330. "Fence off sex offenders who prey on kids," USA Today (May 16, 2000), page 25A.
What should we do with pedophiles? Not only do they prey on a part of the population particularly dear to our heart -- children -- but they generally commit many offenses before they are caught, then have a much higher tendency than other criminals to commit more offenses once released.
So far, much attention has been paid by the courts, Op-Ed writers, talk shows and so on to the so-called "Megan's Law" statutes that require released sex offenders to register with local authorities, who, in turn, must notify the communities in which the offenders are going to live.
Civil libertarians abhor these statutes because they amount to an additional punishment for those who have completed their sentences. They violate the offenders' privacy and stigmatize them. In a few cases, communities have even resorted to vigilantism to drive these people out of town.
As I see it, community notification is of little use from a public-safety viewpoint unless adults accompany children at all times while they are outside or visiting friends. Most parents find such a requirement onerous.
So it is not surprising that some states are following a rather different approach that has attracted surprisingly little attention despite its extreme nature. These states have enacted what's being called "Stephanie's Law." This approach takes hard-core sexual offenders and sticks them indefinitely into state mental hospitals the day they complete their jail sentences. The rationale that is used -- and that now is being challenged in both state courts and before the Supreme Court -- is that they could not be treated in prison, but can be in mental hospitals.
"It's not punishment; it's treatment," argued Kansas Attorney General Carla Stovall, who defended the law's constitutionality before the U.S. Supreme Court, adding, "We can teach these people how not to reoffend."
The trouble is that pedophiles are extremely difficult to cure under the best of circumstances -- and let's just say that many state mental hospitals are no way near the best of circumstances. While theoretically an annual review of such cases by a board could release these special kinds of offenders, this happens rarely.
Herbert Sacks, president of the American Psychiatric Association, argues that the commitment of sexual predators to mental hospitals is "an abuse of the mental health care system." It amounts to "a potential lifetime warehousing of people whom the state says do not have a mental illness, only a 'mental abnormality.' " And Howard Zonana, medical director of the American Academy of Psychiatry and the Law, says "the psychiatric profession (has) never regarded anti-social personality disorder as a mental disorder sufficient to qualify for civil commitment."
But in 1997, the Supreme Court ruled that keeping violent sex offenders in commitment centers was constitutional if the offenders are given treatment. Then, in 1999, U.S. District Judge William Dwyer in Seattle found Washington state in contempt for not fixing problems at the Special Commitment Center for the treatment of sexual predators, where next to no one has been cured or released. On May 5, Dwyer ruled that the center has made significant progress in improving living conditions and therapy for inmates and removed, for the time being, any immediate threat of fines of as much as $ 39,550 per week. The judge said he would review the center's progress again in December. Meanwhile, the U.S. Supreme Court this fall will hear the case of offender Andre Brigham Young, the first offender committed to the Special Commitment Center.
Is there a third alternative?
I believe so. I suggest it because we are stuck between Megan's Law, which seems to do little good, and Stephanie's Law, which is extremely harsh (and costly). I call this proposal -- which follows a biblical tradition of sanctuary -- "communal custody."
Under such an arrangement, sex offenders who have completed their prison terms but are still considered a high risk to children would be confined in special communities. The offenders could lead near-normal lives, aside from the requirement that they remain in these guarded areas. They could hold jobs, host visitors, watch television, have unlimited phone privileges, own regular bank accounts, travel within the guarded community as they wished and participate in town meetings and elections. There might be a beach, lake or ski area. Confinement would be enforced by the use of electronic bracelets.
No children would be permitted in these communities, but offenders could have their spouses move in with them. Community residents who are not sex offenders would be free to come and go as they wish.
In contrast to inmates in prisons and mental hospitals, residents in these communities would enjoy unfettered privacy. There would be no peepholes allowing guards to examine them 24 hours a day and no random searches.
Authorities could not read their mail or monitor their phone calls. Sex offenders would be free to leave for good once it was determined that they were no longer a danger to children. For many offenders, that might occur rather late in life.
Such communal confinement is not without at least indirect precedent. It is basically the way American society has treated persons with contagious tuberculosis. While not inexpensive, communal custody would be much less costly than keeping sex offenders in prisons or mental hospitals. Indeed, there is no reason offenders could not largely earn their own keep in these villages. The remaining costs would be borne by the state.
While some critics have compared this proposal to leper colonies, the communal-custody approach is better than any of the alternatives.
Housing offenders in these child-free communities is preferable to sentencing them to life in prison, confining them involuntarily in state psychiatric hospitals or letting high-risk offenders loose among children.
Meanwhile, please do watch the children.
Amitai Etzioni teaches at George Washington University. His most recent book is The Limits of Privacy.