Do Sex Offender Registries Belong in a Free and Just Society?

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In the continuing madness out of Steubenville, Walter Madison, the attorney for Ma’lik Richmond, is appealing the “You’re so obviously guilty it’s painful” verdict in the rape of a 16-year-old girl. Why? Because he believes that adding Richmond to a lifetime sex offender registry is unjust.

The question of whether Richmond deserves to be in the already-existing sex offender registry is a different beast. The interesting question is whether or not sex offender registries should exist at all. My thought is that government-sponsored sex offender registries are unjust, but in a free society there would be no way to prohibit a privately-run registry. However, it is highly likely that such a registry would be more just than the system currently in place.

Government-run Registries are Unjust

“You do your crime, you do your time.” Typically an adage that refers to the fact that you can’t avoid punishment for wrongdoing, this phrase also suggests something we all believe to be true about punitive justice: there is a beginning and an end to a punishment. However, “paying your debt to society” doesn’t end when you leave the prison walls. A criminal record follows you, and this makes it difficult, if not impossible, to find employment and, with such, improve your life after incarceration. This contributes to a cycle of poverty and, for many people, results in repeating criminal activity because there are few if any other options.

Sex offender registries exacerbate this problem. Not only does the registration stay with the perpetrator for the rest of his or her life, sex offender registries are public documents. There are areas of society that registered offenders are not allowed to go.  The problem compounds even further when one considers the kinds of acts that can land people on government sex offender registries: urinating in public, streaking, and prostitution or paying for sex.

This certainly does not constitute “justice.” Even under a punitive justice system, punishment must fit the crime. With compulsory sex offender registries that do not expire, criminals “do time” for the rest of their lives. Every penalty is a life penalty. It is the modern-day equivalent of human branding.

Private Registries are Inevitable

But if registries are unjust, should they then be outlawed in a society that is both free and just?  I do not think so. Prohibiting someone from publishing the name of someone who has committed a crime against them would necessarily be a violation of their free speech rights, and freedom of speech is certainly a necessary component of both a free society.

For that matter, “black” lists serve an important societal function, and, as such, it’s reasonable to think that the market would provide for that need. We already see useful attempts to create “blacklists” of abusive people in sub-communities like BDSM cultures and in circles of people who date primarily online. Public attempts to call out abusive pickup artists have yielded amazing knowledge on the communities and individuals who are potentially dangerous.

Private Registries Would be More Just

Properly conceived, private registries have the potential to be more just than our current system and many of the systems that now operate more-or-less clandestinely.

Though it is not typically appropriate to say what a market would provide in the absence of government intervention, as there is no way to know what will come about spontaneously, we can sketch out what a private sex offender registry might look like. In fact, as citizens concerned with having a just society, we ought to have a conception of how we want a private registry to operate. I suggest that a private, just sex offender registry would have the following components:

  • It would not be for profit: though I am not against such a thing being for profit in principle, the profit motive may pervert the incentive structure and give way to bribery by those who have enough to pay.
  • An appeals process or expiration: A person accused of abuse could appeal their verdict, or, their appearance on the list would retire after a certain time of “good” behavior.
  • Public input on what crimes are “deserving” of being on the list.
  • More details than a name: So that individuals can judge the crime and decide for themselves whether or not to trust the named individual, rather than ousting them from society as a whole.

A private sex offender registry would certainly not be without drawbacks—mob rule is of particular concern. However, a registry in private hands would be more agile, more able to meet the demands of society, and more just for those who have committed crimes.

It is unpopular to discuss just punishment of sex offenders, particularly because we have such a distaste for them. However, justice isn’t just for those who commit petty crimes or crimes with which we can sympathize. Justice exists for those we cannot stand to look at, to make sure that they, too, have a chance to be more than just a criminal.