To the casual observer, Lloyd Swartz looks like every other middle-aged guy hosting a yard sale on a Saturday afternoon in May. From the driveway of his modest adobe house, Swartz and his wife preside over a jumble of construction equipment, furniture, clothing and knickknacks. He greets potential customers with a broad smile, a strong handshake and a booming laugh.
But Swartz is also the president of an organization called Reform Sex Offender Laws in New Mexico.
“I’m a registered sex offender,” Swartz says bluntly. “I got in trouble when I was 17 years old, in Texas.”
Swartz, who was convicted of sexual assault in 1987, spent 10 years on probation.
“I did something stupid when I was a kid,” Swartz says. But after serving his sentence, he says, “I’d moved on with my life; I’m not even thinking about it.”
But in 2000, New Mexico amended its sex offender laws to require all convicted sex offenders—even those who, like Swartz, were convicted and sentenced long before the registry was created—to register with the New Mexico Department of Public Safety.
“They come knocking on my door [saying], ‘You have to register,’” Swartz recalls. “I said, ‘What do you mean? How can that be constitutional?’”
For Swartz, that moment was a catalyst: He realized that even sex offenders didn’t deserve to be judged forever, and he wanted to fight for that realization.
“The story of my life is not what I did when I was 17 years old,” Swartz explains. “What have I done since then? I’ve made scientific discoveries; I’ve built businesses; I’ve raised a family. These are the things that make me who I am.”
So Swartz founded RSOLNM, began attending conferences and ultimately started talking to state legislators about what he considers a major crisis in the state’s criminal justice system.
“I learned it was bigger than me, bigger than my family and my problem,” Swartz says. “This crisis is destroying our country. It is affecting every man, woman and child, whether they know it or not, in a myriad of ways.”
He’s not the only one who thinks so. Santa Fe lawyer Jason Flores-Williams uses the phrase “abjectly unconstitutional” to describe Swartz’ experience of being added onto the sex-offender registry even after he had completed his sentence.
“It would be like you get a speeding ticket going 27 miles per hour in a 25 [mile-per-hour zone],” Flores-Williams explains. “You get an $80 ticket; you say ‘OK, fine, sucks for me’—but then, four years later, they come back and say, ‘Anybody who did that four years ago now has to do these three things and pay a $300 ticket.’ It’s unconstitutional.”
Flores-Williams is currently defending two clients with similar issues. Taken to an extreme, he says, strict residency requirements and public sex-offender registries can limit convicted sex offenders’ options to the point that they’re no longer able to contribute to society.
Flores-Williams cites the case of Charles Mader, an Albuquerque sex offender jailed this month for violating residency requirements when he failed to report that he had moved from a dumpster to a homeless shelter, as a perfect example.
“If a person is living without therapy, proper medication [or] treatment—and they’re living in a dumpster or a homeless shelter—then they’re just going to get worse,” Flores-Williams says. “This person is not going to become better and have a chance at reintegrating himself into society. It’s going to exacerbate the problem.”
Swartz is inclined to agree.
“We can’t oppress millions of people, give them no hope at all and think everything’s going to be hunky-dory [and that] these people are not going to be pushed into committing other crimes,” Swartz says. “Not only is the system not working, but it’s actually endangering us by pushing people to the fringe.”
New Mexico’s online database lists 78 convicted sex offenders (77 of them men) living in the city of Santa Fe and 2,458 statewide—but DPS Law Enforcement Records Assistant Bureau Chief Regina Chacón tells SFR that, because certain nonviolent crimes are not listed online, the state’s actual total for convicted sex offenders is 2,776.
“The people on the website are [convicts of] violent crimes against children and adults,” Chacón explains. Most sex crimes, from rape to child pornography, are considered violent crimes; two exceptions, Chacón says, are incest and statutory rape.
But just because a sex offender is listed online—or convicted at all—doesn’t necessarily lead to recidivism.
A 2003 US Department of Justice study (.pfd download) encompassing more than 9,600 male sex offenders released from prison in 1994 found that only 5.3 percent were rearrested for sex crimes. Among all convicted criminals released that year, by comparison, a whopping 67.5 percent were rearrested, and 46.9 percent were reconvicted.
But Swartz sees that as another reason the registry doesn’t work.
“Why are we registering people [as sex offenders] for 25 years to life?” Swartz wonders. “It makes absolutely no sense.”
Flores-Williams also says the broad-brush approach New Mexico takes to registering sex offenders is unfair.
“There’s a really wide range here,” Flores-Williams says. “There’s the violent sexual predator; that’s a person who needs to be addressed in very specific ways. But what about the 20-year-old who dates a 16-year-old?” he wonders.
“It’s not the best thing, but it sure as hell is very, very different from a guy who rapes and kills a 4-year-old.”
During the 2011 legislative session, Rep. Moe Maestas, D-Bernalillo, introduced a bill to reduce the amount of time a person convicted of fourth-degree criminal sexual contact with an adult would be assigned to the registry, from life to 10 years—but based on that change, Gov. Susana Martinez vetoed the bill. Chacón says DPS supports the veto.
Diana McWilliams, the executive director of Santa Fe’s Solace Crisis Treatment Center, acknowledges that the current system is flawed.
“It is almost like a no-win situation, because either you’re tromping on someone’s civil rights because you’re trying to make a law that applies to everyone, or you’re leaving big gaps or loopholes,” McWilliams says. But in spite of the current system’s imperfections, she says, the registry is a valuable tool.
“We’re just glad that there are some tools for victims to keep track of their offender,” McWilliams says. Still, she adds, “It is unfortunate that we have to have a black-and-white law when there’s a lot of gray in dealing with human behavior.”
But to Dan Smith, a convicted sex offender who spoke only on condition of anonymity because he fears being ostracized, ‘unfortunate’ is a gross understatement.
“Society has an impression that these kinds of crimes are so horrible that the people who commit them are beyond redemption,” Smith tells SFR. “No politician, no lawmaker would ever champion the cause to revisit the harshness of these laws, because they know they’d never get elected to office again.”
As a result, Smith says, many sex offenders—regardless of the nature of their crime—are placed on the state’s registry, where everyone from prospective employers to acquaintances can see what they’ve done.
“It’s like losing pieces of my life,” Smith says. “Even if I’m a bad person, I think I have the same right of any other alleged criminal to have a chance to get those pieces of my life back if, after the alleged crime, I’m not a threat to society.”
Smith offers an analogy in the penalties for murder.
“If you take a person’s life,” Smith says, “the laws, the sentencing and the possibility of getting out of prison if convicted are wide and varied—but murderers have the opportunity to pay their debt to society and come away free.”
But as a sex offender, he says, “You can never be free.”