Two years ago, the Connecticut Legislature held hearings on a variety of bills that would have modified the state’s sex offender registry. Rather than adopt any change, because of the complexities of our sex offender laws the Legislature asked the state Sentencing Commission to study the effectiveness of the current sex offender registration requirements. The commission was to report back by 2018.
Under current law, when sex offenders have served their sentences and are released into the community, they must register on a public sex offender registry. The registration is for either 10 years or life, depending on the offense committed. The registry is operated by the state police.
In order to comply with the Legislature’s request, the commission set up a special subcommittee to study the effectiveness of the current registry. The subcommittee had representation from all the stakeholders, including state and local police, state attorney’s office, corrections, parole, judiciary, victims’ advocates, and others, a total of about 40 people.
After two years of study, including numerous public hearings and testimony by nationally known experts on treatment of sex offenders, as well as reports on how other states’ registries operate, with almost unanimous agreement the subcommittee produced a report recommending major changes to our sex offender registry laws. These changes would have resulted in a smaller, more focused and enforceable registry. Also, they would lessen the barriers to the offenders’ successful reintegration into the community. The 204-page report was adopted by the full Sentencing Commission and submitted to the Judiciary Committee of the Legislature in December 2017.
In the session that ended on May 9, the Judiciary Committee raised a bill to implement the proposed changes recommended in the report. The bill, HB 5578, had a public hearing. On the final day of the Judiciary Committee’s deadline for reporting out bills, HB 5578 was put on the committee’s agenda for action. The committee ran out of time before any action was taken, effectively killing the bill.
The current sex offender registry was established in 1998. It had less than 300 registrants. Thereafter, because half of new registrants are placed there for life, the registry grows each year and now contains over 5,300 names. Today virtually every town in the state has registered sex offenders. Hartford has over 700. Unfortunately, the registry doesn’t distinguish between high-risk offenders and low-risk offenders.
HB 5578 would have created a new board to evaluate each sex offender’s risk of reoffending, and set the length of time an offender would be on any registry. In addition, the bill would have established a registry for low-risk offenders, accessible to law enforcement only, thus reducing the number of offenders on the public registry. Currently Connecticut does not allow offenders to apply for removal from the registry, while virtually every other state does. HB 5578 would have established a procedure to obtain early removal or for placement on the law enforcement-only registry, on a showing that an offender has taken steps to reduce his risk to the community.
The most serious flaw with the current registry is that offenders were retroactively placed on the registry years after their conviction, arguably violating the ex post facto clause of Article 1 of the U.S. Constitution. Under current law, an individual is informed by the court at sentencing if he or she will be placed on the registry. However, when the current registry was established in 1998, it simply reached back at least 10 years, requiring anyone convicted of a sex crime after 1988 to be registered. Those pre-registry offenders were sentenced with no expectation of later being placed on a then nonexistent public registry. It is estimated that there are as many as 800 pre-registry offenders who were placed on the registry for life and who are still on the registry, 20 to 30 years later.
In every state there was much litigation about retroactive reach-back when sex-offender registries were first created. The issue was resolved in the case of Smith v. Doe, 538 U.S. 84 (2003). The U.S. Supreme Court held it was lawful to retroactively require offenders to be placed on a registry since such registries were intended to create only civil, nonpunitive programs to protect the public.
In recent years there have been a number of cases in which the courts are now holding that registration is, in fact, a penalty, and that it can’t be imposed retroactively. Courts in Michigan and Colorado have vacated their retroactive registration requirement. Last July, the Pennsylvania Supreme Court held that the registration requirement is punitive and cannot be applied retroactively. In all likelihood, if this matter were presented to the courts in Connecticut, there is a good chance that the courts would recognize the punitive nature of being on a registry and order a termination of such retroactive requirements.
Currently, the hundreds of individuals who were retroactively placed on the Connecticut public registry for life have been on the registry from 20 to 30 years since their release into the community. If they haven’t reoffended after this length of time, all the experts tell us it is highly unlikely they would reoffend now. HB 5578 would have allowed all of those individuals to earn a right to petition the court for removal from the registry, thus making it less difficult for them to reintegrate into the community.
Hopefully, the Sentencing Commission will resubmit its well-researched, broadly debated and carefully drafted proposal for reform to the registry again next year and it will be enacted by the Legislature.