Connecticut for One Standard of Justice, Inc. Testimony on Raised House Bill 5578

 

AN ACT CONCERNING THE RECOMMENDATIONS OF THE CONNECTICUT SENTENCING COMMISSION WITH RESPECT TO THE SEXUAL OFFENDER REGISTRY

March 26, 2018

 

When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?” – Eleanor Roosevelt

 

Connecticut for One Standard of Justice, Inc. (CTOSJ) is a volunteer-based civil rights organization committed to ensuring that persons accused or convicted of sex offenses in Connecticut are treated constitutionally and fairly by the state before, during, and after their sentences through the use of evidence-based policies.

RHB 5578 is before the Judiciary Committee as a result of the recommendations of the Connecticut Sentencing Commission (CSC) and the work of the subcommittee established by CSC, the Special Committee on Sex Offenders (SCSO). We have submitted along with our testimony today on RHB 5578, our testimony to the SCSO and CSC concerning the recommendations to modify the registry as well as on the full report to the Sentencing Commission.

CTOSJ does not support a sex offender registry (SOR). As our attached previous testimonies state, registries have been found to be of little to no use at making communities safer or reducing sex offending in our communities.

Before getting into the substance of our comments, we feel a need to share how familiar this conversation about the registry specifically, and sex offender policies generally, is to the conversation that took place in the 90’s over mass incarceration policies. What we have learned is how new research led to policies that have reduced incarceration levels while simultaneously reducing crime. But it was a decades long fight where reformers, with strong academic research, had to fight the forces of the status quo, along with their self-perpetuating research, before real change started happening.

If we are willing to learn from history, we can take a lot less time to change the failed policies of the registry and other expensive offender management schemes now, with the resulting benefits of saving scarce public dollars while restoring families and healing communities. Ultimately, then as now, political leadership was needed to help educate the public and their peers that change was, in fact, good.

Thankfully, in deciding what kind of reforms to make to its own sex offender registry (SOR), Connecticut can turn to its own research to obliterate the media driven myth that all sex offenders will continue to re-offend. Connecticut’s Office of Policy and Management (OPM) has twice studied offender new sex crime arrest rates among released inmates over five year periods, giving us a 10-year long data base. What do they show? Two things: low rates of new sex offenses for released offenders and low sex crime arrest counts versus all released inmates.

In 2012, OPM released a study that showed only 3.6 percent of the sex offenders released from prison were arrested for a new sex crime within five years of release. While that figure alone should be enough to undermine the common perception about how all offenders are going to keep committing sex crimes, a second number from the study directly challenges the political underpinnings of who the registry should target.

 

The OPM study showed that while the released non-sex offender prisoners sexually offended at a rate about half that of released convicted sex offenders (1.9% to 3.6%), the non-offenders were arrested for sex offenses by volume at a rate almost ten times greater than the former sex-offenders within the first five years (259 to 27). Those numbers are not significantly different from the DOJ meta study that found non-sex offender prisoners were arrested for 750% more sex crimes than the original sex offender group. In fact non-sex offenders were responsible for 87% of all sex offenses committed by former prisoners within three years of release. (Langan, Schmitt & Durose, Bureau of Justice Statistics, p. 2-3).

 

Last summer OPM released a new five-year recidivism study. It showed a slightly higher, but comparable, recidivism rate for new offenses by released offenders at 4.1 percent. Interestingly, OPM chose to break out the rate for violent sexual offenses (not including commercial sex crimes or morals charges) and found the rate to be only 2.2 percent. And while not as dramatic as the 2012 study, total new arrests for sex offenses by released non-offenders were committed at a rate, by volume, almost seven times as frequently, 188-28. That is a grand total of 55 new offender arrests for a sex crime over a 10-year period, or 5.5 per year, versus 488 for non-offenders.

So we know that sex offenders have low recidivism rates for committing new sex crimes and that they are, among released prisoners, far less likely, by volume, to offend.

It should be noted that CTOSJ always uses arrest rates, not the appreciably lower conviction rates. As the recent rape trial in New Haven showed, memories and circumstances can color perceptions about events. CTOSJ believes, however, that in a criminal justice and societal system that already mitigates against reporting, the accuser’s voice should be respected.

So who are future offenders? The state of New York did a study to look at the impact of their registry at lowering levels of offending. In a 20-year study in New York of over 160,000 people, 10 years beforeand 10 years after creation of the registry in their state, they found that 95.9% of all arrests for any sex related offenses were committed by first time offenders and 94.1% of all arrests for crimes against children were likewise by first-time offenders. The same study found that over-all “only about 4% of all arrests for sexual offenses involved individuals with a prior sexual offense conviction.”

These recidivism numbers and identification that roughly 95 percent of new sex crime arrests will be first time offenders are in line with other studies that we will make available to committee members at their request.

This begs another important question. Do sex offender registration laws either act as a deterrent from, or an impact on, the number of sexual assaults committed? Again the researchers in New York concluded a resounding “NO.” The imposition of a SOR in New York “had no significant impact on rates of total sexual offending, rape, or child molestation.” It also had no significant impact on first time offending or repeat offending. Further, based on analysis of studies conducted in ten other states the same researchers concluded that “community notification plans” including sex offender registries are of “limited” value (Sandler, Freeman & Socia, K., Psychology, Public Policy and Law, pp. 297, 287).

As the research demonstrates, SOR programs like Connecticut’s do not protect the public and do not serve as a meaningful deterrent. Not only is the efficacy of such programs unsupported by empirical evidence but a growing body of research shows that the they are actually counter-productive. They reduce employment opportunities, harm the families of offenders and create a fearful community environment that is conducive to vigilantism, vandalism and harassment. All of these factors contribute to recidivism rather than reduce it. (Tewksbury & Levenson, National Association of Criminal Defense Lawyers, 2010).

Simple logic and all available evidence indicate that an employed individual with a stable living situation is less likely to suffer from the kinds of mental illnesses and irrational thinking that contribute to offending behavior. Clearly individuals who can work, provide for their families and engage in healthy social activities are less likely to offend than those who are fearful, unemployed and isolated (Tewksbury & Levenson, 2010). These results have been duplicated by other researchers. See our SCSO testimony, p. 3.

These conclusions were also reenforced by the questionnaire done by the SCSO. (it should be noted that the results of this study were not included in the study when voted on by the SCSO.) A summary of a survey of people on the registry is included as Appendix D of the CSC’s report.

Among the important results of the survey are the following: 1. 47% replied affirmatively to the question “Have you ever been harassed because you’re on the registry? Has a family member?” ; 2. “Have you ever been denied employment, or fired, because of being on the registry?” 54% replied yes to one, two or many times; 3. 29% responded “yes” to “Have you ever been denied housing or been evicted from housing, because of being on the registry?”.

A typical anecdotal story of harassment was of a man on the SOR who took his dog out for a walk in a town in the greater Hartford area. What he found were placards stapled to phone poles telling residents of the area where he, a registered offender, lived. The irony is the placards were outside the condo association where he lived and where he had been elected by his co-owners as president of the association!

It isn’t just offenders and their families who suffer from being on the SOR. A study titled “Estimates of the Impact of Crime Risk on Property Values from Megan’s Laws” by Leigh Linden and Jonah E. Rockoff* showed a 4% decline within .1 mile of a registrant. Other studies have shown up to a double digit loss of value. In other words, it isn’t just the registrant and their family that feel the collateral damages of the SOR.

Given all these facts, it is hard to reach any other conclusion but that this expensive regime of registry related schemes, along with other expensive offender management schemes, are for the sole purpose of public shaming, banishment, punishment and retribution, not public safety.

Before making specific recommendations to this flawed proposal, it is important to understand that not all individuals belong on the registry to begin with. Every expert has recognized the reality that all offenders are different. According to Robin Wilson and other national experts of renown, the more interventions to low risk individuals (prison, probation, treatment, registration) the more harm that is being done to them. At one of the SCSO’s first presentations, Dr. Randall Wallace, formerly of The Connection Inc. also made this point. The entire system is creating unhealthy adult males.

For example, teenagers and young adults who have been in an age inappropriate relationships are blocked by parole and probation from seeing the children in their families other than their biological children. We are doing untold damage treating them in this harmful way.

While CTOSJ does not support the existence of the registry, we provided in our testimony to the SCSO, which you have, a number of recommendations that we believe can provide for a fairer registry. Summarizing those recommendations, we believe:

The new risk based system should be fully retroactive. All registrants, no matter whether they were required to register before or after the creation of the registry, should be able to immediately petition the proposed Sexual Offender Registry Board (SORB) for removal from the public SOR.

Among the states that have implemented or are in the process of implementing a new registration scheme, none have failed to reclassify all registrants and given all of themomitted a (any) (sub) group of people on the registry as CSC’s recommendations have. All were reclassified and given the same opportunity for relief- as everyone else.

-The new removal mechanism should be fully retroactive. Registrants who have been required to register since the creation of the SOR should be able to petition either the court (following the proposed procedure) or the SORB for removal from the registry.

Among the states that have implemented or are in the process of implementing a new registration scheme, all have given the same opportunity to all registrants the same ability for removal.

-All terms on the LEO registry should now be shorter than 20 years. As evidenced at the August 22 meeting of the Subcommittee on Sex Offender Sentencing, there is no evidence-based justification for such a long term on a police-only registry. Current 10 years terms, retroactively and prospectively, should be limited to ten years.

-The membership of the SORB should only contain clinically trained individuals. The board should consist only of clinicians who meet the criteria for clinical membership in the Connecticut Association for the Treatment of Sexual Offenders (CATSO) or the Association for the Treatment of Sexual Abusers (ATSA) and who have at least five years of experience in the assessment of sexual offenders. To best serve the stated goal of unbiased risk assessment, no member should be in the employ of any entity contracting with any branch of Connecticut state government to provide treatment or therapy to sex offenders on the SOR or as advocates. It has been proposed that prosecutors, parole and/or probation officers, and victims and victims advocates should either be a member of the SORB or be allowed to present to the board. A SORB is not a second chance to prosecute. It is a review of actuarial risk.

-The burden of proof at removal hearings should be on the state, not the defendant. 

-The victim and/or victim advocate, probation and parole should not be involved in risk assessment. The assessment is a clinical judgment of future risk, for which past crimes have decreased importance compared to a sentencing judgment. While past crimes are still relevant, the SORB should have sufficient information about these crimes if it is given access to the offender’s entire criminal record and the related documentation.

 

If you choose to continue forward with an amended SOR, we would also make the following additional recommendations based on what other states have done:

-All registrants should be given a new risk assessment and, if warranted, reclassification if this legislation passes. Illinois, which just finished a process similar to Connecticut, proposed that change.

 

Before moving on to recent relevant court rulings, we want to make one other important recommendation relating to sex offender policies. It is worth mentioning because of the proposed membership of the SORB. Under current practices, probation staff and victim advocates are allowed into group therapy sessions. In fact many therapy sessions are co-located with probation to facilitate that convenience.

 

We recommend that no probation staff or advocates be allowed into those sessions. Putting aside that allowing non-therapeutic staff to be present violates every professional ethic of therapy, we accept that group therapy has the potential to provide positive outcomes for offenders. The important point, though, is if it is actually the purpose to provide meaningful behavioral therapy, then allowing probation and advocates to attend sessions destroys the opportunity to get honest, productive participation from offenders. Plus, therapists are already mandatory reporters in the case where a participant reveals further offending.

 

We understand that the CSC is comfortable with the legality of the proposed changes to the registry. We are not attorneys, but just a simple reading of a number of cases raises enough concerns that we feel should be brought to your attention. We especially believe that certain underpinnings of previous rulings are undergoing new challenges, and reversals, as time has passed.

 

Let’s start with CONNECTICUT DEPARTMENT OF PUBLIC SAFETY, et al., PETITIONERS v. JOHN DOE, individually and on behalf of all others similarly situated. This was a case the Supreme Court of the United States of America (SCOTUS) took up on writ of certiorari in 2003 from a decision by the 2nd Circuit of the United States Court of Appeals. Chief Justice Rehnquist, writing for a unanimous court wrote, “We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined the public disclosure of Connecticut’s sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a “liberty interest,” and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be “currently dangerous.”

 

SCOTUS overturned the 2nd Circuit ruling, saying, “In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders–currently dangerous or not–must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise.”

 

Most interesting, and more relevant given the proposal for changes to the registry before you, was Justice Souter’s (with Justice Ginsburg) concurring opinion. He wrote that since the legislature has allowed certain exemptions to being placed on the registry and that those decisions are made by the courts, then, “The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislative decision to make courts responsible for granting exemptions belies the State’s argument that courts are unequipped to separate offenders who warrant special publication from those who do not.”

 

Souter goes on writing, “The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. See, e. g., 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law §17.6 (3d ed. 1999); L. Tribe, American Constitutional Law §16-34 (2d ed. 1988). The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Today’s case is no occasion to speak either to the possible merits of such a challenge or the standard of scrutiny that might be in order when considering it. I merely note that the Court’s rejection of respondents’ procedural due process claim does not immunize publication schemes like Connecticut’s from an equal protection challenge.” (emphasis added)

 

Our intent isn’t to argue the merits of the narrowly drawn Supreme Court decision in CONNECTICUT DEPARTMENT OF PUBLIC SAFETY et al. v. DOE, individually and on behalf of all others similarly situated, (2003). It is, however, to say that courts are crafting judgements that look beyond the simple issue of whether someone on the registry is dangerous or not.

In fact, the legal landscape around registry law is seemingly changing monthly. There are new court decisions overthrowing, in part or in whole, registries on state and/or federal grounds that we believe should be of interest to you in your deliberations. We want to bring to your attention two specific cases, Pennsylvania v. Muniz and, in Colorado, Millard, Knight and Vega v. Rankin. We appreciate that each of these cases represent specific circumstances that may or may not be relevant to any legal challenge in Connecticut. Again, we are not attorneys. Despite that, we believe the judges’ decisions have enough potential applicability to Connecticut to give you pause about both how the registry is presently operated and the proposed changes before you.

 

In Pennsylvania v. Muniz, the Pennsylvania Supreme Court overturned a lower court and declared: 1. SORNA’s registration provisions constituted punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2. retroactive application of SORNA’s registration provisions violated the federal ex post facto clause; and 3. retroactive application of SORNA’s registration provisions also violated the ex post facto clause of the Pennsylvania Constitution.

 

In their decision, the Pennsylvania Supreme Court went through an exhaustive examination of state and federal precedents, especially looking at whether the registry met the test of being punishment and retributive.

 

After their balancing, they wrote, “We conclude SORNA to be punitive in effect despite the expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose. Accordingly we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution.”

 

They then went on to explain how it is generally held that if the facts of a case are found in violation of the federal constitution, they are said to be therefore in violation of the state constitution. However because they are a state court, and they didn’t want their decision to be appealed to federal court solely based on a decision concerning their interpretation of the federal constitution, they went and examined whether the same ex post facto failures held true when balanced against the state constitution. They found they did. “We further find persuasive in our comparison of the history of the two ex post facto clauses the fact that the Pennsylvania Constitution includes reputation as a fundamental right.”

 

The Colorado case went before Senior District Judge Richard P. Matsch of the Federal District Court in Colorado. In this civil case plaintiffs were looking for declarative and injunctive relief, claiming the SORA violated their rights under the Eighth Amendment of the United States Constitution for cruel and unusual punishment and the Fourteenth Amendment for violation of Due Process.

 

What was especially interesting about this case, and why we bring it to your attention, is how, among many issues, Matsch spent time looking at the ever-present availability of publicly and privately run registries and social media and whether they constitute public shaming and banishment and therefore are to be considered cruel and unusual punishment under the Eighth Amendment. He found they did.

 

Matsch went through a lengthy examination of the seven factors used in determining whether SORA should be considered punitive. He found they were in six of the seven measures. He wrote, “These punitive effects are sufficient to overcome the  stated regulatory, nonpunitive intent of the Act.”

“In looking at Cruel and Unusual,” Matsch wrote, “Most cruel and unusual punishment cases…consider whether punishment is disproportionate to the crime.”

 

His conclusion read, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten Plaintiffs with punishment disproportionate to the offenses they committed. Where the nature of such punishment is by its nature uncertain and unpredictable, the state cannot assure that it will ever be proportionate to the offense. SORA as applied to these Plaintiffs therefore violates the Eighth Amendment.”

 

In examining whether the registry met conditions to show it was in violation of the Fourteenth Amendment, Matsch concluded, “But what the plaintiffs have shown is that the public has been given, commonly exercises, and has exercised against these plaintiffs the power to inflict punishments beyond those imposed through the courts, and to do so arbitrarily and with no notice, no procedural protections and no limitations or parameters on their actions other than the potential for prosecution if their actions would be a crime.”

 

Since this was a civil case and the plaintiffs were not seeking monetary damages, Matsch ordered reasonable attorney fees be awarded.

 

Again, while recognizing these cases had their own specific legal nuances, the findings in both cases certainly ring true to Connecticut. The words that keep coming up in these court decisions and others are public shaming, banishment, punishment, retribution, arbitrariness; sentiments heard over and over, either directly or implied, during the SCSO’s deliberations. More important is the judicial evolution from finding registries valid as a form of civil regulation to invalid as one of punishment. The lack of total retroactivity and extension of time on the registry from ten to 20 years only feeds the punishment argument.

 

Even the SCSO in its report shows the changing trend in rulings in registry related cases is toward invalidating parts or all of a legislative scheme concerning the registry and restrictive offender related laws when on p. 80-81, all of the rulings cited from 2016 to the present were against current law. The SCSO ends this section by stating, “According to a December 2016 report produced by SMART, seven state supreme courts have ruled that the retroactive application of SORNA violates their respective state constitutions.”

 

CTOSJ believes the best course forward is to think about the SOR, and all sex offender management schemes in place, with the research of Rachel Kate Bandy and Alissa Ackerman in mind. We quoted extensively from both researchers in our testimony to the CSC. We will limit our quotes here, but hope you will read our CSC testimony or the source documents themselves.

 

In order to find out what victims and advocates actually need and want, Rachel Kate Bandy, an academic researcher on sex offender policy, conducted in depth interviews with 18 sex assault victims (two males) and five regionally dispersed sexual assault coalitions (CASA). Her findings are included in Professor Richard D. Wright’s book “Sex Offender Laws – Failed Policies, New Directions” (Springer Publishing, 2008).

 

Bandy wrote, “By drawing public attention and scrutiny towards the most egregious offenders and offenses, sex offender laws detract attention and scrutiny from the most common type of offenders and victims. It is this distraction that potentially decreases public safety and increases victimization risk. The Northeast CASA offered, “If these sex offender laws have done anything, they have confused the public by emphasizing the least common offender””

 

Bandy added, “Fittingly, several respondents (victims, for clarification) in this study advised against policies in which a zero-sum relationship is falsely created between victims and offenders.”

 

CTOSJ completely agrees and deeply resents those who try and perpetuate that false equation.

 

New ways forward are necessary. The expenses and collateral damage from the SOR and other offender management schemes are injurious to offenders and victims, as well as their families and communities.

 

The needed evolution of sex offender policy is best described by sex crime researchers Alissa Ackerman, PhD (who also identifies as a survivor), David Prescott, LICSW, & Kieran McCartan, PhD in a recent, November, 2017, blog entry on the ATSA site, Sexual Abuse: A Journal of Research & Treatment titled, “The Importance of User Voices”. They wrote, “As we reconceptualize sexual harm/abuse from being a criminal justice issue to a joint public health/health/criminal justice issue, the idea of the service user becomes essential…We need to understand the service user (both those who have been sexually harmed and those who have caused sexual harm) and make them part of the research process in order to develop a fully rounded service.”

 

In this #MeToo and #TimesUP moment, we believe it is a good time for listening and dialogue. Listening to survivors, a powerful emotion that often comes up is “shame”. It isn’t just a self-judgement often felt after a trauma inducing event, but also a judgement too often reenforced through every step of standing up for oneself through a process that seldom provides the support and understanding at a most vulnerable time.

 

Shame is a powerful, defining emotion among offenders as well. For the offending community, shame can come from genuine remorse for their actions, the pain caused for family, loved ones, friends and victims. It can also be an emotion carried deep within as a result of childhood trauma. And like with survivors, shame can be reenforced throughout the legal process and post adjudication process.

 

We don’t judge shame. We simply need to recognize and acknowledge its power.

 

We all want to end sexual violence. We all want to reduce harm. The real question is how does a victim-centered approach work? We know one thing. When a victim advocate says that reform to the registry is re-victimizing victims it is unfair to survivors. Survivors have their own voice. Perpetuating a system that survivors recognize is harmful is not doing justice to survivors.

 

The model we recommend employs the principles of restorative justice where all parties have a place at the table, including victims and their offenders. Research, according to Alissa Ackerman, shows that what survivors want most is an apology, an answer to why them, and what that offender is doing to make sure it doesn’t happen again. Survivors recognize a registry does harm, including to families. Survivors want a respectful, meaningful process that will allow them to begin to move on with their lives and get the care they feel they need.

 

CTOSJ profoundly respects the impact sexual violence, as well as sexual harassment, can have on an individual, and on society. But that impact is also profoundly exclusive of the risk offenders pose in the community. There is a big difference between holding someone responsible and calling them a criminal and a danger.

 

CTOSJ believes in inclusion. We believe a more inclusive process interested in using evidence based research, rather than simply self-affirming research, would have resulted in a different recommendation before you.

 

By relying on pure academic research, CTOSJ has tried to offer constructive alternatives to current practices. We welcome the opportunity to work with you to develop true solutions. We are sure that when the General Assembly asked the Sentencing Commission for suggestions on how to reform the registry they were looking for something other than self-affirmation.

 

CTOSJ believes that short of incorporating the recommendations we have suggested, the Judiciary Committee should reject RHB5578. We suggest the Judiciary Committee empower the Sentencing Commission to start again; this time with a process that is inclusive in its membership and with a charge to entertain new academic research that, like with other criminal justice reforms you have adopted, both saves money and reduces crime.

 

At this point it ought to be crystal clear that an instrument, the registry, which was created as a political response to several truly unimaginably horrible events, is ineffective, costly and a creator of significant collateral damages. Since its creation that political creation, the registry, has been expanded to the point where many of the original advocates for its creation have changed their minds and want to see scarce public dollars spent on programs that work, especially prevention.

 

The actual political problem now is that a whole new class of professionals whose jobs are dependent on this instrument, the registry, along with other offender management schemes, have held sway on the process that brought this recommendation before you; a process that shut out other voices and research that could have led to a very different recommendation. Let’s not settle for less.

 

In thinking about the proposal before you, please also think about some of the values expressed by Women Against the Registry (WAR). They provide a real world measuring stick in thinking about what to do. CTOSJ shares WAR’s beliefs. WAR believes:

-ALL children have the right to grow up safe from harm.

-ALL (families) have the right to healing where there has been pain.

-Communities have the right to laws and policies which actually WORK to achieve these goals.

-Placing a family on a publicized registry is demonstrably ineffective in protecting children or (women) from harm.

-Families and whole communities are subjected to vulnerability and devastation when legislators continually pass knee-jerk laws.

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