The Exceptional State of Sex Offender Registries (Part Two)
January 29, 2015
Part one of this blog post addressed some of the pressing issues associated with the current use of sex offender registries. A cursory review of important research into this area demonstrated that in addition to some glaring unintended consequences associated with these registries, the lists themselves seem to have little effect in addressing the real issues associated with the sexual harm to children, the community these lists are meant are largely promoted as protecting. And while few people disagree that the identity and whereabouts of a serial rapist should be known within a community, it cannot be discounted that other, less problematic, offenders also wind up on these lists. Certainly, there is no hue and cry for the placement of genital flashing teenagers in the same category as a serial molester of children. Yet, the criteria for inclusion on these registries continually expands.
The central mechanism of sex offender registries is surveillance, which immediately evokes Foucault’s writings on panopticism. Indeed, if the fundamental role of the panopticon is “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power” (201), then what could make one more visible (complete with up-to-date photographs) on a list accessible to everyone? Virtually anyone can now be subject to the panopticon. Foucault is proven correct. Case closed. On the other hand, the panopticon is supposed to be affective and not effective. Subjects should fear and adhere to regulatory power through training and perception and not visible supervision.
Catherine Wagner describes a growing problem: “Approximately 60,000 to 70,000 arrests are made every year in the United States for the sexual assault of a child. Even if only a fraction of these individuals are convicted, this means that sex offender registries will only grow larger over time unless significant changes are made. This is especially a concern because seventeen states require lifetime registration for all sex offenses—no matter the severity of the offense. With so many sex offenders, it is difficult for officials to ensure that each registrant’s information is up-to-date and accurate” (275-76). The cost effectiveness of the increased and unspecific surveillance described by Foucault is difficult to reconcile with the increasing costs associated with maintaining sex offender registries.
In addition, the person on the registry is separated, or excepted, from the social fabric the capillary dispersal of panopticon-type surveillance is supposed to regulate. One theorist well associated with the concept of exception is Giorgio Agamben, who argues that “the state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept” (Agamben, State 4). In other words, there are times when the function of the law must be suspended in order to protect the social order that the law is intended to service and secure. When it comes to such instances, Agamben focuses on the watchword necessity: “any discussion of the structure and meaning of the state of exception first requires an analysis of the legal concept of necessity” (State 24). Not only do states of exception arise from circumstances and events that demand extraordinary measures for the protection of the state, but recent history recognizes that the “state of necessity tends to be included within the juridical order and to appear as a true and proper ‘state’ of the law” (State 26). As such, the state of exception is inscribed into the very foundation of the law.
Due to the inscription of the state of exception (of the law) within the law, the state of exception necessarily carries the force of the law, which makes a lot of sense because the exception as a requisite safety valve is always already a part of the legal framework and because the exception arises from an existential threat posed to the law’s very existence. Hence, the law solidifies into pure force ready to resist and retaliate against real or perceived threats. To graphically (and linguistically) depict this circumstance, Agamben relies on the phrase “force-of-law” on which the word law is crossed out (State 39). The important point is that the state of exception within the foundation of the laws that governs the state turns out to be so critical to the preservation of the state that it has always been present.
So, where am I going with this? Indeed, one glaring difference in terms of sex offender registries is that this kind of excepting people from the law is achieved through amendments to the law; it is not original or foundational.
That being said, the concept of the excepted person or group is also foundational in regard to the society that constructs the law. Agamben begins Homo Sacer by describing the concept of bare life, which is “the life of homo sacer (sacred man), who may be killed and yet not sacrificed” (8; original emphasis). Discussing one permutation of homo sacer, Agamben addresses the concept of the werewolf, or bandit, which exists on society’s margins: “The life of the bandit, like that of the sacred man, is not a piece of animal nature without any relation to the law and the city. It is, rather, a threshold of indistinction and of passage between animal and man, physics and nomos, exclusion and inclusion: the life of the bandit is the life of the loup garou, the werewolf, who is precisely neither man nor beast, and who dwells paradoxically within both while belonging to neither” (105).
Central to this discussion is the necessity of the bandit to the law. After all, on some level doesn’t the law exist to protect those subjected to the law from those able to operate outside of it? The city—the functional territory of the law—forecloses within its walls the rules and allocations that determine the rights and privileges for everyone—no matter how disproportionate those privileges may appear to other societies and other times. The bandit, the wolf man, exists outside the walls and in a realm that is anathema to the structure of city. The ancient formation and formulation of these various components persists in one form or another today.
The most dramatic instance of the force-of-law (again, the word law should be crossed out) confronting the figure of bare life occurs, for Agamben, in the Nazi concentration camps. Rather than examining the specific historic formation, Agamben follows a slightly different line of inquiry: “What is a camp, what is its juridico-political structure, that such events could take place there? This will lead us to regard the camp not as a historical fact and an anomaly belonging to the past (even if still verifiable) but in some way as the hidden matrix and nomos of the political space in which we are still living” (Homo 166). Removal to the camps became possible through a concept in common law called Schutzhaft, which was initially a concept concerning protective custody.
When Agamben argues that the camps were an inclusive site for those who are excluded from the law (Homo 170), a parallel can be made that inclusion on the sex offender registry provides for a radical exclusion from current rights and privileges afforded by the law: “Participants identified stress, fear, or shame associated with notification and over one third of participants reported having dealt with negative events, such as the loss of a job or hope, due to community notification” (Ackerman, Sacks, and Osier 32). Furthermore, these registries create a class of people without paying attention to the various details like what offense was committed and to what extent and to whom.
But does inclusion on sex offender registries represent bare life? I fully understand that I have already made the fascist rhetorical fallacy by evoking Nazis and concentration camps. However, the answer to the question lies not in whether or not people on these registries can be killed without being sacrificed, which by the way is a material possibility. Indeed, Wagner reports that “a number of sex offenders have been beaten, and some sex offenders have been murdered by vigilantes” (272). A statement made by a father who killed an individual on the registry further supports such a conclusion: “I felt that not taking evasive action as a father in the right direction, I might as well have taken my child to some swamp filled with alligators and had them tear him to pieces. It’s no different” (qtd. in Wagner 273). Do statements like this mean that inclusion on sex offender registries renders an individual to a state of bare life? The answer here is no. A person on the sex offender registry still has the right to life. At present, vigilante vengeance and state sanctioned death are not the same thing. And yet the state offers a ready-made list to vigilante forces while in a way asking that we all engage in vigilante-type surveillance.
Though a state of exception may not exist and while those listed on sex offender registries may not yet qualify as bare life, these individuals exist as a type of designation I call an exceptional state. The law determines these individuals to be excepted from the law on a list that renders them simultaneously visible to everyone as threatening and exposing them to the scourges—unemployment, homelessness, immobility—most reviled in America. As such, sex offender registries may well represent the steps taken by states to produce a new permutation of bare life. Our society’s outdated morality may well be replaced by a necessary villainy.
Ackerman, Alissa R., Meghan Sacks, and Lindsay N. Osier. “The Experiences of Registered Sex Offenders with Internet Offender Registries in Three States.” Journal of Offender Rehabilitation 52.1 (2013): 29-45. Academic Search Premier. Web. 16 Apr. 2013.
Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller-Roazen. Stanford: Stanford UP, 1998. Print.
---. State of Exception. Trans. Kevin Attell. Chicago: U of Chicago P, 2005. Print.
Foucault, Michel. Discipline & Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage, 1977. Print.
Wagner, Catherine. “The Good Left Undone: How to Stop Sex Offender Laws from Causing Unnecessary Harm at the Expense of Effectiveness.” American Journal of Criminal Law 38.2 (2011): 263-288. Academic Search Premier. Web. 16 Apr. 2013.