E-STOP - Another Placebo Sex Offender Law

On May 14, New York Governor David Paterson signed legislation intended to protect children who access social networking sites from convicted sex offenders. The Electronic Security and Targeting of Online Predators Act (e-STOP) would, among other things, require all registered sex offenders to submit their e-mail addresses and online identifiers to the state. In turn, the state would make the addresses available to social networking sites, like MySpace, and other online services. At least in regard to this provision, this is a placebo law that will protect no one and is likely unconstitutional.

If this law provides any protection, it is minimal at best. It is hard to imagine that any knowledgeable person could dispute the proposed law’s ineffectiveness. E-mail addresses are easily created using fake or anonymous information.

In past months, MySpace has announced that they have discovered 36,000 registered sex offenders who signed up as members of their site. Several of these have been arrested for possible parole violations. I have kept a close eye on these developments and am aware of only two who have been charged with an attempt to solicit a minor online.

This issue came to the fore with MSNBC’s “To Catch a Predator” sting. Apparently, lawmakers did not pay very close attention to the show. As reported to a hearing held by the U.S. House of Representatives Judiciary Committee last October, out of the over 229 perpetrators caught in the sting, only 4 were registered sex offenders.

A panel of experts recently reported to the Internet Safety Technical Task Force that "the risk of a child being forced into sex from an online predator is almost non-existent. And in the relatively few cases where a youth does engage in sex with someone they first met online, both the meetings and the sex are usually voluntary."

The law also likely has constitutional problems. The e-mail addresses are to be supplied to social networking sites and “other online services” so that these individuals may be monitored or blocked from the sites. Who are these “social networking” sites and “other online services”? Would they include Internet discussion forums provided by many news outlets? Would they include YouTube or blogging sites where anyone can publish their views? Would these sites block the participation of registered sex offenders?

The U.S. Supreme Court has ruled on numerous occasions that the right to anonymous free speech is protected by the First Amendment. A 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission states: “Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.”

This legislation is also based on other faulty premises. The New York Attorney General Andrew Cuomo's press release which announced the proposal of this law states: “Sex offenders have been shown to have recidivism rates far higher than those who commit other types of crimes.” Governor Paterson stated that sex predators have a 90% recidivism rate.

This statement is contrary to New York State’s own research. A recent New York study reports that "sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes." (“Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment,” New York State Division of Probation and Correctional Alternatives, May, 2007, p. 4). This study of 19,827 offenders on the New York State Sex Offender Registry on March 31, 2005 found that 8% had been arrested for a new sex crime within 8 years of their date of first registration.

A registered sex offender might want to publish the real facts online. Unfortunately, this legislation may make it impossible for him to do so. In our society, the right of free speech must be protected even for “unpopular individuals.” If not, we may all be denied the right to hear and speak the truth.

A Detailed Analysis of Sex Offender Recidivism in New York State

New York State provides a wealth of studies on sex offender recidivism. While the thought of statistical studies causes the eyes of many to glaze over, any who are concerned that public policy be based on fact rather than mythology are grateful to have some hard data. It is extremely informative to look at the data gathered over the last 20 years.

The earliest study in this period was a New York Department of Corrections study (Profile and follow-up of sex offenders released in 1986, prepared by Canestrini, K., State of New York Department of Correctional Services) which followed 556 sex offenders released from state prisons in 1986. A total of 49% of these were returned to prison within the 9 year follow-up period. It should be noted that only 6% of these (34 out of 556) were returned to prison for a new sex crime. Most were returned for parole violations (27%) or for committing other crimes such as drug offenses. The study includes the clear statement: “These findings suggest that sex offenders are a diverse population and that when looking at sex offender recidivism it is important to distinguish total criminal activity from sexual reoffending.” (p. 34) Unfortunately, politicians and the media often do not do this. It also should be noted that this study was conducted before New York's Megan's Law was enacted.

New York regularly publishes 3 year follow-up studies of all those released from state prisons. Between 1985 and 2002 a total of 12,863 sex offenders were released. Only 272 of these (2.1%) were returned to prison for new sex crimes within three years of their release. (2002 Releases: Three Year Post Release Follow-up, State of New York Department of Correctional Services, p. 18) Of course, as in the above mentioned study, recidivism rates are higher if one counts those returned to prison for parole violations or for committing other crimes such as drug offenses. In terms of this overall rate of recidivism, it is important to note that sex offenders have a lower 3 year rate of recidivism (31%) than the general prison population (42%). Only 8% of sex offenders were returned to prison as a result of a conviction for a new crime. Most were returned for parole violations.

The latest sex offender recidivism study, Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment (New York State Division of Probation and Correctional Alternatives, May, 2007) is unique in that it also includes those sentenced to probation and county jails. Most recidivism studies (including those previously cited) examine only those who were sentenced to prison. The study examined 19,827 offenders on the New York State Sex Offender Registry on March 31, 2005.

The heart of the study is contained in the following excerpts:

Probation is the most common sentence for sex offenders in New York State. Of the 2,944 sentences for offenses requiring registration on the Sex Offender Registry (SOR) in 2006, 1,206 were to probation, representing 41.0% of the total. Sentences to prison accounted for 31.0% (913) and sentences to local jails accounted for 16.9% (500). There were 325 offenders in the “other” sentencing category, including fines and conditional discharges. A small number of sentences were categorized as unknown (120). ( p. 1)

Table One: Proportion of Registered Sex Offenders Rearrested (Among 19,827 offenders on the registry on March 31, 2005)
Time from Registration Date	Any New Arrest	Any New Registerable Sex Offense
~1 Year	15%	2%
~2 Years	24%	3%
~5 Years	41%	6%
~8 Years	48%	8%
Source: DCJS: NYS Sex Offender Registry and NYS Computerized Criminal History Data Base

The DCJS data above included probationers, as well as parolees, those under custody and offenders whose sentence had expired... ...sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes. (emphasis mine) (p. 3-4).

The report did not specify the reasons for arrests other than those arrested for new sex offenses. It is likely (as seen in the previously mentioned studies) that most of these were for parole or probation violations. In addition, many of these arrests were for Failure to Register. Sex offenders must update their registration at least once a year (and many, more often). Another New York study reports that between 2002 and 2006, 1730 sex offenders were convicted (and certainly more were arrested) for Failure to Register. (Sex Offender Management 2006 Crimestat Update, New York Division of Criminal Justice Services, p.11) If these figures and those from other years are eliminated that would bring the re-arrest rate down considerably.

In a sense the registry law "creates" crimes. This vicious cycle will likely increase as sex offender residency laws continue to proliferate. More registered sex offenders (RSOs) will be arrested for violating those. In turn, more RSOs will fail to register because the residency laws make it impossible for them to find housing. These new laws create an increasing "crime wave" by sex offenders which will, no doubt, increase calls for even more laws. Meanwhile the rate of arrest for new sex crimes remains relatively stable and low.

Has Megan's Law reduced sex offender recidivism in New York State? There is no evidence that it has. This is apparent when one compares this latest study with the earlier pre-Megan's Law study. That study reported that within 9 years of their release, 49% were returned to prison (including for parole violations), but only 6% were returned for committing a new sex crime. The latest study shows a total re-arrest rate after 8 years of 48% and an 8% re-arrest rate for sex crimes.* It is not completely valid to compare these two studies. They involve different populations and recidivism is measured differently (return to prison vs. re-arrest), but it is striking that after more than 10 years experience with sex offender registration laws in New York State there has been no significant change in sex offender recidivism. It has remained relatively stable and low.

*Within 8 years of the initial date of registration, 11% of Level 3 offenders (highest risk), 7% of Level 2 offenders, and 6% of Level 1 offenders were arrested for another sex crime. (see more)

Watching Those Who Watch Sex Offenders; Does Watch Systems, Inc. use deceptive statistics to hype danger?

There is money to be made off of sex offenders. Consider Watch Systems, Inc., a Louisiana based company, which sells their Offender Watch system to counties and sheriffs' departments all over the United States. Their service makes it possible for local residents to see information on sex offenders in their area on local web sites such as that of the county sheriff. Residents also may sign up for e-mail alerts when a registered sex offender moves into their area. Counties pay several thousand dollars for this service. Often this is covered by a grant for the initial year with the county picking up the cost in subsequent years.

It should be of no surprise that fear plays a part in their sales approach. Their web site reminds government entities that they should be afraid of their citizens: “The public has zero tolerance for law enforcement who minimally comply with sex offender laws. How would the public grade your office on sex offender address verification, registration and community notification?”

They also fan the fears of the public. Their online presentation which is incorporated into all their local web sites contains this statement: 50% of sex offenders re-offend." This statement is puzzling, to say the least. It is at variance with the largest study of sex offender recidivism ever done in the United States, a 2003 U.S. Department of Justice report--Recidivism of Sex Offenders Released from Prison in 1994. Its findings: “In 1994, prisons in 15 States released 9,691 male sex offenders. The 9,691 men are two-thirds of all the male sex offenders released from State prisons in the United States in 1994. This report summarizes findings from a survey that tracked the 9,691 for 3 full years after their release… Within the first 3 years following their release from prison in 1994, 5.3% (517 of the 9,691) of released sex offenders were rearrested for a sex crime… Of the 9,691 released sex offenders, 3.5% (339 of the 9,691) were reconvicted for a sex crime within the 3-year followup period.

I e-mailed Watch Systems and asked them for the source of their 50% recidivism figure. I received this response from Mark A. Wilson, their Vice President of Marketing: “…we are not trying by any means to exaggerate the recidivism statistics nor to create hysteria – the numbers we use are widely reported in various channels and media and by various experts in the field. They are based in part on this and other studies from the Dept of Justice http://www.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf (This link no longer works. Click on the link below).

The source of their information was Sex Offenses and Offenders; An Analysis of Data on Rape and Sexual Assault by Lawrence A. Greenfeld, Statistician, Bureau of Justice Statistic, February 1997. It is important to note that this study is ten years older (follows prisoners released in 1983) than the Department of Justice study referenced above. When one looks at the details of the study, one finds that Watch Systems' use of the statistics contained therein is questionable, at best. Here are some direct quotations from the report:

Offenders convicted of rape and sexual assault composed just over 4% of those discharged from prisons in the 11 States in 1983. Over the 3-year period following prison release, an estimated 52% of discharged rapists and 48% of discharged sexual assaulters were re-arrested for a new crime. Their criminal history records also evidenced a lower percentage of sex offenders who were reconvicted and reimprisoned during the followup period than was the case for all violent offenders discharged from prison...

Nearly 28% of released rapists were re-arrested for a new violent crime within 3 years (figure 27). For nearly 8% of released rapists, the new arrest for a violent crime was another charge for rape. (p. 26)

-->The study reports that 52% of discharged rapists and 48% of discharged seuxal assaulter were re-arrested for a new crime. This includes crimes of any type, e.g. drug offenses. Note that the study states clearly that violent sex offenders have a lower recidivism rate than other offenders. If one does the math, the study reports that only 2.24% of rapists are returned to prison for committing another rape. (8% of 28%)

The statement by Watch Systems, Inc. that "50% of sex offenders re-offend," clearly implies that 50% of registered sex offenders commit new sex crimes. This statement is clearly deceptive and does raise unwarranted hysteria about sex offenders.
New York regularly publishes 3 year follow-ups of all those released from state prisons. Between 1985 and 2002 a total of 12,863 sex offenders were released. Only 272 of these (2.1%) were returned to prison for new sex crimes within three years of their release. (2002 Releases: Three Year Post Release Follow-up, State of New York Department of Correctional Services, p. 16)
A recently published study was done of 19,827 offenders on the New York State Sex Offender Registry on March 31, 2005 (including those sentenced to probation (41%) or local jails. It found that the re-arrest rate for a new sex crime within 8 years of the date of first registration was 8%. The study also found that "sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes." (Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment, New York State Division of Probation and Correctional Alternatives, May, 2007, p. 3-4). (Read a detailed analysis of sex offender recidivism in New York State)

Watch Systems’ online presentation also states: “More than half of rape/sexual assault incidents happened within a mile of the victim’s home.” This statement is contained in the Department of Justice report. Of course, the report also states that almost 40% of the assaults occur in the victim's home. This is obviously because a large number of these offenses occur within the family. The determining factor in these crimes is usually not geography, but relationships.

While a sex offender registry has its place as one tool among many, its worth should not be over emphasized. The face of danger is more likely to be in a family snapshot than in a mug shot on a sex offender registry. The vast majority of sex crimes (95% in New York state) are committed by someone not listed on a sex offender registry. The vast majority of registered sex offenders never commit another sex crime.

The statistics offered by Watch Systems are not only misleading, they are dangerous---in that they disguise the real problem of sexual abuse.

Update: In February, 2012 the State of Connecticut published a report on offender recidivism in that state. It showed that 2.7% of sex offenders were convicted of a new sex crime within 5 years of their release from prison. A reporter from the The Hartford Courant asked why the Connecticut Sex Offender registry website (operated by Watch Systems, Inc.) still reported, "50% of sex offenders re-offend." Amazingly, almost immediately, the 50% figure disappeared from the Connecticut Sex Offender Registry website and every other registry website operated by Watch Systems, Inc.

Watch Systems, Inc. is not the only part of the "sex offender industry" to benefit financially from hyping the danger with "funny" statics. See my blog on Parents for Megan's Law.