Pushback beginning on Halloween sex offender hype

I'm glad to see this year more thoughtful critiques popping up of grandstanding by law enforcement and the annual, mostly fact-free media hype surrounding registered sex offenders and Halloween. (See prior, related Grits posts.) In Maryland, officials partially backed off their "scarlet pumpkin" strategy after becoming the butt of national jokes, reports the Washington Times:

The bright orange signs, reading, "No candy at this residence," in all capital letters, were sent to the state's 1,200 violent and child sex offenders earlier this month along with instructions that they must post them on their front doors on Friday evening.

But the plan became fodder for television comics ranging from Jay Leno to the "Saturday Night Live" cast after details were reported Oct. 15 by The Washington Times.

"Sex offenders in Maryland are now required to post signs that read, 'No candy at this residence,' on Halloween or face a possible parole violation," Seth Meyers deadpanned on the 'Weekend Update' part of NBC's long-running Saturday night program. "They are also being required to take down the signs that read, 'Knock if you can keep a special secret.'"

Laughing at stupid public policies is sometimes the best way to influence public opinion, so I'm glad to know the Saturday Night Live piece struck a nerve and many in the public apparently see through the hype. After all, trick or treaters are statistically much more likely to be hit by lightning than molested by a registered sex offender while soliciting candy.

Even more promising, reports the Wall Street Journal Law Blog, this week "a federal court temporarily struck down two provisions of a Missouri law that banned, among other things, sexual offenders from having “Halloween-related contact” with children." In that case:

according to a ruling ... by U.S. District Jude Carol Jackson, Missouri sex offenders won’t have to comply with parts of a new state law. The St. Louis Post-Dispatch reports that Judge Jackson temporarily struck down two provisions as unconstitutionally vague: a ban on “Halloween-related contact” with children and a requirement to stay inside from 5-10:30 p.m. “unless required to be elsewhere for just cause.” (Click here for the law.)

Apparently, Judge Jackson was concerned that in some cases, parents could be punished for Halloween activities with their own children, such as “carving a pumpkin in the privacy of your kitchen with your 5-year-old child.” She questioned whether such parents might have to send their kids away on Halloween to avoid prosecution. “It’s not too much to expect criminal laws to be clear,” she said.

The ruling came after four convicted sexual offenders sued this month, represented by the ACLU of Eastern Missouri. Their lawyer, Anthony E. Rothert, told the NYT: “Once people have completed their sentences, you can’t go back and punish them for the same crime.”

The state is appealing that case so perhaps by next Halloween there will be more guidance from federal courts on what type of restrictions may be applied to sex offenders on Halloween. Given the ruling from the Show-Me State, I have to wonder if even more restrictive Texas policies would pass constitutional muster if they were challenged? (UPDATE: A three judge panel on the 8th Circuit reversed the district judge and said the restrictions could stand until the case is fully resolved. Sex Crimes Blog, Constitutional Law Prof, Above the Law, Althouse, TalkLeft, SexOffenderResearch, and Volokh Conspiracy are also covering the case.)

In several Texas counties, including Lubbock, Hidalgo, and Guadalupe, local authorities are rounding up sex offenders on probation or parole to spend Halloween night in the jail or county probation offices. This seems especially silly for a number of reasons. First, the officers monitoring these people would do more to benefit public safety if they were out on the street looking for drunks or teenage vandals on a night with one of the highest youth crime rates of the year. In Lubbock, in particular, extra traffic from the approaching UT-Texas Tech game tomorrow night (my father lucked out and will get to to watch the game from box seats) poses a much greater threat than the remote chance a trick or treater will be molested.

Even more silly, these just-for-show tactics ignore most registered sex offenders, applying only to those still formally on probation or parole. In Bexar County, for example, where law enforcement will waste resources doing house to house checks on supervised sex offenders instead of a roundup (which their DA Susan Reed had supported), "Of the 3200 sex offenders that are registered, approximately 814 are under supervision, which is probation or parole."

So if Bexar's numbers are typical, the no-candy restrictions only apply to about a quarter of registered sex offenders! To the extent the tactic addresses a real threat, that makes the policy counterproductive and harmful (instead of just wasteful and useless) because the publicity could give people a false sense that every registered sex offender will be restricted from participating in Halloween when in fact the overwhelming majority can put up decorations, give out candy, and fully participate in the holiday once they're off probation or parole. Despite that reality, over and over we see stories like this one declaring that "It is against the law for sex offenders to decorate their homes for Halloween or place anything that might attract children," but that's just not true for most people on the registry.

El Paso and Houston are is similarly expending patrol resources to check up on sex offenders instead of focusing on DWI, vandalism, or youth crime. Texas Attorney General Greg Abbott has predictably jumped on the bandwagon. (The blog SexOffenderResearch has numerous posts about ongoing crackdowns in other states.)

Of course, in the only documented case in history of a Halloween related child abduction (35 years ago in Wisconsin), the perpetrator had no prior criminal history and so wouldn't have been captured by any registry-related restrictions. Most sex crimes are committed by people who aren't on the registry, and even if that weren't true, the much-publicized restrictions don't apply to 3/4 of registered sex offenders. What a wasted effort!

The annual demagoguing over sex offenders at Halloween is a classic example of what security expert Bruce Schneier calls "security theater," hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives. The approach is dumb, it's wrong, and it makes the public less safe.

Perhaps we'll look back sometime in the future and consider 2008 the year the media and the public began to re-think these thoughtless, hype-driven policies. I hope so.

RELATED: On the bright side, not everyone in the MSM, apparently, has bought into the hype. This excellent article from the blog Sex Offender Research points us to " ONE -- TWO -- THREE -- FOUR -- FIVE articles explaining real dangers" (e.g., drunk driving, fire hazards, choking, food allergies) facing kids and families on Halloween.