In every state, in every year, legislators go to work to devise new ways of punishing sex offenders.
It started in the early 1990s with the introduction of sex offender civil commitment (upheld by the US Supreme Court in 1997). Then came mandatory registration with police after offenders finish their sentences. And then New Jersey gave birth to the mother of all attacks on convicted sex offenders, community notification. You know how it works. After an offender has finished his sentence, police inform people who live nearby the former offender's residence of his presence. This sometimes includes fliers with pictures of the ex-offender posted around the neighborhood and door-to-door visits from police.
Although the ACLU has been active nationwide, and particularly in New Jersey, challenging these laws on grounds of violations of due process, double jeopardy and privacy rights, the courts have barely recognized the constitutional or public policy problems that these laws create. This has created opportunities for politicians to propose a broad range of ideas to further alienate former sex offenders ranging from chemical castration to electronic monitoring.
This year's special on the New Jersey legislature's menu is a state constitutional amendment to authorize the publication of personal information about sex offenders on the Internet including a photo of the offender, a detailed physical description, home address and a rating of risk of re-offense.
Amending our state Constitution should be done rarely and only when compelling reasons exist. So why an amendment for this? Because the proposal would not otherwise survive a challenge in court based on existing New Jersey constitutional case law. Lawmakers figured that if it passes as an amendment, it is protected from court challenges.
This is not entirely true, however. Amendment or not, there are elements of the bill that can be challenged under the federal constitution. In fact, we advised legislators that two simple changes to the bill would spare it from years of litigation. First, they should not include the home addresses of the offenders because doing so violates federal privacy rulings.
Second, they should not apply the statute retroactively because doing so would violate due process. In New Jersey, Megan's Law already provides information about local sex offenders to people deemed to need it. Expanding the breadth of who receives such information to anybody with Internet access indicates that the measure is taken in the interest of punishment rather than community protection.
Unfortunately, the legislators did not want to spare the state years of costly litigation and get their website up ASAP by making these two adjustments. During hearings on this issue, legislators noted with distress that over 20 states already have online sex offender registries. New Jersey is behind!
The bill flew through committees, the governor supports it, and no doubt the people will too when it goes to a vote.
Unfortunately, the state of New Jersey will be left with a yet another law concerning sex offenders that may very well cause more harm than good in stopping sex offenses.
One of the biggest problems is that notification laws create an illusion of safety. The vast majority of sex offenses take place in the home, by family members or friends, and most of these offenses go unreported. The people who perpetrate most sex crimes are not part of the criminal justice system and not subject to notification policies. In addition, knowing that information about a sex crime will be publicized in the community and on the Internet will make parents even less likely to report sex crimes when the perpetrator is a family member or friend.
Children are in more danger from people they know than people they don't know. Families cannot rely on police to tell them if a sex offender lurks nearby. The best thing to protect children is trusted adult supervision. However, until we recognize as a society that most sex offenses take place in the home, and base our opinions about recidivism on the treatment of opportunistic sex offenders rather than predatory sex offenders, we will not begin to spare victims.
In addition, notification laws victimize rehabilitated offenders and their families. Former offenders in stable environments have the highest likelihood of staying out of trouble. Attacking a stable family unit by publicizing this information puts a substantial pressure on former offenders and their families. We have heard from countless individuals who have lost their homes or jobs because of notification and whose families have been harassed by neighbors who do not want them living nearby. How can we expect sex offenders to start a new life if the stigma and fallout from notification jeopardizes so much?
Also threatening stability is the fear of public hysteria and vigilantism against former offenders and their families. In January of 1997, a California ex-offender's car was firebombed after his name was released. In New Jersey, community members beat a man they believed to be a paroled sex offender. Another individual fired shots into the house of a listed sex offender, nearly hitting his landlord who lived in the apartment above. In Washington State and New Jersey, ex-offenders' homes were destroyed by arson after their names were released. Even if such attacks are rare, the fear of attack puts tremendous pressure on former offenders and their families.
These pressures can push former offenders to move from community to community, or go underground, and discourages them from registering with police. Offenders often feel that they have nothing left to lose. The near impossibility of reestablishing stability because of the ramifications of notification makes offenders more likely to commit another crime.
There are practical problems with online registries, too. The experience of other states has shown that online sex offender registries become rapidly outdated. Information is sometimes incorrectly entered in databases. This has resulted in multiple cases of harassment of innocent people who lived where a former offender used to live. In addition, the Internet is not secure. It would not be difficult for a hacker to post the name of an innocent person on the list of offenders on a whim or out of personal animosity.
The issue is not about whether our children should be protected from sexual offenders, but how to accomplish that goal without trampling the basic civil liberties of every citizen. States can and should enforce long prison terms for repeat sexual offenders. But we should not allow politicians to victimize ex-offenders who are rehabilitated and lead law- abiding lives, and victimize their families, in the interest of pandering to the fears of potential voters? The real solution lies in reporting instances of abuse, and treating abusers.
-By Deborah Jacobs, ACLU-NJ Executive Director