After years of panicked and excessively punitive lawmaking against sex offenders, cooler heads are beginning to prevail. The U.S. Supreme Court, for example, on Monday struck down a North Carolina law that effectively banned registered sex offenders from using any social media that is also accessible by children.
Lester Packingham did indeed commit a sex crime: He pleaded guilty in 2002 to having taken "indecent liberties" at age 21 with a 13-year-old girl. Years later, he had a traffic ticket dismissed and posted a celebratory message on Facebook — and was arrested for violating his state's Internet restriction against sex offenders.
Defenders of the North Carolina law argued that the ban was much like the ban many states have on sex offenders entering or even approaching playgrounds. They are gathering places, the argument goes, for children. Because the perpetrator has already shown his willingness to commit crimes against a child, the state should block his access in order to protect other children from being victimized.
But as the Supreme Court properly noted in striking down the North Carolina law, barring access to all social media also bars access "to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." The law, in effect, stripped Packingham of his 1st Amendment rights. The court's ruling wisely invalidated the state law while leaving room for a law more carefully tailored to protect children.
Elsewhere, states are grappling with what to do with sex offenders (unlike Packingham) whose crimes were committed against adults rather than children. For example, what if an offender is convicted of sexual battery against an adult, or he gets drunk, relieves himself in public and then is arrested and convicted of indecent exposure — a registerable offense in some states. Should such a person be kept away from playgrounds, schools and social media, and required to register for the rest of his life if he has no history of targeting children?
Many lawmakers and voters have in effect said "yes" in the emotion-charged but factually unsupportable belief that any person who has committed any variety of sex offense is automatically a heightened risk to commit any other kind of sex offense, and against anyone. It is not uncommon for lawmakers to conflate "sex offenders" with "child molesters" — or pedophiles, sexually violent predators, mentally disordered sex offenders or any of a variety of other categories of criminal that are not, in fact, interchangeable.
If the purpose of post-sentence restrictions is to protect children, it makes little sense to restrict low-risk, non-violent sex offenders who have never victimized children nor shown any likelihood of doing so. It makes sense instead to distinguish among offenses and offenders, to ensure that laws protect the public without unnecessarily restricting the perpetrator's ability to return to normal life after punishment.
Some states do distinguish — by dividing their sex offender registries into tiers. One kind of offense may require registration for only five or 10 years, another kind for longer.
In California, bills to divide the current one-size-fits-all, lifetime sex offender registry into sensible tiers have failed in one session after another as lawmakers surrendered their clear thinking to their inner revulsion (or their fear of headlines branding them as soft on sex crimes). This year, finally, sense may prevail. Los Angeles County District Attorney Jackie Lacey is helping to lead the effort to adopt SB 421, which would create three tiers and eliminate much needless paperwork currently devoted to keeping tabs on people whose crimes were non-violent and who pose little or no risk. The bill has cleared the state Senate and is now before the Assembly.
As written, it is still too inflexible. Many offenders need not be on a registry at all, and others need not be there for what would be the new 10-year minimum. But the law is a step away from the lifetime registry that now applies the same way to all offenders regardless of the severity of the crime or the risk to re-offend, and is therefore a step forward. The time has come for California to take that step.