"Sounds like you enjoy sex with kids," a reader tweeted at me after seeing a blog post I wrote about former Subway pitchman Jared Fogle. It was 2015, and Fogle had just signed a plea agreement in which he admitted to looking at child pornography and having sex with two 16-year-old prostitutes. "You also look like [a] pervert," the reader added.
That's the sort of response you can expect if you write about the broad category known as "sex offenders" and suggest that not all of them are the same or that some of them are punished too severely. In this case, I had noted that the decision to prosecute Fogle under federal law, which had been justified by factors that had little or nothing to do with the gravity of his offenses, had a dramatic impact on the penalty he was likely to receive.
Fogle ultimately was sentenced to nearly 16 years in prison, a penalty that was upheld by a federal appeals court in June. Had he been prosecuted under state law for the same actions, his sentence could have been as short as six months (the minimum penalty for possessing child pornography in Indiana, where Fogle lived) or as long as four years (the maximum penalty for an adult 21 or older who has sex with a 16-year-old in New York, where Fogle met the prostitutes).
The arbitrariness of Fogle's punishment should trouble anyone who thinks fairness, consistency, and proportionality are essential to a criminal justice system worthy of the name. But the conjunction of two fraught topics—children and sex—makes it hard for people to think clearly about such matters. The fear and disgust triggered by this subject help explain why laws dealing with sex offenses involving minors frequently lead to bizarre results, including wildly disproportionate sentences, punishment disguised as regulation or treatment, and penalties for committing unintentional crimes, recording your own legal behavior, or looking at pictures of nonexistent children.
Unlike Russell Taylor, who ran Fogle's charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at photographs and video of "minors as young as approximately 13–14 years" who were "secretly filmed in Taylor's current and former residences."
According to the government's statement of charges, Taylor produced that material "using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." He also gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6. Fogle "on one occasion" showed this material to "another person." That became the basis for a distribution charge, which was dropped as part of Fogle's plea agreement. Fogle's lawyers say that incident involved "one individual with whom [he] was then involved romantically, and it occurred in the confines of a locked hotel room."
The voyeuristic material that Taylor produced did not involve sexual abuse of children. According to the charges, the guests caught on Taylor's cameras "did not know that they were being secretly filmed." Taylor's actions, which earned him a 27-year prison sentence, were obviously an outrageous invasion of privacy and breach of trust, and Fogle bears responsibility, at the very least, for allowing the secret recordings to continue by failing to report him. (Taylor, seeking leniency, claimed Fogle had actually encouraged him to install the cameras.) But what Taylor did is not the same as forcing children to engage in sexual activity, and what Fogle did is even further removed from such abuse.
Under federal law, however, looking at child pornography can be punished as severely as sexually assaulting a child. Receiving child pornography, which could mean viewing a single image, triggers a mandatory minimum sentence of five years. The maximum penalty for receiving or distributing child pornography is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are very common in these cases, such as using a computer, possessing more than 600 images (with each video counted as 75 images), and trading images for something of value, including other images.
In exchange for Fogle's guilty plea, prosecutors agreed to ask for a sentence of no more than 151 months. His lawyers argued that 60 months, the mandatory minimum, would be more appropriate. Rather than settle on a number somewhere between those two suggestions, U.S. District Judge Tanya Walton Pratt sentenced Fogle to 188 months—almost 16 years—for looking at the pictures Taylor provided. That prison term was not only longer than the government had sought; it was longer than the upper end of the range recommended by federal sentencing guidelines. Last June the U.S. Court of Appeals for the 7th Circuit upheld Fogle's sentence, which means he will spend at least 13 years behind bars, even allowing for "good time credit" based on his behavior in prison.
If Fogle had been prosecuted under Indiana law for possession of child pornography, he would have faced a minimum sentence of six months and a maximum sentence of three years. Even assuming he would have received the maximum penalty, the decision to prosecute him under federal law effectively quintupled his sentence. Yet the official reason for prosecuting him under federal law—that the images he viewed were produced using equipment "manufactured outside the State of Indiana"—does not make his actions (or his inaction) any worse.
Life for Looking
As a result of congressional edicts, the average sentence in federal child pornography cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). Many federal judges have rebelled against what they perceive as patently unjust sentences for such offenses. In 2005 the Supreme Court ruled that federal sentencing guidelines (as opposed to mandatory minimums set by statute) are merely advisory, freeing judges to depart from them in the interest of justice. After that decision, according to the 2012 USSC report, "the rate of non-production cases in which sentences were imposed within the applicable guideline range steadily fell from its high point in fiscal year 2004, at 83.2 percent of cases, to 40.0 percent of cases in fiscal year 2010, and to 32.7 percent of cases in fiscal year 2011."
Looking at a single image can trigger a five-year mandatory minimum sentence.
In 2016, Jack B. Weinstein, a federal judge in Brooklyn, was called upon to sentence a 53-year-old father of five who had pleaded guilty to possessing two dozen photos and videos showing children in sexual situations. The defendant—identified only by his initials, R.V.—told NBC News he came across the images that led to his arrest while looking at adult pornography. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading." He added that "I feel very remorseful," and "it's something that will never happen again." NBC reported that "the man also had 'sexual' chats with underage girls online, but there was no evidence he sought physical contact with minors." A psychiatrist testified that R.V. did not pose a threat to his own kids or other children.
The sentencing guidelines recommended a prison term of six and a half to eight years. Instead, Weinstein sentenced R.V. to time served (five days), a fine, and seven years of supervised release. "The applicable structure does not adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants' families and the community, and the needless destruction of defendants' lives," Weinstein wrote in a 98-page explanation of his reasons for departing so dramatically from the guidelines. "Removing R.V. from his family will not further the interests of justice; it will cause serious harm to his young children by depriving them of a loving father and role model, and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."
Judges are not alone in questioning the propriety of federal sentences for viewing and sharing child pornography. In a 2015 case, James Gwin, a federal judge in Cleveland, asked jurors what sentence they considered appropriate for a man they had convicted of possessing and distributing child pornography. The defendant was caught with 1,500 images, and he was charged with distribution because he also had peer-to-peer file sharing software. The mandatory minimum was five years, prosecutors wanted 20, and federal sentencing guidelines recommended 27. On average, the jurors recommended a prison term of 14 months, less than a quarter of the shortest sentence allowed by law.
Although state penalties for looking at child pornography are often lighter than federal penalties, they can also be more severe. In 2011, a Florida judge imposed a sentence of life without the possibility of parole on Daniel Enrique Guevara Vilca, a 26-year-old with no criminal record who was caught with 454 child pornography images on his computer. "Had Mr. Vilca actually molested a child," The New York Times noted, "he might well have received a lighter sentence."
Something has gone terribly wrong with our criminal justice system when the same offense can be punished by five days in jail or by life in prison, depending on the whims of legislators and judges. One reason it is so hard to figure out an appropriate punishment for looking at child pornography is that it's not exactly clear why looking at child pornography is treated as a crime in the first place.
The First Amendment ordinarily protects people from punishment for the literature they read or the pictures they view, even if a jury might consider the material obscene. When the Supreme Court upheld a state law criminalizing mere possession of child pornography in the 1990 case Osborne v. Ohio, its main rationale was that the government "hopes to destroy a market for the exploitative use of children." In other words, punishing consumers is justified because their demand drives production, which requires the sexual abuse of children. Now that people who look at child pornography typically obtain it online for free, that argument carries much less weight, and another rationale mentioned by the Supreme Court has come to the fore: "The pornography's continued existence causes the child victims continuing harm by haunting the children in years to come."
The Court reiterated that point in Ashcroft v. Free Speech Coalition, the 2002 case in which it overturned a ban on "virtual" child pornography—i.e., depictions of underage sexual activity that do not involve any actual children. "As a permanent record of a child's abuse, the continued circulation [of actual child pornography] itself would harm the child who had participated," the Court said. "Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being."
Lower federal courts have elaborated on that theme, positing that children are revictimized every time images of their sexual abuse are transferred or viewed. In 2001, the U.S. Court of Appeals for the 7th Circuit—the same court that upheld Jared Fogle's sentence—declared that "the possession, receipt and shipping of child pornography directly victimizes the children portrayed by violating their right to privacy, and in particular violating their individual interest in avoiding the disclosure of personal matters." The Adam Walsh Child Protection and Safety Act, which Congress passed in 2006, likewise declares that "every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse."
It is surely true that the dissemination of child pornography compounds the harm caused by its production. Consider the case of "Amy," who at the ages of 8 and 9 was repeatedly raped by her uncle, who recorded his crimes and distributed the images. New York attorney James R. Marsh, who helped Amy pursue a federal restitution claim, and University of Utah law professor Paul Cassell, who represented her when her case reached the Supreme Court, described her experience in a 2015 Ohio State Journal of Criminal Law article.
"By the end of her treatment in 1999," Cassell and Marsh write, "Amy was—as reflected in her therapist's notes—'back to normal' and engaged in age-appropriate activities such as dance lessons. Sadly, eight years later, Amy's condition drastically deteriorated when she discovered that her child sex abuse images are widely traded on the Internet." According to her psychologist, the distribution of her uncle's pictures has had a "long lasting and life changing impact on her." The psychologist explained that "Amy's awareness of these pictures [and] knowledge of new defendants being arrested become ongoing triggers to her." As Amy put it, "Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again."
Notwithstanding the reality of Amy's ongoing suffering, allocating responsibility for it among the thousands of people who have seen the pictures is no simple matter, as the Supreme Court discovered when it took up her case in 2014. Amy's lawyers put the past and future cost of her sexual abuse, including lifelong psychotherapy, an interrupted college education, and reduced earning capacity, at $3.4 million, some of which was attributed to her knowledge that images of her uncle's crimes against her are circulating on the internet. Under a federal law that requires a defendant to pay his victim "the full amount of the victim's losses," Amy sought all $3.4 million from Doyle Paroline, who in 2008 was caught with a collection of child pornography that included two pictures of Amy.
Paroline's lawyer argued that he owed her nothing because downloading the pictures her uncle took was not the proximate cause of her suffering. The Obama administration said judges should assess restitution on a case-by-case basis. Another possible approach: If you divide $3.4 million by the estimated 70,000 people who have seen photographs or videos of the crimes committed by Amy's uncle, the result is less than $50.
None of these solutions is very satisfying. Once images of sexual abuse have been viewed 1,000 times, Justice Samuel Alito wondered aloud during oral argument, is it even theoretically possible to assess the damage caused by the 1,001st viewing? In the end, the Supreme Court ruled that a defendant owes restitution "only to the extent the defendant's offense proximately caused a victim's losses." Hence a court "should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Applying that logic to child pornography cases, the Court conceded, "is not without its difficulties"—quite an understatement.
If figuring out the damage that Paroline did by looking at images of Amy is essentially impossible, deciding what criminal penalty he deserves is at least as challenging. He pleaded guilty to possession of child pornography and received a two-year sentence. But the same actions—looking at images on the internet—also made him guilty of "receiving" child pornography, which carries a mandatory minimum sentence of five years (a fact that helps explain why Paroline pleaded guilty). Because Jared Fogle pleaded guilty to receiving child pornography, he was subject to the five-year mandatory minimum, and in the end he got a sentence nearly eight times as long as Paroline's. In fact, Fogle's sentence was about 50 percent longer than the one Amy's uncle received, even though her uncle repeatedly raped a prepubescent girl, while Fogle did not assault anyone.
The FBI Distributes Child Pornography
It makes no sense to treat possession of child pornography more harshly than violent crimes—more harshly even than actual sexual abuse of children—unless you believe that serious harm is inflicted every time someone looks at the image of a child's sexual abuse. In that case, a large enough collection of images could equal or even surpass the harm done by a single child rape, so that it could be just to impose a life sentence on someone who has done nothing but look at pictures.
Federal law enforcement officials claim to believe something like that, but it's pretty clear they don't. If they did, they would never condone the tactics that the FBI uses in child pornography cases, which include distributing it to catch people who look at it.
In a 2002 New York University Law Review article, Howard Anglin argued that victims of child pornographers have legal grounds to sue FBI agents who mail images of them to targets of undercover investigations. "If, as courts have held, the children depicted in child pornography are victimized anew each time it changes hands, this practice inflicts further injuries on the children portrayed in the images," wrote Anglin, at the time an NYU law student and now executive director of the Canadian Constitution Foundation. "The practice of distributing child pornography in undercover operations exposes federal agents to potential civil liability and undermines the integrity of the criminal justice system."
That argument did not deter the FBI from continuing to distribute child pornography. In 2015, after arresting the operator of The Playpen, a "dark web" source of child pornography, the bureau took over the site and operated it for two weeks. During that time, about 100,000 people visited the site, accessing at least 48,000 photos, 200 videos, and 13,000 links. The FBI not only allowed continued access to The Playpen; it seems to have made the site more popular by making it faster and more accessible. The FBI's version attracted some 50,000 visitors per week, up from 11,000 before the government takeover.
That operation resulted in criminal charges against about 200 people, mostly for receiving or possessing child pornography. But to achieve those results, the FBI became a major distributor of child pornography, thereby committing a more serious crime than the people it arrested. Federal prosecutors brought cases that, by their own lights, required agents to victimize children thousands of times. Each time the FBI distributed an image, it committed a federal crime that is punishable by a mandatory minimum sentence of five years and a maximum sentence of 20 years. If such actions merit criminal punishment because they are inherently harmful, there is no logical reason the federal agents who ran The Playpen should escape the penalties they sought to impose on the people who visited the site.
Another reason to doubt the official justification for punishing possession of child pornography is 18 USC 1466A, which makes it a crime to produce, distribute, or possess "obscene visual representations of the sexual abuse of children." That law covers "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" that "depicts a minor engaging in sexually explicit conduct," provided the image qualifies as obscene. Notably, "it is not a required element of any offense under this section that the minor depicted actually exist." The penalties are nevertheless the same as the penalties for producing, distributing, or possessing actual child pornography.
This law is a rejiggered version of the ban on virtual child pornography that the Supreme Court overturned in Free Speech Coalition v. Ashcroft. Since the Court has said obscenity is not protected by the First Amendment, Congress narrowed the ban by limiting it to material that meets the legal test for obscenity, meaning it appeals to prurient interests, depicts sexual conduct in a patently offensive way, and "lacks serious literary, artistic, political, or scientific value." But the new ban is still constitutionally problematic because the Court also has said that mere possession of obscene material cannot be punished without violating the First Amendment right to "receive information and ideas" and the sphere of privacy protected by the 14th Amendment.
Federal prosecutors seem to be getting around that problem by resolving cases involving possession of virtual child pornography through plea agreements in which the defendant gives up his right to challenge the law. In a 2010 Ohio case, a former middle school teacher named Steven Kutzner pleaded guilty to possessing "obscene visual representations of the sexual abuse of children," including cartoons featuring characters from The Simpsons. As part of the plea agreement, Kutzner waived his right to challenge the constitutionality of the possession charge.
Jim Peters, an assistant U.S. attorney who worked on the case, says Kutzner agreed to the deal to avoid prosecution for receiving the cartoons, which would have triggered a five-year mandatory minimum sentence. Peters adds that Kutzner's computer also contained traces of actual child pornography that Kutzner claimed he downloaded by accident and deleted. Prosecutors decided not to bring charges based on those images because they were downloaded before federal law was changed to criminalize accessing child pornography with the intent to view it. In 2011, Kutzner was sentenced to 15 months in federal prison followed by three years of post-release supervision.
Two years later, Christjan Bee of Monett, Missouri, was sentenced to three years in federal prison for "possessing an obscene image of the sexual abuse of children." Federal prosecutors said the forbidden material was "a collection of electronic comics, entitled 'incest comics,'" that "contained multiple images of minors engaging in graphic sexual intercourse with adults and other minors." Like Kutzner, Bee pleaded guilty to avoid a receiving charge, waiving his right to challenge the ban on possession.
The fact that federal law treats virtual child pornography the same as the real thing suggests the essence of the crime is not the injury inflicted on actual children by looking at pictures of their abuse but the message communicated by such images. As the USSC noted in its 2012 report, an alternative rationale for criminalizing possession of child pornography is that these images "validate and normalize the sexual exploitation of children." It is debatable whether material like Simpsons porn and "incest comics" actually does that. In any case, the same argument would apply with even greater force to explicit advocacy of sex with minors, such as literature produced by the North American Man-Boy Love Association. As offensive as such speech may be to the vast majority of Americans, it is clearly protected by the First Amendment.
Victims As Predators
The inadequacy of the child protection rationale is also clear in cases involving teenagers who use their cellphones to exchange sexually provocative pictures of themselves, thereby qualifying as both victims and perpetrators. In 2015, for example, Cormega Copening, a 17-year-old boy in North Carolina, was charged with sexually exploiting a minor, a felony punishable by up to eight years in prison, because of nude pictures he exchanged with his 17-year-old girlfriend.
Under North Carolina law (as under federal law), a "minor" for purposes of defining child pornography is anyone under 18. Hence Copening produced child pornography by taking pictures of himself. He could nevertheless be prosecuted as an adult for that crime. To make things even more confusing, the age of consent in North Carolina is 16, meaning that Copening could legally have consensual sex with his girlfriend. But if he (or she) made a video of that activity, even with the consent of both parties, it would be a felony punishable by years in prison plus lifelong registration as a sex offender.
The Copening case is not unique. In 2016, an Iowa prosecutor threatened to charge a 14-year-old girl with sexual exploitation of a minor for sending pictures of herself to her boyfriend. According to a federal lawsuit filed by her parents, one photo shows the girl "from the waist up, hair entirely covering her breasts and dressed in boy shorts." The other picture shows her "standing upright, clad in the same boy shorts and wearing a sports bra." These images do not seem to meet Iowa's definition of child pornography, since they do not show a minor engaged in "a prohibited sexual act," which includes prurient nudity only when it involves exposure of breasts, genitals, or buttocks. Even if the pictures qualified as child porn in Iowa, it defies logic to say a teenager can be guilty of sexually exploiting herself.
The case of Eric Rinehart underlines the counterintuitive consequences of treating pictures as a crime even when the actions they record are not. In 2006, Rinehart, a 34-year-old police officer in Middletown, Indiana, who was in the midst of a divorce, became sexually involved with two girls who were 16 and 17. Since the age of consent in Indiana is 16, it was legal for him to have sex with those girls. (Whether it was wise or appropriate is another question.) But because Rinehart also took pictures of the girls, he was convicted of producing child pornography and sentenced to 15 years in federal prison. It did not matter that the girls consented to the pictures or that the images were never shared with anyone else.
Although Jared Fogle apparently did not record his sexual encounters with teenaged prostitutes in Manhattan, he broke state law by paying for sex and by having sex with the girls before they turned 17, the age of consent in New York. Under state law, he was therefore guilty of patronizing a prostitute, a Class A misdemeanor punishable by up to a year in jail, and rape in the third degree, a Class E felony punishable by probation or up to four years in prison. Instead, he was charged under federal law with traveling across state lines "for the purpose of engaging in any illicit sexual conduct," which is punishable by up to 30 years in prison.
Judge Pratt apparently considered that crime as serious as Fogle's viewing of child pornography, because she imposed exactly the same sentence for it: 188 months in prison. (Fortunately for Fogle, he is serving the two sentences concurrently.) Prosecutors emphasized that while the youngest prostitute Fogle hired was 16, he asked her about "access to minors as young as 14 years for purposes of commercial sex acts with him." In challenging his sentence, Fogle argued that he shouldn't be punished for something he thought about but never did.
While Fogle may have known how old the girls were, that is not always the case when adults have sex with teenagers. The difference between a 16-year-old and a 17-year-old (or a 15-year-old and a 16-year-old) may not be obvious, especially when the teenager claims to be older than she is. State laws nevertheless assume that someone who has sex with an underage adolescent should have known better. Generally speaking, "mistake of age" is no defense against a statutory rape charge. When it comes to sex with teens, people can break the law without realizing it—an exception to the rule that proof of mens rea (usually translated as "guilty mind") is required for a criminal conviction.
In 2016, a Minnesota appeals court cast doubt on that exception in a case involving a middle-aged man named Mark Moser who propositioned a girl on Facebook. She said she was 16 (the age of consent in Minnesota), but she was actually 14. Under state law, that subterfuge did not matter: Even if Moser thought she was 16, he was still guilty of soliciting sex with a minor, a felony punishable by up to three years in prison and 10 years on the state's sex offender registry. But the Minnesota Court of Appeals ruled that Moser had a due process right to raise a mistake-of-age defense.
"The child-solicitation statute imposes an unreasonable duty on defendants to ascertain the relevant facts," the appeals court said. "Where solicitation occurs solely over the Internet…it is extremely difficult to determine the age of the person solicited with any certainty." By contrast, the court said, "a defendant can reasonably be required to ascertain the age of a person the defendant meets in person." But as UCLA law professor Eugene Volokh pointed out in a blog post, that is not necessarily true: What if a girl "lied about her age, and perhaps even showed the defendant a credible-seeming fake ID"? Or what if the couple met in a context, such as a bar or a college fraternity party, where it might be reasonable to assume that everyone is old enough to consent to sex?
A mistake-of-age defense probably would not have helped Fogle even if one were available, since abiding by age-of-consent laws does not seem to have been a priority for him. Still, it's not clear that he qualifies as a pedophile—that is, someone who is sexually attracted to prepubescent children. Neither the girls he had sex with nor the ones he asked about were that young, and prosecutors say that while the minors in the pictures and videos recorded by Taylor ranged in age from 9 to 16, the youngest person in the images he shared with Fogle was 13 or 14. The images on the thumb drive that Taylor gave him included children "as young as approximately six years of age," but Fogle does not seem to have actively sought out such material.
The distinction between adolescents and prepubescent children is relevant to the seriousness of Fogle's crimes and to the sort of danger he poses. Even when people are physically ready for sex, they may not be psychologically ready, which is the rationale for age-of-consent laws. But as a press release about Fogle's case from the U.S. Attorney's Office for the Southern District of Indiana noted, "federal law provides strong punishment for engaging in commercial sex acts with minors under the age of 18 years," no matter what the age of consent is in the state where the sex acts occur. Whatever you think of these transactions, it is hard to see how the fact that they happened in New York rather than Indiana makes them worse. Yet if Fogle had paid for sex in his home state, where the age of consent is 16, instead of doing it in another state, it would have been a misdemeanor rather than a federal felony.
Leaving aside the issue of punishment, sexual attraction to prepubescent children suggests different precautions than sexual attraction to teenagers. Restrictions aimed at keeping potential predators away from kids, even if we assume they are otherwise justified, make little sense when applied to someone who has no sexual interest in young children. Yet Fogle will have to register as a sex offender for the rest of his life, subject to the same restrictions as a child molester. Such registries, which every state maintains, also include people guilty of crimes less serious than Fogle's, such as public urination, patronizing an adult prostitute, and consensual sex with a fellow teenager.
Although sex offender registries and the restrictions associated with them are supposedly intended to protect public safety, the evidence suggests they are mainly a way of imposing additional punishment on people who have already completed their sentences. The rationale for publicly accessible registries is that they will protect children by alerting parents to the presence of potential predators. But the Justice Department's National Crime Victimization Survey indicates that more than 90 percent of sexual offenses against children are committed not by strangers but by relatives, friends, or acquaintances. Furthermore, nearly 9 out of 10 sex offenses are committed by people who were not previously convicted of a crime that would have put their names in a registry. Justice Department data also indicate that sex offenders are much less likely to commit new crimes than commonly supposed—less likely, in fact, than most other kinds of offenders.
Not surprisingly, studies that try to measure the impact of registration laws find little evidence that they work as advertised. If anything, they seem to be counterproductive, probably because they make it harder for sex offenders to reintegrate into society by publicly identifying them as pariahs, limiting their job prospects, and restricting where they can live. In Michigan, for example, registrants are prohibited from living, working, or "loitering" within 1,000 feet of a school, regardless of whether their crimes involved children. A 2013 study funded by the Justice Department found those restrictions were associated with an increase in recidivism. A 2011 analysis in the Journal of Law and Economics likewise found evidence that publicly accessible registries have a perverse effect on recidivism.
If registries and residence restrictions do not actually make people safer, it's hard to justify them as public safety measures. Last August, a federal appeals court ruled that Michigan's Sex Offender Registration Act (SORA) imposes punishment in the guise of regulation, meaning it cannot be applied retroactively without violating the Constitution's ban on ex post facto laws.
In addition to the residence restrictions, the U.S. Court of Appeals for the 6th Circuit focused on the law's onerous reporting requirements and its classification system. SORA threatens registrants with prison if they fail to report, in person and immediately, changes such as new email addresses or newly borrowed cars. It also puts them in tiers that supposedly correspond to the danger they pose, but those categories are not based on individualized risk assessments. Although all of the plaintiffs in this case qualified for Tier III, supposedly the most dangerous category, one of them was convicted at age 18 of having consensual sex with his 14-year-old girlfriend, while another was convicted of "a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald's." The appeals court said the residence restrictions, reporting requirements, and arbitrary classification system distinguished SORA from the Alaska registry that the Supreme Court upheld in 2003, deeming it regulatory rather than punitive.
"SORA brands registrants as moral lepers solely on the basis of a prior conviction," the 6th Circuit said. "It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information." The court concluded that "the punitive effects of these blanket restrictions…exceed even a generous assessment of their salutary effects."
Like registration and the burdens associated with it, the continued imprisonment of sex offenders who have completed their sentences bears a strong resemblance to punishment. Twenty states and the federal government have laws allowing indefinite "civil commitment" of certain sex offenders. The Supreme Court has upheld such laws on the pretext that what looks like punishment is actually "treatment" aimed at curing offenders who would otherwise pose an intolerable threat to public safety.
Taking the Court at its word, a federal judge ruled in 2015 that the Minnesota Sex Offender Program (MSOP), which was established in 1994, did not qualify for this loophole because none of its "patients" had ever been declared well enough for unconditional release. "The overwhelming evidence at trial established that Minnesota's civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system," wrote U.S. District Judge Donovan Frank. "It is fundamental to our notions of a free society that we do not imprison citizens because we fear that they might commit a crime in the future.…This strikes at the very heart of what it means to be a free society where liberty is a primary value of our heritage."
Criticizing Frank's decision, Minnesota Gov. Mark Dayton exposed the fallacy at the core of his state's program. "It's really impossible to predict whether or not [sex offenders] are at risk to reoffend," Dayton said. "So the more protection you can give to the public, as far as I'm concerned, given their history, is entirely warranted, and that's what this program does right now." Yet the law authorizing the program requires predictions about whether or not sex offenders "are at risk to reoffend"; if such predictions are "impossible," the whole law is a crock.
FBI tactics include distributing child pornography to catch people who look at child pornography.
It gets worse. "I don't think any parent in Minnesota wants to subject their daughter or their son to a probability," Dayton said. "They want to make sure their government is doing absolutely everything conceivably possible to make it 100 percent safe to walk in the park or to or from school." So even if recidivism were predictable, Dayton would say that someone who is 99 percent guaranteed not to reoffend should nevertheless be locked up for the rest of his life. Just in case.
In January, a federal appeals court sided with Dayton, saying Judge Frank was mistaken in concluding that the MSOP violates detainees' substantive due process rights. The U.S. Court of Appeals for the 8th Circuit said Frank was wrong to think the MSOP impinges on a fundamental liberty interest—i.e., the right not to be locked in a cage for the rest of your life. After all, the 8th Circuit said, the Supreme Court "has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint."
The appeals court was unimpressed by the fact that the MSOP manifestly fails to accomplish what it purports to be doing: rendering sex offenders "no longer dangerous" by treating their statutorily defined mental conditions. Although "the Supreme Court has recognized a substantive due process right to reasonably safe custodial conditions," the 8th Circuit said, it has never recognized "a broader due process right to appropriate or effective or reasonable treatment of the illness or disability that triggered the patient's involuntary confinement."
The appeals court said Frank wrongly applied "strict scrutiny" to the MSOP when he should have taken a much more deferential approach. To decide whether Minnesota's law is unconstitutional on its face, it said, Frank should have asked whether it passes the "rational basis" test—a highly permissive standard that all but guarantees a challenged law will be upheld. The 8th Circuit said Frank also erred in ruling that Minnesota's law is unconstitutional as applied to the plaintiffs. To prevail on that claim, the court said, the plaintiffs had to show their confinement not only violates a fundamental right but "shocks the conscience," which is pretty hard to do for any kind of imprisonment this side of a Nazi concentration camp.
'Do We Need a Whole New Constitution?'
The upshot of such judicial deference is that laws targeting sex offenders will be upheld as long as supporters of those laws claim to have good intentions. The so-called International Megan's Law (IML), enacted in 2016, shows how thin the justifications can be.
The IML requires that the State Department create "a visual designation affixed to a conspicuous location" on the passport of anyone listed in a registry for "a sex offense against a minor," to make sure they are properly scrutinized, shunned, and harassed wherever they might travel. It also authorizes notification of foreign officials about the travels of sex offenders who are no longer required to register.
The law is supposedly aimed at people who visit other countries to have sex with children, which seems to be a pretty rare crime. According to Justice Department data, about 10 Americans are convicted of "sexual crimes against minors in other countries" each year. As the IML itself notes, the State Department already had "authority to deny passports to individuals convicted of the crime of sex tourism involving minors." The provision requiring "unique passport identifiers" sweeps much more broadly, covering any registered sex offender who was convicted of a crime involving a minor, regardless of the details, when the crime occurred, or whether the offender poses an ongoing threat.
The Americans whose passports will brand them as international child molesters include people who committed their offenses as minors and even people who still are minors (as are more than a quarter of registered sex offenders). They include people who as teenagers had consensual sex with other teenagers. They include people convicted of misdemeanors. They include people who committed their crimes decades ago and have never reoffended. They include people convicted of sexting, streaking, or public urination. The IML treats all of these people as a menace to children everywhere.
Sex offenders are a heterogeneous group that includes many people who pose little or no threat to the public while omitting many people who are clearly more dangerous. It makes no sense to impose the same restrictions on all of them simply because their crimes had something to do with sex. "They have it set up now where Charles Manson is a nicer person than a sex offender," remarked a registered sex offender who was interviewed for the 2013 Justice Department–funded study of residence restrictions.
"You created a whole new population of people that you are not prepared to deal with at all," another sex offender observed in the same study. "If you are not going to remove them completely from society or off of the planet, just what the hell are you going to do with them after you create this leper colony?…I mean, do we still come up under the Constitution? Do we still have the same rights as other folks? Do we need a whole new constitution for us?"
Sex offenders are consigned to a kind of legal and social limbo that is neither fair nor prudent. They supposedly have paid their debts to society but are constantly obstructed in their efforts to rejoin it. Even when their crimes did not involve assaults of any kind, they are subject to burdens that murderers and other violent criminals escape.
A lawsuit challenging the IML argued that "individuals convicted of sex offenses constitute a discrete and insular minority that is uniquely subject to public and private discrimination, and whose rights are uniquely subject to unconstitutional deprivation by state action, including by state action that is motivated by malice, that is arbitrary and capricious, that bears no rational relationship to any legitimate government purpose, and that is not sufficiently tailored to serve a legitimate government purpose." All of that is true, but the same unreasoning prejudices that created this situation make it hard to change.
Dismissing the IML lawsuit last September, a federal judge in San Francisco said specially marked passports for sex offenders do not amount to retroactive punishment, because registration of sex offenders, no matter how far-reaching and life-crippling the consequences, is not punitive and therefore does not implicate the Ex Post Facto Clause. If registration is not a punishment, U.S. District Judge Phyllis Hamilton reasoned, sharing information from a registry with foreign officials surely cannot be, even if the upshot is that an American citizen cannot travel internationally and therefore cannot see his wife, do his job, attend to his business, or claim his inheritance in Iran without risking summary execution (all concerns raised by the plaintiffs).
Based on similar logic, Hamilton rejected the plaintiffs' due process claim, saying they got all the process they were due when they were convicted. In her view, the IML merely passes along information about those convictions to foreign authorities, who can do with it what they want. Why should the U.S. government be held responsible for the foreseeable consequences of branding American citizens as pariahs, perverts, and predators?
Hamilton also made short work of the plaintiffs' substantive due process and equal protection claims, saying they could not succeed because the IML easily satisfies the rational basis test. The only question under that standard, Hamilton explained, is "whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law." The IML is aimed at preventing "the commercial sexual exploitation of minors," which is a rational purpose. Whether the law actually serves that purpose is beyond the scope of rational basis review. So is the fairness and wisdom of including anyone convicted of "a sex offense against a minor," even if he never assaulted anyone and never demonstrated a propensity to visit other countries for the purpose of having sex with minors.
The passport and notification provisions apply decades after the offense, whether or not the offender currently poses a threat, and notification applies even to offenders who are no longer required to register. One of the plaintiffs, who "routinely travels to Europe and Asia for business purposes," was convicted 25 years ago. Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A third plaintiff had his 1998 conviction expunged, was reinstated as a lawyer, and is no longer listed in California's registry but is still covered by the IML's notification provision.
Stigmatizing these people as a threat to children everywhere for the rest of their lives may seem irrational, but that does not mean it fails the rational basis test. "Under rational basis review," Hamilton explained, "a law 'may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.'"
What's true of the IML is true of many laws targeting sex offenders: Even if they are poorly designed to achieve their ostensible goal, politicians say they will protect children, and that's rational enough for government work.
Photo Credit: Joanna Andreasson