Member Submission: Comments to Proposed Rule 2020-15804

The following are excerpts from a letter to Senior Counsel Office of Legal Policy of the U.S. Department of Justice in response to the request for comments on the proposed amendments to the Adam Walsh Act.

Out of respect to the Author, we won’t disclose his identity.

As senior counsel on this project I wanted to be sure you had the opportunity to review and ponder my comments prior to the scheduled hearing. Please: know i have thought great deal about this subject and earnestly petition your conscientious review of my Comments so they do not go unheard.

I would ask the Justice Department to put the proposed rule 2020-15804 on hold until they conscientiously look at the large body of wonderful scientific research and evidence AGAINST taking such actions. The effects of this proposed rule would be cost exorbitant to enforce and devastating, not only for registrants, but their entire extended families! More importantly, when you stretch limited resources over large, broad areas, they become less effective and easily distracted from the real hot spots of concern.

A large, massive imposed solution not only impairs capable and reformed individuals, but is incredibly expensive, time consuming, increasingly difficult to enforce, and distracts resources from more obvious and effective solutions.

Recently our family  participated in a missing person search which ended with the tragic discovery of a murdered young woman, that we and others believe, could have been prevented had the police been able to immediately focus their resources on the likely perpetrator rather than interviewing dozens and dozens of low risk “offenders” who resided in the general area. In her case, timing was critical and despite important and valuable leads that were available, they were watered down and distracted by masses of individuals that each had to be excluded as potential perpetrators.

Rather than imposing aggressive and enhanced restrictions and reporting requirements on the ever-growing and undifferentiated list of hundreds of thousands of individuals, it would be far wiser to direct those funds and resources to more productive and selective areas based on valid risk stratification. Research shows that the huge cost of both money and resources to expand and manage the registry does very little to secure the public safety and ultimately distracts from more effective strategies to precisely monitor and limit those select individuals that represent true risk to society.

I propose the Justice Department impose national risk stratification requirements for all states, and require registrants with minimal risks to be “down graded” or even cleaned from the massive registry with restrictions reduced or removed, where reasonable, so they can become productive and contributing members of society rather than a propagating drain on the “system” and it’s resources.

SORNA’s stated objective is to “effectively track and locate sex offenders in the community,” in order to “provide for the public safety.” This is sold on political persuasions that outwardly seem progressive, but are unfortunately based on popular, generally unfounded, primeval assumptions and attitudes. Not a single, valid, body of evidence or scientific research has ever shown the effectiveness of the registry, or for that matter, that it provides safety to anyone!   On the contrary, there are volumes of well designed research and expert opinion that show just the opposite!

I am not opposed to any honest and cost-effective action to reduce or prevent sexual abuse or exploitation of any individual, but the assumptive and poorly calculated effects of the registry are ultimately destructive and unrecoverable. Importantly, the registry fails, in principle to separate those who are true predators, and a risk to society, from those who are not. Even worse, because of sensationalism and assumptions associated with sexual crimes, local governments, and the general population at large, view ALL sexual registrants as sexual predators and abhorrent rapists! As a result, the registry has evolved into a “legal endorsement” of misinformation and community vigilantism, destroying many, many lives, not protecting them! With it’s far reaching and inclusive provisions, truth be known, every single one of us, at some point in our lives, could have fallen victim to the registry! Maybe the point is that we all should, or eventually will !!

We now have well over 1 million individuals on the sex offender registry, most for a lifetime. The majority are for non-violent, and more importantly, non-predatory infractions. A great number include consensual relationships or sexting between minors, or more commonly, the simple possession of a pornographic depiction on a personal electronic device, often acquired during the unfortunate click of an internet link on a trolling website! Many are caught in fabricated and confabulated sting operations created by local police to look “tough on crime” and acquire additional federal funding and grants. Intent is no defense and simply “possessing” is conviction.  Some are for ridiculous charges such as voiding on the side of the road, or mooning in public.  Many are perpetuated from an angry parent or partner over an unapproved “first love”, or misguided teenage curiosity. Even an autistic 8 year old was placed on the registry for repeatedly “hugging” a female classmate. A 14 year old was added for having a partially naked picture of herself on her own phone, discovered by police looking at volunteered evidence for a completely unrelated crime! To anyone with a vestigial sense of rationality, it seems we have gone far astray and deluded from the original intent of the sex offender registry. Indeed, 27% of people on the registry were put on as minors and now carry that burden for life! In the full sense of the term, these are NOT pedophiles and are not a risk to the general public! Do we really want to aggressively restrict all these with your new proposed rules?

Realistically, many may not even be guilty at all!, but were “forced” to take plea deals to avoid the potential of lifetime sentencing that would invariably be imposed under mandatory minimum guidelines, should they lack the insurmountable funds needed for a realistic defense, or otherwise fail in their pursuit for a fair and honest trial by some technicality or public bias. In fact, 97% of individuals on the registry entered into plea deals because they had no other realistic alternative.

In the name of justice reform, we recognize many societal failings of the past .and  perceive the greater benefit of improving and reform, and then re-inculcating back into society. We recognize humanity for what it is, our individual lack of perfection and our predisposition for mistakes. All of us! But fortunately, for most, the mistake is not the definitive end, but rather the natural process of learning, progression and improvement. Regrettably, some are not interested and are not willing to make any effort, but for those who are, the means to improvement should not be the end! For the competent and capable, an effective solution can not simply rely on bigger padlocks and stronger chains! What are we really trying to accomplish?? IF we want to make a real and meaningful difference, we must focus on healing the disease and saving souls rather than the blanket destruction of those we perceive as worthless and less valued than ourselves, for therein is pride and the setup for the ultimate destruction of a civilized society.

The opportunity to have a “second chance” and fully integrate back into society is available to virtually every other malefactor who has served their time, including murderers and violent criminals. But for registrants, this is not usually the case, as many states lack stratification and mark them for life, with no means of recovery or reform, regardless of their infraction. This approach is further calcified by this proposed rule.

As a society in general, it has been politically popular to lump all registrants as aggressive pedophiles, even though by far, most are not. As a group they are completely marginalized and rejected by society, labeled with a scarlet letter, and tossed to “vigilantic” wolves. Their whereabouts are continuously tracked and publicly published, untrue of any other criminal. They can not have an email address, job, account, phone, car, identification, or any other contact without stringent federal requirements to divulge every move they make. They are repeatedly rejected from reasonable housing, expelled from jobs, and often prohibited from higher education and foreign travel. They are cut off and restricted from any “normal” aspect of life or the pursuit of inherent happiness. They are in totality and categorically, rejected. In general, they can not participate, ever, in normal family activities and events at the park or school, even if they have completed counseling and formal intervention with risk mitigation.

They are reprobate and non-reformable in the baseless public eye, and further endorsed by the registry, even though their recidivism rate is below that of any other crime short of murder!

Research and expert opinion consistently declare that these publicly conceived biases and conclusions are baseless and unsupported! If we were to error on such egregious assumptions, then who will free the unjustly imprisoned and provide for an honest and accurate accounting? Is that not the role of the JUSTICE DEPARTMENT, as it’s name implies?? Because of the abhorrent nature of sexual crimes, of course we want to do all we can to protect potential victims, but we now know that only a very small percentage of individuals on the registry actually represent any realistic threat to the public or society. So is it OK to trash hundreds of thousands for the sake of a few? We have got to find a course that actually works, that identifies and treats the real underlying issues, and secures the public.

With the current reckless and misguided proposals, we completely miss the actual problem! If we don’t figure this out, we will ultimately place millions on the registry while the problem continues unchecked and unabated, blossoming further out of control and having little positive effect on desired outcomes.

We know of many things that could impact a difference, and I believe we could stop child pornography almost instantly, but we have to accurately define the problem and examine evidence based solutions directed at the roots, not the symptoms. We only make the problem worse if we get distracted chasing down the wrong path, beating up the secondary victims instead of focusing on the true instigators and perpetrators, ultimately leaving nothing but a wake of family destruction behind, which is not beneficial to society. It may well be that our current volumes of rules, regulations and institutions are actually the bigger threat to our society and public safety. I ask again, what are we doing?? When we consider to take action such as this proposed rule, we must weigh the costs to society as much as we do the perceived benefits and honestly consider if it will even accomplish what we are trying to achieve. We should not take action to simply powder our emotions or because logically it sounds good, makes us feel better, stronger or even more empowered. We have to dive deep and figure out the ramifications, lest karma catch us in our own snare. I get it. We want to stop sexual trafficking, and restrict the movement of aggressive and unreformed pedophiles, but that is NOT the million plus on the registry! In fact, the serious offenders we are trying to target are not even on the registry!! We are petting ourselves, pretending to have accomplished something great while the problem remains largely unchecked. In the meantime, we are burning and destroying our hope for the future in hundreds of thousands of affected individuals and their intimately entwined families and future progeny, all with justified, but not fully considered, collateral damage.

If we act amiss, and pursue a course of extremism, then what becomes our our legacy and what kind of world have we created for our posterity? Can we stand at some future point and rationalize and excuse ourselves by justifying mob mentality and emotional pubic ignorance which move contrary to the facts and evidence? These registrants ARE our brothers and sisters, wives, husbands and children. Morally, we are also accountable for them, and even perhaps more particularly if they are downtrodden and unable to voice or stand for themselves. Like you and me, many made careless mistakes and are good souls with limitless potential and amazing talent, often reformed, anxious and willing to rightfully contribute to our society in a meaningful and positive way. Yet, if we lock them in a virtual cage, throw away the key, and keep poking sticks at them, what do we expect to achieve as an end result? When I was young, we called these people with contemptuous disrespect for others, “Bullies.”

Where we have greater power and influence, we also carry greater responsibility. It becomes imperative therefore, to be cautious, accurate, and thoughtful, without simply reacting emotionally or on political popularity. It is often a fine line we are called upon to walk. I know you are rightfully sincere in your honest efforts to advocate for what is “best” for society. But when we are swayed and driven by primeval passions, baseless stereotypes, populists assumptions, or preconceived notions rather than sound thinking and good evidence, it is easy to get off course. If anything, the federal Department of Justice is entrusted to separate out the emotion and balance out the extremes, to temper the path with more rational prudence and governance, and serve ALL the people, not throw “fuel on the fire!” Let us use our influence, supported by volumes of wonderful research, valid science and critical evidence, to correct the wrongs, fix the misalignment, adjust our course and defend the liberties and justice for all. Then our legacy will stand without future retribution!

With the consequences so high, and if we are not sure, it would be far better to hold off than unknowingly serve and advocate further destruction that can never be restored or fully restituted. You may move on, but your posterity will surely carry that weight! As much as we abhor predatory behavior, it is important that we not shift from defending the vulnerable to becoming predatory ourselves, from saving lives, to “justifiably” destroying them.

l hope you will be wise and thoughtful, weighing the heavy responsibility to afford impartial justice under the law, for both the powerful as well as the marginalized. There are so many broken souls you know not of! You have the power to help relieve the unseen heavy burdens, the tearful eyes, the broken hearts and hopeless suffering of truly thousands upon thousands who are now trying to do the right thing! I petition you to not pile it on further!

Use your influence to protect ALL people, and bring some degree of morality and decency back to our convoluted and ensnaring legal system that seems to have run amuck with excessive power and dominance.

Let’s clean up the registry, streamline it’s purpose, stratify the real risk offenders and refocus our efforts until it becomes meaningful again. Listen to our pleas. See clearly through the clouds of distractive bias. Like those we expect to reform, we must learn from the past. Let us not endorse redressed snares, be party to modern “Witch Trials” or re-advocate for a new “Scarlet Letter.”  We are better than that. Let’s fix this destructive mess. Once we have our “house in order”, then your rules may have benefit and real purpose!

I stand as a witness and in testimony to your actions and interpretations, but it can not be said you were never told or did not know.

“Beware that, when.fighting monsters, you yourself do not become a monster.”  Friedrich W Nietzsche