Justice
State legislators trooped back to Albany
for one day last week, primarily to try to iron out differences on a tough new
sex-offender law. But despite the media attention before the special session, legislators
failed once again to reach an agreement.
The law, which New York
politicians have been haggling over for 13 years, is called a “civil
confinement” law. It would permit the state to hold many sex offenders in
psychiatric hospitals after they’ve served their prison sentence. The idea is
popular with politicians: few crimes disturb the public more than those
involving sex offenses.
The debate in the legislature isn’t whether offenders should
be sent to psychiatric facilities, and it’s not about whether they should be
confined again after they’ve served their time in prison. Instead, legislators
are disagreeing about process. Governor Pataki and the Republican-controlled
Senate want certain offenders sent directly to a specially designated facility
after they leave prison. The Democratic-controlled Assembly wants a jury to help
decide whether the offenders should be confined again.
While the legislature has been arguing over a
civil-confinement law, Pataki has had 100 offenders sent to psychiatric hospitals
after they completed their sentences. Twelve of them sued the state, saying the
confinement violated their rights. And late last month, the state Court of
Appeals agreed. (The remaining 88 prisoners have also sued, but their cases haven’t
been heard.)
Eighteen states have laws permitting civil confinement. But
critics say the laws aren’t the best way to protect the public — or to help
sex offenders change their behavior. They may, in fact, result in confining
people who aren’t likely to re-offend. And, the critics say, civil confinement
will be expensive. The state could end up spending a huge amount of money that
would be better spent on effective treatment.
A core issue is
whether the offenders are mentally ill.The
Supreme Court has ruled that civil confinement doesn’t constitute double
jeopardy. But states must show that sex offenders are mentally ill before they
can be involuntarily confined in a psychiatric hospital. Dr. David Barry, a
clinical psychiatrist and associate professor at the University
of Rochester, says there is a
difference between offensive criminal behavior and mental illness.
Sex offenders, he says, have abnormal sexual desires, some
of which are serious crimes. But Barry, like many professionals in the field,
stops short of calling those abnormalities illnesses.
Sex offenders, he says, “are not mentally ill, and a state
hospital is not the place for these people.”
Treatment for the mentally ill is not the same as treatment
for sex offenders, says Barry. And, he says, it’s risky to confine sex
offenders with mentally ill patients. “We have been concerned,” he says,
“because some could harm a very vulnerable group of people in these
facilities.”
Another core issue:whether
the offenders will commit their crime again.
The serious nature of sex offenses can’t be ignored. “This
isn’t like stealing a car,” says Richard Hamill, a researcher in Albany
who has extensively examined the problem of predicting sex-offender recidivism.
“These crimes often impact a person’s entire life, how they think and feel
about themselves. There may be injuries involved.”
“And you can’t replace this like you can a car,” says
Hamill. Some victims “will deal with this the rest of their lives,” he says.
But there’s more than one kind of sex offender. The common
perception is that all sex offenders will commit their crime again after
they’ve been released from prison. That perception is based on blurry,
sometimes contradictory data, however.
Recidivism rates for sex offenders are actually lower than
those of other types of criminal behavior, says Hamill.
“There are those that are quite unlikely to re-offend,” says
Dr. David Barry. “Then there are those driven by strong, abnormal sexual
compulsions. I’ve had them tell me that they can’t change because this is their
sexuality. This is who they really are.”
In 1995, lawmakers attempted to differentiate among the types of offenders when it passed the New
York Sex Offender Registration Act. The registry is designed to track offenders
and let the public know where they live. And it is supposed to identify the
people most likely to re-offend.
Under the 1995 law, sex offenders are assigned “risk levels”
based on the likelihood that they’ll commit their crime again. Level 1
offenders are considered the least likely to re-offend, Level 3 the most
likely.
The risk levels are assigned to sex offenders 60 days before
they’re discharged from prison. The assignments are made by a five-member
board, two who are members of the state parole board and three who are experts
in “the field of psychology, behavior, and treatment of sex offenders,”
according to the state’s Division of Criminal Justice Services. All five are
state employees.
But the risk levels haven’t necessarily corresponded to the
severity of the crime. For instance, a 17-year-old boy who gets his 16-year-old
girlfriend pregnant could be declared a Level 2 or 3 rapist. A person found
guilty of incest could be a Level 1 offender.
Nor do the risk-level assignments identify the most
dangerous offenders, the critics say.
“These risk-level assignments are all over the map,” says Al
O’Connor, an attorney with the New York State Defender’s Association. “There is
no consistency within New YorkState
or from state to state. And they don’t hold up in court, because they can’t be
defended.”
Illustrating his point: some of the 12 defendants in the
recent court case were not Level 3 offenders, even though they were being held
in confinement as “sexually violent predators.”
“Risk assessment of sex offenders is getting there,” says
Carl Christensen, a sex therapist in Penfield who works with both offenders and
victims. “But we’re a ways away from knowing for sure which offenders are
likely to go back out into the community and commit another offense. And that
means that we risk confining some people who are low risk or not likely to do
it again, and miss the person who will.”
Critics are also concernedabout the violation of the offenders’ rights.
Some sex offenders may indeed need longer confinement, “but
you need to go through legal process,” says Stephen Harkavy, an attorney with
Mental Hygiene Legal Service who represents all 100 men involved in suits
against New York. The state can’t
strip offenders of their rights, he says.
The offenders need to be evaluated by doctors, Harkavy says,
and those doctors shouldn’t be state employees. Parole boards and state
employees are not there to protect the sex offenders’ rights, Harkavy and other
attorneys critical of the process say.
Finally, there’s the
issue of effectiveness. What’s the best way to deal with sex offenses and
protect the public?
There are alternatives to civil confinement, and the state
ought to be looking at them, says Hamill. States that permit civil confinement
are finding it both expensive and ineffective, Hamill and Barry say. Some are already
having to release thousands of sex offenders from prison each year due to
overcrowding.
“What people don’t understand about civil confinement is the
cost,” Hamill says. “We’re talking about $200,000 to $250,000 per person per
year. The legal proceedings alone for each patient will cost about $50,000.
Even if you’re talking about confinement for a small number of people, it will
soar up close to a quarter to a half billion dollars a year, and that’s a
recurring cost.”
That could siphon off money that’s badly needed for
mental-health care, worries the UR’s
David Barry.
Long-term parole and probation are better alternatives to
civil confinement, Hamill and Barry say. And they and other mental-health
professionals say that contrary to popular belief, most sex offenders can be
successfully treated.
“The problem comes up when we start talking in terms of
cures,” says Hamill. “We don’t talk about alcoholism or drug addiction in terms
of becoming cured. We work toward long-term management.”
Cognitive therapy combined with drugs that reduce
testosterone have proved effective in reducing recidivism rates, says Barry.
“One drug, Dep-provera, is a long-acting injection that
reduces the hormone in men and women that causes sex drive,” he says. But the
drug isn’t enough, says Barry. The offenders “still have to come in for their
injection and therapy in order for it to help them control these behaviors,” he
says.
New
York already has what are considered some of the toughest sex-offender laws in
the nation. Convicted offenders now face long incarceration and parole times;
Level 1 offenders, for example, face mandatory 20-year probation periods.
The legislature’s 2006 session ended without resolving the
civil-confinement issue, and a new governor takes office next month. Although
sex offenders weren’t a big topic during the governor’s race, Governor-elect
Eliot Spitzer will have to face the issue at some point. And with the Senate
and Assembly still disagreeing, politics is likely to continue to drive the
discussion.
After the legislature failed to pass a civil-confinement
bill last week, Pataki lashed out at Assembly Leader Sheldon Silver, insisting,
the New York Times reported, that the result could be “another 3, 4, 10, 12,
more than a dozen violent sexual predators who are released into our
neighborhoods to prey on children, to prey on women….”
Critics of the current proposed bills insist that politics
is overwhelming a rational approach. Sex offenders’ criminal behavior should be
covered by their sentencing, the critics say. If they’re mentally ill, their
illness should be documented and treated.
New York, say
the critics, is headed down the same path with sex offenders that it pursued
with the Rockefeller drug laws, which have proved to be expensive — and misguided.
And, the critics warn, once such laws are in place, as the Rockefeller drug
laws have shown, it’s almost impossible to get rid of them.
This article appears in Dec 20-26, 2006.
