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John Donvan:

Hi, everybody, this is John Donvan. Welcome to Intelligence Squared and to a debate about a law or actually a series of laws, one in every state. They are relatively new. They went into effect with huge public support. They are the laws that require sex offenders to register on a list that is available to the public. The first such law went into effect about 30 years ago in Washington State. And today, there are some 800,000 people in the U.S. whose names appear across 50 state registries and the Federal version. The primary purpose of these laws is the idea that people should know if a sex offender lives near them, or works by them, where having that information would help keep the rest of us safer. Part of the thinking also is that being on the list would discourage recidivism. And that's a term that simply refers to someone who has been convicted of a crime offending again. Safety and Justice, those are the assumptions. This debate is about whether those assumptions have proven valid now that we have had three decades to see their impact, and whether the price paid for being on a registry is justified practically and also morally.

The question we're asking, do sex offender registries do more harm than good? Let's get to it.

So, let's meet our guests now. And again, the question is, Does the Sex Offender Registry Do More Harm Than Good? We will have one debater answering yes to that question and the other answering no. Our yes is from Emily Horowitz. Emily is a sociologist who researches sex offense law and policy. She is the author of “Protecting Our Kids? How Sex Offender Laws Are Failing Us,” and also “From Rage to Reason: Why We Need Sex Crime Laws Based on Facts, Not Fear.” Emily Horowitz, thanks so much for joining us at Intelligence Squared.

Emily Horowitz:

Thank you so much for taking on this challenging topic.

John Donvan:

It is a challenging topic indeed. And we have somebody coming from the other side to take on the challenge as well. Arguing no will be Cary Federman. Cary is an associate professor at Montclair State University, who focuses on law and jurisprudence and free speech and democratic theory and prisons and prisoners’ rights.

He is the author of “Democracy and Deliberation: The Law and Politics of Sex Offender Legislation.” Cary Federman, thanks so much also for joining us at Intelligence Squared.

Cary Federman:

Great to be with you, John.

John Donvan:

So, let's get started by going into our first round, which will be each of you in turn, making the case for taking a few minutes to tell us why you're a yes or a no. Emily Horowitz, you are the Yes. Again, the question is the sex offender registry does more harm than good. You’re up first. Why are you a yes to that?

Emily Horowitz:

Thank you. So, almost everyone will disagree with my argument opposing endless punishment and abuse towards those convicted of sex offenses. But I argue that the experience of being branded a quote-unquote “sex offender” is wrong, ineffective, counterproductive and destructive. Even those who advocate for those with justice involvement avoid critiquing registries, like religious and spiritual leaders and organizations, criminal justice reformers and advocates for social justice, who on principle, support and forgive those who have made terrible mistakes.

My position is so marginal because we wrongly view those on registries with unique revulsion and in need of special and excessive punishment due to the false but pervasive belief that all those convicted of sex offenses are similarly predacious, uncontrollable and unable ever to stop offending and thus punished and permanently surveyed because unlike all other humans, they are uniquely impervious to change. Most are surprised to hear that those convicted of sex offenses are not a distinct breed of person unresponsive to punishment and treatment, or that subjecting them to lifelong banishment and humiliation is counterproductive and vengeful. Sexual harm is profound. But there's no evidence that excessive draconian punishment resolves the pain and trauma of those hurt any more than ordinary criminal legal sanctions or other forms of accountability. The fact is that those on registries, despite widespread belief, don't have high rates of sexual re-offense, which we call recidivism. And like everyone else with past convictions reoffending rates decline over time. Low recidivism rates are not caused by registries or result of registries.

There has been a steady and significant decline in Child Sexual Abuse since before the time registries were implemented and before federal registry laws. Scholars find that decline is largely due to social and economic factors, not the registry. And simply put those with sex offense convictions have lower reoffending rates than those having committed almost any other offense. To be clear the data on low sex offense recidivism isn't based on select or cherry-picked studies or data, but it's virtually as one scholar noted the consensus of an entire field. One reason for widespread support for these banishment schemes is the pervasive belief that sexual harm crosses a line held to be of a nature and magnitude unlike virtually any other injury, including murder and physical assault or abuse and an experience from which one can never recover, and that all sexual harm is equally traumatic. To be clear, I don't have a soft spot for those convicted of sex offenses. I don't minimize the trauma of sexual harm or question the extent of sexual violence.

But we need reasonable, just, evidence-based policies while deescalating panic driven attitudes that result in the needless and brutal exile of an entire class of people that affects even their closest relatives and friends. To be clear, and on this final note, sex offenses are caused and characterized by the same factors as all other crimes. Those convicted are almost always dealing with such things as untreated mental illness, substance use and abuse, brain injuries, untreated trauma, abuse or neglect, or PTSD resulting from military service or other painful past experiences. Like most transgressions, committing a sex offense is rarely a premeditated and carefully executed decision where one weighs risks and consequences, but crimes of impulse and opportunity. Most incidents occur during times of extreme personal stress, when one is avoiding the pain of addressing long-standing personal psychological and emotional issues. Registries are a failure, accountability, treatment and reentry opportunities are effective ways to limit re-offense.

John Donvan:

Thank you very much, Emily Horowitz. And that brings you on to the stage, Cary Federman. You are answering no to the question do sex offender registries do more harm than good. You are a no because? Please, tell us.

Cary Federman:

Sure. So, to the question, does the registry do more harm than good? I answer good. This does not mean that I -- there aren't some things about the registry that I find difficult to accept. But my positive argument is that the registry and sex offender laws themselves in general, are products of an enormous amount of deliberation between parents, citizens and legislators. They are not products, for example, of referenda, which tend to oppress so called outgroups because they lacked deliberative principles. Sex offender laws are the products of an intense negotiation between parents of raped, abducted, and murdered children and state legislators. These laws began in Washington State as a response to the rape and murder of a number of children by Earl Shriner, a man who had a 24-year history of rape and murder of children, as well as of Diane Balanitis [spelled phonetically] who was raped and murdered by a sex offender.

These laws then from Washington State moved east to New Jersey, where Megan Kangas [spelled phonetically], a seven-year-old child was raped, abducted and murdered from somebody who lived on her own block, when the New Jersey started a sex offender law. At that point, the movement went to the Midwest, where in Kansas, they picked up these laws as well as throughout the rest of the country. At that point, it goes back east to Washington D.C., where both houses of Congress pass the law, the Adam Walsh Act or the SORNA Act, that requires notification and registration laws. These laws are enormously democratic, and they have the enormous product of deliberation, rather than what Emily would later call statistical anomalies which she refers to in her book. Megan Kangas for example. And they are not products of what Emily likes to call moral panic, and we should discuss that, John, at one point.

Instead, what I see when I look at sex offender laws, I see parents, victims, and legislators deliberating honestly about public safety and what democracy actually means.

John Donvan:

Thank you very much, Cary Federman. We're going to get into the points of difference that you've both laid out there. But before we do, I just want to take a moment since this is a topic that does not tend to be mainstream conversation. And Emily, in particular, you've already pointed out that you feel you're taking a position that is represented by -- that you referred to as marginal in that it's highly unpopular; that by arguing in any way against sex offender registry laws that you are, in some ways touching a third rail, it's a taboo. I'm just curious, want to ask each of this question, how you got into this topic as a field of study. Emily, why don’t you go first.

Emily Horowitz:

I started studying sex offense law when I was teaching criminal justice, and I met somebody who had been convicted of a sex offense.

And I was really surprised because this person had been convicted of a sex offense. They'd spent 13 years in prison, and they were trapped under the pressure of the unending consequences. While in prison, this person -- he’d spent 13 years in prison; while in prison, he'd become very religious. After he got out, he wasn't able to go to church because his church banned people on registries. He wasn't able to find work. Every job he applied for would not hire people on registries. He couldn't participate in athletic activities or recreational activities. He was kicked out of multiple apartment buildings, and he really couldn't survive. And it seemed totally counterintuitive. All the research on recidivism shows the best way to help people not offend again is to support them and give them opportunities, and the registry shames and doesn't allow people to do this.

John Donvan:

All right. So, you saw a need for research on this topic. It’s basically your answer to the question. And what about you Cary, how did you get into this as a topic to write about?

Cary Federman:

Right. Well, I also saw a need. Let me try to correct something that Emily said though. Emily said that she's part of a marginalized group of people. In fact, Emily's position is the Orthodox position. I've read hundreds of peer reviewed articles on sex offenders, and not one of them supports my position, not one of them actually can make an argument in defense of sex offender laws, you have to really go through the weeds to find and honestly top of my head, three articles is what I can think of off the top of my head that remotely agrees with my position on the subject. So, that's how I came to this subject, because I am not a sex offender researcher, I'm a constitutional law expert. But looking at things like hearing about sex offender laws and residency restrictions, I, you know, poke around and look at this interesting constitutional question of democracy and citizen engagement, and that kind of thing. And the more I read, the more I was astonished at how critical this literature actually is.

John Donvan:

So, thank you for that. Interesting, both of you feel that you're arguing from a minority position on this, so I'll just note that. But I want to ask you each to tell me what you feel the purpose, the intended purpose of the sex offender registration laws in all 50 states are from the point of view of those who have supported them. Emily, why do you think -- I'd like you to go first again on this. Why do you think these laws were -- with what purpose do you feel these laws were passed? What were its proponents hoping to achieve?

Emily Horowitz:

Well, even Jacob Wetterling’s mother, who was responsible for the first federal registry law, her son was abducted and murdered. And she advocated for federal registry laws, because she thought it must be somebody who has a prior sex offense. Wouldn't it be great if the police had a list of everybody who had a prior sex offense, and then we could find the person immediately. She's now retracted her position and said, these laws do way more harm than good. And this was not --

John Donvan:

But what social good do you think that these laws were meant to achieve?

Emily Horowitz:

So, I think when you hear about an abducted child, and they are statistical anomalies, almost no children are abducted and murdered by strangers on registries.

It almost never happens, thank goodness, but it captures our imagination and is so horrifying. It's the most horrifying thing we can imagine. We want to do something. So, we think these laws will help us if we know everybody in our neighborhood who's had a prior sex offense, our children will be safe. But unfortunately, over 93 percent of sexual offences involve people we know and they're not on registries.

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John Donvan:

More from Intelligence Squared U.S. when we return.

Welcome back to Intelligence Squared U.S., let's get back to our debate.

So, your answer is that those who would pass them more wanted to make the world safer for people out there. Cary, what's your understanding of the purpose of these laws by those who pass them?

Cary Federman:

Yeah, well, I mean, public safety. This is -- Emily likes to link the registry with sex offenders. I like to look at the first phase, which is that children were being abducted in Washington State.

There's plenty of evidence of this. Earl Shriner was a miserable person who had a rape spree for over 24 years, children were dying. And then there's Diane Balanitis who's a teenager she was raped and abducted and killed. Her mother who was a completely unpolitical person. So, Emily will bring up Wetterling’s mother who changed her mind. But Adam Walsh's father didn't change his mind and the Kangas parents didn't change their mind and Balanitis didn't change her mind. There are hundreds of parents whose children have been abducted and killed, who got involved politically, which I found as a scholar of democracy, I found that to be the grassroots. This is the commonsense view that people were being abducted and killed and that there ought to be a stop to this. So, I was really quite taken by these narratives of civic engagement by parents, these are very powerful stories.

John Donvan:

Okay, so what you've both said, and I think it's somewhat obvious, is these laws were passed with the notion that they would make the general public safer. And I want to look at that contention. I know, Emily, that you are also focused on the impact of those who are convicted, and I want to get to that, but first, I want to talk about does it makes the world safer for people to have these laws? And you've alluded a little bit to this, Emily, I think you're saying no, it doesn't. So, what is your argument that they don't actually produce the outcome, that those who supported the laws intended?

Emily Horowitz:

It's the consensus of the entire field, and recidivism declines over time. So, that's the first thing and then in addition, it's really important to know most people that are on the registry are there. It's their first offense. They have no prior convictions, and the victim is someone known to them. Almost all sexual abuse, like all crimes, involve people you know. So, the registry was designed with good intentions by parents thinking this will protect our children from strangers.

But it doesn't do that. There's no evidence it does that. People like Larry Nasser, who have multiple victims spanning decades, Larry Nasser never had a prior conviction until he was prosecuted, they'll be imprisoned forever. They -- also they're very expensive and they take away from punishing and preventing new sex offenses. There's been revelations in recent years about gluts of sexual assault kits that are not tested in police stations. Yet enormous resources are put into this registry, which is not doing anything, in order to prevent sexual abuse, which we've done a good job with decreasing the rates of sexual abuse since the early '90s was a result of social changes, less tolerance for abuse, awareness, and economic factors, just like with all other sorts of crime. I'm not against punishment, people who commit sexual crimes should be punished and held accountable, but not for the rest of their lives, not publicly, not once they serve their time.

John Donvan:

So, Emily's making the case, you know, very emphatically that the registry was designed to make the world safer, but it's not actually doing that. It's particularly designed to decrease that threat from strangers by telling us who those people are. And Emily's making the case that most of the assaults do not involve strangers, and that most of the people who are on the registry are first time offenders. So, you know, they weren't caught before that. So, I'd like you to take on the gist of her argument that the registry doesn't actually function the way it was supposed to?

Cary Federman:

Well, I don't doubt that the registry has some problems. But I view the registry as a tool of deterrence. And deterrence theory is not overly concerned about raw numbers, you know, in other words, if it's deter -- I mean, Emily's argument in some sense, I mean, she makes a claim that sex offending declines with age. Every crime, literally every crime declines with age. So, what's the point about such an argument?

John Donvan:

Well, I mean, I'm just saying this as a lay person, but the point would be that why should somebody stay on the sex registry through their 60s and 70s and 80s?

Cary Federman:

Well, right, because precisely because for one thing, people do need to know that there are sex offenders in their neighborhood. I have --

John Donvan:

Well, that's begging the question, I think. Is it not?

Cary Federman:

Yeah. No, not to me because I have documented stories in my book where a seven-year-old guy raped an underage girl. He was on the registry actually. So, --

John Donvan:

Emily to respond?

Emily Horowitz:

Yeah, I mean, I think lifetime consequences and excessive long sentences for many offenses are ineffective and wasteful. You see our prisons filled with people in hospice. And for people on the registry -- well, it is the point. Why -- if people aged out of crime, why do we have lifetime registries? Why are they there, they have to keep registering. There's a huge problem with nursing homes, people on registries can't get accepted into their nursing homes.

Cary Federman:

Emily keeps saying about recidivism rates as if they are uncontroversial, and they're completely controversial. Emily herself has recidivism rates in her book at 70 percent in some instances.

So, they bounced around, they bounced around from one to five years, they bounced around from male to female, they bounced around from a different groups. There are all sorts of reasons, untreated sex offenders, as the Department of Justice mentions, comes -- could be recidivism rates could reach something like 80 percent in some cases.

Emily Horowitz:

Well, the registry doesn't decrease recidivism, and there's millions of people on --

Cary Federman:

It's not supposed to.

Emily Horowitz:

-- and mothers and spouses. That's why most anti registry activists, in fact, the leaders of most of the major organizations, are mothers and spouses of people on registries. Nobody's saying that anybody is expendable, but these registries are not helping anyone. I would just say that recidivism numbers are sufficiently low. The most recent analyses show the whole field finds them low, and they decrease over time, that it makes little public safety sense to focus all of our efforts and resources on what is a relatively small population.

And this is true, even if we forget the fact that registration notification and restrictions are effective at reducing recidivism, whether it's low or high. And there's other evidence that these laws may actually increase recidivism by creating what we know are well validated recidivism risk factors. If we make people desperate, if we humiliate people, if we deny people dignity, that is not a way to help them reenter society. I've spent the last couple of years interviewing people on registries for my forthcoming book, and the devastation is horrific. Most people on the registry deserve a second chance and want a second chance. They have been punished enough. They've been held accountable. They've been held accountable to a point where they can barely eat or live. It's just a matter of how we care about human beings. If some people are disposable, if we want to create monsters. It's not a good thing. It hurts all of us.

John Donvan:

Cary, I wanted to ask you about what assumptions are made about sex offenders as opposed to other criminals, that they require sort of lifetime monitoring. You know, people aren't -- people do commit murder, do serve their time, and do get out of jail, but they don't have to sign up for a murder registry. Something else is going on with the assumptions about sex offenders, I wanted to ask you what that is.

Cary Federman:

You know what it is, it's nobody likes to see a 13-year-old girl get raped by a 35 year old man. And I think that society has a right to say that some things are just beyond the pale. It's these kinds of stories. You know, so Diane Balanitis, she was I don't know, a teenager or something like that. But Earl Shriners victims are 7, 8, 9 years old; Megan Kangas* seven years old. Wetterling was 11 or so. Jessica, from Jessica's law was 9. Rice was also a child. These kinds of things, great against the democratic people who don't want to tolerate this kind of behavior in their neighborhoods and communities.

That's what they are.

John Donvan:

So, it's not about the nature of the person. It's about the nature of the crime, you're seeing.

Cary Federman:

Of course, it's not about the nature of the person. Yeah. It's the crime itself.

John Donvan:

Are you suggesting that the lifetime presence on the sex offender registry is part of punishment or is that the main goal? Or is the main goal the safety point that we talked about at the beginning?

Cary Federman:

Well, all right, so technically speaking, the registry is a civil remedy. It's not punitive. Emily's going to say it's punishment; it's not punishment. So, any effects of this civil regulation are purely civil, they have no relationship to the eighth amendment at all, actually. So, these are civil regulations. They're not punitive, but they are deterrents. You can have a civil regulation that deters like --

John Donvan:

But you just made the case that what justifies it is the outrage of society as opposed to a deterrence fact that we don't want it to happen again is one thing, but --

Cary Federman:

No, no, it’s both. Yeah, I'm sorry, it's both. Yeah.

John Donvan:

Okay.

Cary Federman:

Yeah. No, it's an outrage at obviously you don't want your -- you don't want a second Megan Kangas to disappear in your neighborhood.

John Donvan:

Emily, can you give us a -- this was covered a little bit in the beginning, but go back to the beginning of these laws that Cary laid out. What was going on in terms of the culture and the sort of an increasing awareness of the prevalence of sex crimes period? Something that 50-60 years ago were routinely overlooked and not prosecuted by police, not reported, much less reported even so than today. And bring us up to date on where we are now in terms of states that have laws, how many people are on registries, et cetera.

Emily Horowitz:

Okay, so the most recent data that is out there shows almost a million people are on registries, everybody who's on the registry, their address is on the internet. And so, their families, children, parents are also exposed to this. Some registries also include your work address. In some states, they put your shoe size and your photograph. And some places all your neighbors are notified when you move in or on a regular basis that somebody who has a prior sex offense lives near them.

John Donvan:

And what sort of offense qualifies to get -- to have the requirement to have to register on the registry? What is the range of offenses? Obviously, rape, we've talked about a significant amount. Are there others? And how much -- what portion of it by the way includes rapists?

Emily Horowitz:

You can get on the registry for a wide range of sexual offences, statutory crimes, Romeo and Juliet offenses.

John Donvan:

Can you use -- that's a term of art; what is the Romeo and Juliet offense?

Emily Horowitz:

Like a 20-year-old and a 16-year-old. Anybody who's under the age of consent.

John Donvan:

What if both individuals are under the age of consent? Can that get them on the register?

Emily Horowitz:

Yeah, actually, there's people who are on the registry who are children themselves. About -- a large percentage of sexual offences involving children are committed by other children themselves. And in some states, children can be on the registry. In other states, once you become an adult, you're on the registry. So, you can be on the registry for a crime you committed as a child. People under 30 are overrepresented on registries.

So, you can get on the registry for a wide range of crimes, sting operations, talking to an FBI officer, posing as a minor, contact offenses, looking at pictures. So, you can be on there, but most people who are on there, and as I mentioned, also, you can be on there if you have an adult victim, the vast majority are people who didn't have a prior sexual offense and first-time offenders who know their victim, the victim is known to them.

John Donvan:

So, is there a sense of what proportion of people on the registry were people who kind of planned and stalked and calculated and contemplated before acting? And I'm asking that because that would be to me where deterrence would apply. These would be people who would be told, you know, who would get the message that their lives could be ruined not only by prison time, but by the lifetime presence on the registry?

Emily Horowitz:

Yeah. I mean, I haven't interviewed or met many people who it was like, extremely well thought out.

Most people that I've talked to in almost two decades of studying this and learning about motives are at low points in their lives. I recently did a study on veterans who are disproportionately represented on registries, they come back, and they're challenged, people using substances. But I'm not justifying these offenses. For whatever reason people commit these, the point is, is that they should be held accountable, they should be punished. I'm only talking about the punishment, in addition to prison and parole, which in the United States is extremely harsh. And also, if you reoffend without a registry, sexually reoffend or reoffend most crimes, you will get the book thrown at you, you will get a really long sentence. It's not the registry that gives you long sentences, although many people go back to prison for failure to register, they don't update their driver's license, or they don't update their email address. And that in itself can sometimes be a new felony.

So, the burden is horrific. It's extremely costly, as well, for the police and the people on them to deal with this huge bureaucracy.

John Donvan:

Cary?

Cary Federman:

Are you in favor of three strikes laws for sex offenders?

Emily Horowitz:

I haven't thought about it.

Cary Federman:

Are you in favor of three strikes laws in general?

Emily Horowitz:

No, I'm not in favor.

Cary Federman:

No. So, you're not in favor of -- right. So, it bothers you that a state would take a deterrent policy against a criminal who does things once, twice, three times?

Emily Horowitz:

No. I mean, if there was evidence that three strikes laws radically decrease crime rates, I would explore them. But I'm not --

Cary Federman:

Not all laws are about efficiency. I don't understand your argument here. Not all laws are about simply efficiency. This is not a democratic process -- I mean, it's a democratic process. So. We're not governed by social scientists; we're governed by people who want to make sure that sex offenders don't rape their children.

Emily Horowitz:

But these laws don't do that. These laws don't prevent new sexual offences. 95 percent of new sexual offences are committed by people not on registries.

And they’re -- and the fact that there's a registry clearly isn’t determining them.

Cary Federman:

First of all, why don't you mention that sex offenders are grossly underreported? And so, any recidivism fact that you have about sex offenders is not accurate, actually. And before when you said -- I mean, there are 140,000 rapes in the United States. We have laws against raping. And we know for a fact that 140,000 rapes is completely underreported.

John Donvan:

Cary, you made a strong statement when you said that any fact that Emily has is not accurate?

Cary Federman:

Did I say that? Accurate? No, I don't think I said every -- every fact or any fact that she said is not accurate? No, I don't remember. I don't think I said that. I mean, could roll the tape, but I don't. I remember saying that it was inaccurate. I know that she I mean, she's not being forthright about sex offenders. I mean, again the number is --

John Donvan:

But now -- wait, wait, wait. Now you're accusing her of not being honest, I think.

Cary Federman:

No, I didn’t say honest. She’s not being forthright. I mean, she's not telling us the whole truth about what sex offenders do.

John Donvan:

All right. Emily, are you hiding something? Are you keeping --

[talking simultaneously]

Cary Federman:

But did she say once that that these laws, that sex offender reporting is terribly underreported?

Emily Horowitz:

Okay. Well, so I'll address that. Thanks for bringing that up, Cary, because that’s a really important issue. Many people say the recidivism rate data that shows recidivism low is unreliable because of sex crime underreporting, right. But first of all, all crimes are underreported, including most violent and property crime. So, we know that when you look at self-report surveys, there's a lot more sexual crime than in the official data, right. And it's clear that those convicted of sexual offences represent a miniscule percentage of perpetrators, which is also why I argue, why spend all of our time focusing on this, let's test sexual assault kits that are like sitting in police stations totally ignored, let's not have underfunded police departments spend all day registering homeless registrants, once a week. But the problem of underreporting, and I'm kind of quoting Ira Elman* here, a wonderful law professor, is that it's misinterpreted and weaponized.

So, one, people will say, well, people who are on these registries are likely to have committed way more crimes, right. So, once they're caught, they've done way more things in the past, right, which, obviously, DUI, all sorts of crimes people get away with a lot before they're caught, right. But second, and far more importantly, the underreporting issue is used to challenge the low rates of sex offense recidivism. And this is based on the idea that if the incidence of sex offenses are underreported, so much the frequency of crimes committed by those with prior sex offense convictions, and this is the main point, but there's many reasons why sex crime recidivism rate data is actually very, very good. And I'll just tell you a couple of reasons for that. First of all, victims are far more likely to report sexual offences that are committed by somebody who's on a registry. If you're a victim of sex offense, and the persons on a registry, you know you will be believed, it will be taken care of immediately.

Police are more likely to identify and thus arrest perpetrators with prior sexual offences, police are more likely to follow up on reports by victims who identify the perpetrator or someone with a prior. And prosecutors are more likely to file and when convictions when the alleged perpetrator has a prior sexual offense conviction. So, the recidivism rates for those with prior sex offense convictions, according to Elman, is that they might even be lower than the research shows. So, I think underreporting is a problem in all of the entire criminal legal field.

John Donvan:

What might it say? And I'm being very, very crude with the statistical thrust here. But what might it say that, as you said that the number of sex offenses has been decreasing? Pretty much since these registries went into effect. Does that tell us anything about the impact of these registries?

Emily Horowitz:

That's a really important point, because I'm very -- I'm concerned that we're going to have registries for 20 more years and the recidivism rate will be low. And they'll say, oh, well, it's because of the registry.

But if you look at data from before the implementation of registries, sexual abuse started to decrease very profoundly and rate -- once the awareness by the feminist movement and other victims’ rights advocates identified this as a social problem that we take seriously. Prior to the '80s the rates, it was very difficult to prosecute somebody for any form of sexual abuse against a child or an adult woman.

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John Donvan:

I'm John Donvan. This is Intelligence Squared U.S. We'll hear more from our debaters right after this.

Welcome back to Intelligence Squared U.S. I'm John Donvan. Let's get back to our debate.

I want to move the conversation, Emily, in a moment to your opening argument about the impact on the accused, the convicted, which was the thrust of your opening argument, and we haven't really explored it yet. But I first want to take a question to Cary. About your opening statement and I think throughout the thread of your argument is that I think I hear you saying that you did say at the beginning that these laws are the result of a very, very detailed and deep deliberative process that involves legislators, families, victims police, that it's not just willy-nilly.

And that secondly, these are motivated by disgust and horror at the nature of the crimes and the long-lasting impact of the nature of the crimes. And I just want to ask you, because sometimes these laws are dismissed as society just having an impulse for vengeance. Is vengeance, okay? Is that an okay motivation to be written into the law?

Cary Federman:

It doesn't have to be written into the law, but vengeance is going to come probably one way or another. And it's best if it's written into the law rather than letting mobs do the vengeance. So, laws can accommodate these kinds of emotions by being hard and lengthy and deterrence based if they have to be. Sure, I have no problem with that. I mean, it's certainly in accordance with the general principles of deterrence.

I don't think that they're vengeful, I think that there is a script that Emily's position, not singling out Emily here, that Emily's position, which I call the Orthodox position, understands that these laws are particularly vengeful, but I don't see them that way. I don't think that anybody who rapes a child and is going to serve a lifetime in prison or a lifetime on the registry and not be in prison is being harmed in any way. Society has a right to defend itself. It's a very basic argument, in some sense.

John Donvan:

Emily, I want to take now to your opening statement, which dwelt very much on the impact on the rights of the individuals who have served their time, are released, but not -- sort of not really released in a certain very important way. And just a little bit more texture about the predicament of those individuals than you've had the chance to talk about so far.

Emily Horowitz:

Yeah, I mean, people that live under these laws, they're endlessly punished, they're permanently stigmatized.

And it's kind of interesting, because denying that those who've been punished the opportunity to repent and reenter society, it just creates new harm. And it also undermines all philosophical, religious, spiritual and ethical principles about forgiveness and redemption. But when it comes to people convicted of sex offenses, we just abandon the grace and understanding we may readily offer to others.

John Donvan:

So, can you give us a depiction of how being on the registry continues to be experienced by the individual who's on the registry as a punitive experience?

Emily Horowitz:

Yeah, so many of the people I interviewed said, the longer I'm offence free, the longer since I got off parole, and I've done everything right, I've had a job, the punishments grow and grow. Because they never roll back the laws. So, they add additional laws all the time, right. So, if you're on the registry and you haven't offended in 20 or 30 years, you still have to register quarterly or yearly.

John Donvan:

So, what happens to you in your life when you're on the registry?

Emily Horowitz:

So, for example, one person I spoke to couldn't go to his father's funeral because it was at a church where they said nobody on the registry could go.

One father had a special needs child and his wife worked to support the family. He couldn't work because he's on the registry. And he couldn't pick up his special needs child at school or attend events at the school while his wife was working.

John Donvan:

Okay, so that's because they're not allowed to go near schools if they're on the registry. And you mentioned employment, what is the impact on employment for somebody who's on the registry? What kinds of jobs are they able to get? And what happens if they get a job and they don't report that they're on the registry and no background check is done? What happens routinely when the employers find out? Are they understanding or do they tend to say you're out the door?

Emily Horowitz:

No, it -- well, most -- even employers that like sort of get grants and brag about how they hire people with criminal histories usually always exclude people with sex offenses. One of the things that happens is it even employers -- if an employer -- some employers Ban the Box, which means they don't do a criminal history check.

And in some states, after seven years, it's automatically erased from your criminal history in any case. But the registry is public, so the other employees and the employers, everybody will know at some point that somebody is on the registry. So, employers have to be willing to take a risk that they're okay with the public and the other employees knowing somebody's on the registry. And it's a scarlet letter, it's a brand, even if employers will tell people, look, I understand what happened, you were young, you've been great for years, you're married with kids, I can't take the risk of having this situation, having somebody on the registry employed here. So, many of the people I interviewed struggle with employment. One guy who had a college degree told me he was crying in a Jack in the Box parking lot last week, because he'd applied for 30 jobs at fast food places that he couldn't get. Sometimes, you know, obviously, people have friends and they can sometimes find work, but it's often very unstable.

So, many people I interviewed said to me, like, okay, I have a job and things are good now, but I know things can turn on a dime.

John Donvan:

And how justified is the fear of having a coworker who's on the registry?

Emily Horowitz:

Very few sexual offences take place in the workplace. One guy interviewed managed cellphone stores, and he was very successful about it. And he said, in recent years, it's gotten harder. He said, 10 or 15 years ago, they knew he was on the registry and there was actually less venom. Now he's been 20 years offense free and it's getting harder and harder. And now they won't take a chance at having him manage a store.

John Donvan:

Okay, I want to come back to Cary in just a moment, because Cary made kind of a powerful and forceful philosophical argument that society made these choices, by and large, wrote these laws for reasons that have to do with wanting to deterrence, safety, and maybe vengeance. But Emily, you also alluded to a philosophical point of view when you talked about religious values, redemption, forgiveness, and grace. Can you go on to a little bit more about that? And then I want to have Cary respond to that.

Emily Horowitz:

Yeah, I mean, I think this is really about human dignity.

The term sex offender is so visceral and harmful, that if you put people on a list, and you say, sex offender, it's not surprising they're subjected to vigilantes mocking, or they're, you know, thrown out of their neighborhoods, thrown out of their homes. And they live in a lot of fear. There's many examples of vigilantes, people on registries are constantly subjected to scams because people go on the list and they call them and demand money and things like that. It's an extremely vulnerable, horrific position to be in. And as I said, your kids are aware, your parents, your spouse is. It's not just the individual, it's the home, everybody in your home is subjected to this. And if we believe that people deserve second chances, we've escalated sexual harm to this place where you don't know if somebody killed somebody and societally, we've kind of lost our minds about this. We're like, well, we don't care if they murdered eight people. We just want to know if they touched a child. And punishment and accountability is effective for all offenses, sexual and otherwise.

There's no evidence that somebody who's sexually offends is that much of a different breed of human than any of the rest of us. They're just like us. It's a widespread problem. It happens in every culture. It happens throughout time, how we deal with it reflects who we are, as humans, and I mean, of course, violent crimes of all sorts are terrible, but this is not the answer. And again, maybe I'd feel totally differently if the recidivism rate was extremely high, but it's not. So, this is not an effective way to help people. It's just a way to destroy lives and throw people away and say, well, there's so much worse than us. We're so much better than them. They're done. They did something so inexcusable. I don't care. We're going to humiliate and banish them forever.

John Donvan:

Is that how you see it, Cary, as unjustified?

Cary Federman:

No. [laughs]

Emily likes these statistical anomalies, but the Kansas sex offender law was based absolutely on one particular offense, which is that a man and a woman work together. His name was Donald Gideon. He was on supervised release for a rape conviction. He sexually assaulted and murdered Stephanie Schmitt. Gideon and Schmitt worked together, though Gideon’s employer didn't know about it. Following Schmitt’s death, her parents formed a task force, and they started a law in Kansas, to pass a law for notification and registry --

John Donvan:

But when you say it was based on one offense --

Cary Federman:

Well, not only one offense, but certainly this one offense mobilized --

John Donvan:

Motivated, okay.

Cary Federman:

Yeah, that’s what I'm saying.

John Donvan:

Okay. But I want to ask you to come back to Emily's -- the point that Emily was making that there is such a thing as redemption and forgiveness and giving people a second chance and that the registry itself, makes that second chance exceedingly difficult for the people who are on it. And I want to know, do you have sympathy or empathy for people in that position? Do you think -- first of all, do you think that it's an accurate portrayal of the predicament of people who are on the registry?

Cary Federman:

No. Right. So, --

John Donvan:

You think they do have a second chance?

Cary Federman:

I'm an empathetic person. And so, I would agree with Emily that one should have empathy. Is there a second chance? Sure. That's the whole purpose of post-conviction civil commitment. It's therapeutic. It's not punitive. So, I'm in favor of post-conviction --

John Donvan:

Let's define that term for folks that don’t know what you're referring to.

Cary Federman:

Sure. Sure, sure. So, post-conviction, civil commitment laws are after a sex offender commits his crimes and then serves his time in prison. About a year before he's about to be released, the Attorney General of the State can file for a post-conviction civil commitment of this person, which is purely civil and regulatory, it's not punitive. This person will be brought before a medical board and psych evals will be given. And if there's a judgment for a civil commitment of this person, that he remains dangerous to others in the community, he will be committed. It's not a lifetime commitment. It's on a yearly basis. There's due process all the way up and down. And that's one way to deal with a problem like this. Sure.

So, I do believe that. I mean, there's therapy available and it can work. Sure.

John Donvan:

Okay. But the group of people we're talking about now, not people who go through civil commitment and get treatment, but people who are out, they've served their time, maybe they Romeo and Juliet, and they're 20 years old and had sex with a 17-year-old. Now this individual is 32, still on the registry, having difficulty getting a job. Does that person have a second chance?

Cary Federman:

Sure. Don't rape another 17-year-old person. Yeah, that person has a chance. I mean, so what -- so the person can't live within 100 feet of a public school?

John Donvan:

No, but Emily is talking about really important and the impact on employment?

Cary Federman:

I understand that. I understand that, but --

John Donvan:

Does that person have a second chance? And does that person deserve a second chance?

Cary Federman:

Always, always, but this person can be hired by somebody, there's always somebody who's willing to hire in some case or another. But you know what these people have committed. So, Emily's book is filled with these narratives.

And every one of these narratives -- and Emily said today a lot that you know, these crimes are horrible, but she doesn't say that so much in her book, in her book these people are always innocent, or they're possibly innocent, or their mother thinks that they’re innocent.

John Donvan:

I have got to say, I read Emily's book. And she does say they're horrible. Okay, she says upfront I feel I should say they're horrible, even though that's not the main thing. Because to take on my position, I have to say they’re horrible.

Cary Federman:

She says that upfront. But then when she gives the narrative, the narrative is always this person -- I mean, I can literally pull out the book, it's right in front of me. And she says, well, this person is probably innocent, or this person -- so like Ernie Lopez, who rapes a six-month-old baby, and then it turns out that maybe the baby died from a medical disease. Maybe he’s innocent. But there's no evidence that, for that story, as much as evidence for the other story. There are plenty of stories in her book, this minister who rapes a 13-year-old boy, he's a good man, he feels punished by being on the registry. And he doesn't commit another crime for the rest of his life. Don't do it in the first place.

I mean, the essence of law has to be some sort of deterrent effect on people's behavior down the line. We're not talking about people who are just accidentally, I don't know, what, accidentally raping somebody, they don't just fall over somebody. These are horrible, horrible crimes by people who do this repeatedly.

Emily Horowitz:

I'm not sure exactly what you're talking about. But the recidivism data is really clear -- people after they are convicted and served time for a sex offense are at very low risk for reoffending.

Cary Federman:

So, every one of these federal court cases, every one of these cases aren’t telling the truth?

Emily Horowitz:

No, I'm saying there's low. There's not zero recidivism. But obsessing about sexual recidivism takes resources away from dealing with the vast majority of child sexual abuse and adult sexual abuse and sexual violence. It is wasteful to try to create these registries that have no impact on preventing sexual abuse. Look, we all agree sexual harm is traumatic, and it's profound and it's pervasive.

If you experience sexual victimization, you're deeply harmed, perpetrators should be punished and held accountable. I'm not downplaying the harm caused by sexual violence. I'm not saying sexual recidivism never happens. I'm not justifying or excusing their actions. But the responses that are draconian and useless destroy lives, there's a million people dealing with this and all of their families. It is not right. It's not helpful.

John Donvan:

You just put your finger on a word, Emily, I'd like to take back to Cary. You're saying that the sexual offense registry is useless. And I want to take that to Cary. Is it useful? And what does it achieve?

Cary Federman:

It achieves a public understanding of what sex offenders are capable of.

John Donvan:

I want to move into our third round, which is basically closing statements from each of you. And Emily, you again, get to go first on this and you have 90 seconds to tell us why you are arguing Yes, especially in light of the arguments that you've heard for the last several minutes.

Emily Horowitz:

So, I would just say that low recidivism rates aren't caused by registries. We know the decline in child sexual abuse that radically started in the early '90s happened before registries, it's due to social and economic factors, not the registry. Registries, all they do is endlessly punish and stigmatize people who've already been held accountable. I'll repeat this. Allowing people who've been punished the opportunity to repent, to reenter society, is the most important of all philosophical, religious, spiritual and ethical traditions. Forgiveness and redemption is crucial to a healthy society. And it also keeps us safer. These laws are counterproductive. They create all the conditions for re-offense. There's been a huge movement in recent years to allow people with criminal histories all sorts of opportunities. But when it comes to those convicted of sex offenses, we abandon, disgrace.

We abandon this because we've escalated this crime to such a level that is unconnected to the reality of it. Sexual harm is traumatic, it's real. You're harmed if you are sexually victimized deeply, and accountability is really important. Being against registries isn't related in any way to downplaying the harm called -- caused by sexual violence. It's not a way to justify or excuse the actions of those who do damage, but it's an effort to reveal the extent and damage and uselessness of cruel, counterproductive, costly responses.

John Donvan:

Thanks, Emily Horowitz. And Cary Federman, the last word goes to you, your closing statement.

Cary Federman:

Thank you, John. So, I've argued that sex offender laws do more good than harm, they’re products of the deliberative aspects of parents who have children taken away from them, state legislators, federal legislators as well, as well as other members of the community. The Orthodox position on this subject, I think, has three major problems relating to American politics and to democracy itself.

I think in the first case, it increases the power of the federal courts to supervise these kinds of laws, thereby diminishing the power of communities to achieve public safety, I think it increases the power of social scientists, which I wanted to talk about a bit more, but it increases the power of social scientists, and therefore it diminishes the power of state legislators. And third, it diminishes the power of civic engagement, thereby diminishing the idea of deliberation, which means the essential argument for democracy. It takes away these kinds of powers. To me, the Orthodox position reveals itself to be a rhetorical or a strategic device. Therefore, I think it can only be true if the following two things are true. Since according to the Orthodox position, everything is about power. If everything is about power, then state legislators can't deliberate rationally and deliberately about means and ends regarding public safety. If everything is about power, then rationality itself is impossible.

Therefore, if everything is about power, then social science itself is about power, and if social science is about power, it can't be objective. If social science is not objective, then Emily's position is no different than mine. There is no difference between one thing and another, one fact and another. Therefore, democracy can only exist in a world where we preserve individual responsibility, and the deliberative politics of people at the local level.

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John Donvan:

Thank you. And that concludes our debate. I want to thank our two debaters, Emily and Cary. Thanks so much for coming to this with robust, well thought out arguments, [laughs and for staying through it with each other, and for bringing your thoughtful disagreement to our table. And that is it for us. I'm John Donvan, and this has been a debate from Intelligence Squared U.S.

Thanks, everybody, for tuning into this episode of Intelligence Squared. You know, as a nonprofit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, the Rosenkranz Foundation, and friends of Intelligence Squared.

Intelligence Squared is also made possible by a generous grant from the Laura and Gary Lauder venture philanthropy fund. Robert Rosencrantz is our chairman, Clea Conner is CEO, David Ariosto is head of editorial. Andrew Lipson is Head of Production. Lia Matthow, Julia Melfi and Marlette Sandoval are our producers. Damon Whitmore is our radio producer, Raven Baker is Events and Operations Manager, Gabrielle Iannucelli is our social media and digital platforms coordinator, and I'm your host, John Donvan. We'll see you next time.

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