Making Sex Offenders Pay — and Pay and Pay and Pay (Ep. 208): Full Transcript
This is a transcript of the Freakonomics Radio podcast “Making Sex Offenders Pay — and Pay and Pay and Pay.”
[MUSIC: Donvision; “Indian Summer”]
Jake SWARTZ: Hey guys. I just finished my MA in Forensic Psychology at John Jay and started an internship in a new city… I spend most of my days hanging out with lovely people like rapists and pedophiles…
That’s Jake Swartz …
SWARTZ: … and I’m an intern at Treatment and Evaluation Services.
Jake had sent us an e-mail about his job. “I primarily do therapy,” he wrote, “both group and individual, with convicted sex offenders, and it made me realize being a sex offender is a terrible idea (apart from the obvious reasons). It’s economically disastrous!” Hmm! That’s not the kind of observation you hear every day. I assumed that by “economically disastrous,” Jake was mostly talking about sex-offender registries, which limit job options and constrain where a sex offender can live after getting out of prison. When we followed up with Jake by phone, he had a suggestion for an episode:
SWARTZ: I think it would be interesting to cover the economics of being a sex offender.
I agree with Jake. As disturbing as this topic may be to some people, I agree that the economics of being a sex offender might indeed be interesting, and that it might tell us something more generally about crime and punishment. Do you agree?
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If we’re talking about how a certain crime is punished — in this case, a sex offense — we should begin with how we think about punishment more generally.
Steve LEVITT: Part of why we punish people ex post is because we want to deter them upfront.
That’s Steve Levitt, my Freakonomics friend and co-author.
LEVITT: The amount of punishment that society thinks is fair is often, in some sense, proportional to the damage that’s done with the crime.
Okay, so if we’re concerned with the damage caused by a crime, let’s get into what constitutes a sex offense. The definition varies from jurisdiction to jurisdiction but, since Jake Swartz is working with convicted sex offenders in Colorado, let’s focus on that. In Colorado, the crimes that will get you categorized as a sex offender range from the expected — sexual assault, unwanted sexual contact, and so on — to crimes including indecent exposure, prostitution, incest, enticement of a child, and sexual conduct while imprisoned. Not every sex offense will land a criminal on the sex-offender registry, but it will require a particular treatment routine, which has a lot of out-of-pocket costs associated with it.
VOICEMAIL: Hello, you have reached the offices of Treatment and Evaluation services and Dr. Rick May…
Rick MAY: I’m Dr. Rick May, and I’m director of a treatment program — Treatment and Evaluation Services.
Rick May is psychologist in Aurora, Colorado. How does he spend most of his work hours?
MAY: Mostly evaluations and treatment of individuals who have been accused of crossing sexual boundaries.
And how many such individuals has he seen?
MAY: Tens of thousands probably. I’ve been doing this for over 30 years. We’ve had a lot of people come through the agency.
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May agreed to help us add up the out-of-pocket costs that clients like his have had to pay.
MAY: Okay, I’ve divided it into the different components that they’re involved in and what they’re required to pay.
Laurie KEPROS: Sure, I can walk you through a lot of the costs that are specific to sex offenses.
And that is Laurie Rose Kepros. She agreed to help us, too. She also works in Colorado, as the Director of Sexual Litigation for the Colorado Office of the State Public Defender. Which means that she trains and advises lawyers who represent people accused or convicted of sexual crimes. Kepros and Rick May explained to us that Colorado has a Sex Offender Management Board, which has a protocol for dealing with sex offenders.
MAY: Everybody who’s convicted of a sexual offense has to have what’s called “a sex-offense-specific mental-health evaluation.”
KEPROS: If someone is convicted of a sex crime, they are required to do this psychosexual evaluation.
MAY: The first evaluation runs in the neighborhood of between $1,000 and $2,000.
After the evaluation comes the treatment.
KEPROS: We have some numbers from across our state that show that the average person who is required to do sex offender treatment will do five treatment sessions per month. Four of those will be group therapy at a rate of about $50 per session, and one of those will be individual therapy at a rate of about $75 per session. Aside from everything else, that means there will be a treatment cost of $275/month just to go to treatment, just to go to group.
Rick May says about 15 or 20 percent of his clients get help from the Department of Probation to pay for treatment. But every offender at his agency has to sign a contract, agreeing to pay the full bill. If they fail — well, that leads to more trouble.
MAY: They’re in violation of probation as well as the treatment contract.
Now, we should point out that sex offenders are hardly the only criminals with mandatory evaluations or treatment:
KEPROS: What is unique about sex-offender treatment and the costs associated with it is that the dose of treatment tends to be significantly greater. That is, the person will be in treatment not just for a few months, but sometimes for years and years.
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Leora JOSEPH: I would not be surprised to learn that it is a costly crime.
That’s Leora Joseph. She runs the Special Victims Unit in a Colorado district attorney’s office, so she prosecutes sex offenders. She’s not surprised to learn that sex offenders have to pay for a lot of treatment because — well, it’s a conviction that requires a lot of treatment.
JOSEPH:…and so when I look at the sexual-crimes of sexual violence, including pedophilia and all the paraphilias, I would expect it to be expensive. Why is that? First of all, look at something like the D.S.M. —I think they just came out with the D.S.M.-5 — which diagnoses all kinds of mental disabilities or psychiatric illnesses. The D.S.M. refers to all these sexual paraphilias, and pedophilia is one of those, as chronic and lifelong, and says specifically they’re really hard to treat. You’re really talking about whether or not you can rewire somebody.
Joseph is bothered by this notion. She points out that some people who might be offended by the notion of “rewiring” say, homosexuals, might firmly believe that a sex offender’s sexual urges can be fundamentally changed.
JOSEPH: It is a contradiction. I’m one of those believers that — without getting into some big, political discussion about this — that if you’re born gay, you’re gay. You can’t and shouldn’t be rewired to think a different way. Well, if we can’t rewire our sexuality, why do we think we can rewire the sexuality of a child predator, or a man who is aroused by being violent with women? Why do we think we can?
The Colorado Sex Offender Management Board agrees. In its handbook, the first “Guiding Principle” states that “Sexual offending is a behavioral disorder which cannot be ‘cured.’” So “treating” that which “cannot be cured” can go on for a long time.
Elizabeth LETOURNEAU: Yeah, very long.
That’s Elizabeth Letourneau.
LETOURNEAU: I am currently the president of the Association for the Treatment of Sexual Abusers, or ATSA.
ATSA is a membership organization made up of therapists, probation officers, policy makers, researchers, and others. Letourneau herself is an associate professor in the Department of Mental Health at the Johns Hopkins Bloomberg School of Public Health, and she directs the Moore Center for the Prevention of Child Sexual Abuse.
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LETOURNEAU: There’s definitely, from early on, this idea that you have to work with sex offenders for years before you can really get good change. And so we see average treatment lengths, I think the national average is about 18 months. But we see ranges. You rarely see less than one year of treatment. It can extend up to three years.
Letourneau says there is some evidence that treatment helps:
LETOURNEAU: The state of the art for treatment of adult sex offenders is group-based cognitive behavioral relapse prevention intervention. It’s been around since the ‘80s. There is evidence to support its use, that it does seem to have a positive impact in reducing recidivism rates, sexual and non-sexual recidivism rates. For juveniles, there’s actually very good evidence of effectiveness of a family-based intervention that does not group delinquent kids together, but rather treats a youth and his or her family as a unit of treatment. And that’s called multisystemic therapy, or MST. Multisystemic therapies with youth who have sexually offended has undergone three randomized controlled trials. All of them support its effectiveness with youths who have sexually offended.
During the course of these various treatments — potentially many years of treatments — there are other out-of-pocket costs that some sex offenders must pay. A tracker, for instance.
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KEPROS: This is often an off-duty law enforcement officer …
MAY: Other programs hire individuals, usually with some type of police background …
KEPROS: … whose entire job is to pop up everywhere you go in your life and make sure you are where you say you are.
MAY: The client’s required to call in each day with a schedule …
KEPROS: “I am at my house. I want to leave my house to go to the grocery store.” Then they call and say, “I’m done at the grocery store. I need to go put gas in my car.” Then they call and say, “I’m putting gas in my car.” The idea is that these trackers will go and see if the person is indeed where they say they are.
MAY: That could be work, it could be home, it could be anywhere that they’re allowed to go.
KEPROS: Again, that’s another potential cost to the client ….
MAY: That’s another charge, and that’s usually charged by the hour. That could be $15 to $20 to $30 an hour.
And there’s at least one more out-of-pocket expense, at least in Colorado.
KEPROS: In our state, we require that people who are being supervised for a sex offense complete polygraphs.
Some sex offenders are required to take two polygraphs a year — that’s if they pass. If they don’t, the tests are more frequent.
MAY: Those usually run in the $250 range.
That’s $250 each.
LETOURNEAU: I don’t know of any other crime where the offenders are routinely subjected to polygraph examination.
That’s Elizabeth Letourneau again, with Johns Hopkins and the Association for the Treatment of Sexual Abusers.
LETOURNEAU: No other country that I’m aware of utilizes polygraph to anything like the extent that the U.S. does. Yet other industrialized countries, other high-income countries, they have the same recidivism rates as we do. Their sex offenders manage to get through treatment, and through probation with the same level of success but without polygraph. Many people who use polygraph really rely on it. But I actually wonder what the clinical utility is when there’s just no other place in the world that I’m aware of that uses this particular device. The polygraph associations have actually been quite good at marketing.
Well, that’s a hard claim for us to evaluate. But if you think about the incentives at play here — there are a lot of examples, from a lot of different realms, where we create many, many layers of safety to protect us from something that frightens us, even if there’s no proof that every safety layer is actually effective. And let’s be clear — sex crimes are truly frightening. The life of a victim can be irrevocably damaged. Thus the creation of so many after-the-fact safety measures — the evaluation, the treatment, the trackers, the polygraph tests. For the convict, the financial costs add up. Here’s Rick May again:
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MAY: I’m guessing the first year that an individual is charged and convicted they’re gonna be easily in the $10,000 range.
When we come back, we ask whether these costs are, number one, fair:
Rebecca LOYA: If we believe that doing one’s time in prison is enough of a punishment, then we have to ask questions about whether people should continue to pay financially in other ways after they get out.
And, more to the point, whether the steps we’ve taken to prevent sex crimes — and prevent recidivism among sex-crime convicts — are actually working:
Amanda AGAN: When I first saw these results, I actually thought maybe I made a mistake.
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Although Steve Levitt is an economist, at the University of Chicago, one of his research obsessions for many years has been crime and punishment:
LEVITT: There are two kinds of costs, that you might think about if you’re a sex offender. The first one is just the direct punishment: going to prison and the humiliation and all that goes with it. The second is after you get out, you’ve got an incredibly difficult job market because of reporting requirements and all the usual things that goes with being a felon. But, also, the existence of these sex offender registries that make it incredibly hard for you to hide.
This brings us to what is easily the greatest cost for a convicted sex offender: the registry.
LEVITT: If you are a sex offender, the registry is just a brutal way of making sure you can never hide. For most other crimes, you’re essentially anonymous. There’s no really easy way for people to know that you’ve done the crimes. True, when you apply for a job, you’re supposed to say you’re a convicted felon. But nobody really does anyway, and the worst that could happen to you if you don’t say it, is that they just fire you after awhile when they find it out. But the registry is really a different beast, because the registry means that no matter where you go or what you’re doing, there are easy, virtually costless ways for people to find out who you are. It’s hard to say, “Is that a good thing or a bad thing?” From a deterrence perspective, you [would] think it’s got to be a good thing. If you know ahead of time that your entire life, you’re going to be labeled as a sex offender, it’s got to have some effect in terms of keeping you from doing the crime.
Stephen J. DUBNER: You said, “If it’s a good deterrent, then it might be worth it, as costly as it may be to the individuals.” What do you know about how much of a deterrent it is? The registry?
LEVITT: The best evidence I know is from my former student and friend, Amanda Agan …
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AGAN: As soon as you are released from jail, you are informed that you are required to register.
That is Amanda Agan. She is a post-doctoral economics researcher at Princeton. Several years ago, she wanted to know if there was good research on whether public shaming — like a sex-offender registry — is an effective crime deterrent.
AGAN: … I did not find anything. I had been, at the time, looking for a topic for research. I said, “Okay, this is what I want to research. This is what I want to do.” This is a really important policy. It’s one that’s been implemented in every state now. We really needed to know if this was working, particularly as we were thinking about expanding these to other types of registration. I think Tennessee is doing methamphetamine registration. As we were thinking about expanding these sorts of policies, I thought it was an important one to study.
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The impetus for the sex-offender registry was the abduction of a boy in Minnesota.
NEWSCASTER in archival footage: Sunday night, just outside of town, 11-year-old Jacob Wetterling was abducted by a masked man with a gun.
AGAN: In 1994, they passed the Jacob Wetterling Act, which required that all states maintain a registry of convicted sex offenders. This is named after a young boy named Jacob Wetterling, who was kidnapped. Actually, his current whereabouts are unknown.
NEWSCASTER in archival footage: Jacob’s disappearance is especially shocking because he was with his 10-year-old brother Trevor and an 11-year-old friend, Aaron Larson, when the abduction took place.
NEWSCASTER in archival footage: What did this man look like?
Aaron LARSON: He was all in black. He had a mask on and …
NEWSCASTER in archival footage: You couldn’t see his face?
LARSON: Huh uh. He had a nylon mask, or some kind of mask.
NEWSCASTER in archival footage: Did Jacob say anything to the man?
LARSON: Just his age.
NEWSCASTER in archival footage: When you ran, did you look back?
LARSON: Yeah, once we got way down there.
NEWSCASTER in archival footage: What did you see?
LARSON: Nothing. He wasn’t there anymore.
AGAN: Then we got an amendment to the Jacob Wetterling Act in 1996 called Megan’s Law…
President Bill CLINTON in 1996: To understand what this law really means, never forget its name. The name of a seven-year-old girl, taken wrongly in the beginning of her life. The law that bears the name of one child is now for every child, for every parent, and every family.
AGAN: …this law required that the states notify the community about the contents of the registry. This particular law was named after a young girl named Megan Kanka who was kidnapped and murdered by somebody who had been previously convicted of a sex offense. The argument of the family and the states was that if they had known about this information they may have been able to do something to protect their daughter.
Today there are roughly 800,000 registered sex offenders in the United States. Some are required to register for 15 years, some for 25, and some for life.
AGAN: It will vary a bit by state, but generally you’re going to see a picture of the registered sex offender, the crime they were convicted of, the address that they live at. Sometimes you’ll see identifying information like whether they have tattoos, [their] height or something like that. You may also see their work address, depending on the state that you’re living in.
So on top of all the out-of-pocket costs we detailed earlier, a convicted sex offender continues to pay for his or her crime with the closest thing we’ve got these days to a scarlet letter. The question, of course, is whether it’s effective? In addition to being punitive, does it deter further crime?
AGAN: The initial question I wanted to ask was: was the implementation of these registration or notification laws in different states associated with a decrease in rates of sex offenses? What I did was I used data from each of the 50 states that they had reported to the Federal Bureau of Investigation, the F.B.I., to their Uniform Crime Reporting, or U.C.R. program. Then I was able to look at how many sex offenses, how many rapes were being reported, and how many sex offense arrests were being reported in each state. Then I also gathered information on when the states implemented their registry policies and when they put this information online. Basically what I was doing was looking at before and after the registration law goes into effect, or before and after the notification law goes into effect, how are the rates of rape incidences or sex offense arrests changing?
The resulting paper, published in the Journal of Law and Economics, was called “Sex Offender Registries: Fear Without Function?”
AGAN: What I found is that there was no change in the sex offense arrest rates or rape incidence rates either after registration goes into effect or after notification goes into effect. At least in this aggregate, state level data it did not appear that the registry laws or the notification laws were effective at reducing rates of crime.
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That was not what Agan had expected.
AGAN: Not at all. When I first saw these results, I actually thought maybe I made a mistake. As any good researcher would do, I did a lot of checks. I checked my data. I did a lot of different types of specifications just to ensure that I was getting the correct result. Then the more I started to think about it, the more I thought, “Maybe this does make sense.” As we are basically shaming these sex offenders, as they’re having trouble getting jobs or maintaining family relationships, maintaining friendships, finding housing, we may in some sense decrease what an economist would call the opportunity cost of committing a crime. Normally when you commit a crime, what happens is you’re going to be incarcerated. You’re going to lose your family ties. You’re going to lose your housing. You’re going to lose your job. But if those things are already lost for you, then those are no longer a deterrent to committing a further crime. It could be that the registries are causing these adverse effects and hence reducing the effectiveness of these types of policies. So at first I was surprised, but as I thought about it more I thought maybe it wasn’t so shocking.
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LEVITT: I mean, I think for me…
Steve Levitt again.
LEVITT: Look, I don’t tend to get moral on issues. If society has decided that the right punishment is a registry — so that you essentially can never hide the rest of your life for having committed a sex offense — then I think that’s not necessarily a bad idea. Maybe that is the right view of the world, that some crimes are so heinous that you want them to track you for the rest of your life.
There is one thing about the registry that bothers Levitt.
LEVITT: Where I did have moral qualms were when the sex offender registry laws were coming into place, they were always made retroactive. If I had committed a sex offense in a world in which that wasn’t part of the punishment, this was just a new punishment that was added on ex post, after I’d committed the crime. To me, that almost seems immoral of the society and of the government; to, after someone has committed some act, to then go back and change the rules on them. To say, “Because you did that a long time ago, you have to be punished for the rest of your life.” Look, I’m not a big supporter of sex offenders and no one is. Maybe that’s part of the problem. Politically, since no one supports sex offenders, there is an inevitable and constant push towards greater punishment and embarrassment and harassment of them. But it’s all fair if it’s out in front of you and you commit the crime and you know what the consequences are. Then, it’s your choice. But it’s tricky for governments to go and change the rules after the fact.
DUBNER: One might imagine that the costs to a convicted sex offender are so high because it’s really important to prevent recidivism among them. Which might lead one to think that recidivism is really high among sex offenders. Do you know anything about those numbers — recidivism among sex offenders versus other criminals?
LEVITT: I don’t know off the top of my head the exact numbers, but in general, recidivism among people who do very serious offenses tend to be much lower than those of people who do more minor offenses, like auto thieves and burglars and stuff like that. The thing that’s special about sex offenders, though, is they can impose enormous costs, even without recidivating. If I know I have a pedophile next door, as a parent, it affects my behavior and what I let my children do. It’s very costly, even if the pedophile never does recidivate. Obviously, the costs are much greater if the pedophile does recidivate. But the irony of the registry is that by making the information so public — potentially, maybe it doesn’t, it depends — it might reduce the amount of recidivism. But one thing it does for sure is it raises a level of fear. So much of the costs of crime are the fear, not the fear of the actual victims or the pain of the victims, but it’s the fear of everyone who imagines they might be a victim. The registry does exactly the wrong thing in that regard, in making everyone feel like they’re constantly under threat.
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You can certainly imagine that fear, if you were to learn that a sex offender got out of prison and moved into your neighborhood. And this is where things begin to get costly for you, the innocent homeowner. A research paper by the economists Leigh Linden and Jonah Rockoff found that when a sex offender moves into the neighborhood, “the values of homes within 0.1 miles of an offender fall by roughly 4 percent.” Now, this presumes you live in a neighborhood where a sex offender is allowed to move in. Finding housing is one of the hardest things for a sex offender, since they are prohibited from living anywhere from 500 to 2,500 feet — that’s almost half a mile — from a school, daycare, playground, park, or recreation center. Elizabeth Letourneau told us about an interesting case in Alabama.
LETOURNEAU: There was just a legal decision rendered that basically found, at the federal court level, that their sex offender registration, notification, residence and employment restriction policy — which is called a SORNA… There was a court case against a SORNA per se and the expert testimony involved an individual who showed maps of where sex offenders were permitted to live in Montgomery City in Montgomery, Alabama. Basically, the tracts of lands where they could live and be in compliance with the SORNA policy was the airport strips. You can’t actually live there. There were vvery few parcels of land. I think he reported that 87 percent of the parcels of land in Montgomery City would not be in compliance for a SORNA and so were off limits for anyone who was a registered sex offender.
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So I think we can agree by this point that the costs of being a convicted sex offender are quite severe. Which, even if they don’t necessarily discourage further sexual crime, at least impose further costs on people whom society finds particularly menacing. But are sex crimes overall more costly than other serious crimes?
JOSEPH: We punish murderers by sending them to prison for the rest of their lives…
That’s Leora Joseph, the Colorado prosecutor.
JOSEPH: …and that’s actually not the case with sex offenders. Most sex offenders are not punished more harshly. Now, you may say that it might be most costly, but that’s not necessarily more harshly. Those are two very different things. Loss of liberty in this country is considered one of the [most] punitive things we do. Most murderers, when they’re caught, spend a significant amount of time in prison.
Galen BAUGHMAN: My name is Galen Baughman. I live in Arlington, Virginia, just outside of Washington D.C. I’m 31 years old now. I got out of prison three years ago last Sunday.
Baughman was convicted of carnal knowledge of a minor, aggravated sexual battery, and promoting an obscene sexual performance by a child. He says he has wondered if his punishment might have been less severe, depending on the circumstances, if he’d actually killed someone.
BAUGHMAN: I’ve known guys in prison who said, “I had a 15-year-old girlfriend when I was 19. I would have been better off if I had just killed her instead of having sex with her because then I would have done 15 or 20 years and I would have gotten and gotten to move on with my life. But, being labeled a sex offender, I will permanently be punished by all of these laws.
One last thought to consider. Perhaps society exacts such a steep cost from sex offenders because the sex offenders have exacted such a steep cost from their victims.
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LOYA: The paper is called “Rape as an Economic Crime: The Impact of Sexual Violence on Survivors’ Employment and Economic Well-Being.”
That’s Rebecca Loya.
LOYA: I’m a researcher at the Institute on Assets and Social Policy at The Heller School for Social Policy and Management, which is at Brandeis. And I also teach social policy at Boston University’s School of Social Work. I have a Ph.D. in Social Policy and a masters degree in psychology.
Loya interviewed rape survivors to learn how sexual violence affected them in the long run.
LOYA: Okay. There is a bit of research out there. The first big study is by Miller, Cohen and Wiersema,published in 1996. What they did was they estimated the cost of each kind of crime, and their estimate for sexual assault is that it costs $5,100 in what they call “tangible losses.” This is things like lost productivity, medical and mental health care, property damage. To this, they add $81,400 in what they call “lost quality of life.” This adds up to about $87,000 per victimization in 1993 dollars, which by inflation comes out to $142,000 in 2014 dollars. But one limitation of this data is that their lost quality of life is based on jury awards for pain and suffering. We know the vast majority of sexual assault survivors never get to a civil court case in order to get such damages. It’s a little bit difficult to interpret those numbers. The other limitation is of the tangible losses, the $5,100. We don’t know how much of that is paid by the survivor versus paid by the perpetrator, families or society at large. It gives us a hint as to how much sexual assault is costing people.
Most sexual assaults, as it happens, are never reported. And as Loya points out, an even smaller share of victims make it to civil court and are awarded damages. And she had something interesting to say when we asked her the central question in today’s episode — why sex offenders are required to pay so much, for so long, for a crime even after they’ve served their prison time:
LOYA: That raises a question, to me, about what we as a society believe our criminal justice system should be doing. If we believe that doing one’s time in prison is enough of a punishment, then we have to ask questions about whether people should continue to pay financially in other ways after they get out. Perhaps, as a society, we don’t believe that. We believe people should continue to pay. Perhaps our law reflects that.
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This is a transcript of the Freakonomics Radio podcast “Making Sex Offenders Pay — and Pay and Pay and Pay.”