Are the New Sex Offender Laws Rational?
YES: Bruce Fein, from "Community Self-Defense Laws Are Constitutionally Sound," ABA Journal (March 1995)
NO: Edward Martone, from "Mere Illusion of Safety Creates Climate of Vigilante Justice," ABA Journal (March 1995)
ISSUE SUMMARY
YES: Journalist Bruce Fein contends that community notification laws of convicted sex offenders is necessary in lieu of increasing rage at violent child sex offenders, which could result in demands for excessive prison sentences if something is not done.
NO: Edward Martone, an American Civil Liberties Union activist, acknowledges community rage but maintains that the new laws create vigilantism, unfairly punish offenders, and contribute little to solving the problem of compulsive sex offenders.
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The branding of deviants as a control mechanism can be seen throughout history. Nathaniel Hawthorne's classic novel The Scarlet Letter, for example, centers around a young mother who is forced to wear the letter A on her chest, signifying "adultress." In some countries, in earlier times, it was standard practice to cut off the hand of a thief (this is still done in Saudi Arabia). Similarly, concentration camp prisoners were identified in Nazi Germany by numbers tattooed on their wrists. Nowadays, in the United States, 44 states have laws requiring or encouraging community notification when convicted sex offenders are released from prison. New Jersey's version, "Megan's Law," has become a model for the rest of the nation.
There are many components to New Jersey's law, which was passed within 30 days of the July 1994 murder of seven-year-old Megan Kanka, who was lured into the home of twice-convicted violent sex offender Jesse Timmendequas. Apparently no one in the community knew of the predator's criminal history (or the fact that his two roommates were also convicted sex offenders). The most controversial aspect of Megan's Law pertains to the community notification part, which classifies sex offenders into three tiers. The first tier is relatively unproblematic, with no notification requirements. The second tier considers the offender risky but requires minimal notification (e.g., of the local police). The third tier, comprising serious offenders with a high probability of repeating offenses, is the source of controversy. Under this category, neighbors have to be informed of the released criminal coming to their community, schools have to be informed, and so on. In other states postcards have to be sent by the offender to his new neighbors, and his picture must be distributed to local organizations. In California, fairs were held recently to encourage concerned citizens to call a hot line to get information on convicted sex criminals throughout the state.
Critics assail Megan's Law as an invasion of privacy, as repeat punishment for people who have already served their sentences, as generating vigilante acts, as unfairly stigmatizing former convicts in need of support to get their lives back in order, and as ignoring the causes of these terrible acts (the vast majority of violent sexual offenders and child molesters had been victims of sexual predators as children themselves).
Defenders reject these arguments. "I have a dead little girl. How can they sit there and worry about if it's punishment?" Megan's mother recently said. While there have been hostilities against announced offenders, these have been controlled. Some suicides have resulted, but these generate little sympathy.
Recent federal law requiring all states to register convicted offenders and recent court decisions on the constitutionality of Megan's Law function to legitimize the many variants of community notification. While some w orry that we are in the throes of an epidemic or a panic, others counter that at least registering sexual offenders has long been a standard policy. For instance, California has been registering sex offenders since 1947; now all states do.
Related sex laws include Washington's civil commitment statute (1990) and Kansas's 1994 Sexually Violent Predator Law. A key provision of these laws mandates holding a criminal who is judged highly likely to repeat violent sex offenses after he has served his time. General ly, the prisoner would be placed in a mental institution, ostensibly for treatment. This "civil commitment," done for the offender's and society's protection, would be for an indefinite period.
Although the Supreme Court's recent refusal to hear challenges to Megan's Law allows the law and others like it to remain in force, the controversy remains. As you read the following selections by Bruce Fein and Edward Martone, consider which sexual offenders, if any, should be affected by the community notification requirements. Colorado is one state that considers it a crime if someone 18 or over has sex with someone who is under 18. Should an 18-year-old who commits statutory rape vith his 17-year-old girlfriend be held to community notification requirements? Should first-time, nonviolent molesters be subject to the new laws? What about a violent offender who has been clean for eight years and has fully cooperated with treatment programs?