21st Century Scarlett Letter

When I was kid growing up out in Odessa, Texas, The Scarlet Letter was required reading. The premise of the story is that it was wrong for the Puritan society of early America to heap scorn upon the story’s protagonist/adultress by forcing her to wear a scarlet “A” on her person at all times. With good story-telling, American youth are taught that American justice is about repentance, not public shaming and humiliation, or at least should be. Apparently, it’s a moral lesson completely lost on those that run the Texas Department of Criminal Justice, and even those more “liberated” minds that run other state governments and our federal government.

Let me begin by refuting the argument, before it is even brought, that this is leftist, “progressive” thinking. Au contraire, the idea of rehabilitation and repentance are inherently conservative principles founded in the Christian faith and consistently practiced throughout Western history by those eminent figures who most closely followed the way of the Bible. In this regard, the philosophy that man can turn from his evil ways and become good is neither a Republican or a Democrat ideal. It is a Christian one, and Christ-followers of any political stripe should embrace it.

The reason I brought up the scarlet letter “A” is because there is a modern-day equivalent in America. It is the sex- offender registry, and, particularly, that registry’s information being made broadly available to the public on the internet. Over the last half-century, the use of registry has undergone a metamorphosis. It was originally conceived as a way to keep tabs, internally, on sex offenders in the community by having those offenders provide local law enforcement with information about where they are living and/or working. State politicians all over the country, dancing to the compulsive tune of “Tough on Crime”, have since turned this system into something sinister. Instead of this information being used by law enforcement on a need-to-know basis, it is openly published on the internet under the much-exaggerated claim that the result will be safer communities. However, in EVERY study that has been conducted on this issue to date, there is not a single piece of evidence that publicly available sex-offender registry has deterred or prevented a sexual assault, ever. However, there are multiple examples of registered persons being assaulted or discriminated against based on their past crimes. To many, sadly, this seems like a just dessert. But let me ask you something. How would you like it if your one greatest moment of shameful behavior was preserved in detail on the internet for all to see, along with all the additional information necessary for any stranger desiring it to contact you and berate and harass you for that deed? (And thanks to modern sites like Facebook and Twitter, more and more people are experiencing for themselves just how this does feel.) No one wants their failures paraded before them, much less their one greatest moral failure of a lifetime. And in Texas, as in many other states, there is no timeline for falling off of the registry. Any sexual crime puts you on it for life. Yes. That’s a life sentence, automatically.

When the constitutionality of such sentences was brought before the Supreme Court, they side-stepped the argument of cruel and unusual punishment by claiming that registration wasn’t “punishment” at all, but that is a very dubious argument, and one that was eloquently exposed as such by the dissenting opinion of Justice Clarence Thomas. Of course, it is punishment. After all, it’s the direct result of a court-imposed sentence for an infraction of the law, and in some cases, it is far more damaging and life-impacting than a prison sentence could be. After all, in some communities that have gone way to far in their zeal to oust the unwanted sex offenders from their presence, it isn’t even possible for persons with a sex offense on their record to get a place to live. Housing restrictions beyond any reasonable objective keep former offenders living under bridges or moving from place to place in trailers to avoid the registry laws. That defeats the very purpose supposed by the advocates of these laws in the first place. But, finally, the tide is shifting.

More and more lower courts are facing the obvious truth that, of course, registration is part of the punishment for the crime. As such, it is exposing that part of the punishment to constitutional challenge. A recent example proves instructive. At age 18, a Michigan man was convicted of statutory rape for having sex with a 15-year old girl. (He would later marry this woman. He’d been prosecuted because the woman’s parents hadn’t approved of their relationship.) As part of the automatic penalty imposed for his crime under the law as it stood at the time of his arrest and indictment, he would be required to register as a sex offender for the rest of his life. Also, because of the way information on the registry was processed, the age of his “victim” would remain static while his own age was kept current. That means the public wouldn’t know the close proximity of age when the crime was committed. When he turned 25, 30, 45, or 65, the internet would show he liked having sex with 15-year old girls, a gross distortion of the truth. The Michigan courts recognized that not only was registration punishment, but that, at least as it applied in this case, it was cruel and unusual. The case wasn’t taken up by the Supreme Court, so while their original ruling on the issue stands, it’s foundation is showing signs of weakness. And that is a good thing. At the very least, the judge or jury that hears any given case should have the power to give a lesser sentence if the circumstances justify it. It should not be forced upon them by statute to throw the book at someone who is guilty, but with mitigating circumstances.

Another drawback to the present implementation of the registry system is its cost. Communities are finding that they simply don’t have the tax dollars to pay for the upkeep of the system, or all of the resources necessary to police it. As a result, the registry is full of outdated and misleading information that could lead to a tragic episode. In one infamous case, a suicidal vigilante decided he would do society a “favor” by killing himself, but only after he picked a sex-offender registered address at random on the internet, went up to the door of the home with his gun, and shot the offender in the head when he opened the door of his own home to this complete stranger. He then turned the gun on himself and took his own life. In THIS case, the murdered man WAS a sex offender. But what if an outdated entry in the registry had led the killer to the home of an innocent family that had just moved into a registered address? As terrible as the first crime was, the implications of it are far worse.

Instead of putting good, well-trained officers on the street where they have the most positive impact on lowering crime across the cities, precious public resources are funding low-paying jobs, really data-entry positions, to keep up with all the information in the public registry. And if the above-described scenario played out in real life, can you imagine how much the community would incur in its legal jeopardy? The attorney fees and court costs would be enormous. A simple “stranger danger” presentation at an elementary school costs far less and has a much greater chance of stopping an actual attack against a young innocent. The reasons are many. For one, the instances of these types of crimes being perpetrated by a total stranger to the victim is, despite all its Hollywood hype, extremely rarer around one percent of all child sexual assaults. Instead, this crime is almost always committed by someone familiar to the child- a family member, a friend, a trusted adult from the child’s school or church. This is a sad truth, but the truth nonetheless. That makes efforts to stop attacks by strangers 99% ineffective, from one point of view. The greatest weapon against crimes against children is the same today as it always has been- a strong family and vigilant parents. Please don’t think for one moment that I’m suggesting that a child’s family is responsible if that child is assaulted. But, as in so many other areas of young lives, the chances of something bad happening increase substantially with maladjusted home lives. The runaway is far more likely to be assaulted than an average child.

Instead of investing in false hope, like the sex offender registry, which only provides an illusion of safety, community tax dollars would be spent far better on programs that really work to educate against such crimes, and rehabilitation programs for offenders to provide the net of services necessary to prevent additional crimes in the future. The oft-cited myth that sex offenders are 100% incurable and 100% likely to re-offend is a complete lie based on a quote from a speech that somehow made it as “hard fact” into case law. It has since been exposed as a lie, not only by the research into its origins, but also by the statistics themselves, sex offenders who complete a treatment program during or After their incarceration are at least 75% less likely to EVER re-offend. After ten years, that number goes up dramatically to over 90%. In other words, if an offender has been successful for 10 years after his treatment program, there is no logical reason to keep him on a registry for the rest of his life. It does nothing to help society, and does much to hurt the offender himself. It also costs the resources of the law enforcement agency tasked with keeping the registry.

Instead of listening to the speeches and histrionics of people with a political agenda- people trying to get elected or re-elected by causing a crime-wave panic- we desperately need to start listening to the people who have a lifetime of professional experience and factual knowledge to back up their suggestions for a better working system to stop sex offender recidivism. These offenders are not all shark-like predators just stalking the street corners in their trenchcoats waiting for school to let out. If you look at the sheer numbers of people convicted of a sex crime, you will find it far more likely that the typical sex offender is likely someone who you meet every time you visit the grocery store or walk through a mall. You might find, like I have, in doing these last 12 years in prison, that they come from all walks of life, from professionals to day laborers, rich and poor, every ethnicity. In other words, even with a registry, you don’t know who they are. The registry only serves to incite local vigilante violence and hurt property values.

Finally, we as a people have moved past the day when “shaming” punishments like the stocks, the brands, and the scarlet letters, are viewed as acceptable consequences for crime. In this age, when so much of our lives are connected in the digital age, it is imperative that we do away with the life sentence of sex offender registration.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez