by Wayne A. Logan. Stanford: Stanford University Press, 2009. 312pp. Cloth. $70.00. ISBN: 9780804757102. Paper. $24.95. ISBN: 9780804761369.
Reviewed by Caryl Lynn Segal, (Retired) Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal [at] uta.edu.
Big brother is and has been watching everyone in Germany since 1867 when the Medlewesen required all to register and subsequently made the round-up of Jews easier for the Nazis. Dating back to the 1500s, ecclesiastics in Finland and Sweden coveted population data. By the 17th century, both England and Prussia recognized the importance of gathering the information. As the title suggests, information is power.
Are you a victim, the Romeo in a Romeo/Juliet relationship, someone convicted of public urination, or a sexual predator? It doesn’t matter! In some states you will be required to register, supply a current picture, and often assist in community notification. California recently required registration of victims to facilitate victims’ rights notification.
Wayne Logan analyzes the history and current impetus underlying the proliferation of registration lists. Although considered a 21st century innovation, in the early 1930s Los Angeles, reacting to the reported arrival of gangsters, enacted the first known registration statutes.
Public panics, supplemented by a claimed community knowledge entitlement, emerged following various media accounts of sexual crimes. The panics fostered legislation and required registration lists including more than 3.3 million names (p.150) according to 2006 data.
The laws themselves personalize victims whose case resulted in either/both state and federal law. Although there have been scores of individuals victimized by sex crimes since the 1980s, laws enacted in a type of preventive memorial have always featured Anglo-Saxon namesakes.
The Adam Walsh Child Protection and Safety Act in 2006 (PL 109-248, Stat (2006): 587 (codified at 42 U.S.C.§ 16901 et seq.) 4xd) established a national system for the registration of sex offenders and other child-victim offenders. The law is retroactive and encompasses juvenile registration provisions. Additionally, in-person registration updates require an accompanying new photograph. Violators are subject to federal criminal liability that specifies a $250,000 fine and a maximum of ten years in a federal prison.
Mandated registration includes providing social security numbers, employment, school location information, finger and palm prints, a DNA sample, and vehicle description, in addition to license plate number. The jurisdictional scope covers offenses [*855] arising in state, local, tribal, military, federal, District of Columbia, U.S. territories and Puerto Rico.
Utilizing Commerce Clause provisions, Congress mandated that states adopt the registry and accompanying notification requirements or risk losing 10% of their Byrne Grant criminal justice funding. Required jurisdictional Internet web sites expose all the registry information provided with the exception of social security numbers and victim’s names.
States complain about these unfunded mandates, but it is now commonplace for state legislatures also to require unfunded compliance with newly enacted statutes. Compiling and maintaining registries entails not only fiscal burdens but also considerable manpower. In the current economy with state and local revenue lessened, these mandates often present unintended consequences: reductions of police and correctional budgets.
Adam Walsh’s statute contains a three-tiered classification system, with Tier One offenders required to update registration annually for a minimum of 15 years. The Second Tier requires 25 years of registry requirements,with biannual in-person updating. Third Tier offenders face lifetime registration and quarterly updates. Personnel must be assigned to input the data and then update the registry.
The resulting Internet sexual registry web site provides passive community notification. Some individual community police do engage in proactive notification when new sexual offenders move into a neighborhood – some send postcards; some host community meetings when high-risk registrants move in; leaflets might be used or neighborhood residences visited to provide the risk information (pp.77-79).
Community members usually must visit the web site to learn about local offenders. But new technology allows searches by name or address. Logan avers that we have become a “Database Nation,” which is the title of a Simson Garfinkel (2000) book. It is technologically possible to send email alerts when new offenders move into a specific area, but costs make it less likely to be used in today’s economy. Registration is “fundamentally an honor system-based regime” (p.122). Logan posits that those who register intend to remain law abiding, but an untold number disregard the requirements.
Registration is not synonymous with law abiding; the Associated Press reported on October 31, 2009 (http://www.star-telegram.com/crime/story/1726970.html), that Ohio police had arrested, on new sex crime charges as well as pending homicide charges, a compliantly registered convicted sex offender. Six bodies, in various stages of decay, were found in his home. Realistically few police departments or other law enforcement agencies list tracking non-registrants as a priority.
Paraphrasing Paul Finkleman’s SOUTHERN CALIFORNIA LAW REVIEW article (1993), Logan posits: “Just as the ‘war on drugs’ has recast the Fourth Amendment by easing government constraints on searches and seizures, decisions on registration and notification have recast the important jurisprudential areas they implicate” (p.150). [*856]
The two most recent major Supreme Court cases directly addressing constitutional challenges to registration and notification were SMITH v. DOE and CONNECTICUT DEPARTMENT OF PUBLIC SAFETY v. SMITH, with both decisions announced on the same day in March 2003. SMITH involved a challenge to Alaska’s statute with a claimed violation of the Ex Post Facto Clause. CONNECTICUT DEPARTMENT OF PUBLIC SAFETY presented a liberty interest right as a matter of due process. The Court rejected the claims and concluded that the websites’ disclaimers made the issue moot; the disclaimer stated that officials have not concluded that any named individual is currently dangerous but was listed by virtue of a conviction and statutory requirement (p.82).
By holding that the statute’s registration and notification were regulatory, as opposed to punishment, offenders could not succeed with challenges based on ex post facto, bill of attainder, double jeopardy, or the 8thAmendment, and retroactivity was also held to be constitutional (p.71). [*857]
In two dissenting opinions, one by Justice Stevens, and a second by Ginsberg and Breyer, the onerous and intrusive obligations were found similar to those of parole and probation which are considered punishment. Furthermore dissenters stated that the aggressive public notification gave rise to profound humiliation and community-wide ostracism.
Notification also has ancillary hardship consequences for family members. According to Logan, there have been instances involving forced moves from homes, job loss, vandalism, harassment, physical violence, and suicide (p.138).
But the SMITH majority stated these were conjectures and did not bear on the question of punishment. To the members of the SMITH majority, negative consequences were collateral and stemmed from the dissemination of “accurate, non-private information” that was already available to the public (p.138). Remember that the CONNECTICUT DEPARTMENT OF PUBLIC SAFETY holding dismissed Due Process challenges because the Internet lists contained accuracy disclaimers. The lists themselves are replete with errors, some showing individuals who have died, and only rarely indicate the type of crime and predatory probability. Even when lists are updated, old information, erroneous or not, will still appear when Google, Bing, or other search engines are used.
Jeremy Bentham (1995) sought a mythical Panopticon with a central tower and “inspector’s lodge. Registration laws accomplish this to the extent that the offender comes to believe that he/she is constantly under watch by both the police and the community, even if the reality is quite different.
Although strangers commit less than 5% of sexual crimes, when the media reports a child victim, the rush to create a “them v. us” society resembles a stampede. Registries reflect our vengeful public attitudes and public disdain for registrants. “The nation now has an informational infrastructure of unprecedented scope, entailing data bits compelled on an ongoing basis from registrants themselves” (p.151).
Sexual abusers are usually family members or trusted friends who exacerbate the abuse by swearing the child to silence; these abuses are rarely reported, creating a false sense of community security. Registries are notoriously under inclusive. Logan reports that even when there is notification, the majority of community members do not take self-defense measures (pp.120-123).
Attention to research that tests efficacy of registration statutes has started to accelerate. The Adam Walsh Act includes a requirement that the Attorney General assess the “efficiency, effectiveness and resource consequences of conviction and risk-based classification systems; the National Institute of Justice was directed to study other aspects of notification and registration (p.167). Limited research previously done indicates few positive results, with none showing that registration lowered sex crime activity.
The Internet has become embedded into society, and registration laws show no signs of abatement. “What one can be confident of, however, is that registration and notification, in some form and to some extent, will endure. The need to know about others in an ever more anonymous society, and the felt sense of power that attends such knowledge, is such that the future cannot be otherwise” (p.183).
Logan’s outstanding book could easily be utilized as a supplemental text in political science policy courses. More research should reveal whether Logan’s statements are corroborated.
Bentham, Jeremy. 1995. THE PANOPTICON WRITINGS (Miran Bozovic, ed). New York: Verso.
Finkleman, Paul. 1993. “The Second Casualty of War: Civil Liberties and the War on Drugs.” Southern California Law Review 66: 1389.
Garfinkle, Simpson. 2000. DATABASE NATION: THE DEATH OF PRIVACY IN THE 21ST CENTURY. Cambridge, MA: O’Reilly.
CONNECTICUT DEPARTMENT OF PUBLIC SAFETY v. SMITH, 538 U.S. 1 (2003).
SMITH v. DOE, 538 U.S. 84 (2003).
© Copyright 2009 by the author, Caryl Lynn Segal.