Collateral Damage in America's War on Sex Crimes

How Sex Registries Undermine Sound Sentencing

A lot of ink has been spilled on the relatively little jail time that Brock Turner was given in the Stanford rape case. Some also has focused on the fact that Turner’s sentence could hardly be considered light given that he’ll spend the rest of his life on a sex registry. He’s likely in for a future in which it’s hard for him to get a job, find a place to live, or make friends.

But what’s been ignored so far is that Turner’s placement on the registry very likely reduced the amount of jail time he was sentenced to.

Recall that Judge Aaron Persky closely followed the recommendations of Turner’s probation officer in deciding the sentence. Here’s a key passage from that officer’s report:

Furthermore, pursuant to the General Objectives in sentencing, which include punishing the defendant, encouraging him to lead a law abiding life, and deterring him from future criminality, this officer weighed the fact that this 20 year old defender is now a lifetime sex registrant, his future prospects will likely be highly impacted as a result of his convictions, and he surrendered a hard earned swimming scholarship. Based on the aforementioned information, a moderate county jail sentence, formal probation, and sexual offender treatment is respectfully recommended.

So the officer recommends a lesser sentence in part because Turner is now a lifetime sex registrant. She acknowledges a truth that those in criminal justice know: a person whose name, address, and photo are placed on a sex registry is being punished. As a result, sex registries well may be leading judges to under-sentence some defendants in terms of jail time.

That’s not just speculation based on this case. Two studies in 2010 by Elizabeth Letourneau and Jill Levenson—one of adult defendants and the other of juvenile defendants–looked at the effectiveness of South Carolina’s sex registry in reducing sexual violence. For the adult study, they used a huge sample of 16,000 people charged with a sex crime. They found that the percentage of defendants who had their charges reduced from sex charges to non-sex charges doubled from 10 to 20 percent after the state’s registry went online.

Essentially, those charged with sex crimes were much more likely after the registry was implemented to plead their charges down to non-sex crimes. Why? A statement in a press release accompanying the study explains it best:

Letourneau speculates that two characteristics of South Carolina’s policy influenced these results. First, South Carolina’s policy is based solely on the conviction offense. Second, once triggered by a conviction, South Carolina registration and notification requirements endure for life, with no exceptions.

Thus, neither prosecutors nor judges are permitted any leeway once someone has been convicted of a sex crime; they cannot consider an individual’s actual risk of sexual reoffense or any mitigating or extenuating circumstances. With their hands tied, and with such severe lifelong consequences, prosecutors, judges and possibly jury members appear to have identified alternative ways for keeping some juveniles and adults off the registry.

Letourneau is unsparing in her conclusion:

This system is failing. No one, not victims, offenders, or the rest of us, is served well by laws so poorly designed that even prosecutors look for ways around them. It is easy to argue that sex offenders deserve what they get, including lifetime registration and public notification. But when such policies fail to reduce recidivism and at the same time cause the kinds of unintended effects that we have identified, it is time to look for new ways to prevent sexual violence.

Many of those reading this will object that in their own or a family member’s case, the defendant was overcharged, not undercharged—they got a sentence wildly disproportionate to the crime committed.

I have no doubt that’s true. But in 21st century America, money buys differential justice—those with public defenders get harsher sentences than those who can afford a private attorney. For example, see my post about Lila, whose son was represented by a public defender and is spending life on South Carolina’s registry for the crime of dating a 14-year-old when he was age 17.

Those in the South Carolina study who were able to plea down their sex crime charges almost certainly had the money to do so. The rest ended up on the state sex offender registry, where their punishment continues forever.

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