Court ruling dismisses valid complaints about Arizona’s sex offender registry, expert says

A federal judge ruled in November that Arizona’s sex offender registry is constitutional.

The Arizona Mirror reported on the lawsuit filed by a man who went by John Doe. He had been convicted of sexual conduct with a minor in 2016. His lawsuit claimed the requirement that he register as a sex offender violated his due process and free speech rights. The suit also tried to do away with the laws that required him to register as a sex offender for life, register his residency in a new county every time he stays there for more than three days and report any online identifiers he uses.

Ben McJunkin is an associate professor of law and associate deputy director for the Academy for Justice at ASU’s Sandra Day O’Connor College of Law. Among other areas of law, he specializes in sex crimes. He spoke on The Show to talk more about this issue.

Full conversation

MARK BRODIE: And Ben, what about this case and the ruling in it stands out to you?

BEN MCJUNKIN: Well, I think the thing that’s most notable about this particular case is that the judge gave sort of short shrift, in my opinion, to a few of the arguments that the plaintiff is raising here. And the reason for that is that mostly there’s bad precedent on the books both Supreme Court precedent and Arizona Supreme Court precedent — that have precluded some of these claims.

And so I think the plaintiff is making a plausible argument about how restrictive some of these registry restrictions are, and yet they’re not really legally cognizable in the form that he brings here. And so the judge is not able to give them the kind of airing that they’re probably due.

BRODIE: What to you is maybe a little too restrictive about Arizona law?

MCJUNKIN: Well, so Arizona is not unique necessarily, but it does things differently than some states. And one of the things that it does is that it mandates registration as a result of conviction. So for 22 offenses, there’s automatic registration on the sex offender registry. And for most offenders, that’s going to be registration for life.

And so there’s this combination of automatic registration based on your offense combined with the lifetime length of the registration that can make it seem pretty restrictive to people who may have committed even a first offense.

BRODIE: Are there states where somebody who is forced to go on the registry can eventually get off of it?

MCJUNKIN: Yes. So it’s not uncommon in other states to have places where you can get off the registry. So depending on your risk level, the registration length may vary at the time that it’s imposed.

Academic commentators, the general academic consensus I would say, is that you should be able to escape registration; that lifetime registration is generally a bad idea, and it’s not justified by risk level. And even if you believe that we should have presumptive lifetime registration, there should be some way for many people to exit registries after a specified period of time and meeting specific conditions.

BRODIE: Why is the consensus that lifetime registration is not a great idea?

MCJUNKIN: Well, I think the real thing is that there’s not a lot of evidence that sex offender registries are effective, and there’s not a lot of evidence that the recidivism rates are particularly high for sex offenders, especially as they age.

Arizona State University

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BRODIE: It almost sounds like what you’re saying is there maybe ought to be — and in some states there are — like kind of a parole system for sex offenders who are on the registry. That maybe if they meet certain criteria, they can be taken off. Like, you know, somebody who’s in prison. There are certain criteria that they can meet. They get paroled, and maybe they get. Maybe they get out a little early.

MCJUNKIN: That’s right. And that sort of brings me to one of the points in this particular lawsuit. So there were five challenges that were brought in this lawsuit, and one of those challenges was called a procedural due process claim, where where John Doe, in this instance — he’s going by a pseudonym — is suggesting that lifetime registration is simply a violation of the Constitution without some kind of opportunity for an administrative or judicial review that would assess, for instance, whether he’s particularly dangerous or whether he has a high risk of recidivism that might justify putting him on the registry.

BRODIE: Yes, but at the same time, there certainly are places and there certainly are sentences where you have lifetime in prison without the possibility of parole. So I wonder, is this just kind of the analog in sex crimes to those crimes?

MCJUNKIN: So that’s a great question, and it brings me to another part of the complaint. So it is true that in criminal law, we have certain crimes that might be punishable by life in prison without the possibility of parole. But what’s interesting about sex offender registration is that it’s ordinarily considered a civil scheme and not technically part of your punishment.

And so in this particular case, one of the things that Doe says is that it violates the Eighth Amendment because it’s cruel and unusual punishment, and that it violates the ex post facto clause because the requirements actually change even after you’re on the registry. So you might get on the registry when the requirements are relatively light, and then revisions to the statutes might make your requirements more onerous.

And both of those challenges get foreclosed by the judge in this case, Judge McNamee, because he says that it’s a civil scheme and it’s not actually a criminal punitive scheme. And if it’s not a punitive scheme, those constitutional protections simply don’t apply.

BRODIE: How do you look at the balance in crimes like this in terms of punishing them — and they’re particularly sensitive crimes — with the rights of the accused and the rights of the people who have done these crimes to maybe not be punished for them for the rest of their lives, depending on sort of the severity of what it is that they’ve done?

MCJUNKIN: Yeah, I think it’s a really delicate balance, and it’s. It’s hard to know what side to be on, even as someone who studies this. So some of the things that we know about sex offender registration: One, is that it’s incredibly popular. And so you’re not likely to see politicians or even courts who are going to go against the grain and cut down registration much, if at all.

On the other hand, the best empirical evidence we have is that sex offender registration probably doesn’t do much to deter additional sex offenses. And there’s at least one plausible theory that it could increase the frequency of recidivism when combined with onerous community notification requirements.

And so whether they actually achieve those goals of public safety is a hotly debated question for which we’re still continuing to develop the evidence to know. And as a result of that, it’s simply hard for us to come out to say where the balance should be struck.

BRODIE: Well, so if the evidence suggests that the registry is not super effective at preventing this kind of crime, are there things that do?

MCJUNKIN: So this is another hotly debated question and probably outside of the scope of what I’m able to answer today. The short version of it is that we know that the criminal law generally has some important deterrent effect. And so it’s certainly the case that in the area of sex crimes, that some amount of prosecution and punishment is appropriate and appropriate as a deterrence mechanism.

But beyond that, there’s probably any number of things that we could do — including public health messaging and the way in which, we monitor our kids online use and things like that that we could do to keep ourselves safe — that’s probably going to be more effective than simply checking the sex offender registry to see if we live near sex offenders.

So if you think about sort of the way in which sex offender registries are supposed to operate, there’s really two primary benefits. The first benefit is supposed to be that if there’s a sex crime, the police know where the nearby offenders are so that they can investigate them first. And I think because people are on the registry, there’s an assumption that they’re less likely to reoffend because they think they’ll get caught for precisely that reason. And we just don’t see that bearing out that much.

And then the second purpose of the registry with respect to community notification is that people can take self precautions. They can check the community notification and decide, OK, well, I’m going to avoid the people who are registered sex offenders.

But what we know about sex crimes is that in fact, a large portion of sex crimes are committed by people you know. They’re not committed by strangers. And so even if we took added precautions against certain people, we’re probably taking the wrong precautions against the wrong people.