sex offenders
Roundup of latest proposed sex offender legislation
Aug 18th
UPDATE: Prof. Berman responds to Tom’s post and provides several studies that show that sex offenders are less likely to re-offend as compared to inmates convicted of other crimes.
- A comprehensive sentencing commission report [pdf] from Virginia,
- A report from the American Psychological Association,
- A Washington State study [pdf] and
- Some data from the Texas Department of Health State Services.
Prof. Berman concludes:
Rather my goal is to push the public dialogue toward sound data-driven analysis so that we get effective policy reforms rather than hollow rhetoric and cost-ineffective proposals that only distract from doing the real, challenging work required for effective sentencing and corrections policy-making.
I will read these reports later today and post summaries, if applicable and time permitting.
Original Post: Once again, Prof. Berman points to several articles from different states where high-profile politicians have entered the "tough on sex offenders" fray. Almost all these proposals call for life-time registration and monitoring via GPS.
What is interesting is that some of the articles do mention the unwieldy cost of lifetime GPS monitoring of sex offenders. Prof. Berman thinks that the only brake on these legislative initiatives will be economics. Not so in CT, however, because part of Gov. Rell’s proposed sex offender legislation is that offenders themselves will have to pay for their lifetime monitoring.
Tom, obviously, disagrees with this assessment. The problem with Tom’s post, however, is that he goes too far.
Why is it that certain lawyers and "academicians" want to prevent the people from protecting themselves and their children? Why are they more sympathetic to convicted sex offenders than to the hard working people who just want to ensure their kids’ safety?
See, this sort of generalization and sweeping statement of the issue doesn’t help. I don’t want to prevent people from protecting themselves (and I’m sure, neither does Prof. Berman). The statement itself is ridiculous. If you think about it for a second, you’ll realize that. The second question is why are we more sympathetic to convicted sex offenders and not hard working people.
I have two answers: One, these are legal blawgs. I’m not writing about the humanitarian aspects of the legal system and life in general. I’m writing about laws, criminal laws and how they affect criminal defendants (and in a more protracted sense, people in general). So it may seem that I am more sympathetic. But in order to have constructive thought and discussion, one needs to separate oneself from the emotional heartbreak that these cases often bring. Secondly, in case you haven’t noticed, I’m a public defender. My views are (mostly) going to conflict with those of a prosecutor.
Why are some people so hell-bent on giving all criminals the death penalty? Oops, I did it again!
the banishment clause
Aug 4th
UPDATE: Will Baude at Crescat has a follow-up post on the issue of sex offender zoning laws. How about a glance at procedural due process to determine whether the zoning ordinances were appropriately put into effect? I am no Administrative Law scholar (nor Conn. Law for that matter), but as is evident, something doesn’t quite sit right. To that end, I return to Smith v. Doe and CT v. Doe for guidance as to how this issue should be resolved.
Prof Berman highlights the growing blogosphere debate about sex offender zoning laws, which restrict where a sex offender may live. The debate was kicked off by the 8th Circuit’s decision in Doe v. Miller [pdf] and the Iowa Supreme Court’s decision in State v. Steering [pdf]. First, a post at PrawfsBlawg analyzed whether the 8th Circuit decision was correct in rejecting, among other things, the "fundamental right to live where you want" argument.
To me, the most interesting part of the 8th Circuit’s opinion was its rejection of the plaintiffs’ claim that there is a “fundamental right to live where you want.†The
court basically quoted Washington v. Glucksberg’s two-pronged test for
new fundamental rights (is the right deeply rooted in the nation’s
history and implicit in the concept of ordered liberty?), and said the
plaintiffs failed to develop an argument for how that right satisfies
those prongs. But is it really so hard to construct such an argument? While
early American municipal ordinances sometimes confined members of
certain ethnic groups to ghettos, these laws are rightly viewed today
as embarrassments, though perhaps our revulsion has more to do with
ethnicity than ghettoization as such. Still,
setting aside banishment laws and particularized restraining orders, I
can think of little historical precedent for states preventing citizens
from living in homes they can afford to buy, let alone rendering entire
cities off limits to undesirables.
This prompted a response from Crescat, which explores the ex-post facto and equal protection challenges. I am in agreement with the sentiment that the Supreme Court decisions [CT v. Doe and Smith v. Doe] in the ex-post cases involving sex offender registries might not have been wholly correct.
For reasons that have never quite been clear to me,
the Court has held that a punishment is criminal only if it is really
really obvious that the punishment is criminal, or if the legislature
says it’s criminal. This means that as a matter of fact, if local
legislatures want to avoid the presumption of innocence, the ex post
facto ban, or any of the vast constellation of protections for those
accused of crimes, they can frequently do so.
Finally, a rebuttal from PrawfsBlawg, posing a hypothetical involving obese people. The post asks why there is this hypersensitivity toward sex offenders when no such restrictions are placed on other "criminals", such as those convicted of murder. I have frequently asked this question myself. The comments provide some insight there, but I’m still not convinced. The thrust of the argument seems to be the degrees of separation between the offender and the victim. "Statistics" seem to indicate that sex offenses are committed more frequently by someone close to the victim; either a neighbor or a family member, whereas murders, robberies and the such are usually committed as a result of gang violence, relationships gone bad, drugs and so forth. This leaves families with a vulnerable feeling with regards to sex offenses. Therefore, keeping sex offenders away from families will reduce that risk. That argument however, contradicts itself. If the fear is the degrees of separation and familiarity between the victim and the offender, then it has nothing to do with who lives in the neighborhood, but more with who you know and let into your house.
Another problem is that all sex offenders seem to be lumped into one big general category. You have those convicted of sexual assault in the first degree and those convicted of public indecency. Unfortunately, most states (barring NJ, I think), have no system of evaluating the risk posed by each individual. Almost anything, these days, will make you a violent sex offender, which is simply not true. We need a better system to evaluate the level of risk, such as with parole. Not everyone who is eligible for parole gets parole, based on their potential risk. Such a system needs to be in place for sex offenders as well, to weed out the truly harmful from those who aren’t.
Let me go back to the SCOTUS cases for one minute. I found this interesting passage in Smith v. Doe, which might have a bearing on the zoning restrictions:
The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. The Act’s obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive. See ibid. (forbidding further participation in the banking industry); De Veau v. Braisted, 363 U. S. 144 (1960) (forbidding work as a union official), Hawker v. New York, 170 U. S. 189 (1898) (revocation of a medical license). The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.
In CT v. Doe, they don’t reach the issue of whether posting of the information on the website without a risk assessment is a deprivation of the right to due process.
In short, even if respondent could prove that he is not likely to be
currently dangerous, Connecticut has decided that the registry
information of all sex offenders–currently dangerous or not–must be publicly disclosed. Unless respondent can show that that substantive
rule of law is defective (by conflicting with a provision of the
Constitution), any hearing on current dangerousness is a bootless
exercise. It may be that respondent’s claim is actually a substantive
challenge to Connecticut’s statute "recast in ‘procedural due process’
terms." RenoFlores, 507 U. S. 292, 308 (1993).
For more on this, see Prof. Berman’s posts here and here, and my posts here.
more sex offender legislation
Jul 27th
Alabama’s legislature passed a slightly less-strict sex offender law yesterday. What did they leave out? The castration requirement [previous commentary]. Prof. Berman also reports a Federal Sex Offender bill, which is slated for full committee mark-up in the House. The bill – Children’s Safety Act of 2005 (H.R. 3132), combines various different sex offender bills into one. It has pretty standard provisions, including lifetime registration for felony sex offenders, a national internet database and grant-related incentives. Thankfully, there is an exception for minors having sex with other minors in a 4 year age range.
[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal. Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru’s Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru’s Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.
In addition to the Dru’s Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children.
The bill can be accessed here and a .pdf version is here. Elsewhere, South Dakota’s Attorney General is also pushing for reform in their sex offender laws, seeking tougher legislation, including making it a crime to view child pornography. Hopefully there will be an exception for unintentional viewing/download.
I still haven’t had the time to re-read buck in the context of skinner, but for some reason – wishful thinking? – my gut tells me that castration would still be unconstitutional.
Reader comments on castration
Jul 26th
I’ve received a couple of comments to the castration post below that I’d like to share. First, "jack" of Gideon’s Guardians points out that Alabama isn’t the only state to propose such legislation. Apparently, Sen. Shurden of Oklahoma consistently introduces this bill. The closest it ever got to becoming law was in 2002, when it passed both houses but was vetoed by the Governor.
Under Shurden’s bill, the jury would have to determine if the crime meets at least two aggravated circumstances as outlined in the legislation. Aggravated circumstances would include the rape of a child, rapes resulting in significant physical injury to the victim, gang rapes and previous convictions for sex crimes. In addition, a DNA test positively identifying the defendant as the rapist would be required before castration could be ordered by a judge.
Susanna writes,
I agree with you 100% when you say "I’m just against sensationalist legislation that doesn’t take into account data-driven reality and logistics." Setting penalties for crime is driven more by the election cycle than any coherent philosophy or even practical goal setting. The problem is that what is in place keeps failing, so public reaction pushes harsher penalties that just create more chaos. Somewhere, some governmental entity needs to fund more investigators, faster trials, fully staffed correctional programs and parole officers with fewer offenders to track so they can genuinely track the ones they’re assigned. Then we can see what does and does not truly work, and adjust from there.
Very true. This, ofcourse, can be said of the entire correctional system in general. Before legislation is passed calling for castration, we need to figure out what is wrong with the current system and how to fix it. Why is it that this has become national news only very recently? What were we doing right in the past and what is wrong now?
Which brings me to the past. Buck v. Bell specifically. We know the case – "three generations of imbeciles are enough". David Schraub of The Debate Link invokes Buck in determining that Alabama’s proposed law probably would be constitutional. I haven’t read Buck in a while (I’ll do it during lunch), but if my memory serves me right, the rationale in Buck was to prevent furthering the line of the "feeble-minded" by sterilizing Carrie Buck, so that she could not reproduce. Far more than prevention of crime, the underlying rationale was to "cleanse society", so to speak, of the feeble-minded and mentally ill. Justice Holmes writes,
The statute then enacts that whenever the superintendent of certain
institutions including the abovenamed State Colony shall be of opinion
that it is for the best interest of the patients and of society that an
inmate under his care should be sexually sterilized, he may have the
operation performed upon any patient afflicted with hereditary forms of
insanity, imbecility, etc., on complying with the very careful
provisions by which the act protects the patients from possible abuse.We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call
upon those who already sap the strength of the State for these lesser
sacrifices, often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is better for all the
world, if instead of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can prevent those
who are manifestly unfit from continuing their kind.
Additionally, the argument still stands that castration as a punishment in cruel and unusual and in violation of the 8th Amnd; cruel and unusual having been defined as changing according to evolving moral standards in society, no?
Please correct me if I’m wrong. I’m going to think about it some more and maybe post later.
Off with their [family jewels]!
Jul 22nd
Update: Yes, there’s more! Prof. Berman provides this article, which quotes heavy rhetoric from the former Gov. of Alabama, Don Siegelman. A sampling:
"If it was up to me, I’d give them the death penalty on the first
offense," Siegelman said Friday. "The attorney general has the
Legislature in this special session. This is the perfect vehicle to do
this thing right. They need to quit being so namby-pamby and squeamish
about castration and put that back in the bill."
It’s final. We have now descended into the mystical, topsy-turvy, crazy and non-sensensical world of Alice and the Rabbit-Hole. The sex offender frenzy has reached impalatable and ridiculous heights. Prof. Berman reports that the Alabama House recently passed a bill calling for castration of sex offenders whose victims were under 12. I’m going to type that again, so you can absorb it…
CASTRATION.
Yep, that’s right.
CASTRATION.
This has got to stop. This is absurd, cruel, unusual and again, absurd.
The House passed a
bill Thursday that would require mandatory castration of persons
convicted of violent sex crimes against children under 12 and would
require them to wear electronic monitoring devices for the rest of
their lives after release from prison.The House, during more than three hours of debate, heavily amended
the legislation proposed by Gov. Bob Riley and Attorney General Troy
King. The House bill would prevent all convicted sex offenders from
working or loitering within 500 feet of a school, park or business that
educates or entertains children. The bill passed the House 96-0.
Some of the provisions are more normal: the 500 feet buffer zone, working near children and so on. But castration? Also what seems to be currying favor with legislators nationwide is the lifetime GPS monitoring requirement. I’d be willing to bet that there is a plausible ex-post facto claim there.
I have had a lot to say about this in the past and as long as this lunacy continues, I will have more to say. Again, for first-time readers, please don’t assume that I’m in favor of molesters, paedophiles and "the like". I’m just against sensationalist legislation that doesn’t take into account data-driven reality and logistics. Perhaps also the Constitution. Sadly, I’m in the minority. Tom might like this legislation.
For more of my rants on sex offenders, click here.
Sex-offender mania spreads to CT
Jul 21st
It seems that the wave of panic and corresponding reactionary legislation gripping the nation in regards to sex offenders has finally reached our liberal shores. Gov. Rell proposed new legislation yesterday, in an effort to toughen up CT’s sex offender laws. Among the highlights of this proposed legislation for the next term:
- A new classification of "sexual predator"; defined as one who "preys on young children and the elderly".
- Lifetime registration for sexual predators.
- Lifetime GPS monitoring for all sex offenders.
- Maintaining registration as a condition of parole, and penalties for failing to maintain registration.
- Penalties for anyone "harboring a sex offender".
I don’t even know where to begin. Lifetime registration for all? (Atleast that’s what the news report implies). Even those who were convicted of statutory rape and are therefore, "sex offenders"?
What’s more, her proposal calls for the offenders themselves to pay for the GPS monitoring. Oh, and Governor, there is already a statute for failure to register or to maintain registration. It’s called "Failure to Register" and is a D felony.
The last one is all the more troubling – and is somewhat akin to Sensenbrenner’s Family Snitch law. What does harboring mean? Is she proposing that if person A knows that person B is a sex offender and that person B has not registered, then person A is liable? Or will it be even broader and encompass all those giving shelter to a sex offender? (which, by the way, is becoming more and more difficult).
So you have zoning laws that say sex offenders can’t live within certain areas – and we’re constantly expanding these areas, shelters have strict rules about sex offenders because of the presence of children, landlords won’t allow sex offenders if there are children on the premises or else they’ll get into trouble with the DCF.
Why don’t we do what we all want to do? Pass a NATIONWIDE ordinance/law/statute banning sex offenders. Create an island in the pacific and ship them all off there. Isn’t that what it’s going to come to at some point?
Rationally speaking, why not increase penalties and actually care about rehabilitation in jails? That would seem to be the best way to deal with this "growing" problem, without imposing ridiculous demands.
This is a topic that is deeply important and provocative in society today. Unfortunately, passion overrules the mind and we’re not thinking about the most effective and efficient ways to deal with this, just the most sensationalist.
For more on my (generally unpopular) views on Megan’s Law, click here.
FL county bans sex offenders from Hurricane shelters
Jul 19th
When will this madness end? It now seems that Hillsborough County in Florida is banning sex offenders from their Hurrican shelters. Hurricane shelters!
Sheriff David Gee, Hillsborough County:
"My advice (for sex offenders) is to make arrangements in advance and go somewhere else because I think it’s going to be a problem."
What do you think they’re going to do with weathering a Hurricane? Molest somebody? This insanity has to stop! How reactionary (and absurd) is society becoming?
Fighting back, Howard Sluss and his wife Heather challenged the new policy at a town hall meeting hosted by the sheriff. The couple says the new policy puts their family, which includes 4 kids, at risk.
Heather Sluss, Howard’s Wife:
"As a mother of 4, I understand completely the need to keep your children safe. But what happens to those youthful offenders in those situations who have families, where are they supposed to go?"
Damn straight. This new policy affects 1200 people and yet nearby Manatee county is considering it as well.
Effect of Megan’s Law on Sex Offender Reintegration
Jun 21st
Two researchers from the Lynn University in Florida recently released a study [abstract] on the effect of Megan’s Law on reintegration of sex offenders into society.
Overall, about one third of participants had experienced dire events, such as the loss of a job or home, threats or harassment, or property damage. Physical assault was a relatively rare occurrence.
The majority identified negative effects, such as stress, isolation, loss of relationships, fear, shame, embarrassment, and hopelessness. Some participants noted positive effects of Megan’s Law, including motivation to prevent reoffense and increased honesty with friends and family.
Few sex offenders believed that communities are safer because of Megan’s Law, and more than half reported that the information posted about them on Florida’s Internet registry was incorrect. Implications for practice and policy are discussed.
This should not be news to anyone. I have long maintained that we are taking a far too extreme view on sex offenders and how they should be treated. (See this for example). This LATimes article does a good job of conductign interviews with sex offenders and with the authors of the survey.
In a study published this year, researchers surveyed 183 sex offenders
in Florida and found 27 percent said they lost a job because a boss or
co-workers found out about their crime, 20 percent had to move from
their home because a landlord found out, 15 percent had to leave after
neighbors complained, and 33 percent were threatened or harassed by
neighbors."I feel trapped in living where I do," one of those surveyed said.
Another said: "I welcome an early death."
Welcome an early death? That should set some alarm bells ringing. What are we doing to "these people"?
I had a client a few years ago who was charged with violation of Megan’s law in the state. More specifically, he was charged with failure to register after changing his address. Why did his address change? Because the owner of the house he was living in had problems with the Dept of Children and Families and had him evicted with just about an hour’s notice. Almost no shelter he went to would accept a couple convicted of sex-offenses (he was with his wife) and he ended up living under bridges and the sort till he was charged with this violation.
This is what Megan’s law (as currently formulated and applied) does more often than not. It displaces people, makes them lose jobs and essentially isolates them. What we are doing, in essence, is driving all "these people" out of every city in the country into some sort of massive "penitentiary" in the middle of nowhere that we will have to fund.
If we are that concerned about every single sex-offenders threat, then perhaps the route should be to lobby for longer sentences, perhaps those mirroring murder. Leave them in jail forever, even the 18 yr old who had sex with his 15 yr old girlfriend.
There needs to be information. There needs to be awareness. There does not need to be this current climate of intense monitoring and knee-jerk reactionism propelled by fear. GPS monitoring, lifetime registration and other such methods are merely hollow measures taken to placate our fear and cover up the real issue: the neglect of children by their families and our intense desire to snuff out anything that scares us.
Whither understanding and rehabilitation? People are individuals and each case should be treated as such – individually.
Legislature proposes amendment to Megan’s Law
May 20th
On the House calendar is H. B. 6749 [bill text] which seeks to amend certain provisions of the existing Megan’s Law statutes.
This bill refines the sex offender registry laws and makes statutory reporting language uniform. It reduces, from life to 10 years, the mandatory registration period for violators of several statutory rape offenses. It expands the current definition of "nonviolent sexual offense" to an attempt to commit, conspiring to commit, and aiding and abetting the commitment of fourth-degree sexual assault, subjecting perpetrators to a 10-year registration period.
The bill adds activities that trigger a registrant’s obligation to update his registry information and requires the Department of Correction commissioner to ensure that sex offenders in his custody are registered before he releases them.
The bill makes statutory rape offenses involving coaches, mentors, and custodians in positions of trust or power who engage in sexual intercourse with underage victims "criminal offenses against a victim who is a minor," requiring perpetrators to comply with sex offender registry laws for 10 years. Currently, they are "violent sexual offenses," which require lifetime registration.
Miami toughens up sex offender laws
Apr 27th
Ok, here’s the disclaimer, front and center: I’m probably going to say things in this post that most may not agree with, so if you’re not in the mood for a disagreement, don’t read.
Ok? Still here? You’ve been warned.
At PrawsBlawg (& Crimprof), I saw reports of a story that Miami is considering changing it’s sex offender laws (via zoning restrictions) that would basically drive all "sex offenders" out of the city. These restrictions are prompted by the slayings of two young girls.
New proposed laws in Florida include lifetime monitoring of some sex offenders by global satellite
positioning systems, mandatory 25-year prison terms for sex offenses
against children younger than 12, and automatic jailing of sex
offenders who violate probation until a judge can determine whether
they represent a threat.
I’ll address those proposed laws a little later. The Mayor’s measure
would more than double the buffer zone required between the homes of
registered sex offenders and schools, parks, school bus stops or any
”place where children regularly congregate."
I have some serious, serious reservations about this. It is one thing to impose lengthy sentences on "sex offenders" and then require them to register for life with their information available on a public website (which, unfortunately, the Supreme Court has held constitutional), but it is quite another to effectively bar them from a whole city. Not only does this proposed legislation raise equal protection concerns, it is exactly the kind of knee-jerk reaction that has effectively removed all notion of "correction" and "rehabilitation" from the criminal justice system.
Look, I know what you’re thinking: What the hell is wrong with this guy? I understand the importance of sex offender laws and the need to protect children. I am all for it. So, if sentences for certain sexual offenses need to be increased to keep "offenders" locked up longer and out of society longer – I’m all for it. But when we start getting to the point that "offenders" cannot live within a city then we really need to stop and think about what we’re doing.
Analogizing (and yes, you can analogize this situation to other crimes – because there is always a victim) this to say, robbery, why are we not passing ordinances, zoning laws and legislation that bars people convicted of two or more robberies from being within 1500 feet of a store? Experience in the criminal defense field will tell you that the most recidivist "criminals" are those with robberies, burglaries and assaults on their record. So let’s keep people convicted of assaults from within 1500 feet of any store where they can purchase a knife/gun/sharp instrument. In fact, let’s not even let them near kitchens!
See how absurd this is getting? If you want to effectively "ban" them from cities, just increase jail terms. That serves the same purpose.
The other problem is that not all sex offenders are convicted of Class A or Class B felonies. There are a large number of "sex offenders" who are convicted of offenses that involve nothing more than public indecency or, heck, don’t even involve children! Do we banish them too?
So we banish them. Then what? They go live in another city, or the countryside, or some small town. And that small town passes the same law and so they move elsewhere and so on and so on. What happens then? All the sex offenders in the country congregate in some remote vast open space in the middle of nowhere in, say, Montana? You think the residents of Montana will have nothing to say about that? That’s not a risk?
What about people that were convicted of a sexual offense 20 years ago and have not a blemish on their record since? What about those that are now working and hold jobs and have families? Do we banish the families too?
Again, I’m not belittling the horrific murders of the two young girls. But banishing all sex offenders is not the answer.
Let’s talk a little about this global positioning system tracking that’s been proposed. Do we need to know where "sex offenders" are every single minute of the rest of their lives? If we’re that concerned about where they are – leave them in jail!
All right. Here’s the deal: All I’m saying is that the "remedy" here is excessive and we really need to stop and think before we take such drastic measures. Is there a better alternative? One that is selective and targets only those that pose a real risk to the community and the safety of little children.
I told you my rant would piss you off.
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