Forgive and Forget Sex Offenders? Not a Chance

Eugene Volokh is a professor at the UCLA School of Law.

Megan’s laws, the Supreme Court held Wednesday, are constitutional: The government may require sex offenders to register with the police and may publicize their names and addresses on the Internet. The justices got this right.

The best predictor of someone’s future behavior is past behavior. It isn’t a perfect predictor; sometimes people do change their ways. But we often have to make decisions based on imperfect information. A state is entitled to conclude that we are better off knowing which of our neighbors are sex offenders, so we can decide for ourselves how cautious to be around them.

Some disagree, saying that the criminals have “paid their debts to society.” I’ve never quite understood this metaphor. Raping someone isn’t the same as borrowing money; a debt can be paid, but a sex crime can’t be undone.


However, say we accept the metaphor. Someone takes your money; after many years of litigation, he finally pays his debt. Do you just forget about this? Do you treat him as if he’d never injured you? Probably not. Instead, you’ll remember what he did and be careful around him in the future.

That’s the premise behind Megan’s laws. If someone commits a crime, we don’t forget what he did even once he’s released. In most states, convicted felons may not own guns. They may not vote. They may be barred from certain jobs. And now some convicts must also register and have their crimes (matters of public record) publicized. That’s perfectly constitutional.

The same goes for the argument that people deserve “a second chance.” A second chance means a second chance to live right, but it necessarily also involves a second chance to rape more people.

Sometimes we might feel that a person really should be released, despite the risk to others. But there’s no requirement that the law pull the wool over the public’s eyes and hide the person’s potential dangerousness.

One lower court decision, which the U.S. Supreme Court reversed, said it’s wrong to apply Megan’s laws to people who supposedly have been rehabilitated and don’t pose a threat for the future. But psychiatrists can’t tell for sure who’s dangerous and who’s not. The question is: May the state Legislature leave it to each of us to decide whether to risk dealing with a convicted sex offender, or must it let psychiatrists decide whether this information should remain hidden? The Supreme Court correctly held that states may leave the choice to us.

The toughest question that the court faced was whether Megan’s laws could be applied retroactively to people who committed their crimes before the notification and registration laws were passed.

The Constitution doesn’t have a “you may not publicize people’s past crimes” clause, but it does have an ex post facto clause, which bars the government from retroactively imposing new criminal punishments. Historically, courts have found that lengthened prison or probation terms couldn’t be applied retroactively, but other constraints -- such as employment restrictions, gun possession restrictions and so on -- could be.

The theory is that these constraints are meant to protect society from future misconduct and not to punish past misconduct. This is an imperfect distinction, since many punishments (including imprisonment) are aimed both at punishing past behavior and protecting society in the future. Still, some such distinction is probably necessary, and the precedents certainly support it. The court was probably right to say that registration and notification rules fall on the side of civil restraints, which can be imposed retroactively, rather than criminal punishment, which can’t be.

There are plausible policy arguments against Megan’s laws. For instance, if community notification makes some released felons unemployable, it might increase the risk that they’ll return to a life of crime and maybe even commit more sex crimes because they’ll feel that they have little to lose. Or it might make criminals move to more anonymous surroundings, such as bigger cities or other states, thus simply shuffling sex criminals from one place to another. Also, since many sex criminals haven’t yet been caught, people might be better off being cautious everywhere, rather than focusing too much on those neighbors who have specific sex offense convictions. And some Megan’s laws might just cover too many crimes or might otherwise be more onerous than necessary.

But these are judgment calls that each state is entitled to make on its own. The Constitution does not mandate lenience, forgiveness or forgetfulness.