“Megan’s Laws as a Case Study in Political Stasis”

September 28th, 2011

An interesting article that describes MEgan’s Law as a “product of legislative panic,” similar to the Black Swan phenomenon I have described.

Sex offender registration and community notification laws, today commonly known as Megan’s Laws, are typically seen as consumate products of legislative panic. Unlike many other panic-driven laws, however, the political forces motivating Megan’s Laws have not dissipated, and the laws have grown exponentially over time, despite research casting considerable doubt on their public safety efficacy. This symposium contribution examines how and why Megan’s Laws have endured–even thrived–notwithstanding concerns over their utility, and reflects upon their likely continued political impregnability in the years to come.

And on the evolution of Megan’s law:

Similar outrage soon spawned laws elsewhere but none had the impact of the July 1994 rape and murder of seven-year-old Megan Kanka in Hamilton Township, New Jersey by Jesse Timmendequas, a twice-convicted sex offender who lived nearby. [FN18] While local police were aware of Timmendequas’s history, his neighbors reportedly were not. [FN19] Voicing a sentiment that would come to define modern registration and notification laws, Megan’s mother, Maureen Kanka, asserted that “if [she and her family] had known there was a pedophile living on our street, [Megan] would be alive today.” [FN20]
In the wake of a rapid-fire successful signature petition, the Speaker of the Assembly Garabed “Chuck” Haytaian, running for the U.S. Senate, declared a legislative emergency, bypassing customary committee debate and forcing sex offender registration and community notification proposals to move directly to the floor for consideration. [FN21] After winning unanimous support in both the state houses, on October 31, 1994, three months and two days after Megan Kanka was murdered, Governor Christine Todd Whitman (with Maureen Kanka at her side) signed Megan’s Law. [FN22] With its passage, New Jersey became the fifth state to allow for some form of community notification. [FN23]
*375 The state-level developments did not escape the attention of Congress. Indeed, the October 1989 disappearance of Jacob Wetterling in Minnesota prompted U.S. Senator David Durenberger (R-MN), in May 1991 to push for adoption of the “Crimes Against Children Registration Act.” [FN24]As Durenberger told his Senate colleagues:
The reasons for enacting this legislation on the national level are clear: sexual crimes against children are widespread; the people who commit these offenses repeat their crimes again and again; and local law enforcement officials need access to an interstate system of information to prevent and respond to these horrible crimes against children. [FN25]
Even though there was no evidence that Jacob had been sexually abused (the case remains unsolved), Durenberger stressed that if law enforcement “had been aware of the presence of any convicted sex offenders in the community, it would have been of invaluable assistance during those first critical hours of investigation.” [FN26] Ultimately, however, despite the backing of the Wetterling Foundation, and bipartisan support in both houses of Congress, registration failed to gain Senate approval after conference. [FN27]
Undaunted, Durenberger continued his push for legislation. In November 1993, the campaign was advanced in the House by Representative Jim Ramstad (R-MN), who, along with many colleagues, emphasized the need for a registration law in light of the purported high recidivism risk of sex offenders. [FN28] Again, registration was touted by Ramstad and others for its capacity to provide law enforcement with access to information on convicted offenders in the immediate wake of a child being abducted or otherwise harmed. [FN29] Registration was also lauded for its perceived value as a deterrent to *376 criminal activity. [FN30] According to Ramstad, registration would put an individual “on notice that when subsequent sexual crimes are committed in the area where he lives, he may well be subject to investigation. This may well have a prophylactic effect, deterring him from future sexual crimes.” [FN31]
Although twenty-four states at the time had registration laws, a federal “stick” [FN32] was needed “to prod all States to enact similar laws and to provide for a national registration system to handle offenders who move from one State to another.” [FN33] Federal law would do so by threatening to withhold crime-fighting funds from states that failed to adopt registration requirements prescribed by Congress. [FN34]
In its original incarnations, starting in 1991, what was to become the Jacob Wetterling Act, treated registrants’ information as “private data,” available only to law enforcement for investigative purposes and government agencies for confidential background checks on persons working with children.[FN35] As history would have it, however, the victimization of Megan Kanka occurred while the bill progressed through the legislative process, prompting a sea-change in the chambers. Representative Jennifer Dunn (R-WA) rose to speak in the House “with a deep sense of outrage” over the omission of a notification provision intoning that:
Seven-year-old Megan Kanka of New Jersey is dead, Mr. Speaker. Sexual predators were released into her community and they lured that precious little girl to a grisly death. Conferees who worked to protect the rights of sexual predators should understand this: The next little girl killed by a released predator will haunt them. Mr. Speaker, it is outrageous that a few conferees have supplanted their will for the will of the House. It is outrageous that this bill effectively denies notification to the next Megan Kanka . . . or to your mother or sister or daughter. And it is outrageous that we would place the rights of criminals over the rights of victims.[FN36]
Representative Dick Zimmer (R-NJ) made the absence of notification a key rallying point, and Chris Smith (R-NJ), representing the township in which Megan Kanka lived, condemned the “arrogance” *377 of the conferees and demanded that notification be permitted. [FN37] Smith stated “[n]o one in the community knew the killer’s sordid past, Mr. Speaker. Had Megan’s grieving parents known that their neighbor was a dangerous person, they would have taken steps to protect their precious child. Megan’s parents had a right to know.” [FN38] The redoubled effort to include a notification provision soon proved a success, and President Bill Clinton signed the legislation into law (with Maureen Kanka at his side) [FN39] as part of the massive $30 billion Omnibus Anticrime Crime Bill on September 13, 1994. [FN40]
The resulting law, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling”), required states to adopt its provisions if they wished to avoid losing ten percent of their Byrne Formula Grant Program criminal justice funds, the main general federal funding source for state criminal justice programs. [FN41] States had to do so within three years of the law’s enactment, subject to a two-year extension for states making “good faith efforts,” and any undistributed funds resulting from a state’s failure to comply were to be reallocated to compliant states.[FN42]
In its final form, Wetterling required registration of persons “convicted of a criminal offense against a victim who is a minor” [FN43] or “a sexually violent offense,” [FN44] as well as persons designated by the sentencing court as a “sexually violent predator.” [FN45] Registration was required upon release from prison or when placed on probation, parole, or supervised release after the Act’s implementation, with ten days to comply. [FN46]Sexually violent predators were subject to lifetime registration and were required to verify their residential addresses every ninety days; the other two categories of registrants had to register for ten years and annually verify their addresses. [FN47] Individuals who knowingly violated the law were “subject to criminal penalties in any *378 State” in which the violation occurred. [FN48]
Congress elected to make community notification permissive, not mandatory. [FN49] Wetterling specified that law enforcement “may release relevant information that is necessary to protect the public” regarding a registrant, and provided officials immunity from civil liability for actions taken in “good faith” pursuant to the law. [FN50]
Wetterling further provided that the Attorney General was to issue implementing guidelines, and in April 1996, final guidelines were released,[FN51] emphasizing that federal law specified only minimum requirements for states (constituting “a floor . . . not a ceiling”). [FN52] The states enjoyed similar latitude with respect to community notification, enjoying specific authorization to engage in either “particularized determinations” of risk or “categorical judgments” based on nature of conviction. [FN53]
Not long thereafter, Representative Zimmer introduced what was to become the federal Megan’s Law, H.R. 2137, mandating that states utilize community notification, again under threat of losing federal funds. [FN54]Prompted by concern that states were “reluctant” to release information on registrants, [FN55] and that a lack of community notification in some twenty states might leave communities vulnerable and encourage sex offenders to migrate in search of anonymity, [FN56] the bill won unanimous support in both Houses of Congress. [FN57] In May 1996, President Clinton signed the bill into law. [FN58]
With Megan’s Law, the federal government did not merely permit community notification. Rather, states were instructed that they “shall *379release relevant information that is necessary to protect the public concerning a specific person required to register.” [FN59] “Information must be released to members of the public as necessary to protect the public from registered offenders.” [FN60]
Since the enactment of Megan’s Law, the federal government has imposed an ongoing series of registration and notification requirements, backed by federal funding threats. In October 1996, less than five months after Megan’s Law was enacted, came the Pam Lynchner Sexual Offender Tracking and Identification Act of 1996, [FN61] named after a Houston real estate agent who was sexually assaulted by a twice-convicted felon. [FN62] Lynchner expanded the lifetime registration requirement beyond designated sexually violent predators to also include offenders (1) twice convicted of committing a criminal offense against a minor, (2) twice convicted of committing a sexually violent offense, or (3) convicted of aggravated sexual abuse. [FN63]
Over the next decade came other laws, each modifying or in some way broadening registration and notification: in 1997, [FN64] 1998 (two laws),[FN65] 2000, [FN66] 2003, [FN67] and 2005. [FN68] The most significant change to date, however, came in 2006, when by voice votes in both the House and Senate, and with more than three dozen cosponsors, Congress adopted the Adam Walsh Child Protection and Safety Act of 2006 (AWA).[FN69] The bill was signed by President Bush on July 27, 2006, twenty-five years to the day after six-year-old Adam Walsh disappeared *380 from a Florida shopping mall. [FN70]
While named after Adam Walsh and enacted in recognition of the advocacy work of his parents John and Reve Walsh (the former became host of the popular television show “America’s Most Wanted”), [FN71] the AWA formally established the Jacob Wetterling, Megan Nicole Kanka, and Pam Lynchner Sex Offender Registration and Notification Program. [FN72] The AWA substantially overhauled federal registration and notification policy, expressly repealing Wetterling, Megan’s Law, and Lynchner. [FN73] It seeks, in the words of Congress, to establish a “comprehensive national system for the registration of [sex offenders and offenders against children].” [FN74]
Like Megan’s Law in 1996, [FN75] the AWA was motivated by concern over the diversity of state regimes, which advocates asserted created “loopholes” and “deficiencies,” allowing thousands of registrants to become “lost.” [FN76]The AWA heightened requirements across the board, including the range of registerable offenses. All persons convicted of a “sex offense” were required to register, a category encompassing several expansive subcategories,[FN77] including criminal offenses having “an element involving a sexual act or sexual contact with another,” [FN78] “[v]ideo voyeurism”; the possession, production, or distribution of child pornography and; “[a]ny conduct that by its nature is a sex offense against a minor.” [FN79]
The AWA also contains several significant policy changes, including a requirement that specified juvenile offenders register and requiring that registrants verify information in person (as opposed to mailing in verification). [FN80] Moreover, individuals now must register, keep their registration current, and provide a new photo, in each place *381 they live, go to school, and work. [FN81] When they register, far more information is to be collected for inclusion in state registries, including social security number, employment and school location information, finger and palm prints, a DNA sample, and vehicle license plate number and description. [FN82] Finally, if they intend to leave their jurisdiction of residence for seven days or more, registrants must inform their home jurisdiction as well as the jurisdiction they intend to visit. [FN83]
The centerpiece of the AWA is its tier classification system. [FN84]Whereas in the past federal law left to states how individuals were to be distinguished for purposes of registration and community notification, the AWA specifies that a conviction-based regime must be employed. [FN85]Unlike risk-based tier systems, such as employed in Washington State and New Jersey, the AWA expressly eschews individualized risk assessments.[FN86] All statutorily eligible registrants must register, and no basis exists to challenge the registration requirement for the specified duration, which varies from a minimum period of fifteen years (and annual verification) to life-long (and quarterly verification). [FN87]
Under the AWA, all registrants are automatically subject to community notification by means of internet websites that states are required to create and maintain [FN88] and registrants’ information is made available for public view on the Dru Sjodin National Sex Offender Public Website maintained by the attorney general. [FN89] Information must also be provided to community entities such as schools, public housing agencies, and child social service organizations. [FN90] The AWA also adds new and harsher penalties for registration violations, for the first time specifying a minimum penalty that states must impose–a term of imprisonment in excess of one year. [FN91]
As with prior federal demands, Congress afforded states a period of time to comply with new federal mandates. The AWA specified that jurisdictions had until July 27, 2009 to comply and thus avoid losing ten percent of Byrne Grant funds. [FN92] Although the deadline has been *382 extended on several occasions, as of this writing only six jurisdictions (four states and two tribes) have achieved “substantial compliance,” according to the Department of Justice. [FN93] State resistance has, in the main, been based on state government estimates indicating that the costs associated with compliance far outweighed the threatened loss in Byrne Grant funds and, in some instances, principled policy objections (for instance, over registration of juveniles). [FN94]
If past experience can serve as a guide, however, federal pressure will ultimately prove effective in satisfying congressional will. With financial pressure imposed by Wetterling in 1994, all states had registration laws by 1996. [FN95] Likewise, nationwide compliance with the community notification requirement contained in Megan’s Law in 1996 was achieved in 1999. [FN96]

And on “panic” legislation:

A common framework for conceiving of the recent harsh wave of provisions targeting sex offenders, including registration and *388 notification laws, is that of a “panic.” In his study of state laws enacted in the late 1930s permitting the involuntary commitment of “sexual psychopaths” to psychiatric institutions, sociologist Edwin Sutherland identified the following process at work: first, the “community is thrown into [a] panic by a few serious sex crimes, which are given nation-wide publicity; [next,] the community acts in an agitated manner, and all sorts of proposals are made; [finally,] a committee is . . . appointed to study the facts and to make recommendations.” [FN134] In 1972, another sociologist, Stanley Cohen, studied the exaggerated response in England to “Mods and Rockers,” teenage groups who, in the mid-1960s, engaged in a series of minor disturbances.[FN135] Cohen observed that “[s]ocieties appear to be subject, every now and then, to periods of moral panic,” resulting in the “moral barricades [being] manned by editors, bishops, politicians and other right-thinking people,” and drastic solutions proffered. [FN136] That the actual extent and nature of the disturbances was distorted, and the images of the nefarious youth gangs largely invented, was of no moment; what mattered was that the particular social threat was perceived. [FN137]
The panic model, while running the risk of unduly downplaying the seriousness of sexual victimization (with its implicit comparison to teenage social hooliganism), nonetheless provides a helpful conceptual model. The panic itself can be traced to the July 1981 disappearance of six-year-old Adam Walsh in Hollywood, Florida that captivated the nation’s attention.[FN138] After the boy’s severed head was discovered in a canal, his parents, John and Reve Walsh, initiated a national crusade to address the problem of missing and abducted children. [FN139] In testimony before Congress, John Walsh related that “[m]ore than 1.5 million children are reported missing every year” and “we don’t have clues to what happened to over 50,000 of them.” [FN140]
Congress responded by creating the National Center for Missing and Exploited Children, appointing John Walsh as head. [FN141] By 1985, over one hundred agencies, with annual combined funding in excess of *389 $15 million, were engaged in the campaign against child abductions, increasing public awareness by such efforts as emblazoning milk cartons and cereal boxes with the faces of missing children. [FN142]
The panic, however, soon lost steam, undercut by claims that abduction rates had been exaggerated [FN143] and public focus soon readily shifted to child sexual victimization. The groundwork for this transition was laid in the early 1980s with trials stemming from reported mass child sexual abuse at the McMartin preschool in Southern California and a day care center in rural Jordan, Minnesota, which received sustained media attention and prompted congressional hearings. [FN144] By 1990, when the National Center for Missing and Exploited Children merged with the Adam Walsh Child Resource Center, child sexual molestation had become a major focus of national concern. [FN145]
Panic, however, accounts for only part of the story. Sex crime panics have beset the nation before. Their net outcome, however, pales when compared to the uniquely severe, comprehensive, and sustained legislative response of the 1990s resulting in today’s nationwide network of registration and notification laws. American jurisdictions targeted sex offenders with registration starting in the 1930s, and from the late 1930s through the 1960s, laws permitting the commitment of “sexual psychopaths” were widely adopted. [FN146] Commitment laws, *390 however, devolved into near non-existence over ensuing decades and registration attracted comparatively little interest. [FN147] Only in the 1990s did registration–with its predominant focus on sex offenders– combined with notification, fully blossom.