310. "A Place for Predators," Legal Times, (January 25, 1999), p. 63 and 65.
For many parents, the greatest fear is that their child may fall prey to a violent sexual predator. To assuage these concerns, all 50 states and the District of Columbia have passed versions of "Megan's Law," which requires released sex offenders to register with authorities. At least 13 states have also enacted variations of "Stephanie's Law," which confines suspected repeat offenders in mental institutions after they have served their criminal sentences.
Neither approach is wholly satisfactory. Community notification is of little use unless adults accompany children at all times in public. Megan's Laws diminish the privacy of offenders without significantly improving the safety of children. The harsher Stephanie's Laws -- which require the de facto jailing of persons who have already served prison terms -- provide greater public safety, but strip away the basic rights of offenders.
There is a better way to protect children, while preserving the privacy of sex offenders: Confine child molesters who have completed their jail sentences but are still considered high-risk offenders in special, guarded, child-free communities. As a means of separating molesters from children, this approach would be more effective than Megan's Laws but less intrusive and costly than Stephanie's Laws.
Megan's Laws -- which are named for a 7-year-old New Jersey girl who was killed by a convicted child molester in 1994 -- implicitly assume that repeat sex offenders are very difficult to cure. Hence, these laws allow offenders to return to the community, but only after the community is warned about their presence.
While civil libertarians have criticized these statutes for essentially branding people, exposing them to double jeopardy, and constituting cruel and unusual punishment, the laws have generally been upheld.
Some courts have restricted access to information about released offenders. For example, school principals and day-care operators in New Jersey may be notified of a moderate-risk parolee's whereabouts, but they are prohibited (under threat of contempt of court) from informing either their charges or the children's parents. Further, only about 600 parolees in the state are subject to notification and registration--just about one-third of all released sex offenders.
Treatment' Is a Sham Excuse
Surprisingly, the much harsher Stephanie's Laws have received much less media scrutiny or public ire. The legislation, originally enacted by Kansas in 1994 in memory of a 19-year-old who was killed by a repeat offender, was upheld by the U.S. Supreme Court in Kansas v. Hendricks (1997). The Kansas statute, also known as the Sexually Violent Predator Act, mandates the civil commitment of any person who, due to an "abnormality" or "personality disorder," is "likely" to engage in "predatory acts of sexual violence."
The 5-4 decision upholding Stephanie's Law depends on a splash of legal gerrymandering and a high dose of therapeutic fiction. In an opinion by Justice Clarence Thomas, the Court reversed the Kansas Supreme Court, which had invalidated Stephanie's Law on due process grounds.
The state court decision itself was based on Supreme Court precedent holding that a person who has recovered his sanity can be confined to a mental hospital against his will only if he constitutes an imminent danger to himself or others. The Kansas law attempts to sidestep this precedent by defining a person who has a "mental abnormality" or "personality disorder" as mentally ill and thus subject to involuntary confinement. However, psychiatrists have noted that such terms are not recognized in their field, and that the Kansas Legislature uses them tautologically. In other words, the statute's definitions are simply employed to turn sex offenders into mental patients.
The Kansas statute also wrongly assumes that mental hospitals can cure the hard-core sex offenders. Kansas Attorney General Carla Stovall, who defended the law's constitutionality in the U.S. Supreme Court, argued, "It's not punishment; it's treatment. . . . We can teach these people how not to reoffend if they want to stop reoffending."
But many leading mental health experts have criticized the Hendricks decision, asserting that the treatment justification for Stephanie's Law is a sham.
Herbert Sacks, president of the American Psychiatric Association, contends that the civil commitment of sexual predators to mental hospitals is "an abuse of the mental health care system," noting that "it saddles already under-funded public mental hospitals with a potential lifetime warehousing of people whom the state says do not have a mental illness, only a mental abnormality.'"
According to Howard Zonana, medical director of the American Academy of Psychiatry and the Law, "the psychiatric profession has never regarded antisocial personality disorder as a mental disorder sufficient to qualify for civil commitment."
He argues that the Supreme Court "ran roughshod over the issue of volition" by assuming the defendant was "totally out of control" because he offended several times. "That's such a distortion of both what psychiatry says about impulse disorders and what previous jurisprudence has said about volition," notes Zonana.
Indeed, several studies have shown that successful treatment of sex offenders is difficult even under the best of circumstances. Given the usual ineffectiveness of treatment, many repeat offenders face indeterminate confinement in mental hospitals in states with Stephanie's Laws. Such a sanction deprives a person of most of his privacy and autonomy and is extremely punitive, just short of life imprisonment without parole.
Let's Try Communal Custody
While society needs to be protected from high-risk child molesters, those offenders who have completed their prison sentences should be allowed to lead a normal life as much as possible. A better approach is 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. These special communities would be quite expansive; their terrain might include a beach, lake or ski area. Confinement to these communities 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. Residents of these communities 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 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 late in life.
Such communal confinement is not without at least indirect precedent. It is basically the way American society has treated (and still continues to treat) persons with contagious tuberculosis. Communal custody is also much less costly than keeping sex offenders in prisons or mental hospitals. Indeed, there is no reason why 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 would be preferable to sentencing them to life in prison, confining them involuntarily in state psychiatric hospitals or letting high-risk offenders loose among children.