The flaws in state’s sex offender list
Colorado should make its registry more meaningful to the public by assessing actual risk and removing some names
The state’s sex offender registry informs me of an allegedly dangerous man living within a mile of my house who was born in 1927.
That’s right: This 90-year-old who committed his crime in the last century is still required to tell the state of his whereabouts on the theory that the information will assist local police in identifying suspects for sex offenses and allow nearby residents to take precautions.
But of course the rate of sex offenses among nonagenarians is virtually zero, even when they have a felony in their past. This man’s presence on the registry reveals one of several weaknesses of the list, and why it is much less useful than it could be for both police and public.
These thoughts arise because of an ongoing court case that is under appeal by the state. U.S. District Court Judge Richard Matsch ruled in August that Colorado’s sex-offender registry violated the due-process rights of three plaintiffs and amounted to punishment after completion of a sentence. Matsch didn’t actually strike down the law, but he clearly sees it as affront to justice.
Prosecutors naturally disagree. Denver District Attorney Beth Mccann, for example, told me she considers the registry an important law enforcement tool, reassuring victims who wish to keep tabs on their assailant once he is free. Colorado Attorney General Cynthia Coffman meanwhile has cited “several legal errors which we will now address on appeal.”
But even if Matsch’s ruling is overturned, his critique should be taken seriously. The law corrals too many people onto the registry, particularly those whose offenses occurred when they were juveniles, and often keeps them on longer than necessary while failing to provide the public with any way to determine actual risk.
And as Matsch emphasized, the real-world consequences of being on the registry reduce someone’s chances of successful reintegration into society. That’s a worthwhile tradeoff for those who pose a genuine threat, but it’s punitive and counterproductive for the rest.
Even the current president of the Colorado District Attorneys Council, Boulder District Attorney Stan Garnett, told me that “some modifications of the sex offender statutes” are in order. Garnett says the “sex offender scheme in Colorado is a pretty good one” that “tries to balance punishment, treatment and safety without requiring us to put everyone in prison forever,” but he also believes the registry is “overly inclusive.”
Nearly everyone agrees that highrisk offenders with vicious records,
the state refers to as “sexually violent predators,” should be on the registry. There were 210 such individuals when I checked the other day. The same goes for offenders with multiple convictions, who numbered 1,345.
However, the registry lists 18,790 individuals. How many of the remainder are genuine threats to public safety? Obviously some are, and probably many, but the truth is no one knows. As Matsch rightly complains in his ruling, the law “requires offenders to register based only on their conviction for a past action, and based on a statutory classification of the offense and not on an individualized assessment of an offender’s level of dangerousness.”
Nor is the type of crime itself a surefire tip-off to an offender’s risk profile. Consider sexual assault on a child, a category that includes what used to be known as statutory rape, which can be triggered by an age difference of four years. “I had a case where the age difference was four years and two days,” says Laurie Rose Kepros, director of sexual litigation in the state public defender’s office. “I had an 18-year-old and 14-year-old. It’s a class 4 felony and triggers lifetime registration.”
Most prosecutors would offer a plea bargain in such a case, she told me, but they don’t have to and people are on the registry for life whose age differential from their victim was not much greater than what Kepros described. As DA Garnett observes, a “23-year-old interested in a 15- or 14-year-old has a different mentality than a 45-yearold” who seeks sex with the same young teen.
If we’re going to pare down the registry, however, first we’ve got to get past the notion that sex offenders are all hopeless recidivists. This belief was gospel in the decades when many states adopted registries. Politicians, law enforcement officials and journalists (myself included) all repeated it, and the notion lingers on today. It prompted U.S. Supreme Court Justice Anthony Kennedy, writing in a key deciwhom sion in 2002, to state that the recidivism rate “of untreated offenders has been estimated to be as high as 80 percent.” But he was almost certainly off base, and wildly so, according to a consensus of studies of the past 25 years.
In a 2015 essay in the journal Constitutional Commentary, Arizona State University law professor Ira Ellman describes a meta-analysis of nearly 8,000 offenders ranked as high, medium and low risk. About 95 percent in the low-risk category “were still offense-free after 15 years,” Ellman reported. Those in the high risk category (about one-fourth of the total) committed new sex offenses at significantly higher rates — 20 percent within five years and 32 percent within 15 years. That’s bad news, but it also suggests the legal system does in fact have the tools to rectify what Matsch cites as a “fundamental flaw” in Colorado: the lack of an individualized assessment.
If being on the registry makes rehabilitation more difficult — and it does — then it ought to be reserved for those most likely to re-offend.
After all, thanks to the prevalence of background checks, people on the registry often “can’t get jobs, basically,” says Maureen Cain of the State Public Defender’s office. “You have to be off the grid in terms of jobs, working for your friends or family. Most of them are not getting the type of position where you can work your way up and be promoted.”
Finding a place to live can be difficult, too, she says, since lease applications often ask whether you are required to register as a sex offender. Even living with relatives may not be an option if children are on the premises. As a result, Cain told me, the state is paroling a substantial number of sex offenders into homelessness.
A committee of experts assembled by Colorado’s Sex Offender Management Board recently looked at the effects of the registry on juveniles and concluded that it failed both to predict sexual recidivism and to reduce recidivism. Meanwhile, the committee noted, “Studies of juveniles who have committed a sexual offense comparing those who have been required to register to those who have not been required to register have shown that those who register have higher rates of nonsexual recidivism.”
The committee recommended a number of sensible reforms for juveniles, including expanding the list of crimes for which a judge could waive registration.
But lawmakers shouldn’t stop there. They should mandate riskbased assessments, perhaps by the Sex Offender Management Board, to establish duration of time on the registry. They should narrow the scope of lifetime registration and provide for additional judicial discretion. And getting off the registry after 20 years with a clean record shouldn’t be the ordeal it is today.
A meaningful registry can indeed alert the public to potential threats in their vicinity. But even so, we shouldn’t exaggerate the danger from the stranger down the street.
As the Colorado Bureau of Investigation reminds us on its website, in more than 90 percent of sex offenses against someone under 12, the child knows the offender.