Human Rights

How Do We Pass Rational Sex-Offender Laws With Psychos Like Phillip Garrido on the Loose?

With apparent psychos like Garrido wreaking havoc, it's hard for society to be reasonable about the thousands of people have been wrongly swept up by excessive sex offender laws.

"Philip Garrido isn't a man, he isn't an animal; he is a monster from the deep recesses who preys on innocence and those he can overpower. He is a degenerate who should have stayed locked up in prison. He should have but he was allowed to go free."

-- Kristen Houghton, "Jaycee Lee Dugard's monster from the depths of hell," from theExaminer.com

This pretty much sums up the popular response to the horrific case of Jaycee Lee Dugard, the 29-year-old California woman who, as a young girl, was kidnapped on her way to school and and held hostage for 18 years, during which she was systematically raped, giving birth to two daughters while in captivity.

With the possible exception of Josef Fritzl, the 73-year-old Austrian who drew global revulsion last year after it was discovered he had held hostage his own daughter for nearly 2 1/2 decades, during which she gave birth to seven children, it would be hard to conjure up a sicker, more psychotically grotesque manifestation of a sexual predator's madness than that of Phillip Garrido.

Locally, the Dugard case and the accompanying media frenzy have prompted fresh fear over the threats sex offenders pose to society. News reports have revealed that Garrido, 58, was convicted of rape decades ago, serving 11 years of a 50-year federal sentence for his kidnapping and brutal sexual assault of a 25-year-old woman in 1977. (That crime today would have sent him to prison for at least 25 years.)

Garrido's early release was certainly a miscarriage of justice, given what he went on to do to Dugard -- not to mention the severity of his first crime, in which he drove his victim across state lines to Reno and raped her repeatedly in a storage unit "stocked with pornography, sex devices and a mattress," according to the San Francisco Chronicle. But that was a different era.

"It goes to show you how sentences have climbed since 1984," a Yale Law School professor said. "You're looking at a much harsher climate now."

Sex offender laws have gotten much harsher, no doubt about it. Along with mandatory minimums and post-incarceration monitoring, since 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, all 50 states and the District of Columbia have created sex-offender registries containing the names and addresses of people convicted of crimes ranging from rape, to sexual abuse, to downloading child pornography, to statutory rape. (Megan's Law, which requires community notification about sex offenders, was added to the Act two years later.)

In recent years, laws have passed to impose even stricter measures on convicted sex offenders, long after they have ostensibly paid their debt to society. The sweeping Adam Walsh Child Protection and Safety Act of 2006 set about the creation of a national sex-offender registry, "the first national online listing available to the public and searchable by ZIP code." While it would supposedly classify sex offenders into different categories according to the severity of their crime, it has yet to be implemented.

Now, amid the shock and outrage surrounding the Garrido case, some are calling into question how effective such legislation has been.

After all, Garrido was, the New York Times reported this week, "listed, as required, on California's sex-offender registry (complete with a description of the surgical scar on his abdomen and his 196-pound weight) and had dutifully checked in with the local authorities each year for the past decade -- all while, officials say, his victim and the two children he is accused of fathering with her were living in his backyard."

Sex-offender lists have made far more information readily available to the public and the police than before, but experts say little research is available to suggest that the registries have actually discouraged offenders from committing new crimes.

As Richard Tewksbury, an academic and expert of registries, told the NY Times, "We've come to see these registries as a panacea that is going to resolve all sex-offender problems. That's just not realistic."

The Worst of the Worst?

Let's face it: Not every registered sex offender is a Phillip Garrido.

As Human Rights Watch pointed out in 2007, "in many states, people who urinate in public, teenagers who have consensual sex with each other, adults who sell sex to other adults, and kids who expose themselves as a prank are required to register as sex offenders."

Yet registries and residency restrictions have often failed to distinguish between these and those on the opposite extreme, like Garrido, who could justifiably be classified as the worst of the worst. With 674,000 people on sex-offender registries across the country, this has stoked a culture of fear while making it harder for law enforcement to keep tabs on the most-dangerous sexual predators.

Garrido's own neighborhood is a good example. According to the Los Angeles Times, the 94509 ZIP code where he held Dugard hostage -- "a small, scruffy, unincorporated island largely surrounded by the hard-knock city of Antioch" -- is "home to more than 100 registered sex offenders, according to the Megan's Law Web site, and officials say the region has a higher concentration of offenders than other areas."

One resident said sex offenders have flocked to the neighborhood "because they can." This is literally true: Increasingly strict legislation like California's 2006 Jessica's Law, which bars registered sex offenders from living within 2,000 feet of parks, schools and other places kids might gather, have set strict parameters dictating where registered sex offenders can and cannot live.

Such residency restrictions have helped "push sex offenders to less-populated and more-rural areas," Joan Petersilia, a law professor and co-director of the Stanford Criminal Justice Center told the L.A. Times. "They want a place where they can remain anonymous and people leave them alone."

In some states, this has meant moving to the extreme margins of society. In Florida, for example, where registered sex offenders are prohibited from living within 2,500 feet of schools, parks, etc., the result has been the formation of what has been described as a "sex-offender shantytown" under the Julia Tuttle Causeway, an elevated road that connects Miami to Miami Beach.

"Nearly every day, a state probation officer makes a predawn visit to the causeway," CNN reported in April 2007. "Those visits are part of the terms of the offenders' probation, which mandates that they occupy a residence from 10 p.m. to 6 a.m."

According to the report: "It's not an ideal solution, Department of Corrections Officials told CNN, but at least the state knows where the sex offenders are."

But for many Miami residents, the situation under the bridge has become intolerable.

"The causeway shantytown debacle should have taken three days -- tops -- to get state and local officials working together to find places for these felons, most of them on probation for sex crimes, to live without endangering children," read an editorial this summer in the Miami Herald. "This would mean tackling local ordinances throughout South Florida that render these felons homeless because they cannot live within 2,500 feet of a school, park and, in some instances, bus stops."

In three years, the homeless camp swelled from a handful of mostly male felons to as many as 100. Good intentions to protect children turned into a public-safety and health crisis, as Miami-Dade State Attorney Katherine Fernández Rundle astutely points out. Felons are using the bay as a toilet, rotted wood as housing, and state probation officers continue to steer them there as if a bridge were a legal address.

Part of the problem, the editorial pointed out, echoing Human Rights Watch, was that local laws make "no distinction between true sexual predators and offenders convicted for lesser crimes, such as public exposure."

It might have taken a colony of homeless sex offenders under a bridge, but if the Herald editorial is any indication, some people in some states are beginning to wise up to the fact that some sex-offender laws have gone too far.

Yet hideous stories like Dugard's are bound to inspire new efforts to come up with even tougher laws against sex offenders, efforts that may prove counterproductive.

Unintended Consequences

On a bitterly cold day this past January, a 52-year-old homeless man named Thomas Pauli was found dead in an auto repair yard in Grand Rapids, Mich., his frozen body "crouched in a kneeling position" in the snow.

Police detectives claimed to not know what led to his death, but local media reports suggested that Pauli spent the last hours of his life searching for a place to spend the night.

According to area social workers, he had been repeatedly denied a spot in local shelters due to a strict Michigan legal statute. Pauli, it turns out, was a registered sex offender, and by state law could not come within 1,000 feet of anything labeled school property, leaving him with few options other than to sleep outside. That weekend, temperatures had dipped below zero degrees.

"Officials at two local shelters said they could not confirm that Pauli had tried to stay with them on the night he died," according to ABC News, "but said they had been told he had tried to stay there in the past. They acknowledged that they would have turned him away because of the state's sex offender law."

Pauli's conundrum was one that is faced by registered sex offenders countrywide. The conditions of their release require them to have a home of some sort. Yet expanding laws have made it harder for them to find a place to live.

In November 2007, USA Today ran a series on the plight of homeless sex offenders. It was no appeal for sympathy.

The more registered sex offenders are forced to live on the streets, it reported, the harder they are to keep tabs on, a fact that has alarming implications for public safety. "A homeless sex offender is a much more dangerous sex offender," Elizabeth Bartholomew of the Maryland Division of Parole and Probation told the paper.

Some claim that declaring homelessness is actually a sneaky method sex offenders use to avoid being tracked. "People will use homelessness as a way to evade monitoring," a Wisconsin Department of Corrections official told USA Today. This echoed the headline on an MSNBC report a month before: "California's sex offenders beat tracking system."

Beneath the sensational headline, however, that particular report revealed some pretty stunning statistics about the effect of Jessica's Law on California's homeless population.

"State figures show a 27 percent increase in homelessness among California's 67,000 registered sex offenders since the law took effect in November 2006," it reported. Between August and the end of October 2007, "the number of offenders with no permanent address rose by 560, to 2,622."

One man in Southern California told the Associated Press that when his parole officer informed him that his two viable housing options were too close to schools or parks, "I finally asked, 'Where do you want me to live?' "

"He said, 'You have a car, don't you?' "

Homeless sex offenders may indeed be harder to track, but it's hard to believe the majority of them are relentlessly predatory supervillains who are always one step ahead of police. (Anyone who has ever caught an episode of "To Catch a Predator" surely knows this to be true.) Yet, thanks in part to their growing role in the popular imagination -- and cases like Garrido are perfect examples -- Americans have said they fear sex offenders more than they do terrorists, according to at least one poll.

This means that tough-on-sex-crimes legislation knows no bounds. Public sex-offender database? Check. Mandatory minimums for convicted sex offenders? Check. Color-coded license plates to alert you if that driver stuck in traffic with you might be a pervert? Ohio keeps trying.

There is even an iPhone GPS app you can buy to keep track of where you are in relation to sex offenders at any given moment, although it keeps running into legal complications.

Have Sex-Offender Laws Gone Too Far?

In 2007, Human Rights Watch released a study, aptly titled "No Easy Answers," based on a review of sex-offender registration data from all 50 states. The authors interviewed law-enforcement officials, survivors of sexual abuse and child-safety experts. They also interviewed 122 sex offenders and 90 of their loved ones. The conclusion was that sex-offender laws have gone too far.

"Human Rights Watch appreciates the sense of concern and urgency that has prompted these laws," the report's authors wrote. " … Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime-prevention measures is a core governmental obligation"

Unfortunately, our research reveals that sex-offender registration, community notification and residency-restriction laws are ill-considered, poorly crafted and may cause more harm than good.

According to HRW, lawmakers "are steadily increasing the duration of registration requirements: in 17 states, registration is now for life. Yet former sex offenders are less and less likely to reoffend the longer they live offense-free."

Also according to HRW, at least five states classify people who visit prostitutes as sex offenders; at least 32 require it for indecent exposure.

At the same time, reported HRW, these laws "offer scant protection for children from the serious risk of sexual abuse that they face from family members or acquaintances. Indeed, people children know and trust are responsible for over 90 percent of sex crimes against them."

The HRW report devoted a good portion of its 146 pages to the residency restrictions found in sex-offender legislation, calling them the "harshest as well as the most arbitrary."

"The laws can banish registrants from their already-established homes, keep them from living with their families and make entire towns off-limits to them, forcing them to live in isolated rural areas."

It also quoted Georgia House member Jerry Keen, who sponsored the state's law banning registered sex offenders from living within 1,000 feet of places where children gather. As Keen once said during a debate on the House floor: "My intent personally is to make [residency restrictions] so onerous on those that are convicted of [sex] offenses … they will want to move to another state."

This remark reveals an attitude that has likely driven the push for restrictive residency laws. For state officials, shipping registered sex offenders as far away as possible would be a dream solution to a profoundly complicated problem. But in practice, these laws have led to a spate of other dilemmas, often involving the family members of registered sex offenders.

The HRW reports: "Registrants and their families have been hounded from their homes, had rocks thrown through their home windows, and feces left on their front doorsteps. They have been assaulted, stabbed and had their homes burned by neighbors or strangers who discovered their status as a previously convicted sex offender.

"At least four registrants have been targeted and killed (two in 2006 and two in 2005) by strangers who found their names and addresses through online registries. Other registrants have been driven to suicide, including a teenager who was required to register after he had exposed himself to girls on their way to gym class.
"Violence directed at registrants has injured others. The children of sex offenders have been harassed by their peers at school, and wives and girlfriends of offenders have been ostracized from social networks and at their jobs."

'There Just Aren't a Lot of People Who Want to Stand up for the Rights of Sex Offenders'

This summer, the U.K.-based Economist magazine ran a cover story titled, "America's Unjust Sex Laws." It opened with the story of a 17-year-old girl named Wendy Whitaker, who, as a high school student in Georgia, was arrested for performing oral sex on a fellow student, "three weeks shy of his 16th birthday." Whitaker was charged with sodomy, pleaded guilty on the advice of her court-appointed lawyer, and sentenced to five years' probation.

Not being the most organized of people, she failed to meet all the conditions, such as checking in regularly with her probation officer. For a series of technical violations, she was incarcerated for more than a year, in the county jail, the state women's prison and a boot camp.
"I was in there with people who killed people. It's crazy," she says.

Whitaker is hardly the image people conjure up when confronted with the phrase "sex offender." But that's exactly what she is, according to the state of Georgia. Although she completed her parole in 2002, "her ordeal continues."

Georgia puts sex offenders on a public registry. Ms. Whitaker's name, photograph and address are easily accessible online, along with the information that she was convicted of "sodomy." The Web site does not explain what she actually did. But since it describes itself as a list of people who have "been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense," it makes it sound as if she did something terrible to a helpless child. She sees people whispering and parents pulling their children indoors when she walks by.

All this despite the fact that Georgia's sodomy laws have since been rolled back.

Cases like Whitaker's are more common that people realize. According to the report, two-thirds of the people registered on the state database "pose little risk."

"For example, Janet Allison was found guilty of being 'party to the crime of child molestation' because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms. Allison will spend the rest of her life publicly branded as a sex offender."

As Americans are inundated with the inevitable flood of media reports revealing even more sordid details about Phillip Garrido in the coming days, it will be important to try to remember some of these examples, of people who have been wrongly swept up by excessive sex-offender laws.

In the face of truly grotesque sex crimes, it can be hard to maintain perspective. But doing so is crucial in order to address those many cases where legislation is doing more harm than good.

This won't be easy. "Given the widespread belief in the myths about sex offenders' inherent and incurable dangerousness, it is perhaps not surprising that very few public officials have questioned the laws or their efficacy," says HRW.

As one ACLU lawyer out it, "We've gotten used to having few friends on this issue."

"With the exception of the criminal-defense bar, there just aren't a whole lot of people who want to stand up for the rights of sex offenders."

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties and World Special Coverage. http://twitter.com/LilianaSegura
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