“Major Strasser has been shot. Round up the usual suspects.”

-Captain Renault, Casablanca, 1942

In September 2016, Danny Heinrich confessed to abducting and murdering Jacob Wetterling. This brought, if nothing else, closure for Jacob’s family, and indeed for Minnesotans and Americans more broadly. Heinrich’s arrest and confession gives a real and terrifying face to one of the darkest fears of parents across the country. At the same time, Heinrich’s image in the news reinforces the cultural narrative of “sex offenders” as violent men who prey in seemingly random ways on children that they have never met. Available statistics indicate, however, that this image does not accurately reflect the reality of either perpetrators or victims of sexual crime in the United States. Yet this narrative lends support to the idea that the current required “sex-offender” registration—registration, which constrains, sometimes extremely, the freedom of over 800,000 individuals—is justified despite growing evidence that registration does not actually do what is intended to do.

The National Center for Victims of Crime, a victim advocacy group, reports that though nearly 70% of all reported sexual assaults are perpetrated against children of the age of 17 or younger, “only a small percentage of new child sexual abusers have a prior sex offense record, [making] tracking them…difficult.” Despite this difficulty, law enforcement agencies across the country ostensibly rely on sex offender registries to attempt to track these types of predators after certain crimes have been committed. Yet, it seems unlikely that simply requiring more and more Americans to register as predatory offenders is going to solve this tracking problem. In fact, there is growing body of evidence that suggests that over-inclusive registries actually make tracking the most dangerous and violent offenders more, rather than less difficult.8 In addition to lacking the efficacy that justifies its existence, this over-inclusive approach severely curtails the constitutional rights of those swept up in the fury of over-inclusive registration laws.

This article argues that the time for reform in the realm of sex offender registration laws is long overdue. Moreover, an individualized approach, which would allow the sentencing judge to make a determination about whether registration is required based on the perpetrator’s unique circumstances, made at pre-detention stage, will yield better results not only in terms of the constitutional rights of individuals convicted of sex crimes, but for the efficacy of registries and their use by law enforcement agencies. An important caveat: This article focuses solely on registration, and intentionally leaves the discussion of community notification requirements for other articles. The purpose of this bifurcation is to allow for a clearer critique of registration—its purported purposes and efficacy—without clouding the issues. Because registration and notification serve distinct purposes, and have their own unique justifications, they can and should be evaluated separately.

First, this article gives a brief overview of both federal and state statutory schemes that regulate sex crimes, emphasizing the registration provisions of those schemes. Second, this article articulates a few of the key pitfalls of registration laws as they are currently administered. The next section will analyze legal challenges to these laws and why such challenges have been largely unsuccessful to this point.

The final portion of this article examines the potential benefits and efficacy of two different avenues of achieving the primary goals of registration, which are deterrence, investigative efficiency, and public safety. First, it will examine the implementation of the specialized first avenue, “Sex Offender Courts,” as a means of reform. The article ultimately concludes that any further expansion of such courts should be carried out with extreme caution, and paying particular attention to minimizing judicial overreach and systemic biases often attendant to such courts. Ultimately, and especially in light of the significant drawbacks attendant to the sex offender court approach, this article takes the view that a better approach is to take the second avenue: a return to allowing judges to make individualized registration determinations at the sentencing stage. This approach recognizes the errors attendant to the blanket approach, and will restore a level of judicial sobriety to the registration process. This in turn will have the dual benefit of enacting the three goals of registration, while limiting the adverse impact on the individual liberties of registrants.