decade more than doubled the

recidivism, but not for offenses against strangers.

number of people required to register as sex offenders,

Electronic monitoring has shown some positive

increased sentences for people found guilty of sex

outcomes in some jurisdictions while having little

offenses, and established strategies designed to manage

impact in others, particularly those where it has been

convicted sex offenders after their incarceration.

recently implemented. And while effective at

Examples of these latter strategies include registration,

incapacitating offenders, civil confinement is four times

community notification requirements, residency

as expensive as incarceration and to date has not been

restrictions, electronic monitoring, and civil

particularly successful at treating offenders.

commitment.
The proliferation of these responses has generated

Finally, it appears that the public opinion that often
drives policy in the sex offender realm is based on the

little consensus about which available strategies are

belief that sex offenders are dangerous strangers who are

most effective. Consequently, many policymakers

apt to victimize children and re-offend. In reality,

concerned about using public funds to maximize

however, most sex offenders don’t re-offend, and the

outcomes (consistent with the principles of fairness and

definition of a sex offender is broad and encompasses

justice) understandably are confused about their options

different types of offenses, some more severe than

for deterring would-be offenders, reducing recidivism,

others. Moreover, children are more at risk of

and incapacitating the most dangerous offenders. With

being sexually victimized by a family member or other

support from the Bureau of Justice Assistance (part of

person known to them than they are by a stranger living

the U.S. Department of Justice, Office of Justice

a block away from their home or school.

Programs), the Center on Sentencing and Corrections at
the Vera Institute of Justice conducted a nationwide
review of current sex offender laws, policies, and trends.
This report represents the results of that systemic
analysis.
Analysis reveals that the public supports current
national legislative focus on responding to sex offenses
and presume that these responses have contributed to the
drop in sex offenses that has been recorded in recent
years. However, it is unclear whether any of these
measures have had a significant impact on sex offense
rates. In large part, this is because most policies are
aimed at predation by strangers, whereas sex offenses
are more often committed by family members and
The Pursuit of Safety: Sex Offender Policies in the United States

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Acknowledgments

readers Dennis Alexander and Jill Levenson and to the
many state correctional agencies that provided data on

My sincere appreciation goes out to the following Vera

their offender population. And finally, thanks to the

staff: Christine Scott-Hayward, for serving as Appendix

many people doing original research in sex offender

Wrangler; Maggie Peck, Jessica Peña, and Amanda

policies, an unglamorous topic but one that has a

Rogers for their assistance compiling the appendix;

significant impact on public safety and the criminal

Alison Shames and Dan Wilhelm for their editorial

justice system. Without their work this report would not

suggestions; and the excellent Vera communications

have been possible.

staff Patrick Kelly, Abbi Leman, and Robin
Campbell. Thanks also to Vera interns Ali Syed, Natane

Edited by Patrick Kelly and Robin Campbell.

Eaddy, Lisa Rickmers, and Anjali Nadig and outside

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Table of Contents
Executive Summary ..................................................................................... iii
Acknowledgments........................................................................................ iv
Introduction ................................................................................................ 1
Historical Background .................................................................................. 2
Current Issues in Sex Offender Policy ............................................................ 4
Sentencing.................................................................................................. 8
Sex Offender Registries ............................................................................... 10
Community Notification ............................................................................... 14
Residency Restrictions................................................................................. 19
Electronic Monitoring .................................................................................. 21
Civil Commitment ....................................................................................... 24
Pursuit of Safety: Are We Safer? .................................................................. 29
Guide to the Appendices ............................................................................. 30
Appendices ............................................................................................... 31

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Introduction

•

Stricter Sentencing: Mandatory sentences and
longer sentences without parole or early release

At present, there are more than 636,000 registered sex
offenders in the United States—approximately one in

are becoming more widespread.
•

1

Enhanced Registration Requirements: More

500 Americans. However, given that 99 percent of all

information is being collected on offenders, the

sex offenders who have been released from prison are

list of crimes for which registration is required

men, it is perhaps more meaningful to state that more

has grown, and registered offenders are being

than one in 160 adult males are registered sex

required to update registration information at

offenders—and to point out that this figure has more

more frequent intervals.

2

than doubled over the past decade. Although there is no

•

Expanded Community Notification: While

way to know the total number of sex offenders in all

specific community notification requirements

state and federal prisons due to variations in state data

vary considerably from state to state, the

collection and registration requirements, sex offenders

practice of notifying the community of the

clearly represent a significant percentage of all inmates.

presence of sex offenders has become more

From data that was gathered via public sources and

widespread.

direct communication with state correctional

•

More Residency Restrictions: Residency

departments, most states indicate that between 10 and 20

restrictions have ballooned over the past five

percent of prisoners are sex offenders; however, in some

years. However, these restrictions appear to

3

states, the rate is as high as 28 percent.

have few concrete advantages and significant

While high-profile sex crimes routinely grab

negative impacts on offender reintegration and

headlines, the question of how well current sex offense
laws are working rarely has been examined. This report

public safety.
•

Spread of Electronic Monitoring: In recent

provides an overview of sex offense policies, identifying

years, global positioning system (GPS)

key trends and examining what is known about the

technology increasingly has been used to

effectiveness of different approaches at meeting their

monitor the activities and whereabouts of sex

aims. Following a brief history of sex offender laws and

offenders.

a discussion of some of the current issues in the field,

•

Growth of Civil Commitment: Many states

the report examines six significant trends in recent sex

now keep high-risk sex offenders locked up

offender legislation:

indefinitely—even after they have served the
maximum prison term—through court orders
placing them in facilities that provide some

1

National Center for Missing & Exploited Children, Registered Sex
Offenders in the United States per 100,000 Population (map), March
25, 2008. Some states register offenders at conviction, while others
don’t require registration until the offender is no longer
institutionalized in a correctional or mental health facility.
2
Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose,
“Recidivism of Sex Offenders Released from Prison in 1994,” Bureau
of Justice Statistics: November 2003, NCJ 198281; U.S. Census
estimates, population age and gender 2007; http://www.census.gov;
Devon B. Adams, “Summary of State Sex Offender Registries,”
Bureau of Justice Statistics (Fact Sheet): March 2002, NCJ 192265.
Earlier estimates from 1997 of 1-2 percent of the adult male
population can no longer be considered valid due to the expansion
since then of crimes now considered registerable.
3
Utah Department of Corrections data provided via e-mail; “Sex
Offenders in Prison,” Minnesota DOC Backgrounder: February 2006,
http://www.doc.state.mn.us/publications/documents/sexoffenderbackg
rounder_000.pdf.

level of sex offender treatment.
In our examination of these trends, we also discuss the
effectiveness (in terms of improvements to public safety
and reduced recidivism rates), the costs, and the legal
challenges to specific policies. Finally, we have included
sex offender legislation for every state in the appendix.

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Please refer to these tables for more information on

Historical Background

4

statutory regulations.

THE FIRST WAVE OF U.S. SEX OFFENDER
LAWS: 1937 – 1955

Who is a Sex Offender?

While sex crimes—and the punishment of those

For the purposes of this report, a sex offender is a person

crimes—have long been a part of the fabric of our

who has been convicted of a crime that requires

society and our penal codes,6 modern sex offender

registration as a sex offender.

legislation in the United States can be traced to the

There are numerous such crimes. Federal guidelines

period between 1937 and 1955, when, in response to

call for the registration of people convicted of sexual

several high-profile crimes, 26 states enacted “sexual

abuse or aggravated sexual abuse. They also call for the

psychopath” laws. These laws generally committed

registration of people convicted of a number of other

people who were guilty of what are now referred to as

crimes when a minor is involved, including kidnapping

sex offenses to psychiatric facilities. Many of these laws

or false imprisonment except by a parent; criminal

were later struck down by the courts on due process

sexual conduct; solicitation to engage in sexual conduct

grounds. Others fell into disuse as hopes for a “cure” for

or practice prostitution; use in a sexual performance; and

“sexual psychopathy” diminished and punishment and

production or distribution of child pornography.1

incarceration came to be viewed as a more appropriate

Many states have gone beyond the federal

response to sex offenders.7
The practice of requiring offenders to register began

guidelines by extending the list of crimes that require
registration. Among the offenses that have been added to

in the 1930s in response to the increased mobility of

state registration lists are voyeurism, public exposure,

criminals. At the time, offender registries were viewed

adultery, giving obscene material to a minor, displaying

primarily as tools for law enforcement, which needed a

obscene material on a bumper sticker, and bestiality. In

way of keeping track of high-risk offenders.8 Registries

some states, a person can be required to register as a sex

were generally operated at the local level; they primarily

offender for possessing computer-generated images of

targeted gangsters rather than sex offenders. In 1937,

virtual children; in other states, registration is required

Florida enacted the first statewide registration law for

only for those who possess images of actual people

certain felons.9 The first state registration law that

under age 18.

focused specifically on sex offenders was passed in

The Adam Walsh Act of 2006 adds additional federal

California in 1947. By the end of the 1980s, 12 states

registration guidelines that will expand the definition in

had enacted sex offender registration laws; none of these

a number of ways; for example, a registerable sex

states distributed offender information to the public.

offense now will include any criminal offense that has
an element involving a sex act or sexual contact with
another person. While states are not legally obligated to
adopt the federal definition (or other provisions of the
Act), they stand to lose federal funds if the Act is not
implemented by July 2009.5

4

State appendices are generally current as of February 2008 and may
have been amended since that time. Please refer to each state’s
complete statutes for the most up to date information.
5
Public Law 109-248—July 27, 2006, 120 STAT. 587.

6

The Code of Hammurabi, dating from the 1700s B.C., specifically
mentions incest as a punishable crime.
7
Simon A. Cole, “From the Sexual Psychopath Statute to ‘Megan’s
Law’: Psychiatric Knowledge in the Diagnosis, Treatment, and
Adjudication of Sex Criminals in New Jersey, 1949-1999,” Journal of
the History of Medicine Vol. 55 (2000): 292-314.
8
Wayne A. Logan, “Sex Offender Registration and Community
Notification: Past, Present and Future,” New England Journal on
Criminal and Civil Confinement 34, no. 1 (2008): 3-16.
9
U.S. Department of Justice. United States Attorneys Manual, Title 9
(Criminal Resources Manual) article 1934, appendix D.
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm
01934.htm.

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THE SECOND WAVE OF SEX OFFENDER LAWS:
1989 – 2008

New Jersey enacted Megan's Law, which required active

The past 20 years have witnessed a steady expansion of

into a locality. Many of these laws were later emulated

legislation around sex offenses in response to a number

in states around the country.

community notification whenever a sex offender moved

of high-profile child abductions, sexual assaults, and
murders. Among the most notable of these incidents are

1994: Sex Offense Legislation Attains Federal Level

the following:

with the Jacob Wetterling Act. In 1994, the federal
government responded to the increase in state sex

•

•

In 1989, Jacob Wetterling, age 11, was

offense legislation by enacting the Jacob Wetterling

kidnapped from his neighborhood in St. Joseph,

Crimes Against Children and Sexually Violent Offender

Minnesota. No perpetrator was ever charged,

Registration Act. This law calls for states to implement a

and Jacob has never been found.

registry of sex offenders and those convicted of certain

Also in 1989, a 7-year-old Tacoma,

crimes against children.10 Over the next few years, a

Washington, boy was sexually mutilated by a

number of key amendments were added as well:

sex offender who had been released on bail.
•

•

In October 1993, Polly Klaas, age 12, was

1996: A federal version of Megan's Law

sexually assaulted and murdered after being

requires states to establish a community

kidnapped from her home in Petaluma,

notification system. Also, the Pam Lychner

California. The perpetrator was a paroled sex

Sexual Offender Tracking and Identification

offender with a long rap sheet.

Act of 1996 requires lifetime registration for

In July 1994, Megan Kanka, age 7, was

recidivists and offenders who commit certain

sexually assaulted and murdered by a convicted

aggravated offenses.

sex offender after being kidnapped from her

•

•

•

1998: An amendment to the Jacob Wetterling

neighborhood in Hamilton Township, New

Act calls for stricter registration requirements

Jersey.

for sexually violent offenders; registration of

In February 2005, Jessica Lunsford, age 9, was

federal and military offenders; registration of

abducted from her Homosassa, Florida home

nonresident workers and students; and state

and raped by a convicted sex offender. She later

participation in the National Sex Offender

died after being buried alive in a trash sack.

Registry.
•

2000: The Campus Sex Crimes Prevention Act

In the aftermath of each of these crimes, the state where

requires sex offenders to report information

the incident occurred responded by passing legislation.

regarding enrollment or employment at an

In 1990, for example, in the wake of the Tacoma killing,

institution of higher education and to provide

Washington State passed the Community Protection Act,

this information to local law enforcement

a comprehensive set of laws that increased prison terms

agencies.11

for sex offenders, established registration and
notification laws, and authorized civil commitment of
sexually violent predators. Similarly, Minnesota
implemented a state sex offender registration act in 1991
in response to the abduction of Jacob Wetterling.
California passed its “three strikes” law in 1994, largely
in response to the murder of Polly Klaas. Also in 1994,

10
Note that Constitutional limits on the power of the federal
government prevent it from actually requiring states to implement
specific provisions. Instead, it penalizes states that do not comply
with these laws by withholding 10 percent of the Justice Assistance
Grants it usually provides—an amount that can range from
approximately $100,000 (in Wyoming) to $5 million (in California).
11
http://www.ojp.usdoj.gov/BJA/what/2a1jwacthistory.html

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2005: States Follow Florida’s Lead with Tougher

government does not have the authority to prosecute a

Penalties, More Restrictions. Soon after the murder of

person who fails to re-register when moving from one

Jessica Lunsford, in 2005, Florida passed what has come

state to another. 15

to be known as Jessica’s Law. This law increased

As is true of other federal sex offender laws, the

minimum sentences and registration and monitoring

federal government cannot directly require states to

requirements and created restrictions on where sex

implement SORNA provisions. Instead, the legislation

offenders can live. Thirty-three states have since passed

specifies that states that fail to implement its provisions

some version of Jessica’s Law. California’s version,

within three years of its passage stand to lose 10 percent

which is fairly typical, calls for mandatory minimum

of their Justice Assistance Grant funds. For many states,

prison sentences of 25 years to life for child molesters

complying with SORNA guidelines will require

when the victim is under the age of 14; the elimination

significant legislative changes.

of all “good-time” credits (reduced prison terms for
good behavior) for sex offenders; lifetime electronic
monitoring of convicted sex offenders; and the creation
of a 2,000-foot “predator-free” zone around schools and
parks.12

Current Issues in Sex Offender
Policy

SORNA: The Next Wave of Federal Legislation. In

The recent wave of sex offender laws has spurred

2006, Congress passed the Sex Offender Registration

discussion about the impact of those laws on the

and Notification Act (SORNA), which is also known as

criminal justice system—especially in light of the drop

the Adam Walsh Child Protection and Safety Act, in

in crime rates over the last few decades and the public’s

memory of a boy who was abducted from a mall and

strong support for strict sex offender laws.

murdered in 1981. In an indication of the tremendous
support for this legislation, both houses passed it on a

WHAT IS BEHIND THE RECENT WAVE OF SEX
OFFENDER LAWS?

voice vote. SORNA further extended the federal
government’s influence over the direction and scope of
sex offense policy. It called for increased registration
requirements for states; it also called for a number of
studies (to date unfunded) on sex offender policies.13
Finally, SORNA attempted to create a federal civil
commitment program. The viability of this provision
may be in doubt, however; at least one federal court has
held that such a program is unconstitutional.14 Another
SORNA provision may also be in doubt: federal courts
in two states have held that the United States

There have been numerous efforts to account for the
recent wave of sex offender laws—especially in light of
the fact that violent crime rates, including those for sex
offenses such as rape, have been in decline for 30 years
(see figure 1).16 Some sociologists believe that the recent
wave of sex offender laws has been the result of a
“moral panic,” an exaggerated public response to a
perceived threat.17 However, as figure 2 shows, 93
percent of offenses against children are committed by
family members and acquaintances; the “stranger
danger” crimes, which spurred the creation of most sex

12
Summary from http://www.83yes.com/provisions. Actual initiative
language was over 17,000 words long.
13
An excellent resource on this is the National Conference of State
Legislatures, http://www.ncsl.org/standcomm/sclaw/sorna.htm. Key
provisions of SORNA are included in the appendix.
14
United States v. Comstock, case no. 5:06-HC-02195-BR (E.D.N.C.
Sept. 7, 2007). The court ruled that the federal government must meet
a higher burden of proof than the states when arguing that civil
commitment is an appropriate course of action

15
United States v. Robert D. Powers, case no. 6:07-cr-221-Orl31KRS, U.S. District Court, Middle District of Florida, Orlando
Division, April 18, 2008.
16
Shannan M. Catalano, Ph.D., ”Criminal Victimization, 2005,”
Bureau of Justice Statistics Bulletin, NCJ 214644, U.S. Bureau of
Justice Statistics, U.S. Department of Justice: September 2006.
17
E. Goode and N. Ben-Yehuda, “Moral Panics: Culture, Politics and
Social Construction,” Annual Review of Sociology, 20: 1994, 149171.

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offense laws, are relatively rare. These observers argue

which a parole board (or other entity) exercises

that changes in the media—in particular, the rise of 24/7

discretion in determining a person’s release from

cable news stations and Internet news sites—have

incarceration.19
Figure 2

increased public awareness of sex crimes, with the result

Sexual Assault by Age and Type of Offender*

that many people now believe that crimes against
children are on the rise. According to this viewpoint,

Acquaintance

Family
member

policymakers have simply responded to the public’s
Figure 1

7.0%

Crime Trends, 1975-2005
Victimizations per 1,000 pop. over age 12

9.8%

4.7%

Stranger
3.1%

27.3%

60

52.9%

Victimizations per 1,000

50

48.3%

58.7%
40

66.0%

All violent crime

30

61.1%

20

10

0

42.4%

34.2%

Rape, victim 12 and older

48.6%

24.3%
11.5%

1975 - 2005

Adults

demand for countermeasures. As one legislator recently

they heard on the news, ‘What are you doing about

6 to 11
yrs old

up to 5
yrs old

Age of victim

told a group of researchers, “I can’t go anywhere
without someone asking me about some [sex offense]

All
12 to 17
juveniles yrs old

* Sexual Assault of Young Children as Reported to Law Enforcement: Victim,
Incident, and Offender Characteristics, Bureau of Justice Statistics (NCJ
182990), 2000

that?’”18 Some also point out that the first wave of sex
offender laws in the United States—the one that

Some have speculated that the new determinate

occurred between 1937 and 1955—also coincided with a

sentences are on average shorter than the flexible

major advance in communications, the advent of

sentences that preceded them, as the flexible sentences

television as a presence in the national media.

had made it possible for parole boards to keep high-risk

According to another point of view, there in fact

offenders in prison for longer periods. The most recent

may be more high-risk sex offenders on the streets today

wave of sex offender legislation was, in this view, a

than in the past, despite the overall decrease in crime

response to the increasing numbers of sex offenders

rates. Proponents of this view argue that determinate

being released from prison.

sentencing laws—laws that specifically define the
amount of time that a person will serve for a given
crime—have created a situation in which some high-risk

COSTS ASSOCIATED WITH RECENT SEX
OFFENDER POLICIES

sex offenders are released earlier than they would have

The recent wave of sex offender policies has not been

been under prior indeterminate sentencing systems in

cheap. The average annual operating cost per state

18
Lisa L. Sample and Colleen Kadleck, “Sex Offender Laws:
Legislators’ Accounts of the Need for Policy,” Criminal Justice
Policy Review, 19: 2008, 40-62.

19
W. Lawrence Fitch and Richard J. Ortega, “Law and the
Confinement of Psychopaths,” Behavioral Sciences and the Law 18:
665-678.

The Pursuit of Safety: Sex Offender Policies in the United States

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inmate (any offense) in 2001 was $22,650; in 2005, 23

approximately 48 percent for all offenses.24 Another

states and the federal system were operating at or above

study found that people arrested for sexual offenses had

20

capacity. And even alternatives to incarceration like

a five-year offense-specific re-arrest rate (the rate at

electronic monitoring carry significant equipment and

which they were re-arrested for the same crime within

supervision costs (around $10 - $14 per offender per day

five years) of 6.5 percent. Only people arrested for

for equipment alone, according to one recent state

homicide had a lower five-year offense-specific re-arrest

21

report ). In addition, some states have had to hire

rate (5.7 percent); the rates for robbery, burglary, and

additional staff to track down offenders who are not in

public order offenses were 17.9 percent, 23.1 percent,

compliance with registration requirements.

and 21.4 percent, respectively.25 A 1994 study by the

In combination with other financial pressures, these

U.S. Department of Justice found that 24 percent of sex

costs have placed some state budgets under serious

offenders were convicted of another crime (including

strain. In Nevada, for example, the state prison director

but not restricted to sex offenses) within three years; in

recently told the press that the state needs emergency

contrast 46.9 percent of all offenders were convicted of

funding to meet legislative mandates for sex offender

another crime within this period.26

registration.22 And in California, higher incarceration

Some observers have expressed caution about

rates, increased supervision, and the growth of civil

drawing conclusions from such findings. In particular,

confinement as a result of Jessica’s Law are costing the

some have suggested that the underreporting of sex

state hundreds of millions of dollars. As a result, many

offenses complicates efforts to form an accurate picture

policymakers are being forced to re-evaluate some

of the scope of sexual re-offending.27 In addition, there

recent sex offender laws.

has been little research on recidivism rates for people
convicted of non-violent (but registerable) sexual

SEX OFFENDERS AND RECIDIVISM

offenses such as possessing child pornography or

Many sex offender policies are predicated on the

soliciting an underage prostitute.

assumption that re-offense rates for sexual offenses are

Recidivism rates also appear to differ between

higher than those for other felonies. The text of

different categories of sexual offenders. One study found

California’s version of Jessica’s Law, for example,

that people arrested for rape had the highest offense-

states that “sex offenders have very high recidivism

specific re-arrest rate (5.8 percent) of any category of

rates…dramatically higher…than any other type of

sexual offender.28 Researchers have been investigating

violent felon.”23

the characteristics of the “prototypical sexual recidivist.”

However, there is a significant body of research that
appears to contradict this proposition. One recent study

The authors of one recent meta-analysis characterized
such people as “not upset or lonely.” Rather, they wrote,

found that sex offenders had a five-year recidivism rate
of 24.5 percent for all offenses and a 2.8 percent
recidivism for sexual offenses; in contrast, other felony
offenders had a five-year recidivism rate of
20
James J. Stephan, “State Prison Expenditures, 2001,”Bureau of
Justice Statistics Bulletin, 2004: NCJ 202949; Paige Harrison and
Allen Beck, “Prisoners in 2005,” Bureau of Justice Statistics Bulletin,
2006: NCJ 215092.
21
“Electronic Monitoring of Sex Offenders: 2006 Report to the
Legislature,” Minnesota Department of Corrections, February 2006.
22
Brendan Riley, “Nevada Prison System Needs Funds to Track Sex
Offenders,” The Nevada Appeal, April 8, 2007.
23
“Official Voter Information Guide, California General Election,
Tuesday November 7, 2006.”

24
“Sentencing in Washington State: Recidivism Rates,” Washington
State Institute for Public Policy, Document No. 05-08-1203.
25
Lisa L. Sample and Timothy M. Bray, “Are Sex Offenders
Dangerous?” Criminology and Public Policy, 3, no. 1: 59-82.
26
Patrick A. Langan et al., “Recidivism of Sex Offenders Released
from Prison in 1994.” Bureau of Justice Statistics: 2003; U.S.
Department of Justice, Bureau of Justice Statistics, “Recidivism of
Prisoners Released in 1994: Reports on the Rearrest, Reconviction,
and Reincarceration of Former Inmates Who Were Tracked for Three
Years After Their Release from Prisons in 15 States in 1994,” NCJ
193427: 2002.
27
Bob Edward Vásquez, Sean Maddan and Jeffery T. Walker, “The
Influence of Sex Offender Registration and Notification Laws in the
United States,” Crime and Delinquency 54, no. 2 (2008): 175-192.
28
Lisa L. Sample and Timothy M. Bray, “Are Sex Offenders
Different?” Criminal Justice Policy Review 17, (2006): 83-102.

The Pursuit of Safety: Sex Offender Policies in the United States

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the prototypical sexual recidivist “leads an unstable,

policymakers will be forced to craft policies without a

antisocial lifestyle and ruminates on sexually deviant

clear definition of success.

29

themes.” There are a number of risk assessment tools
that can help identify such high-risk offenders—a topic
that is discussed in greater depth in the companion to
this report, Treatment and Reentry Practices for Sex
30

PUBLIC MISPERCEPTIONS ABOUT SEXUAL
OFFENDING

There is some evidence that the general public, in spite
of its strong support for tough sexual offense laws, is not

Offenders: An Overview of States.

well-informed about the nature and extent of sexual
STRONG PUBLIC SUPPORT FOR STRICT SEX
OFFENDER POLICIES

offending. One recent study, which compared survey

Whatever is behind the most recent wave of sex offender

significantly overstates both the rate at which convicted

laws, it is clear that there is strong public support for

sex offenders re-offend and the proportion of sexual

strict policies. California’s version of Jessica’s Law,

assaults that are committed by strangers (see figure 3,

which was created by citizen initiative, passed in 2005

below). These findings led researchers to conclude that

with 70 percent of the vote. A 2006-2007 telephone

public misperceptions “present a clear challenge to

survey of American adults found that 94 percent of

policymakers seeking to create empirically based

respondents felt that tough punishment for sex

policies that meet the public’s expectations.”32

responses with published data, found that the public

offenses—especially those that involved children—

Figure 3

should be a “top national priority for state and
federal policymakers.” Most survey

Survey Question

Published Public
Data
Average

respondents also supported making the names

What percentage of sexual assaults of adults do
you believe were committed by strangers?

27%

49%

What percentage of sex offenders do you
36%
believe come to the attention of the authorities?

46%

What percentage of adult sexual offenders do
you believe were sexually abused as children?

28%

67%

What percentage of convicted sex offenders do
you believe will commit another sexual offense?

14%

74%

What percentage of rapists do you believe reoffend in a sexual manner?

20%

74%

What percentage of child molesters do you
believe re-offend in a sexual manner?

13%

76%

and addresses of sex offenders publicly
available; placing restrictions on where sex
offenders can live; and incarcerating those
convicted of sexual assault, rape, indecent
exposure to a child, or accessing or distributing
child pornography.31
The one area of public opinion on sex
offender policies that could be more fully
examined is recidivism. What does the public
consider to be an acceptable recidivism rate for

sex offenses involving children? And does this rate
differ from the acceptable recidivism rate for sex
offenses against adults? Without a clear understanding
of the level of risk that Americans are willing to accept,

29
R. Karl Hanson and Kelly E. Morton-Bourgon, “The Characteristics
of Persistent Sexual Offenders: A Meta-Analysis of Recidivism
Studies,” Journal of Consulting and Clinical Psychology 73: No. 6,
2005: 1154-1163.
30
Reagan Daly, Treatment and Reentry Practices for Sex Offenders
(New York: Vera Institute of Justice, 2008).
31
Daniel P. Mears, Christina Mancini, Marc Gertz, and Jake Bratton,
“Sex Crimes, Children and Pornography: Public Views and Public
Policy,” Crime and Delinquency Feb. 2008: online only.

32
Timothy Fortney, Jill Levenson, Yolanda Brannan, and Juanita N.
Baker, “Myths and Facts about Sexual Offenders: Implications for
Treatment and Policy,” Sexual Offender Treatment 2, No. 1: 2007.
Answers were obtained from people waiting in line at the Florida
Department of Motor Vehicles. It should be noted that the most
commonly given public answer (mode) for percent of offenders that
recidivate was 90 percent.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 7

Sentencing

1993 and 2000 was accompanied by a drop in sex crime
rates during the same period.34 The claim that these two

SUMMARY

developments are related is fairly widespread. However,

The increase in sentence severity over the past 20 years

this statistic has not been confirmed with empirical data,

isn’t unique; rather, it’s part of a broader public policy

and it remains unclear what (if any) causal relationship

shift that has occurred in the United States. For sex

exists between tougher sentences and the drop in sexual

offenses, the shift has resulted in more people being

offense rates. In fact, some recent research suggests that

incarcerated for longer periods of time for a wider range

the incarceration of sexual offenders has little or no

of crimes. Some victim advocates feel that long

impact on sexual and violent recidivism following

mandatory sentences increase plea bargaining and

release.35 This in turn suggests that any positive impact

reduce crime reporting; court innovations and costs may

of tougher sentences is probably due to those sentences’

drive future sentencing trends.

incapacitating function and possibly due to their
deterrent effect.

OVERVIEW

Opposition to tougher sentencing policies has come

Over the last decade and a half, the use of mandatory

from some unexpected quarters. In Connecticut, for

minimum sentences for sex offenders has grown

example, Connecticut Sexual Assault Crisis Services

considerably. While efforts to create “three strikes” rules

Inc., a statewide coalition of community-based rape

and impose tougher sentences were widespread

crisis programs, published an opinion piece in April

throughout the 1980s and 1990s, the package of policies

2008 opposing three strikes legislation on the ground

that is known as “Jessica’s Law,” the first version of

that it may lead to reduced victim reporting. Executive

which was passed in Florida in 2005, has recently

Director Nance Kushins wrote that “many victims

reinvigorated the push for longer mandatory minimum

wanted the person they trusted or loved to get help, not

sentences. Florida’s law more than doubled the

for the offender to spend a mandated lengthy or life

mandatory minimum sentence for sex offenses against

sentence behind bars.”36 The National Alliance to End

children; 33 states have now passed some version of the

Sexual Violence has expressed concern about mandatory

law. It appears that high-profile cases, rather than an

minimum sentences. According to a recent position

increase in crime, have been responsible for the most

paper, mandatory minimum sentences may lead

recent push for tougher sex offender sentences:

prosecutors to not file charges, to file charges for a

government figures show the rate of sexual assaults

lesser crime, or to reduce the charges as part of a plea

against adolescents between the ages of 12 and 17

bargain. They may also discourage those who have been

plunged 79 percent from 1993 through 2003, and the

assaulted by someone they know from reporting the

number of substantiated sex-abuse cases involving

crime.37

children of all ages fell 39 percent in the same period.33
TRENDS AND IMPACTS

The impact of longer sentences, three strikes rules, and
lifetime supervision has not yet been rigorously
evaluated. It is clear that the 400 percent increase in
convictions for sex offenses that took place between

33

Wendy Koch, “Despite High Profile Cases, Sex Offense Crimes
Decline,” USA Today, Aug. 24, 2005.

34
“Sex Offenders: Will Tough New Laws Do More Harm Than
Good?” CQ Researcher 16, no. 31: 2006, 721-744.
35
Kevin L. Nunes, Philip Firestone, Audrey F. Wexler,
Tamara L. Jensen, and John M. Bradford, “Incarceration and
Recidivism Among Sexual Offenders,” Law and Human Behavior 31,
no. 3: 2007, 305-318.
36
Nancy Kushins, “Why Three-Strikes Could Harm Sex Assault
Victims,” Hartford Courant, April 25, 2008.
37
“Community Management of Convicted Sex Offenders:
Registration, Electronic Monitoring, Civil Commitment, Mandatory
Minimums, and Residency Restrictions,” Position Paper by the
National Alliance to End Sexual Violence,
http://www.naesv.org/Policypapers/communitymanagementofconvict
edoffenders.html.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 8

A study of Utah’s mandatory prison sentences

as the difference in age between the two parties falls

appears to corroborate such claims: Of 905 cases that

within a defined range (usually three to four years).

began the judicial process with a mandatory prison

Another recent sentencing development that runs

charge for a sex offense, 791 continued forward with at

counter to the trend toward tougher sentencing is the

least one charge that was not dismissed. Of these 791

launch of sex offender courts modeled after other

cases, over one-third had sentences that were reduced or

problem-solving courts (such as drug and mental health

38

dismissed, often through a plea bargain agreement.

courts). In 2006, the New York State Unified Court

Utah rescinded several mandatory minimum sentences

System became the first jurisdiction in the nation to pilot

for sex crimes against children in 1996, thus bucking the

sex offender courts. In these courts, defendants are

national trend. A recent report by the state’s sentencing

placed under an extensive monitoring regime that

commission concluded that doing so has since made it

involves multiple meetings with the judge. The judge is

possible for the state to handle sex offenders on a case-

assisted by a specially trained team of prosecutors,

by-case basis, thus incarcerating high-risk offenders

defense attorneys, victim agencies, probation officers,

without holding low-risk offenders longer than public

treatment providers, and court personnel. This team

safety demands.

undergoes a comprehensive training program and

People who have been convicted of a violent sex

participates in regular interagency meetings to ensure

offense are not the only ones who have felt the impact of

that cases are resolved in a timely manner, victims and

sentencing changes. Many states also require people

the public are safe, and that offenders are held

who are convicted of misdemeanor sex crimes to register

accountable post-conviction.39 These courts are currently

as sex offenders. While registration (and the community

being expanded and evaluated.

notification and residency restrictions that usually go
with it) are not considered punitive, as future sections
discuss, they can have a significant impact on a person’s
life. Although this may be appropriate for serious
offenders, lawmakers may want to consider the policy
implications around legislating short sentences with
prolonged registration requirements. Policymakers
interested in equity will want to avoid sending such
mixed messages.
Sex offender sentencing appears to be tempering
with respect to so-called “Romeo and Juliet” offenses,
however. Following the highly publicized case of a
young man who was incarcerated following consensual
oral sex with a teenage girl, several states, including
Connecticut, Florida, Indiana, and Texas, have begun to
reduce sentences for statutory sex crimes. Usually, these
new laws do not consider the act to be an offense so long

CONCLUSION

While the impact of longer sentences and “three strikes”
legislation on public safety remains a subject of debate,
there is no question that the fiscal impact will be
significant. Prison populations and costs are rising at a
time when many states are struggling to balance their
budgets. California’s version of Jessica’s Law, which
was enacted as a citizen initiative, received 70 percent of
the vote, despite ballot language stating that the
initiative could cost the state several hundred million
dollars—even without taking prison construction costs
and the cost to local governments into account. It
remains to be seen whether the public and policymakers
will pull back their support for tougher sentences if the
correctional costs associated with mandatory minimums
continue to rise.
On the other hand, it is possible that the deterrent

38

“Case Processing Analysis: Utah’s Mandatory Prison Sex
Offenses,” Utah Sentencing Commission. The report notes that the
data system does not explicitly identify instances of plea negotiations
but looks for evidence of such in terms of charge reduction and
dropping.

effect of mandatory minimums—particularly in
conjunction with the other stringent sex offender laws
39

http://www.courtinnovation.org/upstateinnovation.spring06.html.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 9

outlined elsewhere in this report—will result in fewer

increasing residency restrictions and shorter periods in

new arrests and, consequently, lower incarceration costs.

which they must report changes. State costs for tracking

In addition, civil commitments following prison

these missing offenders will continue to rise.

sentences (discussed in detail below) are further
incapacitating high-risk offenders. In order to keep their

OVERVIEW

civil commitment programs constitutional, states may be

As noted in the discussion of the history of sex offender

forced to beef up their prison treatment programs to

laws, a number of states had local sex offender registries

demonstrate a “good faith effort” at rehabilitation. Such

prior to 1994, when the federal government set forth

treatment programs would likely reduce the number of

guidelines for state sex offender registries in the Jacob

sex offenders who re-offend after being released.

Wetterling Act. Today, sex offender registries are used

Given the high costs of civil commitment (four

in all 50 states.40 In addition, all 50 states make some

times that of prison) and the possibility of continuing

portion of registry data available to the public, omitting

legal challenges to the practice, legislators will likely

data that might be used fraudulently (such as social

look for other ways to incapacitate high-risk offenders.

security numbers) or that might identify victims.

Longer mandatory sentences or very long indeterminate
sentences that give parole boards significant latitude

STATE TRENDS

with high-risk offenders are two obvious alternatives.

All state registries are now electronic and feature

More prison-based treatment, which could alleviate the

information that makes it possible to identify the

need for longer sentences, is another. New York’s

offender and his or her place of residence. Regulations

problem-solving sex offense courts are worth watching,

specifying how often this information must be updated

too: if they have positive outcomes similar to those of

and what kinds of information must be submitted vary

the drug, family, and mental health courts on which they

from state to state and according to the seriousness of a

are modeled, it could lead to a significant shift in the

person’s offense. In general, recidivists and aggravated

way sex crimes are treated in the future.

offenders are subject to stricter registration
requirements. Many states mandate registration for a
variety of non-violent offenses as well.

Sex Offender Registries

As is true of other aspects of sex offender policy,
the registration of sex offenders has been challenged in

SUMMARY

the courts. Many contested cases have involved people

All 50 states now have electronic sex offender registries

who were required to register as sex offenders despite

that connect with the Dru Sjodin National Sex Offender

not having been convicted of a specifically sexual

Registry. While registries have a small positive impact

offense. For example, one New York man who had pled

on recidivism by offenders who know their victims, they

guilty to second degree kidnapping for his role in a

appear to have virtually no impact on crimes against

gang-related crime involving a 16-year-old was told that

strangers. New federal guidelines broaden the range of

he would have to register as a sex offender years after

offenses for which an offender must register, increase

completing his sentence. The man’s attorney

the amount of personal data collected on offenders, and
create a system of tiers based on offense, rather than
dynamic risks. Some states include people convicted of
non-violent crimes in their registries. Rates of
registration noncompliance are rising as registrants face

40
Because of their status as sovereign nations and the lack of a
financial incentive such as justice assistance grants, few Indian tribes
have implemented sex offender registries on their reservations.
However, SORNA states that either tribes must implement a tribal
registry or the state or states in which they are located will be given
jurisdiction to do so. A number of tribes applied for and received
grants to create or update their registries in spring 2008.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 10

successfully contested his registration. However, in a

and Notification Act (SORNA), will increase the

separate case (also in New York), a judge ruled that it is

registration requirements for many states that wish to

for legislators, not the judiciary, to determine whether

remain in compliance with federal guidelines (and

41

kidnapping should be a registerable offense.

In general, sex offender registries are not

therefore remain eligible for full federal funding of
Justice Assistance Grants). These new guidelines are

considered punitive; if they were, it would be impossible

listed in the appendix of this report. Among the most

to impose additional registration requirements on people

notable changes in registration requirements are the

who had already been sentenced or who had already

following:

served a prison term, as the additional registration
requirements would then qualify as ex post facto new

•

Reduces from ten to three the number of days in

punishments. There are a few notable exceptions,

which authorities must be notified of a change

though: in one case, the Missouri Court of Appeals ruled

of address or other status and requiring that this

that the state was wrong to require people whose

be done in person;

convictions pre-dated the state’s registration law to

•

forms of communication they might use

register as sex offenders. A Kansas court issued a similar
42

(especially forms of electronic communication);

ruling in 1996.

While much of the recent growth in the use of sex

Requires offenders to submit information on all

•

Requires offenders to submit additional

offender registries has followed federal guidelines, a few

personal information, such as a full criminal

states have acted on their own by imposing additional

history and additional biometric identifiers;

registration requirements. For example, some states

•

Creates different tiers of offenders based on the

require offenders to provide all electronic identities and

nature of the offense and defines registration

addresses. Also, several states are looking into special

requirements for each tier;

registration requirements for sex offenders living in

•

Requires the registration of juveniles whose
offense is comparable or more serious than the

mobile homes.

federal offense of aggravated sexual abuse.
FEDERAL GUIDELINES

The 1994 Jacob Wetterling Act requires states to register

It is expected that these requirements will impose an

any offender who has been convicted of a sexually

additional burden on law enforcement. In addition, it is

violent offense, as well as any person who has been

likely that employment obligations and transportation

convicted of certain crimes involving a child victim.
(See sidebar for definitions of terms.) There is a
minimum registration requirement of 10 years for all
registrants. Recidivists and sexually violent predators
are lifetime registrants. All states currently comply with
these requirements.
The Adam Walsh Child Protection and Safety Act
of 2006, also known as the Sex Offender Registration
41
Ofer Raban, “Be They Fish or Not Fish: The Fishy Registration of
Nonsexual Offenders,” William & Mary Bill of Rights Journal 16:
2007. Raban also discusses the data upon which the decision was
made to include kidnapping as a registerable sex offense, and
concludes that proponents of registration overstated the percentage of
kidnappings that involved a sex offense.
42
State v. Myers, 260 Kan. 669 (1996).

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 11

issues will make it difficult for some offenders to satisfy
stricter and more frequent in-person reporting
requirements.43
ANALYSIS OF IMPACTS

Evidence suggests that the registration of sex offenders

Frequently Used Terms, U.S. Code Title 42, Chapter 136,
Subchapter VI, § 14071: Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Program

Sexually
violent
offense

A criminal offense that includes sexual abuse
(forcing an individual to engage in a sexual act
either by threat or because the individual is
unable to consent due to mental or physical
incapacity), or aggravated sexual abuse (forcing
an individual to engage in a sexual act by use of
force or threat thereof).

Sexually
violent
predator

A person who has been convicted of a sexually
violent offense and who suffers from a mental
abnormality or personality disorder that makes
the person likely to engage in predatory sexually
violent offenses.

Predator

An individual who seeks out victim who is a
stranger, or who establishes or promotes a
relationship with another person for the primary
purpose of victimization.

Criminal
offense
against a
minor

Any of the following offenses when it involves a
minor:
• Kidnapping or false imprisonment, except by
a parent
• Criminal sexual conduct
• Solicitation to engage in sexual conduct or
practice prostitution
• Use in a sexual performance
• Any conduct that by its nature is a sexual
offense
• production or distribution of child
pornography

Required
to
register

All those convicted of a sexually violent offense
or criminal offense against a minor are required
to register. Sexually violent predators must
register for life.

is not correlated with a significant increase in public
safety. Most recent studies have combined sex offender
registration laws with community notification laws,
making it difficult to ascertain the impact of each set of
laws individually. However, one recent paper has
attempted to address this issue by examining those states
that, for a period of time, had registration requirements
44

but did not make registry information public. Looking
at crime data from the National Incident-Based
Reporting System, researchers found that registration
laws alone did reduce recidivism. However, this
reduction was confined primarily to offenders who lived
near their victims and knew them as family or friends—
perhaps, the researchers hypothesized, because law
enforcement is better at monitoring these types of
offenders.45 There was no evidence of a decrease in
crimes against strangers as a result of registration—a
striking result, given that most recent registration laws
were enacted in response to crimes committed by

one state, the number of rapes increased. They

strangers.

concluded that registration had no net effect on rapes.

Another study compared the number of reported

However, they also noted the possibility that any

rapes before and after the implementation of sex
offender registration and notification laws in 10 states.

deterrent effect of registration may have been offset by

The authors found that in six of these states, there was

increased attention to offenders by law enforcement

no statistically significant change; in three states, there

(resulting in more arrests). If true, this would mean that

was a decrease in the number of reported rapes; and in

the registration requirement is serving a dual public

46

safety function which is not reflected by the statistics.
43

These problems are likely to be exacerbated by residency
restrictions, which have pushed many registered offenders into rural
areas and urban areas isolated from public transportation. See the
section on residency restrictions for further discussion.
44
JJ Prescott and Jonah E. Rockoff, “Do Sex Offender Registration
and Notification Laws Affect Criminal Behavior?” National Bureau
of Economic Research Working Paper No. 13803
(http://www.nber.org/ papers/w13803): 2008.
45
The authors considered the possibility that lower reporting rates (as
opposed to fewer offenses) might be responsible for this decrease:
victims (and the parents of child victims) might not want the offender
to have to register for a variety of reasons. However, they felt that this
alone could not account for the decrease in recidivism.
46
“The Influence of Sex Offender Registration and Notification Laws
in the United States.”

In a 2006 study, the Washington Institute for Public
Policy compared the recidivism rates among registered
sex offenders who followed the registration
requirements and those who failed to do so. They found
that sex offenders with a failure-to-register conviction
had sex offense recidivism rates that were 50 percent
higher than those of people who had complied with
registration requirements (4.3 percent recidivism for
those who did not register versus 2.8 percent for those

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 12

who did). In addition, the recidivism rate for all felony

“failed to provide support for the assumption that

offenses increased from 22.9 percent for those in

juvenile sex offending was a harbinger of adult sex

compliance with registration requirements to 38.5

offending . . . in Racine it would be just as efficient to

47

percent for those that were not. The relationship

create a ‘potential sex offender registry’ composed

between these findings and the efficacy of registration

solely of young men with juvenile contacts for auto

remains unclear, as does the role of additional factors

theft.”49

(such as differences in offender characteristics).
There has been relatively little research into the

CONCLUSION

question of whether juvenile sex offenders are likely to

Sex offender registries appear to be most effective as

become adult sex offenders—despite the fact that

monitoring tools for law enforcement (as distinct from

SORNA calls for the mandatory registration of some

their use as tools for notifying the general public about

juvenile offenders. Much of the evidence that does exist

the presence of sex offenders in the community—a topic

suggests that the connection between juvenile and adult

that is discussed in the next section.) In addition, while

sex offending is tenuous. One recent study examined

most registered sex offenders are first-time offenders—

recidivism rates for incarcerated juvenile sex offenders,

and most will not re-offend—there is some evidence that

and found that only five percent of incarcerated juvenile

sex offender registries slightly reduce the number of

sex offenders were re-arrested for another sexual offense

sexual re-offenses against victims who are known to the

within 10 years. However, the study also found that

offender.

incarcerated juvenile sex offenders were re-arrested for

The Washington Institute for Public Policy’s finding

non-sexual offenses at fairly high rates (between 31 and

that sex offenders with a failure-to-register conviction

47 percent, depending on the severity of the original

have higher recidivism rates suggests that policymakers

offense).48 Another study examined people born in

and law enforcement alike should be concerned about

Racine, Wisconsin, in the 1940s and 1950s. Researchers

relatively high rates of non-compliance with registration

found that among juveniles with a felony sex offense

requirements. (A report by Parents for Megan’s Law, a

(the type of offense that what would likely lead to

nonprofit victims’ rights group, found that on average,

mandatory registration under SORNA), 15.4 percent of

24 percent of registered sex offenders fail to comply

boys and 11.1 percent of girls went on to have an adult

with registration requirements, with the result that

record of contact with the police for sexual misconduct.

authorities do not have accurate addresses for these

As it turned out, though, having any juvenile record of

people.50) Many states have indicated that they don’t

contact with the police—and in particular, a record of

have the resources to track down offenders. The state of

multiple contacts with the police—was a much better

Florida, for example, which has a comparatively high

predictor of adult sex offending. Conversely, only four

rate of compliance with registration requirements, has 11

percent of males with an adult record of contact with the

full-time employees charged solely with tracking down

police for sexual misconduct had a record of juvenile

non-compliant registrants.51

sex offenses. The authors concluded that these findings

47
Robert Barnoski, “Sex Offender Sentencing in Washington State:
Failure to Register as A Sex Offender, Revised,” Washington State
Institute for Public Policy Document No. 06-01-1203A.
48
Dennis Waite, Adrienne Keller, Elizabeth L. McGarvey,
Edward Wieckowski, Relana Pinkerton and Gerald L. Brown,
“Juvenile Sex Offender Re-Arrest Rates for Sexual, Violent
Nonsexual and Property Crimes: A 10-Year Follow-Up,” Sexual
Abuse: A Journal of Research and Treatment 17, no. 3: 2005, 313331.

49

Franklin E. Zimring, Alex R. Piquero and Wesley G. Jennings,
“Sexual Delinquency in Racine: Does Early Sex Offending Predict
Later Sex Offending in Youth and Young Adulthood?” Criminology
and Public Policy 6: no. 3: 507-534.
50
http://www.parentsformeganslaw.org. Please note that the
methodology for this report was unavailable.
51
Garrine P. Laney, “Sex Offender Registration and Community
Notification Law: Recent Legislation and Issues,” Congressional
Research Service Report to Congress, 2007: doc. Code RL32800.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 13

Policymakers need to consider the possibility that
increasing the frequency with which offenders are
required to update their registration in person may result

about the effects of registration and community
notification on juvenile offenders.
It is possible that new technologies will render many

in increasing the number of offenders who fail to

of these questions moot: At bottom, registration exists to

comply, given the many practical obstacles to registering

help keep track of an offender’s whereabouts. Electronic

in person. The same holds for imposing stiffer residency

monitoring (discussed in detail below) could eventually

restrictions and increasing public access to registration

provide law enforcement with a way of knowing not just

information, both of which have been shown to

where an offender should be, but where he or she

negatively impact offenders’ ability to maintain a life in

actually is—in real time. However, as we explain below,

the community.

this technology does have some drawbacks; in addition,

To clarify these issues, it will be necessary to learn

because electronic monitoring data is not currently

more about the differences between those who do and

available to the public, registration may still be

those who do not comply with registration requirements:

necessary for purposes of community notification.

Are those who don’t register less likely to be in

However, it may turn out that electronic monitoring

treatment? Are they more likely to be homeless or

makes more sense—especially for high-risk offenders—

jobless? Are they more likely to have a serious mental

than an intensive registration regimen with which

illness or to abuse drugs or alcohol? Are they more

offenders find it difficult to comply.

likely to have committed a more serious offense? Only
with more research will it become possible to determine
whether the apparent trade-off between better data on

Community Notification

those who comply with registration and fewer
complying registrants is a positive one.
Also of concern are the additional expenses states

SUMMARY

Community notification makes people feel more secure;

are likely to incur by penalizing people who are non-

many indicate that, after being notified that a sex

compliant with tougher registration laws. In one recent

offender is moving into their neighborhood, they take

case, a Texas man was sentenced by a jury to 55 years in

actions to keep themselves and their families safe.

prison for failing to notify authorities of a change in

However, evidence is mixed on notification’s

address within one week. (He missed the deadline by a

effectiveness in reducing sex offenses. One study

few days.)52 Because SORNA calls for registrants to

showed it had a deterrent effect on would-be offenders,

update address information within three days, it may

and another showed reduced recidivism in that state,

force states to choose between not enforcing the law and

albeit during a time of increased participation in

re-incarcerating offenders who are otherwise law-

community-based treatment and reduced recidivism for

abiding.

all sex offenders, including those not subject to

Finally, the recent push toward registration of

community notification. Administering a community

juveniles needs to be carefully evaluated. Youth differ

notification system can easily become a real burden for

from adults in many respects, and very little is known

law enforcement and probation and parole officers. In
addition, notification has a destabilizing effect on
offenders; in some cases, it has even resulted in

52

James Burt Breeden v. The State of Texas, no. 05-06-00862-CR,
2008 Texas App. LEXIS 2150. The offender had one prior conviction
of failure to register, which enhanced his sentence. Also at issue was
whether living in a car in the parking lot of the apartment building
that was his registered address constituted a change of address; the
court ruled that it did.

vigilantism against them. In at least one state, the public
appears to have become somewhat more tolerant of
offenders living in the community, which may mitigate
some of the negative impacts of notification.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 14

OVERVIEW

that feature some portion of the information contained in

Community notification policies were developed in the

sex offender registries. In addition, some states (such as

belief that citizens would be better able to protect

Louisiana) require offenders to go door to door to

themselves if they could identify convicted sex

identify themselves and provide information about their

offenders in their communities. Similarly, it was

background, while other states (such as North Carolina)

assumed that offenders would be more likely to be law-

have a passive notification system, wherein information

abiding if they knew they were being watched. The

is only provided when a community member requests it.

practice of community notification traces its origin to

Many states also calibrate their community-notification

Mountlake Terrace, Washington, where, in 1989, a

efforts according to the risk-level of individual

police chief decided to notify his community about the

offenders, indicated by a standardized risk assessment

imminent release of a sex offender who, while in prison,

tool. An offender who has been assessed as high-risk,

had documented plans to sexually molest school

for example, might then become the focus of a robust

children. This act was followed in 1990 by state

community notification effort that includes contacting

legislation that formalized the practice of community

the local media and distributing notices to parents with

notification.

children in local schools. See the appendix of this report

At the federal level, the Jacob Wetterling Act
authorized states to voluntarily implement community

for more detailed description of state statutes.
The nature and amount of information that is

notification laws in 1994. In 1996, the Act was amended

provided through community notification also varies

to create Megan’s Law, which penalizes states that do

from state to state. Rhode Island, for example, does not

not implement community notification laws by

provide information on low-risk offenders on its web

withholding federal funding. As a result, all 50 states

site, while Colorado only provides online information on

now practice community notification—though the

recidivists and sexually violent predators. Some states

threshold at which notification is required in any given

only indicate the block or general vicinity in which a sex

case can vary considerably from state to state.

offender lives (as opposed to providing a precise

Generally, community notification laws have been
upheld as constitutional; the courts have said that these
laws simply make it convenient for community members

address) in an effort to prevent harassment and
vigilantism.
A number of states recently have taken steps that go

to access information that is already publicly available.

considerably beyond federal requirements. In Maryland,

However, in April 2008, the Missouri court of appeals

new laws require officials to notify the superintendent of

ruled not only that people who were convicted of sex

any school district to which a sex offender moves; the

offenses prior to 1995 (when that state’s registration law

superintendent, in turn, is required to send notices to the

was enacted) were not required to register, but also that

principals of all schools within one mile of the sex

the state police were prohibited from publishing

offender’s home. In Illinois, people with children who

photographs and other identifying information

marry or cohabitate with a sex offender who is not the

concerning such people on the state sex offender

parent of the children are required to notify the child’s

53

website.

other parent; being married to or cohabiting with a sex
offender can then be used as grounds for a modification

STATE TRENDS
Community notification models can vary considerably

from state to state. All states now have public web sites
53

Jane Doe v. Thomas Phillips, Missouri Court of Appeals Western
District, Case Number: WD68066: April 1, 2008.

of custody arrangements.54
54
This may not technically constitute community notification, but it is
worth noting as a policy that is likely to have an impact on recidivism;
this is because children are much more likely to be sexually abused by
someone they know, such as a stepparent or family friend, than they
are by a stranger in a schoolyard.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 15

Finally, a number of states have introduced e-mail

for a period of four-and-a-half years; after controlling

and telephone notification systems. In these states,

for a number of variables, researchers concluded that

people can ask to receive electronic notices or calls from

extensive community notification had no direct effect on

the local sex offender registry whenever a sex offender

whether offenders were recommitted to prison.

moves into their neighborhood. Some alerts provide

A 2005 Washington State study that examined the

detailed information; others refer those who want to

impact of community notification and registration

learn more to the state web site.

statutes did find a significant reduction in felony sex
offense recidivism between the late 1980s (seven

FEDERAL GUIDELINES

Megan’s Law, passed in 1996 as an amendment to the
Jacob Wetterling Act, authorized each state to develop
procedures to notify citizens when sex offenders are
released into the community. The SORNA legislation of
2006 makes explicit how states should implement
notification. It directs states to provide information on
sex offenders to law enforcement agencies; any school
attended by the offender; any school that employs the
offender; any public housing agency where the sex
offender resides; each law enforcement jurisdiction
where the sex offender resides, goes to school, or works;
and within the offender’s local jurisdiction, any agency
responsible for conducting employment-related
background checks, any social service entities that are
responsible for protecting minors in the welfare system,
any volunteer organizations where contact with minors
or other vulnerable people is possible, and any
organization, company, or person who has asked to be
notified pursuant to procedures established by the
jurisdiction. SORNA also directs states to provide the
public with information on sex offenders through the
Internet (specifically through the National Sex Offender
public web site) or by contacting a law enforcement
official in the jurisdiction where the sex offender is
registered.

percent) and 1999 (two percent). However, for a number
of reasons researchers were not able to establish a causal
link between the reduction in recidivism rates and
notification and registration laws. For one, both
Washington State and the nation as a whole experienced
an overall drop in crime rates in the period under study.
Researchers also noted that high rates of incarceration
during the study period had incapacitated many sex
offenders and likely accounted for part of the observed
reduction in recidivism rates. Finally, researchers found
that the metrics used to determine the degree of
community notification in any given case were not
accurate predictors of recidivism.55
Studies that have examined the impact of
community notification in isolation from registration
suggest that notification laws have a deterrent effect. In
other words, while the prospect of being subject to
community notification if convicted of a sex offense
may not reduce recidivism among convicted offenders, it
probably does discourage some would-be sex offenders.
A recent retrospective study of Minnesota’s community
notification program shows a significant decrease in
sexual recidivism (but not general recidivism, which
made up the bulk of re-offending) following the
implementation of their version of Megan’s Law. It is
difficult to draw conclusions that could be applicable
nationwide, however. First, there was a large drop in

ANALYSIS OF IMPACTS

Although there have been numerous studies of the
impact of community notification on recidivism, the
evidence is inconclusive. One study, for example,

recidivism both for those subject to registration and
those who weren’t; it was unclear what aspects of their
community notification program resulted in decreased
recidivism; and there was an increase in the availability

tracked all adult male sex offenders released from prison
in Wisconsin between September 1997 and July 1999

55
“Sex Offender Sentencing in Washington State: Has Community
Notification Reduced Recidivism?” Washington State Institute for
Public Policy, Doc. No. 05-12-1202: 2005.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 16

of treatment during the same period of time which

highest risk sex offenders will make citizens pay less

couldn’t be controlled for. More research on this

attention to the risks posed by other sex offenders, such

significant drop in recidivism will not only tease out

as those who may be known to and trusted by the

what aspects of community notification are worth

victim.” Most respondents felt that notification

focusing on in the future, but also allow policymakers to

requirements should apply to juvenile offenders as well

examine the role treatment may be able to play in

as adult offenders.58

reducing sexual re-offenses.56
It appears that there is a link between community

Another survey asked members of the public what
information about sex offenders they believed they

notification and individual protective behavior on the

should have access to. Over half said that a photo of the

part of the public. A recent study conducted in several

offender should be made available and that the public

states found that people who were actively notified that a

should know the offender’s name; the age of any

sex offender had settled in their community (e.g., those

victims; the offender’s HIV/AIDS status; the make and

who were notified by a telephone call, an email alert, or

model of the offender’s vehicle, along with its license

offenders who were required to introduce themselves

plate number; the offender’s home address; and the

door-to-door) were more likely to take steps to protect

identity of anyone the offender lives with. Less than half

themselves and their family members. In states where

believed the public should have access to the address of

notification was passive (where it was up to the

the offender’s employer; the offender’s home phone

individual to obtain information about sex offenders in

number; or the offender’s fingerprints. Three percent did

his or her community, typically by visiting a web site),

not believe that the public should have access to any of

researchers did not observe any increase in protective

this information. Over three-fourths believed that all sex

behavior. Researchers were careful to point out that

offenders should be subject to the same notification

increases in individual protective behavior do not

procedures.59

necessarily lead to lower rates of sexual victimization.57

Still other studies have examined attitudes toward

Taken together with the fact that most sexual offenses

community notification among law enforcement

(and re-offenses) involve perpetrators and victims who

personnel. A Wisconsin study found that while most

know each other, this observation suggests that

police officers believed that the registration process had

community notification that promotes individual

made it easier to share information among different law

protective behavior may only result in a small reduction

enforcement agencies, most were skeptical of the

in the overall rate of sexual victimization.

benefits of community notification. Two-thirds

There have been several studies of public attitudes

expressed concern about the amount of work that was

toward community notification. Researchers at the

required by the community notification system; in fact,

Washington State Institute for Public Policy found that

many felt it was an “unfunded mandate” that increased

78 percent of Washington residents surveyed said they

their workload.60 The same researchers who surveyed

felt safer knowing about convicted sex offenders in their

law enforcement officers in Wisconsin also surveyed

communities; about 80 percent considered the

probation and parole officers in that state. They found

notification law to be important. However, 40 percent
were concerned that “alerting the community to the

56

Grant Duwe and William Donay, “The Impact of Megan’s Law on
Sex Offender Recidivism: The Minnesota Experience,” Criminology
7, No. 2: May 2008, 411-446.
57
Victoria Simpson Beck and Lawrence F. Travis, III, “Sex Offender
Notification: A Cross-State Comparison,” Policy Practice and
Research no. 7, 2006: 293-307.

58
“Community Notification as Viewed by Washington’s Citizens: A
10-Year Follow-up,” Washington State Institute for Public Policy,
Doc. No. 08-03-1101: 2008.
59
Jill Levenson et al., “Public Perceptions About Sex Offenders and
Community Protection Policies,” Analyses of Social Issues and Public
Policy 7, No. 1: 2007, 137-161.
60
Richard G. Zevitz and Mary Ann Farkas, “The Impact of Sex
Offender Community Notification on Probation/Parole in Wisconsin,”
International Journal of Offender Therapy and Comparative
Criminology, 44, no. 1: 2000, 8-21.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 17

that many officers carried large caseloads of sex

name on an Internet registry. Two sex offenders were

offenders and were responsible for a wide range of

murdered in Washington State in 2005 by a man who

activities, including making press calls announcing the

claimed to be an FBI agent warning them about a “hit

release of an offender, facilitating treatment groups,

list” of registered sex offenders that they were on; it is

organizing community notification meetings, and

believed that the assailant targeted the two men after

reaching out to victims. Many officers reported spending

finding their names on a public registry.

significant amounts of time and effort trying to locate

A 2007 report by Human Rights Watch featured

housing for offenders and help them meet their basic

interviews with sex offenders who have found it difficult

needs, which often was made more difficult due to

to maintain a basic standard of living as a result of

community resistance as a result of notification. One

community notification.64 The report also highlighted

officer told of a case in which a person who had agreed

some of the challenges involved in using community

to provide housing for a sex offender received death

notification to provide the public with an accurate sense

61

threats.

Numerous studies and news reports suggest that

of the risks they face. To cite just one of these, the
discrepancy between the present age of the offender and

community notification makes it more difficult for sex

the age of the victim at the time of the offense grows

offenders to re-integrate into society after being released

over time. This may lead someone looking at an Internet

from prison, which may contribute to increased

registry to mistakenly conclude that a young adult who

recidivism rates and undercut the laws’ deterrent

was convicted of consensual (but illegal) intercourse

62

effect. A survey of Kentucky sex offenders found that
having their name listed on the public internet registry

with a teenager years ago is a middle-aged pedophile.
Awareness of the negative effects of community

had an impact on a significant number of them: 42.7

notification appears to be growing among the general

percent lost a job; 45.3 percent lost or were denied a

public. The Washington State Institute for Public

place to live; 47 percent were harassed in person; and

Policy’s survey of public attitudes found that 84 percent

28.2 percent had received harassing or threatening phone

of survey respondents thought that community

63

calls. Surveys in Florida, Indiana, Connecticut, and

notification could make it difficult for sex offenders to

Kansas have produced similar results, and in 2008, the

establish a new life, find a job, or rent a house.

Association of Washington Cities asked the state to

Significantly, the survey also found that over the past 10

study whether there is a link between homelessness and

years, the proportion of respondents who believe that

sex offender registration and community notification. In

sex offenders should be given every opportunity for a

a few extreme instances, there have been confirmed or

new start as law-abiding citizens has increased by 15

suspected cases of vigilantism as a result of the public

percent—from 49 percent in 1997 to 64 percent in 2007.

disclosure of the identities of sex offenders: In 2006, a

In addition, the proportion of respondents who said they

Maine sex offender was killed by a man who found his

became frightened after learning that a sex offender
lived nearby dropped from more than two-thirds in 1997

61

Zevitz, “Sex Offender Notification: Assessing the Impact in
Wisconsin,” National Institute of Justice, Research in Brief, NCJ
179992: 2000.
62
Prescott and Rockoff, “Do Sex Offender Registration and
Notification Laws Affect Criminal Behavior?”
63
Richard Tewksbury, “Collateral Consequences of Sex Offender
Registration,” Journal of Contemporary Criminal Justice, 21, No. 1:
2005, 67-81. While the author refers to the consequences as a result of
registration, they are listed in this section because it is the public
access to the registry that caused the negative consequences; we
consider this to be a form of passive public notification, as
registration with law enforcement alone is unlikely to result in
significant negative outcomes.

to about one in four today.65
CONCLUSION

Public support for community notification laws remains
strong, and the laws appear to accomplish one of their
64
“No Easy Answers: Sex Offender Laws in the U.S.,” Human Rights
Watch 19, no. 4: 2007.
65
“Community Notification as Viewed by Washington’s Citizens.”

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 18

primary goals: to help members of the public take steps

offenders from coming within 2,500 feet of a restricted

to protect themselves and their families from known sex

area.

offenders. They also appear to have some deterrent
effect. However, it is unclear to what extent they reduce

STATE TRENDS

recidivism; in fact, in some cases they may actually

The number of states with residency restrictions on sex

increase recidivism by making it much more difficult for

offenders has grown exponentially in the past 10 years.

sexual offenders to re-integrate into society after being

Prior to 2000, only five states had such restrictions; now

released from prison. Recent surveys show that there is a

30 do. Of the 30 states with residency restrictions, five

growing public awareness of this problem, so it is

prohibit offenders from coming within 2,000 feet of a

possible that changing attitudes will mitigate the

restricted locale; two prohibit them from coming within

negative effects of community notification.

1,500 feet; and 12 prohibit them from coming within
1,000 feet. In the remaining 11 states, offenders are

Residency Restrictions
SUMMARY

required to maintain a distance that is less than 1,000
feet, variable, or undefined, or there are special
prohibitions on specific locations (such as college
dormitories).66 Of the 30 states that currently have

Even absent any federal mandates or guidelines, there

residency restrictions, only nine specify that the sex

has been an explosion in state and municipal residency

offense that led to the restriction must have involved a

restrictions imposed on registered sex offenders in the

child. Some state ordinances have effectively banished

past decade. Purportedly to keep offenders away from

sex offenders from entire cities, where population

places frequented by children, many of these restrictions

density makes it almost impossible to avoid violating

are so broad that sex offenders (many of whom did not

residency restrictions.

commit an offense involving a child) are effectively

Some cities and counties have their own residency

banished from cities large and small. Studies have

restrictions in addition to state restrictions. In some

shown that these restrictions have no positive impact on

instances, the adoption of local restrictions has triggered

recidivism, and they reduce public safety by

a domino effect, as each city or county passes tougher

destabilizing and stigmatizing offenders trying to

restrictions than its neighbors to avoid becoming a local

reintegrate into the community, often driving them

haven for sex offenders. In some cases, state authorities

“underground” and out of contact with support systems

have been forced to step in to address the problems

and law enforcement.

posed by such patchwork legislation. In Washington
State, legislators worked with the Association of

OVERVIEW

Washington Cities to hammer out compromise

Restrictions on where registered sex offenders can live,

legislation (passed in 2006) that combines a statewide

work, and travel aim to keep them away from potential

880-foot exclusionary zone around restricted locales

child victims. Restrictions have been implemented on

with a ban on local and state sex offender ordinances.

both the local and the state level and may apply to

Similarly, Kansas placed a ban on local residency

schools, child care facilities, playgrounds, athletic fields,

restrictions between 2006 and 2008, thus providing state

bus stops, parks, public pools, video arcades, and other
places where minors congregate. In general, state
restrictions require offenders to maintain a specified
distance—usually between 500 and 2,000 feet—from a
restricted area. Most municipal ordinances prohibit

66
M. Meloy, M. Miller, S., and C. Kurtis, “Making Sense Out of
Nonsense: The Deconstruction of State-Level Sex Offender
Residence,” American Journal of Criminal Justice, expected
publication date: 2008. Data on numbers of states having restrictions
and actual restrictions may vary slightly from appendices due to
ongoing updating of these documents to reflect the most recent
changes in state laws.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 19

officials with a chance to study the issue. In 2007, the

FEDERAL GUIDELINES

Kansas Sex Offender Policy Board recommended

At present, there are no federal guidelines regarding

against the institution of residency restrictions. In a

residency restrictions. The Adam Walsh Act directed the

report, the policy board noted that the Iowa County

U.S. Attorney General to study the impact of residency

Attorneys Association had concluded that that state’s

and employment restrictions on sex offender recidivism

residency restrictions were “contrary to well-established

rates. However, as no funds were appropriated for this

principles of treatment and rehabilitation of sex

purpose, the study has yet to be undertaken.

offenders,” and that they were “compromising the safety
of children by obstructing the use of the best known

ANALYSIS OF IMPACTS

corrections practices.” In addition, the Iowa County

In spite of their popularity, there is no evidence that

Attorneys Association noted that offenders were

residency restrictions are effective in reducing

becoming homeless, ceasing to notify the authorities

recidivism by sex offenders. Rather, the evidence

about address changes, and simply disappearing as a

suggests that residency restrictions are in fact

result of the restrictions.67
Residency restrictions have been challenged

detrimental to public safety. A recent study of sex
offenders in Minnesota examined the impact of

repeatedly in the courts in recent years. This trend seems

residency restrictions on recidivism. Researchers found

likely to continue—perhaps to the point that it will

that, of the 3,166 sex offenders who were released from

significantly limit the ability of states to impose

Minnesota correctional facilities between 1990 and

residency restrictions. In some states (such as Iowa)

2002—a period when the state did not have residency

residency restrictions have been upheld. However, in

restrictions—224 had been re-incarcerated for a new sex

2007 the Georgia Supreme Court ruled that the state’s

offense by January 1, 2006. After taking a closer look at

residency restrictions were unconstitutional.68 The
California Supreme Court is expected to rule on that
state’s residency restrictions in 2008.69 It seems likely

these 224 cases, researchers found that none of the
offenders had established contact with a child victim in
an area that would be likely to fall within an

that residency restrictions will face increasing challenges

exclusionary zone under a typical residency restriction

if they come to be seen as depriving people of

law. And there were only three cases in which the

constitutional rights or effectively forcing sex offenders

offender established contact with a victim at what likely

to move to other jurisdictions.70

would have been a prohibited locale under a typical
residency restriction law; one of these involved an adult
victim, while the other two involved cases in which

67
Kansas Sex Offender Policy Board, January 8, 2007 Report. A
report in the Des Moines Register on January 22, 2006, reported that
since the state's residency law took effect, more sex offenders are
eluding tracking by authorities. The paper reported that 298 sex
offenders were unaccounted for in January 2006, compared to 142 on
June 1, 2005.
68
The court’s opinion was based on a “takings” argument: in other
words, it argued that a restricted offender who owns property should
not be required to move if a school, daycare center, or other restricted
locale is subsequently built nearby.
69
Specifically, the court will consider whether California’s residency
restriction “violates the ex post facto clauses of the state and federal
Constitutions, has been impermissibly retroactively applied,
constitutes an unreasonable parole condition, impinges on the
petitioner's substantive due process rights, and is unconstitutionally
vague.” In re E.J. on Habeas Corpus, S156933
70
Corey R. Yung, “Banishment by a Thousand Laws: Residency
Restrictions on Sex Offenders,” Washington University Law Review
85: 2007, 101-160.

contact was established more than 10 miles from the
offender’s residence. The study also confirmed that most
sexual offenders have a pre-established relationship with
their victims: in about two-thirds of the 224 cases
studied, the offender was either related to the victim or
gained access to the victim through a common
acquaintance such as a girlfriend, wife, coworker, or
friend.71

71

Grant Duwe, William Donnay, and Richard Tewksbury, “Does
Residential Proximity Matter? A Geographic Analysis of Sex Offense
Recidivism,” Criminal Justice and Behavior 35, No. 4, 2008: 484504.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 20

A number of studies have sought to determine

the two years since it passed its version of Jessica’s

whether sexual offenders seek out residences near

Law, California has seen a 44 percent increase in sex

potential victims in order to facilitate re-offending. One

offenders reporting that they are transient.76

Colorado study found that molesters who did re-offend
did not appear to live any closer to parks or schools than

CONCLUSION

those who did not re-offend. An Arkansas study found

There is little empirical evidence that residency

that child molesters appeared to live closer to areas

restrictions, as currently implemented, protect public

frequented by children than adult rapists; however, there

safety. Residency restrictions push sex offenders to the

was no evidence that this circumstance had any impact

fringes of communities, making it less likely that they

on recidivism.72 A survey of sex offenders revealed that

will be able to obtain housing, find a job, and receive

many offenders considered restrictions to be ineffective:

social support. Restrictions may also make it difficult for

several pointed out that if they wanted to re-offend, they

otherwise law-abiding offenders to comply with

could often walk or drive to a distant neighborhood

registration requirements—especially those that involve

where they were less likely to be recognized. One

frequent, in-person reporting.

offender also observed that residency restrictions do not
prevent offenders from living near children.73
Evidence also suggests that residency restrictions

As more is learned about this subject, it may turn
out that residency restrictions can be effective when
imposed on a case-by-case basis. It is also possible that

actually compromise public safety by making it more

effective electronic monitoring of people who pose a

difficult for offenders to re-integrate into society.

high risk of predatory behavior could reduce the

Residency restrictions often force offenders to live in

perceived need for stringent residency restrictions.

areas where there are few opportunities for employment,

Finally, the finding that most children are abused by

few social services, poor access to transportation, and

someone they know and trust rather than a stranger in

few housing options. One researcher has used mapping

the park suggests that better public education should

software to show that the 2,000-foot residency

play a role in keeping children safe.

restrictions that were ushered in by California’s version
of Jessica’s Law leave almost no place for a sex offender
to live in the entire city of San Francisco.74 Similarly, a

Electronic Monitoring

mapping study in Orange County, Florida, concluded
that 95 percent of residential dwellings are within 100
feet of a school, park, daycare center, or bus stop, and
that 99.6 percent are within 2,500 feet of these
locations.75 As a result, it appears that more and more
offenders are becoming homeless or going
“underground” by not reporting their whereabouts. In
72

Jill Levenson, “Sex Offender Residence Restrictions,” Sex Offender
Law Report, in press.
73
Jill S. Levenson and Leo P. Cotter, “The Impact of Sex Offender
Residence Restrictions: 1,000 Feet from Danger or One Step From
Absurd?” International Journal of Offender Therapy and
Comparative Criminology 49 (2): 2005, 168-178.
74
Meghan Stromberg, “Locked Up, then Locked Out,” Planning,
Journal of the American Planning Association: January 2007, 19-25.
75
P.A. Zandbergen and T.C. Hart, “Reducing Housing Options for
Convicted Sex Offenders: Investigating the Impact of Residency
Restriction Laws Using GIS. Justice Research and Policy, 8 (2),
2006: 1–24.

SUMMARY

Recent advances in technology have inspired a growing
number of states to pass legislation either requiring or
authorizing electronic monitoring of sex offenders in the
community. There are no federal guidelines for
electronic monitoring. Electronic monitoring is
expensive in terms of both equipment and staff time;
however, it shows promise in being able to improve
supervision, particularly of high-risk offenders.
Research results to date have been mixed, with a few
studies showing decreased recidivism (and some

76

Michael Rothfield, “Jessica’s Law May Increase Crime Risk,” Los
Angeles Times, February 22, 2008.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 21

anecdotal accounts of improved supervision) but most

attending therapy sessions and keeping away from a

showing no significant advantage. Some of the lack of

victim’s house) and provide law enforcement with a

improved results may be due to problems in

record of the person’s movements and activities, should

implementing new technology; in addition, offenders

he or she become a suspect in a crime.

(especially those who are compliant) are resistant to
wearing the device, which is conspicuous and prone to
malfunction. It is still an emerging technology and is a
policy that deserves continued study.

STATE TRENDS

The electronic monitoring of sex offenders has increased
dramatically in the past decade. According to the

OVERVIEW

Interstate Commission for Adult Offender Supervision,

Electronic monitoring (EM) is a technology that makes

many states, electronic monitoring is statutorily required

it possible to track a person’s whereabouts by means of a

for sex offenders—particularly high-risk offenders. In

portable electronic device, usually an ankle bracelet

other states, judges determine whether to use EM on a

combined with a cell-phone-sized transmitter. It is used

case-by-case basis. EM is commonly imposed as a

in a variety of law enforcement applications. There are

condition of parole or probation as well; in this context it

two types of EM technology: passive (the unit simply

is used for both the short-term monitoring of low-risk

records the person’s movements and is downloaded at

people and as a lifetime parole condition for high-risk

regular intervals) and active (the unit transmits the

offenders.

person’s location in real time). Active systems can be

35 states now use GPS monitoring technology.78 In

In some states (such as New Jersey), high-risk sex

modified to transmit an alarm whenever the monitored

offenders who had already been released from prison

person violates certain conditions—if he or she leaves

and were not subject to civil commitment have been

the state, for example, or leaves the tracking unit behind,

retroactively required to participate in electronic

or comes within a certain distance of a victim’s

monitoring. In other states, offenders have successfully

residence or a school. Today, global positioning systems

challenged electronic monitoring that was imposed

(GPS) are gradually replacing the older radio frequency

retroactively. In North Carolina, for example, 25

systems (which were typically only able to confirm

offenders to date have been allowed to remove their EM

whether the monitored person was at home.) As an

equipment. In one of the most recent cases, attorneys

example, in California, GPS tracking equipment in 2007

argued that being forced to wear EM devices represents

was leased at a cost of $8.75 per day for active units and

a form of punishment, in that the devices are heavy,

$5 per day for passive units. There are significant

conspicuous (particularly if an audible alarm is set off

additional personnel costs for reviewing and analyzing

by accident), and require the monitored person to be in

data.77

his or her home for six hours every day to recharge the

Electronic monitoring aims to prevent recidivism by
creating a fishbowl effect, in which the monitored

unit.79 Washington State prohibits the retroactive
application of EM.

person realizes that he or she is (or has the potential to
be) under constant surveillance. It can also help detect
whether the monitored person is in compliance with the
terms of parole or probation (such terms might include
77
“An Assessment of Current Management Practices of Adult Sex
Offenders in California,” California Sex Offender Management Board
Report to the Legislature and Governor’s Office, January 2008. This
report also includes excellent information on registration, community
notification, and residency restrictions.

78
“GPS Supervision Update,” Interstate Commission for Adult
Offender Supervision,
http://www.interstatecompact.org/LinkClick.aspx?fileticket=lU6GvR
muPwM%3d&tabid=105&mid=431. The California Assessment cited
above places this figure slightly higher.
79
“Monitors Taken Off Four Sex Offenders,” The News & Observer,
April 29, 2008.

The Pursuit of Safety: Sex Offender Policies in the United States

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FEDERAL GUIDELINES

offenders) who were electronically monitored showed a

There are no federal guidelines that govern the

statistically significant reduction in absconding,

application of electronic monitoring devices to

technical violations, and re-offending. The Florida study

registered sex offenders. The Adam Walsh Act

was different from most earlier ones in that it

authorized (but did not appropriate funding for) a

concentrated on people who had committed more

measure that would assist states, local governments, and

serious offenses and followed them over a longer period

Indian tribes in carrying out EM programs for sex

of time. The authors concluded that their finding “bodes

offenders.

well for EM’s anticipated use for sex offenders.” 82
In its first six months, California’s new GPS

ANALYSIS OF IMPACTS

program showed virtually no difference in recidivism

Researchers are currently studying the impact of EM—

between a group of high-risk sex offenders on GPS

especially the new GPS systems—on sex offender

monitoring and a group that was not; the GPS group, in

recidivism rates. Thus far, the results are mixed. In one

fact, showed a slightly higher rate of absconding and

recent survey, officials in seven states said that GPS

assault crimes.83 During the study period, however, there

technology had improved the quality of supervision of

were significant challenges in implementing the

sex offenders; however, most states indicated they were

program. These ranged from slow Internet connections

still evaluating this technology.80 In a recent report to the

and a lack of proper computer equipment for parole

New Jersey governor and legislature, the New Jersey

officers, to difficulty forming collaborative relationships

State Parole Board indicated that during the initial pilot

between parole and law enforcement, to false readings

phase of the state’s GPS monitoring program, 19

from equipment. While there were reports of parole

monitored people had been charged with a new, non-

officers using GPS data to identify problematic behavior

sexual crime or a technical violation of parole conditions

(frequenting youth events, for instance), officers also

(including the refusal to wear or maintain the GPS

expressed concern that they might be held liable if,

equipment). Only one monitored offender had been

following a criminal incident, they were accused of

charged with a new sexual offense (rape); data from the

incorrectly analyzing GPS data that indicated an offense

monitoring device will be used to aid in the

was imminent.
In Tennessee, researchers did not find any

investigation. These figures suggest a reduction in
recidivism rates, although the scope of the reduction is

statistically significant differences between a control

not clear.

group and those on EM with regard to number of

Another Georgia study of violent male offenders

violations, new charges, or days before violation. While

who were placed on EM after being released from prison

officers believed that EM was a useful tool in

also found a positive impact on sex offense recidivism

monitoring offenders, offenders themselves experienced

rates. While being subject to EM appeared to have little

morale issues while on EM. Those who had been in

effect on recidivism rates among the general population

compliance prior to being placed on EM felt unjustly

of offenders (both sex offenders and other violent

punished when they were then compelled to wear the

offenders), sex offenders who were monitored were less
likely to return to prison than those who were not
monitored.81 And Florida offenders (including sex
82

80

Interstate Compact data. Table did not indicate in what way
officials believed their supervision to be improved.
81
Mary A. Finn and Suzanne Muirhead-Steves, “The Effectiveness of
Electronic Monitoring with Violent Male Parolees,” Justice Quarterly
19, No. 2: 2002, 293-312.

“Under Surveillance: An Empirical Test of the Effectiveness and
Consequences of Electronic Monitoring,” Criminology and Public
Policy 5, No. 1: 2006, 61-92.
83
Implementation and Early Outcomes for the San Diego High Risk
Sex Offender GPS Pilot Program,” UC Irvine Center for EvidenceBased Corrections, Working Paper, Nov. 2007.

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 23

monitoring device; some may have acted out as a

equipment is removed.86 And in a recent interview, the

result.84

Director of Downstate Operations for New York State
Division of Parole reported that due to the many areas

CONCLUSION

(like subways and tunnels) unreachable by GPS and the

While longer sentences and the increasing use of civil

interference from the multitude of electronic and radio

commitment are likely to delay the release of many sex

devices, they have abandoned the use of GPS

offenders, most will eventually be released. EM holds

monitoring of sex offenders in New York City.87 Given

the promise of protecting public safety while avoiding

the fallibility of EM equipment and the possibility of

many of the negative effects of other policies—

noncompliance, EM technology is probably best viewed

especially as the technology develops. It is also possible

as an enhancement to—rather than a replacement for—

that advances in technology will make EM systems less

traditional supervision, monitoring, and risk assessment

intrusive for offenders, thus boosting morale and

methods.

improving compliance.
On the other hand, it is also possible that EM will be
used to “widen the net”—supervising offenders who

Civil Commitment

could be successfully supervised in the community
without this technology. This would likely raise costs

SUMMARY

without improving public safety. As California’s Sex

Faced with releasing offenders whom they felt could not

Offender Management Board emphasized in a recent

be safely managed in the community, policymakers in

report, EM is most cost-effective when restricted to

many states have enacted laws to have violent sexual

high-risk sex offenders, such as those with a history of

offenders at the end of their sentence “civilly

violent offenses, male pedophilia, drug or alcohol use

committed” to an extended detention if they are declared

associated with sexual offending, arousal around

to have a mental condition that makes re-offending

children, high impulsivity, offense planning, fixation, or

likely. Such civil commitment, although effective in

multiple victims. Recidivism for this relatively small but

incapacitation, is expensive, as its constitutionality rests

very high-risk group in California is currently over 50

on the provision of treatment during confinement. Few

85

percent.

As a recent high-profile incident in Washington

civilly committed offenders have ever been deemed
sufficiently treated to be returned to the community.

State shows, however, that EM is not a panacea: In April

Given the opposition of professional groups such as the

2008, a convicted rapist was released from prison and

American Psychiatric Association and persistent legal

told to live under a bridge after state officials were

challenges, changes in civil commitment processes,

unable to find housing for the man. The man

treatment protocols, and sentencing will likely be

subsequently removed his EM device and absconded. A

necessary. Advances in treatment and monitoring may

former victim learned of the incident on the evening

also improve the ability to manage high risk offenders in

news and contacted the authorities, as neither state or

the community.

local law nor department of corrections policies required
that former victims be notified in cases when EM

86
84

“Monitoring Tennessee’s Sex Offenders Using Global Positioning
Systems: A Project Evaluation.” Tennessee Board of Parole and
Probation and Middle Tennessee State University, April 2007.
85
“Assessment of Current Management Practices,” Ibid.

http://www.king5.com/topstories/stories/NW_042508WAB_rape_vict
im_KC.9e417065.html
87
Interview with Angela Jimenez, Manhattan office of New York
State Division of Parole, August 27, 2008.

The Pursuit of Safety: Sex Offender Policies in the United States

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OVERVIEW

In 1990, Washington State launched the new era of

People who are mentally ill and an imminent danger to

civil commitment when it revamped its existing civil

themselves or others have long been subject to

commitment statute as part of a sweeping overhaul of

involuntary commitment to a psychiatric facility,

the state’s sex offender laws. In the revision, as in all

regardless of whether they are criminally involved. Civil

civil commitment statutes enacted since then, civil

commitment of sex offenders differs from this type of

commitment was imposed following, rather than instead

involuntary commitment in several ways. First, the

of, a criminal penalty. Offenders in Washington and

person must already have committed a violent sexual

elsewhere become eligible for civil commitment if they

offense. Second, he or she must be deemed to have a

are deemed to be sexually violent criminals who have a

mental or psychological condition (which does not need

psychological or behavioral condition that increases

to meet standard definitions of mental illness) that

their risk of committing sexual violence upon release

makes them unable to control their sex offending

into the community. This is determined through a risk

behavior.

assessment process. Generally, there is a hearing as well,

The policy of civilly committing sex offenders is in

during which the offender may present evidence that he

its second incarnation in the United States. It was first

or she can live in the community without re-offending.

used in the late 1930s, beginning with Illinois’ “act to

Although states differ on whether committed offenders

provide for the commitment and detention of criminal

are confined to a psychiatric facility, a correctional

sexual psychopathic persons,” which focused on people

facility, or some hybrid, in all cases committed people

diagnosed by psychiatrists to be “criminally sexually

must receive some form of sex offender treatment.

88

psychopathic.” Following this diagnosis, an offender
would be given a jury hearing. If found to be a criminal

LEGAL CHALLENGES

sexual psychopath with a propensity to commit sex

The constitutionality of civil commitment has been

offenses, he or she would be committed to the

tested several times. In 1996, an offender in Kansas

psychiatric division of the Illinois State Penitentiary

successfully appealed his civil commitment on due

“until such person shall have fully and permanently

process grounds; the state did not show he suffered from

recovered from such psychopathy.” By 1960, 26 states

a volitional impairment rendering him dangerous beyond

and the District of Columbia had some version of a

his control. A year later, the U.S. Supreme Court

“sexually dangerous person” statute that included

reversed a separate decision of the Kansas Supreme

provisions for civil commitments rather than

Court. The Kansas Court declared the state was required

89

punishment. Most of these states had rescinded these

to prove the person was both mentally ill and a danger to

laws by the 1980s, however. This was due to a number

himself or others. It then determined that the Act's

of factors, including a growing awareness that sexual

definition of “mental abnormality” did not satisfy what it

offenders were not per se mentally ill and that offenders’

perceived to be the “mental illness” requirement in the

right to a criminal trial were being side-stepped. There

civil commitment context. Upon appeal, however, the

was also a general shift in attitude which saw

U.S. Supreme Court disagreed, ruling that Kansas’

incarceration as more appropriate.

definition of “mental abnormality” satisfied substantive
due process requirements for civil commitment.90
The U.S. Supreme Court also indicated that its

88

“Recent Statutes: Criminal Law-Sex Offenders-Civil Commitment
for Psychiatric Treatment,” Columbia Law Review 39, no. 3: 1939,
534-544.
89
Raquel Blacher, “Historical Perspective of the ‘Sex Psychopath’
Statute: From Revolutionary Era to the Present Federal Crime Bill,”
Mercer Law Review 46: 1995, 889-920.

decision hinged on whether the Kansas Act was
punitive—as Justice Kennedy stated in his concurring
90

Kansas v. Hendricks, 521 U.S. 346 (1997).

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 25

opinion, “whether civil confinement were to become a
91

mechanism for retribution or general deterrence.” If it

modality. Vermont lawmakers ultimately rejected the
sex offender civil commitment legislation.

were punitive, then the Act would constitute double

Another civil commitment case from Kansas

jeopardy (tried/punished twice for same crime) or be

reached the U.S. Supreme Court in 1996. In this case,

unconstitutional on ex post facto (a retroactive new

the Supreme Court vacated a decision in which the state

punishment) grounds. In his majority opinion, Justice

said it was sufficient to show the offender had an

Thomas used “legislative intent” to determine that the

antisocial personality. The Court disagreed, stating that

Act was not punitive, as the provision of treatment was

“there must be proof of serious difficulty in controlling

included in the law. In his minority dissent, Justice

behavior.” 95 This decision has led states to move toward

Breyer indicated that he believed the court should look

more robust assessments and documentation in civil

at both purpose and effect, noting that treatment was not

commitment cases.

begun until years after the crime was committed and that
the state must consider less restrictive alternatives if the

STATE TRENDS

intent truly was not punitive.92 To date, the Supreme

Before 1998, only eight states had civil commitment

Court has continued to uphold the majority opinion.

statutes specific to sex offenders; the number is now up

Stated legislative intent aside, a recent research

to 20. The per person costs of civil commitment for sex

study explored whether civil commitment primarily

offenders in 2006 ranged from a low of about $42,000 in

serves to ensure that offenders receive the punishment

Florida to $166,000 in California. The average cost per

they are perceived to deserve. Study participants were

inmate in jails and prisons generally is roughly a fourth

given different hypothetical scenarios involving a sex

of the civil commitment costs.96 California recently built

offender about to be released; most participants chose

a 1,500 bed facility at an estimated cost of $400 million;

civil commitment when they perceived the offender

this construction predates the implementation of

didn’t receive a sufficiently long sentence, independent

Jessica’s Law, which expanded the list of offenses that

of the stated likelihood of re-offending.93 This appears to

could result in civil commitment. Since then, the number

be in line with actual efforts to institute civil

of people referred for civil commitment evaluations in

commitment in Vermont in 2006. The bill was opposed

California has risen from about 50 to 750 per month.97

by the Vermont Psychiatric Association (VPA), which

New York’s new civil commitment law, signed in

said it was “a way to keep people locked up who had

March 2007, also applies to a very broad range of

completed their jail terms” and a “misuse of a process

offenses. How many of those offenders will be

long used to treat people with mental illness.”94

recommended for commitment, and therefore how much

According to the VPA, the bill was a reaction to a recent

it will cost the state, has yet to be seen. The new law

case in which the sentence of a person convicted of child

also has several notable provisions. Treatment is

molestation was felt by the general public and

mandated earlier in the process, during incarceration.

policymakers to be too short, rather than as a treatment

People who committed a “sexually motivated felony,” a

91

Ibid, at 373 (Kennedy, J., concurring).
Edward P. Ra, “The Civil Confinement of Sexual Predators: A
Delicate Balance,” St. John’s Journal of Legal Commentary 22, No.
1, 2007:335-372.
93
Kevin Carlsmith, John Monahan, and Alison Evans, “The Function
of Punishment in the ‘Civil’ Commitment of Sexually Violent
Predators,” Behavioral Sciences and the Law 25: 2007, 437-448.
94
Rich Daly, “Lawmakers Reject Civil Commitment for Sex
Offenders,” Psychiatric News 41: no. 6: 2006, p. 21. The Vermont
Psychiatric Association’s stance was in line with their national
affiliate; the American Psychiatric Association has called civil
commitment a “misuse of psychiatry.”
92

new crime, are also subject to civil commitment. Finally,
the burden of proof in New York is “clear and
convincing evidence” of a likelihood to re-offend; based
on prior court decisions, this portion of the legislation
95

State v. Crane, 918 P.2d 1256, 1258 (Kan. 1996).
“A Profile of Civil Commitment Around the Country,” New York
Times, map and graph, March 3, 2007.
97
Laura Mansnerus, “Locked up in Limbo,” The Nation: December
31, 2007.
96

The Pursuit of Safety: Sex Offender Policies in the United States

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applies both to those convicted and to those who were

ANALYSIS OF IMPACTS
Civil commitment is intended to incapacitate offenders

not convicted due to mental incompetence.98

who are most likely to commit sexually violent crimes

may come under judicial scrutiny, particularly as the law

All civil commitment facilities offer treatment,

upon their release. As of the fall of 2006, approximately

although there have been few people who have been

2,700 people (cumulative) had been civilly committed

“cured”: only about 12 percent of those who have been

across 18 states.102 Of these, about 400 have ever been

held for evaluation or committed have been discharged

discharged or granted conditional, supervised, or

or released. Between 1990 and 2006, only 250 civilly

transitional release, and many states have discharged no

committed offenders were released; however, about half

or very few civilly committed offenders. Community

of those were discharged not due to progress on their

placements for those who have been released are

treatment but because of legal or technical grounds.99 In

difficult to find: The Kansas offender whose case

keeping with the non-punitive intent of civil

became Supreme Court precedent was first moved to a

commitment, many states are moving toward placing

group home upon his release. After neighbors

and treating offenders in the least restrictive manner

complained, he was relocated to a rural house near a

appropriate. Texas, for example, uses only outpatient

horse pasture, then back to a facility on the campus of

civil commitment.

the state mental hospital. California houses some men
leaving civil commitment in trailers outside prisons.103

FEDERAL GUIDELINES

There are no federal guidelines for states on civil
commitment of sex offenders. Although the 2006 Adam
Walsh Act authorized civil commitment for federal
prisoners deemed to be “sexually dangerous people
suffering from a serious mental illness, abnormality, or
disorder which causes him to have serious difficulty in
refraining from sexually violent conduct or child
molestation if released,” a federal district judge
subsequently held that Congress did not have the
authority to confine people leaving federal prisons.100
This decision was based on the view that civil
commitment was not a necessary and proper extension

One question that arises is whether the “right”
people are being civilly committed. A study of Florida’s
system concludes that the answer there appears to be
yes. This review of the process by which offenders are
referred to Florida’s Sexually Violent Predator Program
indicated that the state was appropriately recommending
those most likely to recidivate, based on comparisons to
several widely used risk assessments. Of 5,931 potential
candidates for civil commitment, about 6.5 percent were
referred to the next stage of evaluation.104 A subsequent
study that found the more dangerous offenders among
this population were in fact recommended for
commitment.105
Washington State also sought to examine whether

of Congress’ power to prosecute federal crimes. In
addition, the Supreme Court concluded that the statute
violated due process: the law required proof of
appropriateness for civil commitment to be based on
“clear and convincing evidence,” but the court ruled that
the standard of “beyond a reasonable doubt” applies to
all federal prisoners.101
98
Peter Dunne, “New York’s New Sex Offender Management and
Treatment Act,” New York Criminal Law Newsletter 06, No. 1: 2008,
11-14.
99
Monica Davey and Abby Goodnough, “Doubts Rise as States Hold
Sex Offenders After Prison,” New York Times, 3/24/2007.
100
“Locked up in Limbo.”
101
U.S. v. Comstock, Case 5:06-hc-02195-BR: 2007.

people recommended for civil commitment represented
the highest risk for re-offending. Its 2003 study looked
at new arrests for those who had been referred for civil
commitment but for whom no petition had been filed
(usually because the attorney general or prosecuting
102

New York Times, ibid. The figure given in The Nation at the end of
2007 was 4,000.
103
“Doubts Rise,” ibid.
104
Karen Lucken and William Bales, “Florida’s Sexually Violent
Predator Program: An Examination of Risk and Civil Commitment
Eligibility,” Crime and Delinquency 54, no. 1: 2008, 95-127.
105
Jill Levenson, “Reliability of Sexually Violent Predator Civil
Commitment Criteria,” Law & Human Behavior, 28(4): 2004, 357369.

The Pursuit of Safety: Sex Offender Policies in the United States

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attorney felt that he or she would not be able to prove

would be on timely, evidence-based

one or more of the statutory criteria for commitment).

treatment.109
•

From 1990 through 2002, more than 8,000 cases were

Enact criminal sentences that reflect more

reviewed. Of these, more than 400 were referred to

accurately the need for longer incapacitation,

prosecutors and just under 200 petitions were ultimately

and ensure that current sentencing ranges are

filed. The study found that candidates for civil

being used effectively. Another possibility

commitment did in fact have a higher rate of recidivism.

would be more flexible sentencing, which takes

More than half had a new felony case, and almost a

into account dynamic factors such as age of

fourth (24 percent) committed a felony sex offense. The

offenders, whether they have completed

106

treatment, etc.110

same percentage failed to register.

•

Ensure that there are effective individualized

CONCLUSION

treatment plans for civilly committed offenders

Keeping people who are unable to control their criminal

so they will have the best chance to be

impulses from re-offending is vital to public safety.

rehabilitated to a point where they can safely

Civil commitment statutes are increasingly being used to

return to the community.111
•

reduce recidivism among sex offenders, both through

Use least restrictive alternatives wherever

incapacitation and treatment. Yet civil commitment has

possible.112 This might include expanding

also been criticized. Some see it as an attempt to

outpatient commitment or using outpatient

“impose punishment after the State makes an

commitment as an intermediate step for patients
107

improvident plea bargain on the criminal side.”

returning to the community. States might also

Others

have complained that it is inappropriately used to settle a

explore the possibility of using outpatient

score when prosecutors feel cheated out of a longer

commitment as an alternative to prison in

sentence or to avoid public or media outcry over the

suitable cases.113
•

release of a sex offender who has completed a
108

Ensure that civilly committed people have a
mechanism to petition for their release and have

sentence.

their status re-evaluated regularly.114

Several published articles have suggested ways to
improve outcomes and ensure that civil commitment
statutes meet tests of constitutionality:

Even with advances in treatment and monitoring, there
will likely be a population of offenders who should

•

Return to the first iteration of civil commitment,

remain confined indefinitely. The chair of the American

in which an offender goes through either civil

Psychological Association’s Task Force on Sexually

commitment or criminal proceedings but not

Dangerous Offenders has recommended that “societal

both. This would make civil commitments less

concern about the protection from dangerous sex

likely to be used or seen as punishment, since

offenders be met through customary sentencing

the focus from the start of institutionalization

alternatives within the criminal justice system” rather

106

Cheryl Milloy, “Sexually Violent Predators in Washington State:
Recidivism of Sex Offenders Recommended But Not Accepted for
Civil Commitment Filing,” Washington State Institute for Public
Policy,
107
Kansas v. Hendricks (Kennedy, J. concurring),
108
Peter C. Pfaffenroth, “The Need for Coherence: States’ Civil
Commitment of Sex Offenders in the Wake of Kansas v. Crane,”
Stanford Law Review 55: 2003, 2229-2266. The author cites the
transcript of Kansas v. Crane.

109

Ibid.
Ibid.
111
“Civil Commitment: A Delicate Balance,” ibid.
112
Ibid.
113
“Outpatient Commitment’s Next Frontier: Sexual Predators,”
Psychology, Public Policy and Law 9, No. 1/2: 2003, 159-182.
114
“Civil Commitment: A Delicate Balance,” ibid.
110

The Pursuit of Safety: Sex Offender Policies in the United States

Vera Institute of Justice 28

than though civil commitment.115 But what about when

notification seems to have a modest deterrent effect and

the sentence has already been decided and is

possibly a positive effect on recidivism, but it also has a

subsequently deemed inadequate to protect public

negative effect on reentry. Several studies have shown

safety? Some people in this position themselves feel that

residency restrictions to have no impact on recidivism

they cannot be trusted to be in the community: “I’m very

and to cause major problems for sex offenders trying to

afraid of just being out there,” stated one offender in a

find viable places to live and work. Electronic

116

California civil commitment facility in an interview.
Better treatments, including chemical and

monitoring holds promise for improving supervision, but
it is too early to tell whether it will reduce recidivism.

pharmaceutical options to reduce urges to re-offend,

Finally, civil commitment, although successful at

may one day transform civil commitment from a dead

incapacitating dangerous offenders (again, at a very high

end to a way station on the path to reentry. Until then,

cost), has shown little success in “curing” offenders.

however, policymakers will likely continue struggling to

Sex offender policies involve a complex mix of

manage the most dangerous offenders when they come

criminal justice, psychology, sociology, and politics.

to the end of their sentences.

This makes it hard to determine to what extent current
approaches are creating safer communities and
developing the right mix of sanctions and supports for

In Pursuit of Safety: Are We
Safer?

offenders, or whether they are part of a wave of
“punitive populism” that is reaching high tide and
destined to ebb.

As rates of violent sex crimes have fallen over the past

It is hard to deny the cyclical nature of sex offender

20 years, so too have rates for all violent crime. This is

laws in America, at least in the 20th and 21st centuries.

good news for public safety but confounding when it

The current cycle may be different, as advances in both

comes to discerning the impact of sex offender

monitoring technology and behavioral science may

legislation—especially as violent sex offenses appear to

increase the percent of offenders who can be

have been in decline prior to the implementation of most

successfully and safely re-integrated into the

sex offender laws.

community. Such policies, though, are still downstream

The success of sex offender laws is also difficult to

responses. The next challenge will be to go upstream

determine because they are generally aimed at protecting

and develop policies to discover precursors to offending

children from convicted sexual predators—a category of

behavior and create appropriate interventions. These, in

offense that represents a small fraction of the total

the end, may be the most successful at reducing sex

number of offenses committed.

offense rates.

As this report has shown, current sex offender

That the public continues to focus on a small

policies appear to have only modest impacts on deterring

minority of sex offenses—those committed by

would-be offenders or reducing recidivism of convicted

strangers—and overestimate the risk that most offenders

offenders. Longer sentences keep offenders

pose is a genuine public policy concern. It is hoped that

incapacitated but only delay recidivism (and are very

the growing body of research on sex offenses will help

expensive). Registration appears to slightly reduce re-

move this important field of criminal justice forward

offenses by acquaintance offenders. Community

toward fair and effective public policies.

115

Karin L. Moran, “Civil Commitment for Sexually Violent
Predators: A Growing Debate in New York State,” The Bulletin of the
New York Psychiatric Association, Winter 2005-06.
116
Abby Goodnough and Monica Davey, “For Sex Offenders, a
Dispute Over Therapy’s Benefits,” New York Times, March 6, 2007.

The Pursuit of Safety: Sex Offender Policies in the United States

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