When America’s politicians latch on to a “law and order” issue, watch out! Their capacity to demagogue an issue, exploit public fears, and enact draconian legislation is limitless. We saw this with the war on drugs1 and the war on terrorism. And now we see it with the proliferation of sex offender laws that impose far-reaching collateral consequences. They are often based on myth and emotion, unsupported by empirical research and broadly applied, and are indifferent to the facts of the particular case.
Last month, The Champion reported that NACDL’s recent affiliate survey disclosed that 58 percent of the respondents identified sex offender legislation as their primary concern.2 This concern is wholly justified. Scarcely a day goes by without new initiatives to enhance mandatory penalties, extend sex offender residency restrictions, impose notification and registration requirements, and provide indefinite “civil” commitment for whole categories of offenders who have already served prison sentences.
NACDL recognizes that sex offenses and child sexual abuse cause enormous pain and suffering to victims and their families. Appropriately harsh penalties for serious offenders are justified. But casting a broad net of collateral consequences — without distinguishing between offenders who are genuinely at risk of recidivist behavior and those who pose no continued risk at all — offends due process, impedes an offender’s reintegration into society, and imposes enormous financial and social costs. In an alarming number of cases, these increasingly harsh laws promote vigilantism, destabilization and de facto life sentences that are well in excess of the maximum criminal penalty.
In recent weeks, we learned of two new proposals, one federal and one state, that will propel the hysterical approach to sexual offenses to new extremes.
In New York State, where efforts to adopt civil confinement have long been resisted, Governor Eliot Spitzer reached agreement with legislative leaders to enact one of the most far-reaching civil detention laws in the nation.3 New York is the 20th state to adopt civil commitment procedures. The new legislation expands the law to include juveniles and nonviolent offenders, and includes an entirely new category denoted as a “sexually motivated felony” that, incredibly, applies to those who intended to commit a sex crime but did not.4
Significantly, there is an emerging recognition that civil commitment is costly, arbitrary, and largely ineffective. In an extensive three-part series, the New York Times reported that civil commitment can be up to four times as costly as imprisonment, often with private entities obtaining huge contracts and providing little treatment.5 This investigative report also questions the accuracy of risk assessment tools and the ability of various treatment practices to materially reduce recidivism. Additionally, there is concern that some so-called experts who testify at commitment trials are not subject to comprehensive ethical and training requirements. Indeed, some of the treatments, such as the use of a penile plethysmograph, which purports to measure the circumference of the penis while the subject is shown provocative photographs, evoke laughable images more reminiscent of a Woody Allen movie than science.
There is also a significant new federal initiative. Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA), contains a comprehensive revision of the national standards for sex offender registration and notification. Among other provisions, SORNA would establish a whole new regimen of federal penal sanctions for noncompliance with registration requirements. Effective Feb. 28, 2007, Attorney General Alberto R. Gonzales issued an interim rule finding that SORNA registration and notification requirements will apply retroactively to all covered sex offenders, even though their convictions may have preceded the enactment of the law. This will have profound consequences for countless thousands throughout the country. Though the attorney general dispensed with the prior notice provisions of the Administrative Procedure Act, there remains a public comment period before the rule becomes permanent.
NACDL will remain in the forefront of efforts to resist irrational approaches to sex crimes that are not predicated on facts and sound scientific findings or that unjustifiably eviscerate constitutional rights. At the Midwinter Meeting in late February, NACDL’s Board of Directors adopted a comprehensive sex offender policy statement.6 It was the result of months of work by the Sex Offender Policy Task Force, ably chaired by Michael Iacopino, a distinguished New Hampshire attorney. The policy statement embodies seven core principles:
- NACDL opposes the death penalty as a sanction for sex offenders.
- NACDL opposes mandatory minimum sentences.
- NACDL opposes sex offender registration and public notification laws. If employed at all, sex offender registries should classify sex offenders on the basis of risk, with full due process of law. Public/community notification provisions should be reserved for “High Risk” sex offenders.
- NACDL opposes civil commitment laws because they punish offenders who have paid their debt to society. If employed at all, sex offender civil commitment statutes should provide a full panoply of due process rights including the right to a jury trial, the right to confront adverse witnesses, the right to present evidence, rules of evidence, a high burden of proof on the government, and a process for review and discharge which levels the burden squarely on the government.
- NACDL opposes residence restrictions because such laws and ordinances do not provide effective community protection and threaten offender stability and reintegration into society.
- Sex offender treatment and rehabilitation programs should be adequately funded and available both in our prisons and in the community. Such programs should not include mandatory polygraph examinations and should respect Fifth Amendment rights.
- Children are different.
The adoption of these principles is the beginning, not the end, of NACDL’s determination to resist sex offender hysteria. Mike Iacopino is presently coordinating efforts to formulate NACDL’s public comments in response to the attorney general’s determination that SORNA will apply retroactively. On the state level, NACDL stands ready to assist our affiliates in every way as they seek to stem the tidal wave of proposed legislation.
In the final analysis, when politicians stoke public fear and attempt to outdo each other in showing just how tough they can be in fighting an emotionally resonant, but vastly exaggerated threat, the best antidote is truth. And the truth is that the panoply of sex offender laws is causing breathtaking instances of injustice. NACDL would like to compile a dossier of these injustices. If you have personal familiarity with such an abuse, please let us know about it. We are in the early stages of what is likely to be a protracted effort in this area. NACDL, its members, and affiliates must work in close partnership to ensure a rational and humane response to sex crimes.
- A perfect example of irrationality in the nation’s approach to drug enforcement policy is the persistent crack cocaine disparity, the subject of several companion articles in this issue of The Champion (see pages 14 and 18). The 100-to-1 sentencing disparity persists despite wide recognition that the policy was flawed from its inception, and perversely tends to impose the harshest punishment on the lowest level offenders.
- The Champion, March 2007 at 53.
- Gov. Spitzer signed the civil commitment bill March 14. The legislation is the latest manifestation of the state’s bizarre “three men in a room” brand of democracy whereby the Governor, the Speaker of the Assembly, and the Senate Majority Leader essentially negotiate legislation without public hearings, legislative research, or any meaningful input by the elected members of the Legislature.
- Danny Hakim, State Plan to Monitor Sex Offenders Goes Beyond Detention, N.Y. Times, Mar. 2, 2007, at B1.
- Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times, Mar. 4, 2007, at A1; Abby Goodnough and Monica Davey, A Record Failure at a Center for Sex Offenders, N.Y. Times, Mar. 5, 2007, at A1; and Abby Goodnough and Monica Davey, For Sex Offenders, Dispute on Therapy’s Benefits, N.Y. Times, Mar. 6, 2007, at A1.
- The full Report of the Sex Offender Policy Task Force is available at http://www.nacdl.org/sl_docs.nsf/issues/sexoffender_attachments/$FILE/SexOffenderPolicy.pdf.