Citizens for Criminal Justice Reform – New Hampshire

By Chris Dornin  This article also appears in corrections.com.

Nine-year-old Jessica Lunsford was kidnapped from her Florida home, raped and buried alive in February 2005. Lawmakers filed the 82-page Jessica Lunsford Act in her memory on April 1. Gov. Jeb Bush signed the new law on May 2. That’s light speed for any legislature. It passed unanimously in both houses. The most draconian sex offender code in America at the time had a mandatory 25-year minimum sentence for any sex crime against a child under age 12. The bid was life without parole for perpetrators older than 17.

Bill O’Reilly of FOX News urged viewers to push their governors for even tougher laws to protect kids. “This is literally a life-and-death battle to save our youngest and most vulnerable citizens from abuse, torture, and murder,” O’Reilly warned. “I hope you'll do your part.”
New Hampshire and 16 other states had passed versions of Jessica’s Law within a year. That’s how sex offender laws get made. By rage and fear in a hurry.

“People who prey on children are the most dangerous criminals in our state, targeting our most precious and vulnerable citizens,” Gov. John Lynch told the New Hampshire Senate Judiciary Committee. “It is time for us to send a clear message in New Hampshire. If you prey on children, we will send you to prison, and we are going to keep you there for a long time.”

Rep. Peter Batula, prime sponsor of the predator bill, said the state needed to keep from becoming “a haven for sexual predators to move over the borders.” 

NH Attorney General Kelley Ayotte told senators about 17 repeat sex offenders who had gotten off too lightly. She testified that the sex offense recidivism rate for pedophiles “is between 90 and 94 percent. Offenders who sexually abuse children have a lifelong problem that is not amendable to treatment.”

Sex offender laws have bred a universal hysteria about sex offenders by branding them all as equally and intolerably dangerous. The Michigan public registry law promises to help the public know about sexual predators living near them “who, by virtue of relatively high recidivism rates among such offenders and the devastating impact that sex crimes have on society, pose a serious threat to society.”

The US Justice Department made the same argument before the U.S. Supreme Court in the landmark Alaska v John Doe case. The court ruled that the Alaska public registry is not an ex post facto punishment. In their amicus brief, the feds said sex offenders pose a huge threat because of their high recidivism rates and the injury they inflict on children. 

New Hampshire State Sen. David Boutin sponsored a bill two years ago to encourage police departments to use active public notice when sex offenders are released into a neighborhood. He filed the legislation to please constituents hoping to drive all the sex offenders from his home town. Joel Dutton, a man on the sex offender registry there, had been charged with a new sex crime. When Dutton made bail, his neighbors started a website against him with these and similar comments:
"You show true restraint by not beating the tar out of this lowlife." Chris Johnson
"I hope you guys get rid of the bastard. What a piece of crap." MTgirl
"This is an incestuous family of whack-jobs and psychopaths, and it makes me feel good to know they are going down." Steve

"Hang'em high and let the sun set on em. Only in a perfect world right? Haha" Josh T
Boutin echoed those feelings in Senate testimony for his legislation. "Late September of 2009 a convicted child sex offender heinously struck again and was charged with felonious sexual assault against a 7 year old Hooksett girl," Boutin told lawmakers. "Quick adoption of this bill and dissemination of notification guidelines to local law enforcement will go a long way towards preventing another sexual assault, with regrettable consequences for the victim, family and community, who all share in the burden of the pain."
Boutin failed to mention that the prosecutor had already dropped the case against Dutton for lack of evidence. A neighbor had accused Dutton of molesting his own niece, who still lives with Dutton, his wife, and his brother in law. The bill died on the Senate floor, even in an election year

A growing body of research calls into question the wisdom of all this crusading against sex offenders. Dr. Karl Hanson, a corrections researcher for the Canadian Department of Public Safety, is a pioneer in the risk assessment of sex offenders. He has also co-authored numerous studies of sex offender recidivism, including several meta-analyses that followed large groups of offenders over many years. One of his projects found a 13.4 percent sex offense recidivism rate after five years. Another reported a 14.3 percent after six years. A third found a 14 percent rate after five years, 20 percent after 10 years and 24 percent after 15 years. 

Recent American studies suggest even lower rates. One by Sarah Schelle of the Indiana Department of Corrections, entitled “Juvenile Recidivism, 2010,” said that only two of 71 juvenile sex offenders released in 2007 had committed new sex offense within three years. That’s a 2.8 percent sex offense recidivism rate, although the sample size was small and the tracking period was shorter than Hanson used. The comparable rate for hundreds of adult sex offenders in Indiana the same year was 1.05 percent three years after release.

A report in July 2011 led by Mark Rubin of the University of Southern Maine’s Muskie School of Public Service followed 900 sex offenders released from prison or probation in Maine between 2004 and 2008. Within three years after release 3.8 percent had been convicted of a new sex crime. The study entitled “Sexual Assault Trends and Sex Offender Recidivism in Maine, 2010” can be found online at http://muskie.usm.maine.edu/justiceresearch/Publications/Adult/Sexual_Assault_Trends_and_Sex_Offender_Recidivism_in_Maine_2010.pdf.

Rubin told the Portland Press Herald the public still thinks sex offenders have high re-offense rates. “There’s really no data to support that theory,” he told the newspaper. 

A report in March 2012 by the State of Connecticut tracked 746 sex offenders for five years after release from prison in 2005. Only 3.6 percent had been charged with a new sex crime, 2.7 percent were convicted, and 1.7 percent had returned to prison for that new crime. The author of the report, Ivan Kuzyk, noted these low rates contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. “The real challenge for public agencies is to determine the level of risk which specific offenders pose (to) the public," Kuzyk said. Here is the full report. http://www.ct.gov/opm/lib/opm/cjppd/cjresearch/recidivismstudy/sex_offender_recidivism_2012_final.pdf

A related piece on the CCJR website, entitled “Facts and Myths about Sex Offenders,” summarizes similar low American sex offense recidivism rates in study after study: 1.2 percent after two years in Britain; 3 percent after 4.3 years in Iowa; 8 percent after a decade in Ohio; 5.3 percent  after three years in a 15-state federal study; 3 percent after three years in Alaska; 4.7 percent after three years in Tennessee; 2 percent after three years in West Virginia; 3.38 percent after 10 years in California; 7.2 percent after 25 years in Utah; 2.3 percent after three years in Arizona; 3.8 percent after three years in Delaware; 2.4 percent after three years in Illinois; 1.8 percent after three years in New Mexico; 4 percent after three years in South Carolina.  

Hanson said the earliest Canadian and American sex offense recidivism studies found unusually high rates because the investigators looked only at high- and medium-risk populations. Most were repeat offenders to begin with. Hanson is familiar with the recent U.S. studies, but questions some of those low numbers because parolees in states like Iowa and Alaska can sometimes return to prison after a new sex offense without counting officially as re-offenders. 

“I know that first-hand,” Hanson said. “The way they capture their data underestimates the recidivism. And not all repeat offenders go back to prison. Or they might return in a different state.”

In an unlikely alliance, victim advocates have begun standing up for sex offenders in litigation and battles over legislation. Atty. Margie Slagle wrote an amicus brief representing  the Cleveland and Texas rape crisis centers in the Williams v Ohio case. They intervened on the side of the plaintiff, a sex offender challenging the public registry law before the Ohio Supreme Court as an ex post facto punishment. Slagle helped Williams to win last summer.  Below is a passage from her brief.

While protecting Ohioans from sex offenders is a compelling interest-and indeed, it is the core mission of the amici- none of the changes implemented as part of Ohio's AWA has been proven to achieve that goal. Research shows that the law's more burdensome requirements on law enforcement, the public, and sex offenders can cause higher levels of recidivism and thus pose increased danger to the community. More onerous sex offender registration and community notification laws threaten to harm the very people they are intended to protect and to undermine goals of community safety and treatment of offenders. These laws perpetuate myths and create a false sense of security. 

Research demonstrates that victimization can be reduced when sex offenders successfully reenter the community. These changes also put law enforcement agencies, already in budgetary crises, in the position of spending precious dollars on monitoring low risk individuals with a limited impact on public safety. Thus, any argument that Ohio's AWA is simply a remedial law designed to protect children and the public from sexual abuse and sex crimes is seriously flawed. Ohio's AWA is not based on empirical evidence or proven research, but on fear and misinformation.

In an interview, Slagle said prosecutors and other officials pander for votes by playing the sex offender card. “The sad truth is we leave parents and children more vulnerable when lawmakers pass laws based on myth and not facts,” she said. “The public registry makes thing so difficult for them.  Part of rehabilitation is getting them accepted back into the community.”

Hanson said the research fails to support claims that the public sex offender registries deter sex crimes or prevent recidivism.  “The recidivism rates before and after implementation of registries are essentially the same,” he explained. “When policies are going to affect other people, it is worth collecting data first.”

Chris Dornin is a former New Hampshire State House reporter and the founder of Citizens for Criminal Justice Reform. In the interest of full disclosure, he helped to kill Sen. Boutin’s active notification bill.