Mark Lay had been a registered sex offender for more than five years before he heard there might be a way to erase his name from the public Texas list.
Convicted in 2008 of a single count of possessing child pornography, he was released early from a two-year sentence, classified by the state as a low-risk re-offender. But he’d been told the rest of his sentence — lifetime inclusion on the Texas sex offender registry — was permanent.
A data analyst in Houston, Lay said being on the public list has prevented him from getting hired and finding places to live. “It has been the only reason I can’t assimilate back into society,” he said. So two years ago, when he happened upon a mention of what Texas law calls “deregistration,” he started making calls.
Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who, like Lay, are designated as low-risk — to commit new offenses.
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.
Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.
In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.
By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry.
“At the current rate,” said Aaron Pierce, a Waco psychologist and sex offender expert who consulted on the law, “it will take forever to clean up the registry.”
Lists don’t account for risk
While sex offenders probably elicit less sympathy than any other criminal, courts have determined that registries are not to be considered additional punishment, but rather a public safety tool. Posting an offender’s photo and address allow citizens to monitor the list so as to avoid predators. Police investigating new crimes would know where to find obvious suspects.
But the calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.
So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.
Across the country, even offenders whose risk approaches zero can remain on the list.
When Samuel Graves was released from an Arkansas prison in 2005 after serving six years for attempted rape of a 9-year-old, he was completely paralyzed. Instead of removing him from its registry, the state created a new category of sex offender. Today 69 Arkansas registrants are classified “incapacitated,” typically because they have been paralyzed by strokes or are bed-bound in nursing homes, said Paula Stitz, the registry’s administrator.
Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.
And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them.
“The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.
Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.
Low utility, high cost
Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago.
Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.
Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.
In an office behind the Austin Police Department’s reception area, officer Adrian Valdovino processes a steady stream of registering offenders. “You still have the same vehicle? Same plates?” he asks one. “Any other vehicle you have access to?” Each appointment takes anywhere from five to 45 minutes.
In recent years, the unit — seven officers and two civilians — moved to a larger office to accommodate the city’s approximately 1,800 registrants who must check in anywhere from monthly to annually. Occasionally, officers also stop by their listed addresses to make sure they really live there.
Sgt. Elizabeth Donegan said DNA collected as part of the process can help police solve new sex crimes but suggested the public portion of the list had limited use. “The idea of a creepy guy leaping out of the bushes and snatching a child is a myth,” she said, referring to research showing the vast majority of child abuse is committed by family members or acquaintances.
Despite the high costs and marginal returns, there has been little appetite from politicians or even criminal justice reformers to fix the system. In recent years, politically conservative advocacy organizations such as the Texas Public Policy Foundation’s Center for Effective Justice have successfully pushed states to use evidence-based research to limit costly practices that do little to preserve public safety. But a spokesman for the influential Austin think tank said it had no plans to tackle sex offender registry reform.
The public’s visceral disgust for sex crimes make any reform effort “just toxic,” said Brenda Jones, executive director of Reform Sex Offender Laws, a national advocacy organization. “Many states are looking at reducing prison populations and reducing the re-offender cycle. But they carefully leave sex offenders out of it.”
Few know about delist option
As a Republican state representative of North Texas from 1992 to 2006, Ray Allen enjoyed solid law-and-order credentials. He oversaw expansion of the state’s prison system as chairman of the House Committee on Corrections and pushed for the state’s new concealed carry handgun laws.
Yet in 2005, Allen sponsored a bill that mandated a process for low-risk sex offenders to get off the Texas list. He was convinced the growing registry was actually threatening public safety.
“When we first started writing sex offender notification bills in 1995 and 1997, we cast the net too wide,” he said. “There was a lot of concern there were a lot of sex offenders out there preying on children. We now have more than 85,000 people on the registry. And the reality is we have probably only four- to five-thousand dangerous sex offenders and a whole lot of other folks who were drunk or stupid or misguided who are very unlikely to commit future sex crimes.”
With a huge registry, “you’re creating a very large legal forest for the 5,000 (high-risk offenders) to hide in,” Allen said. “A list where 90 percent won’t commit another crime is not very useful to the public.”
Following the bill’s passage, the state assembled experts to create the new system. “Our original recommendation to the Legislature was to scrap the whole registry,” recalled Pierce, now chairman of the Texas Council on Sex Offender Treatment. “It doesn’t work.”
But with that option politically unfeasible, the experts turned to writing rules to at least start shrinking the state registry. It wasn’t until 2011 that the state actually started permitting offenders to apply.
The council, which today oversees deregistration, landed on a cautious approach. To even qualify for consideration, an offender must have been convicted of only a single offense. He or she must also have a registration requirement greater in Texas than what the same crime would earn for a federal conviction — for example, if Texas law required lifetime registration while federal law called for 15 years.
By last fall — the latest available figures — only 335 offenders had applied for consideration since 2011.
One reason: There has been almost no effort to inform registrants of the program.
In 2010, when Bryan Basse, an East Texas teacher convicted of having sex with a 16-year-old student, was released from prison as a low-risk offender after serving three years, he said he was told there was no way out of his lifetime registration requirement. Two years later, he said he stumbled across mention of deregistration online — a discovery even less likely for registrants prohibited from using the internet, a common restriction.
Pierce acknowledged proposals to actively inform offenders of the program had run into opposition from critics who said it violated the spirit of the sex offender registry to inform offenders there was a way off of it. “So it has been mostly word of mouth,” he said.
Few make it off list
Of the 335 who applied to the council, only a third — 110 — met the narrow legal criteria to advance to the next stage of assessment. For the past several years, the council has asked legislators to loosen the rules to allow more low-risk offenders to at least meet the minimum qualifications for consideration. Pierce said lawmakers have declined to take up the issue, however.
Qualified offenders must next take a battery of tests to measure their risk of re-offending. That step, too, has posed steep obstacles.
Only 22 providers are licensed by the state to administer the assessment. For Basse, that meant a long drive to the closest clinician in Lufkin. But the biggest hurdle, he said, was the out-of-pocket cost — $2,900.
For those with enough money and whose scores indicate a sufficiently low risk of re-offending, the final step requires offenders to formally petition the court that originally sentenced them. Local prosecutors are permitted to offer their opinion. Regardless of all the work that has come before, the judge then has complete discretion to grant deregistration or deny it.
“There are a lot of courts that the first time they get a deregistration petition is the first time they’ve heard of it,” said Matthew Ferrara, a sex offender treatment expert who helped create the deregistration process. Pierce said that he knows of three cases in which a judge has denied an offender permission to get off the list even after he met all other criteria.
“A judge might decide that he disagrees with the risk assessment,” said Scott Smith, an Austin attorney who has represented about 20 offenders seeking deregistration. “Or he might just have the opinion that sex offender registry is part of the punishment — if you do the crime, you must do the time.”
Tense moments in court
Lay, the Houston data analyst, said he is waiting to hear if he qualified for a court hearing. Basse said he did, but has delayed a hearing for fear of disappointment: “What if the judge says no?”
Jason said his final hearing was nerve-wracking. (He asked his last name not be used because he is no longer on the Texas registry — though it can still be found on nongovernment sites that scrape public lists.) Sentenced to four years of probation for groping his son’s 14-year-old babysitter in 2005, his hearing was held in October.
Registration had cost him jobs and apartments, so he said he hired a lawyer to represent him because of the high stakes. Over the year it took to process his application, deregistration cost him $27,500.
In support, he brought his ex-wife, children, parents, owner of the counseling service he’d attended and more than two dozen character-support letters to his hearing. The prosecutors’ office nevertheless objected.
After some tense moments, the judge signed off. “About 10 years of stress released when I walked out of that courthouse,” he recalled. “It’s like I’m starting a whole new life.”
Jason cautioned the process isn’t appropriate for everyone, though. “There are some extremely dangerous people on the registry, and they’re scary as hell,” he said. “I’ve sat next to them at counseling and thought, ‘Why am I sitting next to these guys?’”
Reporter Eric Dexheimer has written extensively about how Texas’ occupational laws can exclude even minor and rehabilitated ex-offenders from obtaining licenses to work and the state’s bungled attempts to prosecute alleged Medicaid fraud among dentists.