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Cover Story: Next Comes Burning at the Stake

Is Ohio getting too tough on sex offenders?

By Margo Pierce · August 15th, 2007 · Cover Story
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  Burning At The Stake
Sean Hughes

Burning At The Stake

It's been 10 years since Ohio started registering sex offenders, notifying neighbors when they move nearby and putting their pictures on sheriffs' Web sites.

Has the program improved public safety? No one knows. The state has never studied the results of this relatively new and controversial approach to crime prevention.

But that hasn't stopped the Ohio General Assembly from passing a much tougher version of the law, requiring even more people to register as sex offenders -- and for longer periods.

The new law, which took effect July 1, won unanimous approval in the Ohio Senate. But there are serious questions about whether legislators even knew what the law would require. Passed under pressure from the federal government, the law creates a classification system so severe that some juveniles convicted of sexual misconduct could be branded as sex offenders for the rest of their lives.

But far from enhancing public safety, some policy analysts say, the new law could backfire -- making it harder for former offenders to stay out of trouble and making it more difficult for victims of sexual abuse to get help.

How did the law make it so easily through the legislature? The first answer is politics.

"The climate right now is so punitive around what to do with people who commit sex offenses," says David Singleton, executive director of the Ohio Justice and Policy Center (www.ohiojpc.org). "Elected officials don't care that these new changes are going to impose incredible hardships on certain individuals. They don't care, frankly, that maybe these registries don't do any good any way ... because no one wants to come out and look like they're the friend of a sex offender.

"You've got plenty of people in the legislature in the state of Ohio who hold their noses and vote to approve these very punitive restrictions that we're seeing on sex offenders. They know that it's bad policy, but they do it any way because they can't take the political risk."

State Sen. Eric Kearney (D-Cincinnati), whose name appeared on S.B. 10 as a sponsor, didn't respond to repeated phone calls and e-mails requesting an interview.

There was a second reason legislators were motivated to pass the new law: Federal money was involved.

The law brings Ohio into compliance with the federal Adam Walsh Child Protection and Safety Act. While the federal government can't force states to enact laws, it can create financial "incentives" for states to adopt them. In this case the incentive was a 10 percent bonus in grants created by the Walsh Act if Ohio enacted the law by July 27. States that don't pass the law by 2009 will face a 10 percent cut in other federal grants.

Ironically, the Ohio Legislature rushed for nothing. Congress hasn't acted to fund the bonuses in the first place, according to Amy Borror, spokeswoman for the Office of the Ohio Public Defender.

"There absolutely was a sense of urgency that the legislature wanted to pass it before they adjourned for the summer to meet this July 27 deadline ... to get 10 percent of nothing," she says. "Congress hasn't actually appropriated any money for that so, as of right now, it's 10 percent of zero. Even if there were money, even if it were $1 million or $2 million, that pales in comparison to the cost of implementing this."

Perils of simplicity
The registration system Ohio adopted in 1997 was risk-based -- that is, the law required judges to hear evidence about whether a sex offender was a threat to repeat his or her crime (see "Postcards from the Edge," issue of Jan. 12, 2005).

Judges heard testimony from psychologists, law enforcement officials and others involved in the evaluation process. Judges put offenders into one of seven categories. Some had registration requirements ranging from 10 years to life, and others had no registration responsibilities.

The new law scraps the risk-based classification system. Now judges are required to place sex offenders into one of the three tiers defined in the federal law. The new classifications are solely based on the type of crime instead of on the risk of re-offending.

Having three classifications instead of seven simplifies registration -- but maybe too much so. It certainly won't help people understand the complexity of the crime. The system isn't even truthful, applying the tag "sex offender/child-victim offender" to people in all three tiers -- even if the victim wasn't a child at all.

The lowest classification is "Tier I sex offender/child-victim offender," requiring 15 years on the registry. Tier I can apply to anyone convicted of a host of crimes ranging from voyeurism to unlawful sexual penetration with a victim under the age of 4.

"Tier II sex offender/child-victim offender" has a 25-year registration requirement and applies to compelling prostitution, kidnapping a victim 18 years or older with the intent to engage in sexual conduct and other crimes.

"Tier III sex offender/child-victim offender" requires lifetime registration; some of the crimes under this classification include rape and involuntary manslaughter when attempting to commit a felony with sexual motivation.

Setting the classifications exclusively according to the nature of the offense -- rather than considering the offender's likelihood of repeating the crime -- is a mistake, according to Ed Connor, a juvenile psychologist in Erlanger.

"I want to make this point very clear: I am all for protecting children -- risk assessments protect children," he says. "Risk assessments protect the community. Good treatment protects children."

Many people who learn a neighbor is a convicted sex offender assume he or she molested a child. The language of the new three-tier system will reinforce that myth. But kids aren't always involved.

Tammy Welton of southwest Ohio is an example. She is a convicted sex offender, but both of the people involved in her crime were adults.

"I had sex with an inmate while I worked at a state prison, so I was charged with five counts of sexual battery," she says.

After pleading guilty to two counts, Welton was labeled a "sexually oriented offender." She was sentenced to six months in prison and three years of probation, including court-mandated group therapy. The judge ordered her to register with police once a year for 10 years.

Welton has been on the registry for six years. But as of Jan. 1, 2008, under the new law, she'll become a lifer: a Tier III sex offender/child-victim required to register for the rest of her life.

"Yes, I did a crime," she says. "I don't deny it, but I am definitely not a threat to the general public."

As a convicted felon, Welton is barred from working for -- or even visiting -- a state prison.

"In true definition of 're-offending,' I can't," she says. "I cannot commit my crime again."

Welton's therapist's evaluation states she's unlikely to offend again. Her victim was an adult male with whom she had consensual sex.

But the new classification system includes sexual battery among the convictions that automatically incur lifetime registration. The result is a bizarre legal twist.

"Now, with the new law, I am considered worse than someone who may kidnap your children for use in prostitution," Welton says.

The great simplification of the sex offender registry could actually let more serious sex offenders off more easily, according to Singleton.

"If there's a dangerous sex offender who the government can show is a dangerous sex offender who commits a gross sexual imposition -- which is not a Tier III offense -- wouldn't you, as a citizen, want to see the court sort of wrestle with the question of whether this person is dangerous or not and put them in the tier according to that, rather than just relying on the label of the crime they were convicted of? It's a cookie-cutter approach that doesn't tell you who's dangerous."

Welton says being classified as a sex offender will follow her the rest of her life.

She believes her registration should end after 10 years, as ordered in her sentence. But S.B. 10 is retroactive, applying even to people whose sentences long ago expired.

"It is fundamentally unfair to change the rules this way," Singleton says. "They've done their time. They've been punished."

Singleton represents Welton in a lawsuit challenging S.B. 10. The suit says the law violates the Ohio Constitution's prohibition on retroactive laws.

Kids do it, too
Perhaps the most pernicious aspect of the new law is that an entire population of children are now subject to the same classification system as adults.

S.B. 10 dismantled the recently established Juvenile Sex Offender Registry and Notification System. Any kid 14 years or older found guilty of a sex offense will now be classified in Tier I, Tier II or Tier III. In other words, a 14-year-old who inappropriately touches a younger child could end up having to register as a sex offender for the rest of his or her life.

That's the opposite of progress, according to Bryan Brown, assistant executive director of the Ohio Associations of Child Caring Agencies (OACCA).

"Ohio, surprising though it may be, has the best juvenile justice system in the country, and one of our repeated messages to the legislators was, 'Let's not disrupt what we've taken so long to build,' " Brown says. "It's far from perfect, but it has been a fairly successful system."

The new law takes most discretion away from juvenile-court judges by requiring registration for juvenile offenders.

"Juvenile judicial discretion has been a fundamental component of the juvenile justice system in Ohio," Brown says. "These juvenile judges really do take community safety into account. They are members of their community, but at the same time they're able to adjudicate the unique factors of every single case in a way that appropriately can meet the needs of the juvenile offender, the victim, the family and the need for community safety."

Kids are immature; that's one of the reasons they're treated differently. Katherine Hunt Federle -- director of the Justice for Children project at Ohio State University and a teacher in the law school says it's her job to make sure her students understand the difference between children and adults and the application of the law related to each.

"Kids' brains are different, and we can't hold them to adult standards because their brains are simply not developed yet," Federle says. "There's a joke in the neurological community that the car rental companies figured this out along time ago: You can't rent a car under the age of 25.

"Think about someone standing and fighting when they didn't run away. Why didn't they run? Why do 18-year-olds make such good soldiers but 35-year-olds don't? If you think about all of this, it's largely because the human brain is developing in stages. All sorts of people develop at different rates. When we start talking about things like sexual offenders, we have such a visceral, negative reaction to it that it's very, very hard to have a rational discussion about what it actually means to be a sexual offender."

Federle explains in detail the roles of the prefrontal cortex -- which helps adults predict the consequences of their actions -- and the amygdala, the part of the brain associated with gut responses. Adults use the cortex; juveniles can't because theirs isn't fully developed yet. They're stuck with the impulsive amygdala.

"What I'm about to say seems so obvious, but it has been sort of an epiphany in the neurological literature: The human brain is about 90 percent of the size it's going to be by the time you're 6," Federle says. "We thought the brain had stopped at that point. What's happening is the brain itself is continuing to develop as the human body develops over time.

"That's an interesting phenomenon largely because ... the brain develops from the back to the front. The back of the brain is the more primitive part of the brain, and the front of the brain is the more developed part, the more sophisticated part. So the last part of the brain to come on line is that prefrontal cortex, which is literally in the front."

That finally happens between ages 18 and 25, Federle says.

While some legislators were interested in learning more about the brain research cited during testimony by Federle and others, the final bill ignored their findings and included juveniles in the three-tier system with adult sex offenders.

Some experts predict the law will discourage family members from coming forward to report abuse and get help for the offender as well as the victim. Frequently, in the case of juveniles, the offender is a victim of sexual abuse acting out what he or she experienced.

"There's a big difference between a male juvenile who's 14 years old, unbeknownst to the family, who has been the victim of sexual abuse, and he acts out sexually with a sibling who is, say, 9 years old," Brown says. "That is behavior we would argue is the result of that 14-year-old's own abuse. That child is acting out what happened to him.

"Contrast that with a 16-year-old who breaks into a home and, at knife-point, sexually assaults a 42-year-old woman who the youth doesn't know or have a connection with. Two very different scenarios.

"When you articulate that difference, most reasonable people can understand that the community at large doesn't have a lot to fear from the 14-year-old. Most people would be sympathetic and want the family to get help. To me, that is the difference most people appreciate."

Focusing on the more predatory behavior ignores the reality that the majority of sex crimes committed by juveniles have one thing in common with those of adults -- the victim is almost always someone they know, frequently a relative, Brown says.

"Our concern was that we don't pass something in law that has the unintended consequence of driving these people out of the treatment that they so desperately need -- and then you create a lot of adult sex offenders your legislation is intended to address," he says. "We're cutting off our nose to spite our face."

The state's sex offender registry lists the license plate numbers of the vehicles that offenders drive or regularly ride in. When a victim and an offender are in the same family, both will be in a car publicly identified as carrying a sex offender. As several families testified in Columbus, no parent would want that experience for their children, let alone the rest of their family.

"Laws that prevent families from coming forward do not serve the offender, the victim, the family or society well," Brown says. "In fact, through treatment, you often discover new victims of juvenile sex offenders -- and that just proves the treatment is working.

"Our legislative leaders are under a lot of pressure to react and do something. The tricky part is, once you've passed a law on sex offenders and it over-reaches in a way that's not helpful or has unintended consequences, it's so much harder to come back and relax a standard than it is to be judicious in your approach, go for incremental change and see how it works and increment up."

The OACCA (www.oacca.org) fought hard to get juveniles removed from S.B. 10. The best they and other advocates could do was reduce the number of juveniles mandated for the adult registry and keep the Tier III juvenile registrants limited to the "worst of the worst."

Driven underground
Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

There is no empirical evidence that proves sex offender registries do what they're supposed to do -- keep children safe. The U.S. Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says.

But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers.

"There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future -- desistance from crime -- are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

"Ultimately I don't think that's in the best interest of public safety. Let's face it: It's naive to think that we can prevent crime by banishing these people from our communities. Sex offenders have always lived amongst us. All kinds of criminals live amongst us, and it's only in the past 10 years ... that we've become more aware of them, and that has led to more residence restrictions."

Rules prohibiting former offenders from living within 1,000 feet of a school -- as Ohio law does -- are being expanded in many states. Bus stops, parks, day care centers and other facilities where children gather are just a few of the latest places former sex offenders are banned.

In Kentucky, communities are trying to get empty lots declared parks in order to take advantage of that state's new law and make it impossible for former offenders to move in, according to Connor, the Erlanger psychologist.

For a juvenile offender, these housing restrictions are just the beginning of a lifetime of punishment (see "Green Means Run Like Hell," issue of Aug. 1). The stigma and denied opportunities related to a sex offense will negatively impact juvenile offenders, Levenson says. The immediate housing reality they will face is just a prelude of what they can expect.

"Maybe one of the biggest consequences is the crisis with housing," she says. "In most states, residence restrictions are tied to sex offender registration status. So what's going to happen when we have this whole population of teenage sex offenders on public registries who are not going to be able to live within 2,500 feet of schools, parks and playgrounds? They're not going to be able to live with their parents, who live in residential neighborhoods. Where are they going to go?

"They're not going to be able to be in a foster home. They're not going to be able to be in shelters. They're not going to be able to be in rehab centers or treatment facilities."

The Ohio registry of sex offenders provides pictures, names and addresses. The new law requires more information to be provided and publicly posted: the names and addresses of offenders' jobs and/or the schools they attend.

"What we do when we put people on the registry -- you're not just putting that one person on, you're putting their family on the registry, and I think that can cause tremendous hardship on the entire family," Connor says. "What we're seeing is families are being hurt by this. Johnny goes to school and Billy says, 'My daddy said your daddy's a pervert because he saw him in the Internet.' That doesn't need to be a public issue."

Connor believes the registry should be a confidential tool used exclusively by law enforcement.

"When you shame people, you don't help them rebuild their self esteem and their confidence and become a productive citizen," he says. "These people are ashamed enough about what they did -- not all of them, but the majority I have worked with have a sufficient degree of shame and humiliation and remorse for what they did. And to add to it by putting them on a public registry, in my opinion, would be counterproductive to the treatment."

Levenson agrees. She believes punitive laws such as the Adam Walsh Act and S.B. 10 blur the line between the political and social desire for punishment and effectively managing former offenders.

"With registration, notification and subsequently residence restriction, in some places like Miami you've probably seen sex offenders living under bridges," Levenson says. "We've essentially created a whole class of homeless sex offenders. As a society, I think we have to question how we've gotten to a point where we feel like it's OK to force people to be homeless and then think that's going to be beneficial to public safety."

How laws get made
Amy Borror of the Ohio Public Defender's Office testified before the Ohio House of Representatives about the flaws in S.B. 10. The House of Representatives had "the most thorough hearing of the bill" with several days of testimony, she says. But the audience was often missing.

"A vast majority of the members of the committee weren't there, so we would have several hours of testimony of people talking about treatment and people talking about their own family members who would be impacted by this, and -- I think it's 23 members on the committee -- there would be maybe six (present)," Borror says.

She and others had wanted to testify before the Senate, but that was impossible: There wasn't a draft of the bill available during the hearing phase of the legislative process.

Furthermore, Borror wouldn't have been able to tell senators if the bill would meet the threshold for "substantial compliance" with the federal law because nobody knew yet what the criteria would be. The U.S. Attorney General's office issued proposed guidelines for state compliance the day after the Ohio Senate had already passed S.B. 10.

But careful forethought isn't the only thing missing from the new law. There's no money in it for treatment -- the one response to sex offenders that's proven to work.

"We tend to take simply a punitive approach often time with those who offend when we know that sexual offenders can be treated," Connor says. "It's a myth that they can't. We thought, 'Once an offender, always an offender, just like an alcoholic.' But we know now that offenders can be treated. You've got to identify the ones who are amenable to treatment and ones who are very, very high-risk folks."

Also missing from the law is a mandate to educate the public -- practical information to help people avoid and survive any kind of attack or information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator."

Ignorance can make the problem worse, and so can an ill-considered law.

"It reinforces that myth of stranger danger," Levenson says. "These laws are passed in response after abductions and murders. They're terrible; all those cases are really frightening and troubling to all of us. It really shakes our sense of safety and security. But sex offender registration is likely to do very little to prevent those kinds of things because most children are sexually abused by people they know."

With up to 95 percent of all sex crimes committed by a person known to the victim, what does a sex offender registry actually accomplish? Nobody knows. Singleton says the one thing it does for sure is make it harder for people to rejoin society.

"It drives people underground and destabilizes them," he says. "It stands in the way of a lot of offenders who aren't dangerous ever returning to their lives and getting back on their feet and being productive in our community -- which is what we should all want.

"This is bad policy, and this is unfair. It's counterproductive. No one wants to hear that in this community. They want to know that they're safe. This isn't going to make them safe. It can actually be counterproductive -- it makes them more unsafe ... because it gives them a false sense of security." ©



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