What SB-384 Means for California’s Sex Offenders
by Charlotte Munger, Laura Zhang, Kevin Liao
California recently passed a law in the fall of 2017 that allows certain sex offenders to be removed from both public and police registries. This legislative change opens up new opportunities for currently listed sex offenders to remove themselves from the database as previously, California sexual offenders were required to register with the police for life. Only three other states (Alabama, South Carolina and Florida) still require lifetime registration.
Public sex offender registries have vocal critics and proponents. The American Civil Liberties Union (ACLU) has in the past brought a case to federal courts arguing against the constitutionality of registry laws while Human Rights Watch supports eliminating public registries. However, advocacy groups such as Parents for Megan’s Law, the central piece of legislation behind public offender registries, believe that registries are necessary to prevent future crimes and protect families from known predators.
In an attempt to reform California’s registry system, state senator Scott Wiener authored a bill, SB 384, with the goal of reducing the burden on law enforcement of tracking sex offenders who pose little risk to communities. While a staff member for Wiener told us the purpose of the bill was “not to promote rehabilitation,” the removal of individuals from the registry likely allows them to integrate back into society and find employment as they lack the stigma associated with being a sex offender. Critics argue that the registry infringes upon the data privacy rights of offenders as their personal information such as names, addresses, and photographs is available online.
Given these data privacy issues and the adverse consequences for offenders who are publicly listed on the registry, we wanted to analyze whether the registry achieves its purpose in notifying the public of high-risk criminals and whether the new law’s tier allocations are in line with crime recidivism rates (likelihood of committing another felony).
Referred to as the tiered registry law, the new law designates sex offenders into three tiers based on the severity level of the convictions:
- Tier One is the least severe category and include crimes such as misdemeanor sexual battery. Offenders can petition to be removed after 10 years.
- Tier Two is for mid-level convictions such as lewd and lascivious acts with a minor. People who fall under this category can petition to be removed after 20 years.
- Tier Three is for the most severe convictions. Offenders are subject to registration for life.
Each year, the addresses of sex offenders must be verified and they must be deemed in compliance with all regulations on their employment, housing, and behavior. According to Weiner, “Law enforcement responsible for policing sex offenders estimates that 60% of officers’ time is spent on monthly or annual paperwork for low-risk offenders, which is time spent at the expense of being active in the community monitoring high-risk offenders.” The police database is estimated to contain approximately 100,000 offenders, or more than 1 in 400 Californians.
To better understand the demographics of the police database and whether it is overpopulated with low-risk offenders, we scraped the profiles of the roughly 50,000 sex offenders who are publicly available on the California Megan’s Law website. The offense committed by each registered individual and the corresponding offense code are listed on the site, and after reading through the text of the bill, we mapped these offense codes to the three tiers. Using this data, we calculated the percentage of currently publicly listed offenders that would be eligible for removal under the new law.
Our aggregation of the data reveals that approximately 65% of offenders lie within tiers one and two, and are eligible for removal, while the rest are in tier three and are not.
Note that multiple convictions can be listed under a single individual. This is especially true for tier three, which explains why the number of tier three convictions is higher than the 35% of individuals that are categorized as tier three offenders. During our phone call with Janice Bellucci, the executive director of Alliance for Constitutional Sex Offense Laws, she estimated that from her past experiences working with sex offenders, about 60–65% of people today should become eligible to petition for removal. Our analysis agrees with her estimate.
Just over 20,000 (39%) of individuals from the public registry will be eligible to remove themselves from both registries via the petition process by the end of 2021. At least another 13,500 persons (26% of database) can become eligible, around 6,000 of whom are currently incarcerated and 7,500 of whom have not passed the minimum petition time post-release.
To examine the effectiveness of the tiered registry, we then looked into the recidivism rates, defined by a subsequent felony conviction, of the most frequent crime codes in each tier.
The recidivism rates of tier one and two are significantly lower than tier three, affirming, at least in the broad scope, that the tiers reflect their purpose of stopping high-risk criminals from reoffending by keeping high recidivism criminals permanently on the registry.
While the tiered system does appear to address the goal of targeting high-risk individuals, it may also disproportionately affect racial minorities. Within tier three, which mandates lifetime registration, aggravated rape is the most frequent crime; 43% of such convicts are black despite estimates using US census data indicating that they only make up 6.5% of California’s population as of 2016. Assault with the intent to commit felony assault or murder, another tier three code, is 32% black. Minority groups are therefore overrepresented in the tier of offenders that must stay on the registry for life.
In the aggregate data, the registry has fewer disparities: while Asians are underrepresented and blacks overrepresented, whites and hispanics are present in amounts reasonable relative to their population in California (estimated 37.7% and 38.9% respectively in 2016).
Though a large number of offenders are eligible to be removed, it is unlikely many will do so. They must first petition the District Attorney’s (DA) office for review. If the DA objects to the petition, a hearing is held with a judge who makes the final decision. Risk assessment algorithms are used in the hearings to determine whether removal occurs, which could exacerbate the discrimination against minority groups.
We reached out to the offices of authors of the bill and asked why the bill relies on petitions rather than an automatic review process. Aria Ghafari, the legislative aide responsible for the previous bill that the law is built on, provided the following response in our interview:
“I think that was part of the negotiation we made to get the bill passed. It previously died in committee and we had to make changes in order to revive the bill… Pretty much the best deal we could get because they killed the bill a couple of times.”
A separate Scott Weiner staffer shed more light on the issue:
“That’s part of the requests that other senators — legislators — have made on the bill. They don’t want anybody to just come off the list without, you know, oversight… We just wanted to have the onus be on the person to petition to be removed. As far as having it automated… It’s going to come down to each individual county. Counties can put out notices and people can be given information that they can be potentially removed. But that’s going to vary county to county so there’ll be a pretty high cost to get in contact with these folks and let them know. We didn’t want to write in and make it super prescriptive what each county had to do. They just have to petition to be removed.”
With this additional petition step, Janice Bellucci seemed skeptical that many of the people estimated to be eligible will successfully be removed. She stated frankly:
“I’m just basing this on my current experience with something called a certificate of rehabilitation. No certificates* have been granted by Orange County. So we think they will probably act similarly when it comes to the petition. In other words, they will object to all the petitions.”
Other provisions also make it difficult for eligible offenders to remove themselves from the registry. Section 290.46 (k) penalizes registered individuals for viewing the online database of offenders, including their own profile.
“(k) Any person who is required to register pursuant to Section 290 [who is a sex offender] who enters an Internet Web site established pursuant to this section shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.”
Bellucci gave some context for this subdivision:
“I had somebody say this informally, it was an attorney from the Department of Justice of California who said, ‘It’s because we don’t want sex offenders contacting each other cause then they might gather together and they might do some harmful things.’ ”
But beyond the practical problems such as the infeasibility of enforcing such a provision, there is also the ethical problem with stopping offenders from accessing a publicly available government service, paid for with taxes they contribute to. Blanket denial of service runs contrary to the theory that government services should not discriminate based on past action (e.g. the theory that a drug addict is entitled to the same emergency room care as everyone else, and should not be blamed for their addiction).
Mentions of this provision are found on the Megan’s Law Website Disclaimer, which warns sex offenders who continue viewing the website exactly how they can be penalized: a fine, jail time, or both. Non-offenders are simply warned not to use the information provided “harass” an offender or “commit a crime” despite how they can be penalized by a civil fine of up to $25,000 and are liable for damages if they use the database to discriminate regarding insurance, housing, employment, or business services. Why one group is warned with a clear penalty and citation of the relevant legal subdivision while the other is not is unclear, but may indicate that there is little desire to have citizens adhere to this rule.
While this reform’s intentions are to refocus on high-risk offenders, very little will change if the petition process becomes a significant barrier to removal. Our analysis shows that the tiered structure of separating crimes provides significant value by filtering out low-risk individuals, but the current provisions of the law may limit its effectiveness.
Notes
[1] Our definition of recidivism is dependent only on whether a subsequent felony is committed and not based on whether the subsequent felony is committed during a certain period of time after the crime / rearrest as this information is not available.
[2] The public database is likely more skewed toward violent criminals than the police database because while all violent crimes are required to be listed publicly, not all low-violence crimes are.
[3] Disclaimer: the law does not take effect until January 2021 and due to the complex nature of the law and our inability to determine whether someone will be re-incarcerated before they apply, the use of tiers to determine eligibility only approximates who would be eligible.
*Certificates of Rehabilitation are acquired by part of the process that qualifies an individual for a governor’s pardon, and were one of the only ways to be removed from the publicly available database — though they did not alter the police-managed one. Acquiring one required an offender to petition in court and notifying DA’s in counties in which they convicted crimes.
