February 9, 2006
Molesters Confined Even After Jail Time Is Up
By Mark Matthews, Staff Writer
Sex offenders are a different type of criminal, increasingly punished under a different set of rules. Upon release from prison, they are followed by satellite, showcased on the Internet and prohibited from living in certain neighborhoods.
In eight states, they even face castration.
But it is the issue of civil confinement that is causing the most controversy. When the most dangerous sexual predators are due to leave prison in 16 states, officials can revoke their freedom and toss them into mental hospitals indefinitely.
The U.S. Supreme Court has affirmed the practice, and at least eight states this year are considering similar legislation. In New York, Gov. George Pataki (R) has made it a key goal for his final year in office.
The renewed push for civil confinement, which could add to a swell of recent laws aimed at sex offenders, has earned high praise from parents, lawmakers and child advocates. But critics warn the increasingly punitive attitude could erode civil liberties, even as some researchers question whether civil detention is fair or effective.
All of which leads to a thorny question for authorities. How does one handle a felon who is likely to re-offend, but hasn't committed a new crime?
It's a debate that has direct consequences for the 3,500 sexual predators held in civil confinement or under evaluation for detention in mental hospitals. And for state officials, it's a question forces them to balance civil liberties against the safety of the community.
"Civil confinement is for the worst of the worst, and it's very practical and useful. But the problem is that you have to make sure that it's not incarceration under another name," said Susan Broderick, a senior attorney with the National Center for Prosecution of Child Abuse .
Under this designation, states can steer pre-released violent sex offenders into civil confinement, often mental hospitals, until they are well enough to be released. But civil confinement often acts as a second sentence.
Of the 3,493 sex offenders sent into detention or evaluated for that treatment by December 2004 (the last date figures are available), only 427, or 12 percent, were let go, according to the Washington State Institute for Public Policy , a state research group.
The institute has studied the issue regularly since legislators in Washington state passed the first civil confinement law in 1990, following the brutal assault of a 7-year-old boy. His attacker, a violent sex offender with a long record, told fellow inmates before his release that he intended to torture children if he left prison.
Once free, Earl Shriner did just that — molesting and nearly killing a young boy after luring him into the woods. The high-profile crime, combined with the swift response by the Washington legislature, inspired a handful of copycat laws, and by the end of 1997 eight states permitted the civil confinement of sex offenders for reasons of "mental abnormality."
But it was a 1994 Kansas law that ended before the Supreme Court when a sex offender challenged his civil confinement on the grounds that it violated his right to due process and that authorities detained him twice for the same crime. The Kansas high court agreed, but the U.S. Supreme Court overturned the state ruling by a 5-4 decision in 1997.
Writing for the majority in the case, Kansas v. Hendricks , Justice Clarence Thomas noted that pedophilia was a recognized mental disorder. He wrote that states could civilly commit certain sex offenders if their condition presented a danger to themselves and others.
"The state may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate non-punitive governmental objective and has been historically so regarded," Thomas wrote.
Following the Supreme Court decision, there was a second wave of civil confinement laws and, within two years, the number of states with the policy almost doubled to 15. The total now stands at 16 (see chart).
Now another horrific case has spawned a third wave of sex offender legislation, including civil confinement bills. Last spring, a 9-year-old Florida girl named Jessica Lunsford was killed by a registered sex offender who lived nearby. Her case helped spark more than 100 new state laws against sex offenders in 2005 — twice as many as 2004 and far beyond any previous year.
The movement shows no sign of abating, and this year at least eight states have proposed civil confinement as a means to stop sexual predators. Among them: Kentucky, Maryland, Nebraska, New York, Pennsylvania, Rhode Island, South Dakota and West Virginia.
Chief among these states is New York, where Pataki last year ordered sex offenders into mental hospitals after their prison terms expired, a move later overturned by a state court and is now under appeal. He rebounded from the setback, and in his State of the State address last month, Pataki pleaded with lawmakers to make civil confinement permissible.
"Our goal must be nothing less than to provide our children and families with every possible protection from sexually violent predators. This year I will again send you a bill aimed at preventing the release of these predators into our neighborhoods. Please, for the sake of our children, pass it now," Pataki said.
But Pataki has run into opposition. Soon after his speech, the bar association of New York City released a lengthy rebuttal to the civil confinement legislation, arguing "it cannot be overstated how readily sex offender civil commitment laws may be abused."
At risk is the possibility of locking up sex offenders who do not have a mental illness and are not likely to repeat their crimes, the bar association's position paper noted. Indeed, a broad coalition of interests have opposed these measures, arguing that civil confinement is expensive, unfair and that it jeopardizes health workers and patients who are not sex offenders.
Ron Kokish, a member of the California Coalition on Sexual Offending , said it would be more effective to have "legislation that includes people into society, rather than excluding them from it." Kokish, whose group researches sex crimes, suggested a tiered system of punishment that emphasizes counseling to reintegrate sex offenders.
Part of their concern is that few sex offenders actually are released once they are sent to civil confinement programs. Arizona has released 221 of the 332 inmates they have detained since Phoenix passed a law in 1996. At the same time, Massachusetts put 306 inmates in civil confinement since 1998 and has released only four.
The effectiveness of these programs is up for debate. In Kansas this year, lawmakers are debating whether to phase out civil confinement in favor of longer prison sentences. And in Minnesota, the legislature is now coming to terms with the high cost of civil confinement, which runs over $100,000 a year per inmate.
According to the Washington State Institute for Public Policy, civil confinement costs taxpayers nationwide $224 million annually. Roxanne Lieb, director of the institute, said the success of these programs "depends on how you define it," comparing sex offenders to disease-carriers.
"If these people had tuberculosis and there was no cure, would you let them walk around and hurt other people? No, you isolate them and hope over time that things get better. But the treatment doesn't have guarantee someone to get better to protect society," she said.
Sen. Clark S. Barnes (R), of West Virginia, took a similar tack when asked how the civil confinement law he introduced would balance the rights of civil liberties with the safety of children. "If we err, we should always err on the side of the innocent," he said.
A certainty is that this highly emotional and legalistic issue is going to play out more in the weeks and months ahead in other legislatures and in the court systems.