Sex Offenders: Let's Talk About It

-- By JenniferLi - 17 Apr 2010

Jennifer, here are my thoughts/impressions so far. This is a fascinating topic, and you make a very interesting argument. I plan on attempting a rewrite and including it at the bottom.

Penalties for sex offenders in the United States are a big jumble of prison terms, probation periods, registries, civil commitments, and systemic discrimination.

Are you saying that the system of dealing with and punishing sex offenses is different from other types of crimes? It seems like you could say this about the penalties available for lots of offenses.

Yet when in Lawyerland, Wylie comments that people like talking about crime, he certainly doesn’t mean sexual offense because rape and molestation don’t make for fun cocktail stories. Talking about sex offenses and their penalties make us uncomfortable partially because they are such intimate issues, but also because there is only one right answer—harsher punishment—and no room for debate.

You set up a black/white, this or that argument here, but I'm not sure that's the case. I agree with you that there IS a stigma surrounding sex offenses, especially those against children, and we probably don't talk about it enough. But I think you could develop this argument in a more nuanced way; it seems to me like there IS a fair amount of debate surrounding sex offender sentencing. Check out this post. The debate surrounding the Roman Polanski case is pretty interesting: his victim wants the case dismissed, the prosecutor is bound and determined to get him, and the President of France is hand delivering letters to Obama begging for clemency.

However, I argue that the current penal scheme in many states for sex offenses is not morally or legally justifiable and that its undue harshness is a form of socio-political conspicuous consumption.

I think you can launch this argument without pitting it against the idea that the only other option is harsher sentencing.

Registration Laws

In 1996, the Federal government passed a law requiring every state to establish a sex offender registry that was publicly accessible or lose federal funding. As a result, all fifty states have sex offender registries that are online and searchable, which can contain detailed information on a sex offender’s name, address, offenses, sentences, jobs, and license plate and vehicle information. This measure was widely supported, particularly by parents who claimed a right to know whether they were living on the same block as a child molester. It also allowed different jurisdictions to track offenders easily in case an offense takes place in their vicinity.

The flip side is that these registries severely limit the ability of all offenders to live a normal, productive and fulfilling life. An extreme illustration of this is "Bill," who was convicted of statutory rape twenty years ago and due to laws prohibiting him from living near places frequented by children, is unable to take his kids to school or to the park. (1) His family has had to move several times due to severe harassment when other parents find out that he is listed in the sex offenders registry. Other offenders encounter sharp resistance when attempting to move into a community because the residents fear for their children, because they bring property prices down, and because people simply don't like sex offenders. They are often unable to find gainful employment because laws prohibit them from working near children, and because employers are highly reluctant to hire sex offenders. In 2005 and 2006, four sex offenders were shot and killed in Maine and Washington by private vigilantes going by the addresses listed in the registries. (2) Having served their sentence, they are entitled to try to rebuild their life, but registration laws make it nearly impossible for them to settle down and find a job.

Civil Commitment Laws

In Persons and Punishment, Herbert Morris argued that there are two categories of penal categories, punishment and therapy. The sane go to prison for their crime while those adjudged insane are institutionalized. Whereas most criminals elect one or the other, sex offenders fall into both because committing a sexual offense automatically presumes the offender can't be "sane" though few judges will pass up an opportunity to punish them with prison terms first. Civil commitment laws, which are effective in nineteen states, allow judges to institutionalize released sex offenders until they are declared "well," so some offenders end up serving a prison sentence and being institutionalized for the same offense.

As with the above section, some links to support your argument would be helpful, especially for a reader (like me) who doesn't know very much about sex offender laws. This article was helpful to me in getting a bit of a background in this area of law.

This judicial discretion rests on no legal ground but is supported by an argument of protecting community welfare. However, those who are repeat offenders or who have committed particularly heinous crimes ought to have been screened during trial and committed then, instead of doubling up commitment with a prison sentence. There should be greater procedural safeguards from commitment than simple judicial And prosecutorial whim because once committed, offenders often stay for periods that extend far beyond prison terms due to the difficulty and lack of standards of determining when a person is "well." Laws authorizing civil commitment give judges enormous, unwarranted discretion. They have no penal value I'm not sure what this means - it seems like they have tremendous punitive effect on the people being committed. Do you mean that the civil commitment system isn't justified by due process/ex post facto concerns? and are simply an expensive way for a state to display how upstanding and "tough on sex crimes" their citizens are.

I don't know if it's as simple as you make it out to be. From what I have been able to gather, civil commitment laws were passed because of the high rate of recidivism in sex offenders who have been released from jail. So it seems that there was at least some purpose--protecting future victims--behind these laws other than the performative "peacocking" one you point to.

It also seems to me like this issue is pretty controversial. Below, you argue that not enough attention is given to the fact that these programs are expensive, or to the constitutional issues they implicate. But the debate surrounding U.S. v. Comstock, argued before the Supreme Court in January, suggests otherwise. While the Supreme Court ruled in 2007 that a Kansas civil commitment law didn't violate due process or ex post facto clauses, it remains to be seen whether 18 U.S.C. § 4248 exceeds Congress' enumerated powers. I know you are concerned with laws passed at the state level, but it seems like that debate is implicated by the one surrounding the federal law.

What Would Veblen Say?

Political campaigns against crime are always popular, but anti-sex offender measures are almost invariably foolproof. Sex crimes, unlike theft or murder which can be motivated by necessity or sympathetic motive, are universally abhorrent with no acceptable justifications. And for the most part, they are just that--horrible, needless crimes that do unimaginable harm to their victims. However, instead of real public debate over what punitive strategies are proportionate, effective, and fair, laws against sex crimes continue to become harsher and harsher. Politicians want to appear tough on the most indefensible of crimes and communities want to appear more moral and intolerant of it than the next town. For example, courts in Georgia were recently forced to suspend a rule championed by Georgia's House majority leader prohibiting offenders from living within 1,000 feet of a school bus stop. A county sheriff mapped out the result and found that other than the middle of a forest or the bottom of a lake, offenders had no place to legally live. No thought is given to how wasteful not to mention unfair it is for a penitent individual, otherwise willing and able to live and work peacefully, to be driven from community to community with no hope of finding a decent job or how extraordinarily expensive it is to commit an offender to an institution for possibly the rest of his life.

But we don't seem to worry overmuch about the expense of committing murderers for life. If the crime is morally repugnant enough, it seems like according to the current system, the benefits outweigh the costs.

I think that here, too, some evidence is necessary. I found some data that civil commitment for sex offenders costs $150,000 a year per person, and that 4,000 people nationwide are subject to such commitment. To me, that seems like an extraordinary expense, but it also affects a relatively small number of people.

The current penal system for sex offenders looks great, much like a peacock's tail, but is not good for anything except attracting the peahen (votes) and probably slows him down when he's foraging for food or running from a predator. (3)

Here, couldn't you frame your argument a bit differently? Saying "no thought is given" to the downsides of what you argue is an expensive and the unfair system seems hard to prove - surely someone out there has given it a thought. Do you mean that the legislative process is undervaluing the rights of sex offenders? That communities are? Who is not thinking enough about these issues, and what would be a way of better serving the rights and interests of a convicted sex offender? The story you point to indicates how irrational and misguided a law can be, but it also shows the democratic system at work - the sheriff noticed the injustice and the courts struck down the law. We can't stop every politician from running on a platform that includes an overbroad and poorly drafted law, but doesn't the checks-and-balances system help to curtail some of those excesses?

Plucking the System

The purpose of a punitive system is not to put on a show but to punish and protect as effectively as possible while leaving the smallest footprint in lives.

I don't agree entirely with this. I think that the "purpose" of the punitive system is up for grabs. Durkheim, via my criminal law casebook, argues that punishment of criminals acts as social glue that binds society. I think here you have to argue for what YOU think the purpose of the system is/should be, and why the current system of penalties for sex offenders does not cohere with that purpose.

Sex offenses do irreparable damage to their victims so harsh measures are sometimes needed. However, [their application] penalties can be tailored so that they are not overly broad. For example, a seventeen year-old convicted of statutory rape need not be listed publicly in the registry when there is no indication that he is predisposed to commit another sex offense. On the other hand, parents may very well have a right to know if their child's piano teacher is a repeat child molester, and rules prohibiting them from living or working near children may not be overshooting the goal. While the registry as a whole may be maintained to facilitate law enforcement, it should not be public save for the high risk serial offenders. Civil commitment laws, which I believe are legally baseless, should be abolished in favor of longer sentences for those offenders that judges believe are especially deserving of punishment or they should be found unfit to stand trial and immediately committed. But does this solution avoid the problem of judicial/prosecutorial discretion? Voluntary chemical castration programs, which involve taking an androgen-inhibitor orally or [being administered the Depo Provera shot every three months] by injection , are currently in place in nine states and should be more widely adopted. It should be offered as an alternative to full institutionalization, to shorten prison sentences for repeat offenders, and in exchange for a shorter duration of listing on the registry.

Punitive measures against sex offenders are currently very costly and wasteful, though they are socially and politically attractive. Veblen argues, and rightly so, that a system of conspicuous waste dominates the course of most human action, but to the extent that we can resist decorating the penal system with peacock feathers, we should.

---

(1) "Unjust and ineffective: Sex Laws" The Economist, August 8, 2009.
(2) Same as above.
(3) A better zoological mascot might be a sleek, well-tuned jungle cat, or perhaps a German shepherd.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JenniferLi

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list