A decade ago, when James Smith was 17, he and an accomplice forced another 17-year-old into a car with them near Green Bay, Wisconsin. The two wanted to collect drug money from a friend of the boy, and they forced him go along for the ride, making clear to him that if he didn't, "he is going to get what is coming to him," according to the criminal complaint in the case.
After the incident, Smith was convicted of a crime called "false imprisonment."
No one disputes that Smith was guilty of the crime for which he was convicted and sentenced to two years in prison. What Smith and many others watching his case found surprising was that the state of Wisconsin ordered him to register as a sex offender. Although his crime was not in any way sexual in nature, Smith's photo was posted in an online registry. He also faced restrictions in some parts of the state on how close he can live to schools, parks and other places where children commonly gather.
Last month, the highest court in Wisconsin held that Smith does, in fact, belong on the sex-offender registry. Just days earlier, the Supreme Court of Georgia came to the same conclusion in another case in which a man named Jake Rainer had been convicted on the same charge as Smith. The crime of false imprisonment, both courts found, counts as a sex offense under state law, even if nothing sexual happened.
The cases of Smith and Rainer illustrate a larger debate that is emerging in courts and legislatures around the nation: Have states gone too far in categorizing criminals as sex offenders? Already, the number of registered sex offenders is growing quickly, and it will only keep rising as more states comply with the federal Adam Walsh Act. That law requires all states to make false imprisonment a sex offense, as Georgia and Wisconsin already do, by July. The Adam Walsh Act also requires the states to post more information about sex offenders on their registries, such as their work addresses. So far, only Ohio has fully complied with the law.
In Wisconsin, Supreme Court Justice Annette Kingsland Ziegler's opinion noted that 41 states have laws requiring kidnappers and other criminals who may not have committed sex crimes to register as sex offenders. In most instances, kidnapping and false imprisonment of a minor are deemed by state law to be crimes that have a "nexus" to sexual offenses because they involve children or teenagers. "Requiring Smith to register as a sex offender," Ziegler wrote, "is rationally related to the state's legitimate interest in protecting the public, including children, and assisting law enforcement."
Critics argue that the court's decision implies that nearly anyone convicted of almost any crime could be added to the sex-offender registry. That's what Ann Walsh Bradley, a Wisconsin Supreme Court justice who dissented in Smith's case, thinks. "Because traffic offenders may create a danger to the public," Bradley wrote in her dissenting opinion, "any offender found guilty of a traffic infraction could be required to register as a 'sex offender.'"
Some state legislators, too, are thinking twice before they expand sex-offender registries.
For example, lawmakers in a growing number of states have sought to reduce the criminal penalty for "sexting." That's when people, often teenagers, send nude photos of themselves or others via cell phone. Under current state laws, those who do it may be forced to register as sex offenders alongside much more serious criminals, such as rapists and pedophiles. Several states also have passed so-called "Romeo and Juliet" laws so that teens who've engaged in underage but consensual sex don't have to register as sex offenders.
"When you start putting everything on (the registry), it diminishes the impact of it," says Kansas State Senator Tim Owens. Earlier this year, Owens helped derail legislation that was approved by the Kansas House and would have added those who solicit prostitutes to the list of people who must register with the state as sex offenders. "I don't even want to guess how many people are out there" who would have to register as sex offenders under such a law, he says.
Cost is a factor, too, says Owens, a Republican who chairs the Senate Judiciary Committee. When sex offenders fail to register, they can be criminally charged — as James Smith was in Wisconsin — leading to a growing jail and prison population. "In Kansas, we just closed four prisons last year" thanks to a big budget shortfall, Owens says. "How many more people do we want to put on a list that may end up with more people going to prison?"
According to the National Center for Missing and Exploited Children, there are 705,000 registered sex offenders in the United States. That number is up from 603,000 three years ago. The center, which tracks missing children and helps apprehend those who may have taken them, considers state sex offender registries "our best resource" to tracking down fugitives, says Kristen Anderson, director of case analysis.
With sex offender registries likely to keep expanding, legislators are trying to balance the need to protect the public from genuine predators with a growing awareness that many less-serious offenders, including those with no history of sexual crimes, are being swept into the net. But legislators remain reluctant to pass bills that could be seen as helpful to sex offenders, says Mary Sue Molnar, head of Texas Voices, an organization that lobbies for laws that would allow less-serious offenders to petition the courts to have their names removed from public registries.
"They agree that the registry is way overblown," Molnar says, noting that the Texas registry has grown from about 54,000 people to nearly 60,000 in little more than a year. "The problem is getting them to pass legislation that would go the other direction."