Daily Archives: March 4, 2007

“tender years” exception to hearsay

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The Connecticut Legislature is currently considering a bill that would allow a “tender years” exception to hearsay. The bill [S.B. 1245] would add the following section to the General Statutes:

Notwithstanding any other rule of evidence or provision of law, a statement by a child under sixteen years of age relating to an offense committed against that child shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically sixteen years of age or older, but who has a mental or developmental age of less than sixteen years because of mental retardation or developmental disability.

Immediately this proposal should raise red flags. This does not require that the defense have an opportunity to cross-examine the “minor”. Also, what the heck does “there is a probability that the statement is trustworthy” mean?

Further, how do you define “fair opportunity to prepare to meet it”? Does that mean that the statement has to be disclosed in advance? That the full length and breadth of the “minor’s” testimony has to be made available to the defense beforehand? I doubt that’s what the legislature means.

Anyone else have any ideas on this or know of other states that have proposed this?

NACDL report on sex offenders and sex offenses

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The NACDL recently adopted the report of the Sex Offender Policy Task Force [.pdf]. The report is a great read and highlights many of the issues that the blawgosphere routinely discusses regarding sex offenders, sex offenses and civil commitment.

On mandatory minimums:

The ostensible purpose of lengthy mandatory sentences is to ensure the incapacitation of the offender in an effort to protect the community. The call for such sentences is based upon the belief that sex offenders cannot be rehabilitated and will commit further sex crimes upon their release from incarceration or probationary sentences. It cannot be doubted that some sex offenders, just like some burglars, swindlers and robbers cannot or will not be rehabilitated and will commit subsequent crimes. However, the research demonstrates that sex offenders are far less likely to repeat their crimes once caught and punished. Recidivism rates for sex offenders are significantly lower than those for other offenses. A study conducted by the United States Justice Department revealed that only 5.3% of persons convicted of a sex crime will commit will be arrested for another sex crime and that only 3.3% of persons convicted of child molestation crimes will be arrested for another sex crime against children.5 These recidivism rates are substantially less than equivalent rates for other offenders. For instance people convicted of theft offenses were re-arrested the rate of 77% and motor vehicle thieves were re-arrested at the rate of 79 percent.6 The overall re-arrest rate generally for all people released from prison was 68 percent.7 The Canadian government has conducted more extensive studies which corroborate the finding that recidivism rates for sex offenders are far less than the recidivism rates for other convicts.8 Individual states which have studied recidivism have reached similar results.

Please see the report itself for citations.

On sex offender registration:

A “one size fits all approach to sex offenders,” as a group, is irrational. Requiring the same registration and community notification requirements of all sex offenders diminishes the ability of the public to ascertain the truly dangerous sex offender in the community.17 It also undermines the ability of the non-dangerous sex offender to maintain employment, family relationships and treatment programs. Many registered sex offenders report negative consequences, including physical assaults, resulting from registration and community notification.18 The determination of offender risk should be based upon the individual characteristics of the offender and not solely upon the offense of conviction.

It is great to see such a well thought out and detailed report on the issues plaguing sex offender laws in the country. However, I would have liked to see more about residency restrictions.

The cost of civil commitment

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The NYT has published part one of a three part series examining civil commitment throughout the country on the eve of New York implementing its civil commitment program for sex offenders. The costs are staggering and range from 300-500% of the costs of incarceration.

Here is a fantastic graphic detailing the number of offenders, their age, races and the costs relative to incarceration for each state. Some highlights:

Even with the enthusiasm among politicians, an examination by The New York Times of the existing programs found they have failed in a number of areas:

¶Sex offenders selected for commitment are not always the most violent; some exhibitionists are chosen, for example, while rapists are passed over. In Wisconsin, a 102-year-old who wears a sport coat to dinner cannot participate in treatment because of memory lapses and poor hearing.

¶The treatment regimens are expensive and largely unproven, and there is no way to compel patients to participate.

¶The cost of the programs is virtually unchecked and growing, with states spending nearly $450 million on them this year. The annual price of housing a committed sex offender averages more than $100,000, compared with about $26,000 a year for keeping someone in prison.

¶Unlike prisons and other institutions, civil commitment centers receive little standard, independent oversight or monitoring;

¶Successful treatment is often not a factor in determining the relatively few offenders who are released;

¶Few states have figured out what to do when they do have graduates ready for supervised release.

Supporters of the laws offer no apologies for their shortcomings, insisting that the money is well spent. Born out of the anguish that followed a handful of high-profile sex crimes in the 1980s, the laws are proven and potent vote-getters that have withstood constitutional challenges.

Thanks to Prof. Berman.