Note:  An edited version of this article appeared on page 9 of yesterday's New York Sun.


March 13, 2007

Both houses of the New York Legislature have passed and sent to Governor Spitzer a bill intended to deal with sex offenders whose prison sentences have expired. The justification for the bill is that some sexual predators are likely to repeat their horrible crimes after they are freed.  When the governor signs the measure, New York will become the 20th state to authorize continued "civil confinement" of sex offenders.

There is substantial anecdotal and statistical evidence of recidivism by sex offenders. In the most recent widely publicized case, a Florida man, John Couey, was convicted of murder for kidnapping and raping a 9-year-old girl and then burying her alive in a plastic bag. Couey had previously been convicted of child molestation.

The New York bill's original sponsor, Senator Dale Volker of Depew (it's near Buffalo), introduced it for twelve years. It passed the Senate annually, but was always shelved by Assembly Democrats, by Speaker Sheldon Silver, who found it excessively harsh and a violation of the civil rights of individuals who had already paid their debt to society.  

Governor Pataki placed great importance on the issue to show Republican voters that he was tough on crime, particularly sexual offenses. Mr. Silver, who by that time had a mutually antagonistic relationship with Mr. Pataki, would do nothing to assist him, even if it meant giving up the legislative salary increase that the departing governor had offered as a carrot.

At the start of the Spitzer administration, the governor's lawyers were instructed to negotiate with Senate and Assembly counsel to clear up the disagreements that had blocked legislation on this subject for years. All sides were told to work until they reached agreement. They succeeded, which is a good sign insofar as it raises hopes for resolving other long-disputed legislative issues.

Objections to earlier bills were overcome by adding provisions mandating psychological treatment for offenders, and due process safeguards in determining whether an inmate remained a risk to the public. There is little evidence that treatment modalities now available are effective or ineffective.  We can count how many people commit sex crimes after their release, which we can cross-check with what therapy, if any, they had received.   Even then, there is the issue of which prisoners were selected to receive therapy, easier cases or less tractable ones.  There is one certainty: a person held in jail or civil commitment will not commit a sex crime against a child while he is confined.

Not everyone is satisfied with the bill.   In its lead editorial this morning, "WRONG  TURN ON SEX OFFENDERS", the New York Times weighs in on the subject.  Their first paragraph::

"With little public discussion and no opposition to speak of, Gov. Eliot Spitzer has made New York the latest state to travel down a murky legal road, to a place where laws are made not in response to facts, but to wishfulness and fear.  It is a place where prisoners who finish their sentences remain locked up for crimes they might commits, submitting to psychological treatment that nearly always fails and whose only sure outcome is the open-ended spending of tens of millions of dollars a year."
Whether you agree with it or not, that paragraph is exceptionally well written.    Unfortunately, we were unable to understand the last paragraph of the editorial, where the Times described   "... treating and supervising the large cohort of criminals who would never qualify for civil commitment..."  If you are interested, you should link to the editorial and see if you can figure out who they mean by that. Why would they never qualify for civil commitment?    The Times recognizes the "agonizingly difficult problem of sexually violent predators" and suggests various alternatives, which do not appear to us to be likely either to cure offenders or safeguard communities.
 
High-profile murders and rapes of children in recent years have resulted in the adoption of various state laws, such as Megan's Law in New Jersey, where 8-year-old Megan Kanka was raped and murdered in 1994. Megan's Law required public notification to a community of the arrival of released sexual offenders. Similar federal legislation was passed by Congress and signed by President Clinton in 1996.

Other crimes led to the passage of other laws, frequently named for their victims. Kendra's Law in New York State was passed after Kendra Webdale was pushed to her death under a subway train in 1999 by a mentally ill person who had stopped taking his medication. The bill was promoted by Governor Pataki, adopted, and later renewed by the legislature.  It mandates involuntary outpatient mental health treatment. If the former inpatient does not take his medications regularly, he or she will be returned to confinement.

Although no one is certain how to treat sex offenders, doctors agree that at least the most dangerous patients/inmates should  be kept in confinement as long as possible, even if that means most or all of their lives.  But although you can roughly measure degrees of mental illness,  it is impossible to predict accurately the future behaviorof the mentally ill. Some men who appear to be relatively sane will commit sex crimes because it gives them the kind of pleasure they cannot find elsewhere.

Sex crimes, especially when youngsters are victims, are considered so evil that society demands strong measures to safeguard potential victims and reduce the possibility of encounters between possible predators and victims.   Therefore laws have been passed which restrict the activities of former offenders, for example, not allowing them to loiter near schools.

The New York bill also creates a new class of crime: sexually motivated felony. Suppose a criminal enters a house at night, intending to rape a sleeping woman. He is caught before he can attack her, or even get close to her. Today, he could be guilty only of breaking and entering. Under the new bill, since he came for sex, not just to steal, if that intent can be proven, he would be considered a sex offender. A state Office of Sex Offender Management would be created within the Division of Criminal Justice Services to oversee the programs and the offenders.
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Most legislation is a trade-off between costs and benefits, or between different values.   How many people would have to be imprisoned beyond their sentence to offset a fixed number of rapes and murders?   Are there statistics from other states which would be useful in estimating probabilities here?

Opponents of the new state legislation argued that it provided insufficient protection for prior sex offenders, who could be imprisoned long after their sexual desires had disappeared. They rationally doubt the efficacy of psychiatric treatment, arguing that no psychiatrists would pronounce anyone cured for fear that they would be held responsible if the offender struck again.  They could also maintain the bill will have a discriminatory impact on minorities, but percentages of impact should be computed by comparison with the ethnicity of incarcerated rapists,  rather than the prison population or the general population.  Some saw this bill as the reincarnation of the Rockefeller drug laws, but the heavy majorities, over 5 to 1 in the Assembly and 6 to 1 in the Senate, did not indicate that legislators were overly impressed by the negatives..

There is another possible way to deal with criminals who rape and murder innocent victims - castration.  This solution has even fewer advocates than capital punishment. First, people intuitively fear it.   Second the irreversible penalty could be applied where the facts are uncertain, or the accusation later shown to be  Third, the procedure could be imposed in a racially discriminatory manner.  Fourth, libertarians resent the state exercising authority over a person's body, particularly its private parts.  Fifth, it is deemed barbaric, because it was done brutally in other cultures, often without cause.  Sixth, it is highly politically incorrect, and in conflict with the accepted moral standards of the day.

Chemical castration involves prescribing drugs that temporarily suppress sexual impulses.. It is done in some states.
It could be required for outpatients, but the drugs are likely to be highly unpopular with those required to take them.  One would have to create a methadone-type distribution system to make certain that the medication is actually consumed.
If the patient refused or failed to comply, he would be returned to a facility where the drugs would be less necessary.

Still, when a child is raped and murdered by a released convict who has previously committed sex crimes, people cannot help thinking that the tragedy could have been prevented if the assailant were still in confinement.   They may also wonder how many innocents would have been spared from death or permanent trauma, if the rapist had lost the physical desire or capacity to commit the crime.  How to measure competing values in cases like these.  Sharia may not always be madness.

The roll call on the bill was interesting, because both houses divided in an unusual manner.  All the Republicans and a substantial majority of Democrats supported the bill,, while representatives of minority communities and Manhattan 'progressives" opposed it.  The legislation passed the Senate 51-8, and the Assembly 103-19.  An anomaly in the vote is that Assemblyman Jose Rivera, the Bronx Democratic leader, voted No, while Assemblywoman Naomi Rivera, his daughter, voted Yes.  This demonstrates either the daughter's independence or an adept straddle on the issue.

Here are the legislators who voted "No" on the roll call, first in the Senate and then in the Assembly:.

Senate, votes against
Eric Adams (Bk); Tom Duane (Man); Ruth Hassell-Thompson (Bx); Shirley Huntley (Qns);  Velmanette Montgomery  (Bk); Kevin Parker, (Bk); Bill Perkins, (Man); Eric Schneiderman, (Man).

Assembly, votes against
Michael Benedetto (Bx);William Boyland (Bk); Barbara Clark (Qns); Jeffrey Dinowitz (Bx); Herman Farrell (Man); David Gantt (Monroe); Deborah Glick (Man); Carl Heastie (Bx); Vito Lopez (Bk); Joan Millman (Bk); Catherine Nolan (Qns); Daniel O’Donnell (Man); Felix Ortiz (Bk); Crystal Peoples (Erie); Adam Clayton Powell Jr. (Man); Jose Rivera (Bx); Annette Robinson (Bk); Linda Rosenthal (Man); Keith Wright (Man).

Will the bill succeed in its purpose?  We may never know.  One can measure the number of years people are held in civil confinement, which should be less punitive than prison, but we cannot calculate the number of sex crimes not committed because the predators were behind bars.

 
#359  3.12.07   1711wds