Sex Offender Registration: Driven by Fear or Real Risk? June 14, 2016
By Jessica DaSilva
June 7 — Sa-id Abdullah, 59, doesn't deny that he committed a low-level sex offense when he was addicted to drugs in 1987. Yet when he pled guilty in 1991 in connection with an acrimonious divorce proceeding, he said he never envisioned the charge would brand him for almost 30 years.
Six months away from completing his five years of probation in 1996, the New York Legislature passed a bill creating an online database of convicted sex offenders, including anyone previously convicted still serving probation like Adbullah.
Abdullah's hand shook while he told Bloomberg BNA about how for the next two decades he faced criminal and civil legal battles, insecure employment, and alienation despite getting clean, returning to school, remarrying, and becoming a substance abuse counselor. Abdullah's name was finally removed from the list in May 2016.
Such a struggle highlights the shortcomings of a system that attorneys working in that area of criminal law say is ineffective, illogical, and fails to protect communities.
“The fact is that we have no idea of who is going to offend or re-offend,” said Professor Heather Ellis Cucolo—an attorney, adjunct professor, and director of
Online Mental Disability Law Program. “The ironic part of all this is that some
of the factors that might potentially lead to a greater risk [of re-offense]
are the factors that are imposed as a result of registration and notification.”
New York Law School
Fear and Legislation
Sex offenses make up only about 5 percent of crime in general, Cucolo said. Of all sex offenses, those committed by strangers who kidnap children only make up 10 percent, she added. Children are overwhelmingly at risk from someone they know like a relative or other close adult, she said.
Despite those numbers, the New York Legislature created the entire registration and notification scheme based on a rare occurrence, she said.
“The panic and the fear that is evoked by these types of crimes necessitates this type of reaction from the public and thus from the politicians and the legislators,” she said. “But the large majority of individuals on the registry do not need to be on the registry.”
When convicted of a sex offense, defendants receive a risk level based on a 15-category list that determines how long their names must stay on the registry, said Zachary Margulis-Ohnuma, a New York City criminal defense attorney and Abdullah's lawyer.
However, that list usually yields “ridiculous” or “unfair” results, such as lower risk levels for possessing child pornography featuring a victim that the defendant knows, Margulis-Ohnuma said.
That's because the risk factors are not based on the likelihood of re-offending or riskiness, but victim impact and fear, Cucolo said.
What the factors seem to focus on is “who we feel is most dangerous,” she said. “But who we feel is most dangerous might not be who has the greatest risk to re-offend.”
The majority of sexual offenses are committed by people who are committing a wide range of other crimes and not because they have some kind of sexual deviance, Cucolo said.
“They're offending because of some other involvement with criminal activity—disregarding the law, disregarding other people—and it's just that one of those crimes becomes sexual in nature,” she said.
‘No Demonstrable Effect.'
The circumstances that cause people to commit crimes like low income, poor education, or an unstable home life create the same conditions that cause people to commit sexual offenses, Cucolo said. Re-offending is no different, she added.
Generally speaking, Cucolo said convicted sex offenders already had statistically low rates of re-offending. Those most likely to commit repeat sex offenses were generally non-contact crimes, such as flashing or possessing child porn, she said.
To support that point, Cucolo cited to a study from the National Criminal Justice Reference Service for the Justice Department that measured the effectiveness of the
New Jersey registration
and notification system, which served as the model for 's, and passed the same year. New York
The study focused on sexual offense crime data for 10 years before and after
implementation. The results showed that registration and notification had “no
demonstrable effect” on reducing re-offense, did not reduce the number of
sexual offense victims, and had no impact on the type of sexual offenses
committed—which were still mostly child molestation and incest. New Jersey
While Cucolo said no magic formula exists to predict recidivism, those factors that typically promote it include alienation from the community, lack of a support system, and unemployment or underemployment. Those often become the direct consequences of life on the sex offender registry, she added.
“The whole concept of sex offenders being this highly dangerous group is not correct,” Cucolo said.
A Social Death Sentence
In the almost 30 years since his guilty plea, Abdullah and his wife, Mary, have repeatedly encountered barriers because of his conviction.
When Abdullah finished his probation, he said he was assigned a level three sex offender status—the highest available for the most dangerous offenders—without explanation in his record or evidence to back up the level designation, despite going through a drug rehabilitation program and getting his GED certificate.
Abdullah said he received a rehearing in 2005 after a successful class action lawsuit for defendants who received seemingly gratuitous level placement. In that decade, he obtained an associate's degree, licensing to become an alcohol and substance abuse counselor, a counseling job, more than 10 years of sobriety, and not a single criminal charge, he said.
The new hearing was a re-litigation of the original offense without any mention of Abdullah's improvement over the course of 20 years, and the judge reinstituted the level three categorization, Abdullah said. Although his classification was reduced to a level two by the court of appeals, Abdullah said he continuously faced the ramifications of his sex offender status.
At his counselor job at a drug rehabilitation organization, he said a co-worker printed out his listing from the online sex offender database and placed a copy on everyone's desk.
Abdullah lost his job for several months before getting reinstated after the New York City Commission on Human Rights and the president of the rehabilitation organization's
chapter wrote letters on his behalf. New York City
Abdullah said he was also denied unemployment benefits and lost his counseling certification. He was told that it would get reinstated if he got another counseling job, which he could not obtain without his certificate.
His picture was published in the local newspaper without any information about his crime, which Mary said is how her family and neighbors found out about her husband's status as a sex offender. She said she repeatedly dealt with people confronting her about his past.
“It's like a social death sentence in some cases,” she said. “You pick your battles because there are battles all the time.”
A Need for Perspective
For years, Abdullah said he felt too depressed to try and fight his level two classification. Yet when he finally challenged it, he received a level one categorization in a decision that applauded him for his achievements since entering his guilty plea in 1991.
Even though he knew he would be removed from the online registration and notification system, Abdullah lives in fear of the law changing as it did twice during his time on the list. The first instance came in 1996 where the database went online, and the second in 2006 when the legislature retroactively doubled the length of time for registration requirements.
“It seems that every politician is trying to make a reputation on the back of sex offender legislation,” Abdullah said.
Even recent media and political attention paid to the harsh penalties and effects of sex offender laws hasn't touched his life, Abdullah said.
“I haven't noticed that people have empathy,” he said. “It's like you're a sex offender, you're a victimizer.”
For politicians to change the law, Abdullah said they need perspective from psychologists and psychiatrists who understand the psychology behind sex crimes.
“The only thing a lawmaker looks at is ‘How are we gonna punish?’” Abdullah said. “We need to look at the big picture, at the human being, to be able to put things in their proper perspective and treat people as individuals.”
Margulis-Ohnuma said it's also expensive to figure out the scientifically valid way to assess risk, which would require a “multi-variable assessment” that seeks the truth rather than checking off items on a list.
The system as it stands is so broad that it “sweeps up everyone imaginable” while also failing to address problems, Margulis-Ohnuma said. Many of his clients are in a similar situation to Abdullah, he added.
“A general system of shaming people is way more often counterproductive than it is helpful or protecting anyone,” Margulis-Ohnuma explained. “I’m a parent of three children. If it was really going to protect them, I would certainly be for it.”
Bloomberg BNA reached out to a number of organizations to get different perspectives on this issue, including Parents for Megan's Law and The Crime Victims Center, Safe Horizon, the New York Attorney General's Office, the NYPD Sex Offender Monitoring Unit, and the New York Guardian Ad Litem. None responded to multiple requests for comment.
A spokesperson from New York District Attorney's Office also declined to comment.
Cucolo argued that the only way to sufficiently reform the registration and notification system to adequately prevent crimes and protect the community is to start from scratch.
“We sort of have to go back to square one and think about what we know and what we don’t know about sexual violence and think about what it is truthfully [that] we want to accomplish and whether our methods and legislative endeavors have accomplished any of these goals or hopes,” she said. “No one is going to do that.”
Rather than branding an individual with “a scarlet letter for life,” Cucolo said the system should focus on comprehensive treatment involving mental health counseling, education, and community support.
She said the best way to prevent crime is raising awareness in schools. Such an education program should involve awareness of who statistically commits sexual crimes against children, but intervening and supporting children in peril of entering a life of crime to begin with, Cucolo said.
Better education for lawmakers and those working in the system would lead to better regulation and precedence as well, she added.
In the mean time, Abdullah said his charge continues to affect him in a variety of ways. He said he and Mary considered moving closer to her siblings in
Arizona or ,
but state registration systems differ and that would require notifying a new
community that a sex offender moved into their neighborhood. California
Recently, Abdullah tried to get a hack license to drive a cab, but a local ordinance barred him from receiving it. He said the experience served as a reminder of how criminal justice systems treat defendants differently once they're back in the community.
“If I was a gang banger or a drug dealer or active drug user, the door still would have been open for me,” Abdullah said.