TX- Problems With the Texas Sex Offender Registry

5-9-2009 Texas:

Unlike most areas of the criminal justice system, judges are given no discretion in regards to the Sex Offender Registration Program. For the justice system to live up to its name, judges should be given discretion over the terms of registration.

Discretion is the hallmark of the criminal justice system in Texas. The laws are written clearly, but the decisions are left to people. Juries are empowered to examine the facts of cases and make responsible decisions regarding guilt and innocence. Judges are trusted to maintain decorum and uphold the laws so that justice can prevail. At all times, participants within the court system are expected to handle difficult and sensitive matters in the interests of fairness and justice.

The Sex Offender Registration Program is the exception to this general principle. Unlike most areas of the criminal justice system, judges are given no discretion whatsoever. Under Texas law, when a person is convicted of a qualifying sex offense he or she is automatically and permanently required to register as a sex offender.

The laws providing for mandatory lifelong sex offender registration are ineffective. For the justice system to live up to its name, judges should be given discretion over the terms of registration.

Texas Sex Offender Registration Laws

Under the Texas Code of Criminal Procedure, anyone who is convicted of a sexual offense is required to register with local law enforcement as part of the Sex Offender Registration Program. Depending on the particular crime, the offender must register for 10 years, or for his or her entire lifetime.

The duration of the registration requirement depends entirely upon the crime; once a person is convicted, a judge has absolutely no discretion. The judge cannot decide that the registration period should be limited or that registration is inappropriate under the circumstances. The required registration period is mandated by the relevant statutes.

The Problem With Eliminating Discretion: No Two Cases Are the Same

Some may argue that the lack of discretion leads to equitable treatment; one person convicted of possessing child pornography should be treated the same as any other person convicted of possessing of child pornography. However, in criminal matters the circumstances are always important. No two cases are identical and removing a judge's discretion does not lead to equitable treatment.

For example, consider the case of a 16-year-old and an 18-year-old who are engaged in a consensual sexual relationship. Despite the laws, such relationships are undoubtedly common and rarely draw the attention of Texas courts. However, in the event that the relationship turns sour or results in pregnancy, the 16-year-old may report the encounters as nonconsensual.

In accordance with Texas law, the 18-year-old could be prosecuted for indecency with a child. Indecency with a child is an offense requiring registration; if convicted, the older partner would be required to register for life.

This hypothetical is not intended to undermine the very real threat of sex offense or to suggest that all accusations are false. However, by leaving the judges without any discretion in sentencing, people who truly pose no threat are classified and publicly ostracized with those who are legitimately dangerous. Lifetime registration as a sex offender is a tremendous burden to place on someone for a mistake made at age 18 in a consensual relationship.

An Overinclusive Registry Undermines the Intent of Notification

Furthermore, including this hypothetical 18-year-old ultimately undermines the registry. One of the primary purposes of a sex offender registry is to alert the public to local people who are potentially dangerous. When people who are not truly threatening are included in this database, the registry is overinclusive and becomes less valuable.

If judges had discretion, they could examine the individual circumstances and determine whether a particular offender is likely to commit another offense in the future. Accordingly, the registry could be limited to those who truly threaten others and therefore warrant inclusion.

Alternately, the judge could consider the circumstances and determine whether a shorter registration period might be sufficient, rather than the current lifetime registration requirement. Again, this would alert the public to people who had recently committed sex offenses without including those who haven't committed crimes for decades.

Unfortunately, judges in Texas are not currently given this type of decision making authority; they are beholden to unbending laws. As a result, it is extremely important that anyone accused of any type of sex offense in Texas take these accusations seriously and consult with an experienced criminal defense attorney. A knowledgeable lawyer cannot change the laws, but can take actions to minimize the potential consequences of any accusation. ..News Source.. by Patrick L. Hancock