Megan's law: constitutionality and policy.
The killing of Megan, to which Timmendequas confessed, generated enormous public outrage. More than a thousand people turned out for a vigil in a local park. Over 1500 petitions to the governor were signed insisting that legislation be enacted that would prevent a reccurence of such a tragedy.
Less than two months later, in October, the New Jersey legislature, having bypassed hearings on prospective bills because of the alleged "emergency" created by Megan's death, responded to public pressure by enacting a hastily prepared package of nine sex offender statutes that have come to be known collectively as "Megan's Law."(1)
This article will focus mainly on the constitutionality of the most significant three of these new statutes but will also discuss their soundness as policy. The three statutes discussed here deal with the registration of released sex offenders, community notification of their presence in the community, and the civil commitment of extremely dangerous mentally ill sex offenders.(2)
The primary attack on these measures at this time is litigative. The constitutionality of the registration and notification statutes was challenged in federal court almost immediately after their passage. In February, 1995, a federal district court in Newark, in Artway v. Attorney General of New Jersey,(3) which concerned a sex offender who had served seventeen years in prison, struck down portions of the notification statute that applied to sex offenders whose original offences predated the statute's enactment.
But the district court did uphold the registration statute as constitutional. The Artway decision was appealed to the Third Circuit Court of Appeals which, on April 12, 1996, affirmed the constitutionality of New Jersey's registration statute. The Court of Appeals then reversed the district court's ruling on the notification statute, holding that the issue of notification was not yet ripe for judicial review since Artway had not yet been evaluated or assigned to a notification category, and that there had been no hearing at which adequate facts concerning notification had been presented.
Judge Becker, speaking for the Third Circuit court, characterized the district court's decision by saying that it had "allowed no discovery, heard no testimony, and made no finding of fact. Instead it ruled as a matter of law on all the complex issues before it." He concluded that ". . .we cannot make the novel, difficult, and fact-sensitive determination whether the notification provisions constitute `punishment'--the central question under all three clauses--without a record of how notification will be implemented and what concrete effects it will have on Artway (or those similarly situated)." He further added that Artway's claim that notification constitutes punishment is "quite persuasive" but simply not ready for judicial review.(4)
For the brief time being, then, there is no viable federal determination in New Jersey striking down the notification statute. But there is currently federal litigation pending which raises the question anew. While the registration question now seems fairly well settled, the Third Circuit decision in Artway represents only a delay toward reaching finality of judgment on the community notification issue.
The two statutes were also challenged in the state courts. In July, 1995, the New Jersey Supreme Court, in a lengthy and elaborate opinion, upheld both statutes as constitutional under federal and state constitutions, though with significant procedural modifications intended to insure greater protection of the civil rights of affected sex offenders than had been provided in the statutes as originally enacted.(5)
The New Jersey Supreme Court majority opinion, highlights of which will be summarized here, is a skillfully crafted disposition that attempts to balance the interests of society and the rights of the offender.
New Jersey's registration act is the least questionable of the three enactments. As noted, its constitutionality has been upheld by both the New Jersey Supreme Court and the federal Third Circuit Court of Appeals.
Law enforcement authorities claim that the benefit to society of registration statutes is substantial in that registration facilitates the investigation of sexual crimes, establishes a legal ground for detaining known sex offenders who are found in suspicious circumstances, and tends to deter some registered sex offenders from committing new sexual crimes because they know they can be easily traced.
The civil rights of sex offenders are intruded upon only minimally since registration takes little time or effort, does not unduly invade privacy, and does not publicly stigmatize sex offenders or make it difficult for them to adjust to community living.
Opponents of registration argue, however, that sex offenders should not have to endure it because they have "paid their debt" to society by already having suffered imprisonment. That argument suggests that, once an offender has been punished by the criminal justice system, the state is precluded from taking any further action, even of a civil nature, to protect itself from that offender's potentially dangerous future acts.
The state is, of course, prohibited from further punishing an offender beyond prescribed limits, but the constitution does not prevent a state from taking appropriate regulatory protective action against dangerous persons. As has been frequently remarked, "The constitution is not a suicide pact."
Critics of registration also argue that requiring sex offenders to register may have the paradoxical effect of encouraging reoffending, on the ground that the registration of sex offenders may confirm them in the recognition that they are "bad" and that they might as well act bad and reoffend. This type of assertion is, of course, purely speculative and unsupported by any evidence.
Opponents further contend that registration statutes foster a false sense of security and represent an expenditure of valuable funds that might better be spent on treatment and closer supervision of the most dangerous offenders. But registration is a relatively inexpensive process that diverts few funds or energies from other law-enforcement or treatment activities. Of course, if the state were to rely exclusively or too heavily on registration to protect women and children the argument would have considerable merit. But registration is only one approach among others in a multi-faceted attack on the problem of controlling sex offenses.
Anti-registration arguments, whatever their plausibility, have been overtaken by events. By November, 1995, forty-seven states had enacted registration statutes, and it seems likely that the few remaining states will enact such statutes in the near future because federal legislation now requires every state to enact a registration law within three years or lose ten percent of its federal crime control grant.(6) So far, all state registration statutes that have been challenged as unconstitutional have been upheld.(7)
At least one earlier argument against registration statutes has already proved partly unfounded. It had been claimed that these statutes would be not be complied with and that most offenders would evade registration. Of course, there will always be some evasion.
In New Jersey, 3,319 sex offenders have been registered as of January 5, 1996, most of them in the six months since the New Jersey Supreme Court upheld the registration statute. Data collected in a Washington state study indicates that there has been a relatively high level of compliance. In California, registration of adult offenders sentenced to prison in 1981 was 89 percent. Overall, the compliance rate for all sex offenders (both prison and non-prison releases) was 72 percent. In the state of Washington, in 1990, the most serious offenders registered at a rate of 73 percent.(8)
New Jersey's community notification law is highly controversial and will remain so until the United States Supreme Court rules upon its constitutionality. As of December, 1995, thirty states had enacted sex offender notification laws. New Jersey's statute, which drew heavily upon Washington's earlier enactment, makes community notification mandatory.(9) Its objective is to prevent some, though certainly not all, sexual crimes by notifying potential victims that a convicted sex offender is nearby.
The New Jersey notification statute and guidelines adopted by the Attorney General pursuant to it do not require a uniform type of notification. Rather, they provide a calibration of the degree of risk of further offenses for each individual sex offender. The statute establishes three different levels or tiers of notification, the placement of all sex offenders in appropriate tiers being the responsibility of each county prosecutor.(10) The prosecutors have been provided with general guidelines and a registrant risk assessment scale and grid to help them in their evaluations.
The first tier, for offenders found to be at the lowest risk of reoffending, requires only notice to victims and law enforcement agencies that are "likely to encounter" the offender. The New Jersey Supreme Court took pains to define "likelihood of encounter," although precise definitions are difficult.
For the court the factor most critical to a determination of "likelihood of encounter" is geography. The term includes an entire immediate neighborhood, not just the people next door, and also takes into account schools and other institutions in the vicinity depending on their distance from the offender's residence, place of work, or school. Other factors may also be considered, such as an offender's proclivity for being in certain places, even where these locations are not physically nearby.
Offenders are considered to be at low risk if they are under probation or parole supervision; are receiving therapy; are employed or employable; and are free of alcohol or drug abuse. Tier One notification, like registration, impacts minimally on the offender and is not a requirement of great concern.
Tier Two, designed for "moderate risk" offenders, requires notification only to such community organizations as the Boy Scouts, educational institutions, day care centers, summer camps, and the like, all of which are obvious targets for pedophiles. But the New Jersey Supreme Court limited Tier Two notification to organizations that are in charge of the care or supervision of women or children. The court also modified the terms of this tier to add the "likely to encounter" factor already used in Tiers One and Three but not originally included in the guidelines for Tier Two.
The leading factors to be considered in placing an offender in Tier Two are: failure to comply with supervision; lack of employment; abuse of drugs or alcohol; denial of offenses committed; a refusal to show remorse for offenses; a history of loitering near children or stalking them; making threats; and a profile that shows "some risk" of reoffending.
Tier Three, which applies to offenders for whom the risk of reoffending is highest, has generated the most vigorous objections. For such offenders the entire relevant community that is likely to encounter an offender may be notified-with placards, posters, and the like-an extent of notification that can have a severe impact on a convicted offender. The supreme court did, however, bar "community meetings, speeches in schools and religious congregations," which were originally provided for in the guidelines, because such activities would inform everyone in the entire community, not just those who are likely to encounter the offender.
The major factors to be considered in Tier Three include those that indicate a high probability of reoffending: such as repetitive and compulsive behavior; a sexual preference for minor children; a failure to respond to offered treatment or a refusal of such treatment; a failure to show remorse or a denial of having committed the crime for which the offender was convicted; where the offense for which the offender had been convicted was a violent act committed against a minor; where a weapon was used; failure to comply with conditions of supervision; and a history of recent threats. Among the cohort covered by Tier Three will be some extremely dangerous and pathological offenders who would also be subject to involuntary civil commitment, as discussed below.
Currently, of 1107 offenders who have been classified, approximately half of them (524) have been labelled "low risk," and thus subject to very little notification. Five hundred twenty-seven offenders have been classified as "moderate risk." Only six percent of the entire cohort (fifty-six offenders) have been put into the "high risk" category.
A significant procedural protection for offenders created by the supreme court is the requirement that when Tier Two and Three classifications are contemplated, judicial review of the intended classification should be made available to each offender prior to its dissemination so that, if he wishes, he can challenge his prospective rating before it is announced. There have already been challenges to prosecutorial determinations, and it is likely that there will be many more.
These reviews are to be in camera summary proceedings in which the offender has a right to a lawyer and is entitled to other appropriate procedural rights. Shortly following the supreme court's decision an effort was made by the state to enlist the services of the New Jersey bar to provide pro bono legal representation in these cases. When this was objected to by bar leaders, the state finally agreed to provide free legal services for offenders, using Public Defender lawyers.
The supreme court indicated its eagerness to implement its concern for effective judicial review by providing for the appointment of specialized judges to handle applications for review, thus hoping to insure review consistency. Further, a three judge panel will be named to evaluate whether there is disparity of treatment and to prepare a manual to assist reviewing judges.
Finally, to further promote uniformity of decision-making, the court urged the legislature to empower an appropriate agency to oversee tier classifications. Thus, the New Jersey court has made efforts to insure that the process by which classifications are made is a fair one.
A central constitutional question that faced the New Jersey Supreme Court was whether registration and community notification statutes violate the ex post facto, double jeopardy, cruel and unusual punishment, or bill of attainder provisions of the federal and State of New Jersey constitutions.
This issue requires an inquiry into whether the notification and registration statutes are criminal, excessively punitive, or regulatory. The reason for this is that the critical constitutional protections referred to here apply only to criminal statutes, or to excessively punitive statutes, and not to statutes that primarily regulate conduct.
The statutes' defenders argue that they are not criminal or punitive, but regulatory, inasmuch as their function is not to punish offenders, but to protect women and children against potentially dangerous offenders, the extent or degree of protection being determined by the extent of danger posed by each offender.
The state maintains that any punitiveness that may occur in the process of providing civil protection (and the likelihood of some incidental punitiveness is conceded) is an unavoidable side-effect and not "punishment" under the federal constitution. Opponents argue that, whatever the state's intention, the statute has a potentially severe punitive aspect, which transforms it into a punitive or criminal statute, triggering constitutional protections.
A number of pertinent decisions of the United States Supreme Court on this question are sufficiently ambiguous that the issue can legitimately be argued either way. One federal judge in New Jersey has ruled that the community notification statute is punitive, and one dissenting justice on the New Jersey Supreme Court also thinks so. As noted, the Third Circuit Court of Appeals in the Artway case refused to decide this thorny question. Many able federal judges disagree as to the tests to be applied.
The New Jersey Supreme Court ruled that the statute is predominantly regulatory and not punitive and that constitutional criminal protections do not apply. The court has taken the position that the most recent United States Supreme Court cases provide a two-part test. First, did the legislature intend punishment? Second, if it did not, is the statute nevertheless rationally related to a legitimate legislative goal and not excessive?
The New Jersey court concluded that the legislature did not intend to punish offenders and that the statute rationally implements a regulatory objective that is not excessive in relation to the goal of protection. This question will ultimately have to be resolved by the United States Supreme Court.
Critics of the notification statute have argued that the statute is not likely to accomplish its ostensible objectives, but will create additional harms for society and sex offenders alike. One such problem is vigilantism. Professor Bonnie Steinbock, in a thoughtful essay on Megan's Law in this journal, has argued that "the greatest harm posed by notification laws is vigilantism," referring to a New Jersey incident in which, shortly after the passage of the statute, two men, a father and son, broke into a house and beat an innocent man whom they erroneously thought was a recently released sex offender.(11)
The New Jersey Supreme Court rejected the argument that vigilantism would add excessively to the punitiveness of the notification statute. But harassment of sex offenders has occurred elsewhere, as well as in New Jersey. As of December, 1995, fifteen harassment incidents had taken place in Washington state.(12)
These incidents took the form of demands for the eviction of an offender from his apartment, demonstrations in front of an offender's house, and one serious case of arson at a house in which a released sex offender intended to live. Nevertheless, the New Jersey court took the position that vigilantism can be controlled. Indeed, in the incident cited by Professor Steinbock, one of the two vigilantes has already been severely punished, sentenced to a year in jail.(13) It can reasonably be hoped that vigorous action by police, prosecutors, and judges will deter further vigilantism.
The supreme court also addressed the issue of an offender's fourteenth amendment right to privacy. Conceding that community notification results in a significant loss of privacy, the court nevertheless found that, in balance, sex offenders' privacy rights are outweighed by societal rights.
In asserting the primacy of societal rights over privacy rights, the court accepted the legislature's judgment about the value of community notification, a judgment that has been sharply challenged by critics. Professor Steinbock, who argues that the "paramount issue is the protection of children," nevertheless faults Megan's Law as ineffective at best and at worst creating a false sense of security, actually exposing children to further risk. Steinbock points out that there are at least four reasons why community notification statutes are ineffective and unwise.
The first is that the statute applies only to a small percentage of child molesters since it refers to strangers and not to family members or friends who commit the largest number of offenses against children. This is the case only with Tier Three notification, in which offenses against a child within the immediate family is not a criterion for notification.
The widespread notification permitted by Tier Three is appropriate only in "stranger" cases. If a sex offender has been convicted of a crime against a child in his immediate family, the family knows about it and widespread notification is not necessary.
The notification statute does not apply to anyone (family member, friend, or otherwise) who has not yet been convicted of a sexual offense. If children are to be protected against non-convicted offenders, it must be in some other way, not through a notification statute. The notification statute does not purport to deal with all aspects of potential harm to children.
Surely we should not fault a statute because it does not attempt to solve all problems. The Wisconsin Supreme Court has referred to this attitude as an "all or nothing" approach, which would criticize a statute if it does not address every aspect of a problem. But states have the right to strike where the evil is greatest.
A second Steinbock argument is that it is difficult to predict which offenders will reoffend and which will not. But, as I point out in greater detail in my analysis of New Jersey's civil commitment statute in section three of this article, predictions concerning sex offenders, especially pedophiles, are now known to be much more accurate than has been previously supposed. Professor Steinbock relies on repudiated prediction studies for her criticism. The three-tier system is intended to provide a reasonably valid method for using critical data that will result in acceptably accurate predictions.
A third argument presented by Professor Steinbock is that offenders are likely to move from notified communities to others where there is no notification and will then reoffend elsewhere. This is likely to happen in some cases. Interestingly, a Washington study of recidivism by offenders subject to notification has shown that where offenders did reoffend, most of them did so in the same communities where notification had occurred, suggesting that many offenders subject to notification do not in fact move away.(14) It must also be kept in mind that increasing numbers of states will enact notification statutes, so that ultimately there will be fewer places to hide.
Professor Steinbock's fourth argument, a variant of her third, is that many offenders do not register or otherwise cooperate with authorities. As I have pointed out, certain states have shown a relatively high rate of cooperation, but some evasion of registration will continue to be a problem. New Jersey authorities have recently arrested sex offenders for failure to register.(15) Such arrests are likely to insure greater compliance.
There is as yet little reliable evidence on these issues since our experience with notification laws is relatively new. A more important question is whether one of the major objectives of notification-a reduction of reoffending-has been achieved. A recent preliminary study of Washington's notification statute conducted by the Washington State Institute for Public Policy indicates that during the first three years of the Washington law the reoffense rate of offenders subject to level three notification (nineteen percent) was not different in a statistically significant way from the reoffense rate of a control group not subject to registration (twenty-two percent).(16)
But the timing of rearrests in the two groups was significantly different. Offenders subject to notification were rearrested for new crimes twice as quickly as comparable offenders released without notification. Roxanne Lieb, associate director of the institute that sponsored the report, has suggested that the data may raise more questions than are answered.
Lieb asks, "What were the circumstances of the rearrests? Were they caused by citizens reporting tips to the police or due to closer police surveillance? Were the offenders motivated to commit crimes primarily because they were hostile about the notification? Is there a qualitative difference in the type of offenses that offenders subject to notification are arrested for; are they, for example, re-arrested for more minor sex offenses rather than for long-term sexual abuse situations? Do the arrests lead to convictions?" Lieb has concluded that a case-specific study is necessary to answer such questions.(17)
If a reduction in the re-offense rate is one of the main objectives of community notification, that objective seems not to have been realized as yet in the first three years of the operation of the statute in Washington.
It should be mentioned, in conclusion, that one unintended consequence of community notification in New Jersey is that it has diverted significant state energies and resources from what may be other more effective activities, such as implementation of the new violent sexual predator commitment provisions or providing after-care and follow-up treatment services for treated offenders. There is, after all, a limit to the amount of energy, resources, and money that a society will commit to combatting sex offenses. Ideally, those should be expended on activities that will yield the greatest results. This may not be the case with notification. If so, the hullabaloo about notification may be doing a disservice to the larger objective of reducing sex offenses. The third important statute in the Megan's Law package provides for the indeterminate civil commitment of mentally ill sex offenders who are regarded as too dangerous to be at large even though they have completed prison sentences for sexual crimes.(18) The New Jersey civil commitment statute is modelled in principle, though not in form, on the Sexually Violent Predator statute enacted in 1990 by the Washington state legislature.(19)
Offenders identified for post-sentence-termination civil commitment are likely to include those who, while still in prison, have made specific threats or plans to sexually molest women or children when they are released or whose history of violent sexual offences overwhelmingly indicates that future violent sexual offences are highly probable. This is a cohort of super-high-risk offenders who are too dangerous to remain at large and for whom even Tier Three notification is an inadequate protection. Many of these commit rapes or violently molest children shortly after being released from prison or a treatment center.
It is expected that only a small number of offenders will fall within this group. In the five years that have followed the enactment of Washington's civil commitment statute, only twenty-two offenders have been committed as sexual predators out of three thousand sex offenders released from prison during that time, or less than one percent of all released offenders.(20) Thus, the administration of the statute has been exceedingly cautious and conservative.
In August, 1993, the Washington civil commitment statute was upheld as constitutional by the Washington Supreme Court.(21) But two years later, in August, 1995, the statute was struck down as unconstitutional by a federal district court judge in Seattle, whose decision is now on appeal to the federal Ninth Circuit Court of Appeals.(22)
The involuntary civil commitment of violent sexual predators is based on the well-established police power of the state to civilly commit persons who are both mentally disordered and dangerous. Thus, there is emphasis in the statute on offenders whose dangerousness to others is caused by such pathologies as paraphilia and anti-social personality disorder, both included in the official Diagnostic and Statistical Manual, Fourth Edition, of the American Psychiatric Association, popularly referred to as DSM-IV.
The United States Supreme Court has indirectly validated the civil commitment of mentally ill and dangerous offenders who have completed a prison term as long as the standards and procedures used for their confinement are substantially the same as those that apply to all other civil commitments, as required by equal protection.(23)
The Washington statute provides for the confinement of dangerous sex offenders who are either "mentally abnormal" or who suffer from a personality disorder, usually anti-social personality disorder. Its drafters specifically avoided using the term "mental illness" in order to preclude complications in testimony from psychiatrists who do not regard pathological sex offenders as mentally ill or disordered, despite the fact that their disorders are included in the DSM-IV.
In ruling that the Washington statute was constitutional, the Washington Supreme Court accepted the term "mentally abnormal" as compatible with due process of law, but the federal district court in Seattle did not. This issue will have to be resolved in time by the United States Supreme Court.
The New Jersey legislature did not choose to enact a separate sex predator statute, as Washington did, but decided instead to amend its general civil commitment statute to accomplish the same objective. The New Jersey legislature rejected the term "mental abnormality," preferring to rely on the term "mental illness," which was already in their commitment statute, but it expanded the definition of mental illness to include an inability to control behavior, aimed at an inability of pathological sex offenders to control their deviant and criminal sexual behavior.
The New Jersey modification provides that the term mental illness should no longer be limited, as has often been the case in psychiatric testimony in the past, only to psychosis. The amendment provides that the term "mental illness" is to be interpreted as including any or all mental conditions, however labelled or defined, that result in the severity of impairments described in the statute, especially an inability to control sexual behavior.
The major constitutional argument against these civil commitment statutes is that they deny the committed sex offender substantive due process of law. The first branch of this argument is that the finding that the offender is likely to reoffend involves a prediction about his future behavior that it is impossible for anyone, even expert clinicians, to make with an acceptable degree of accuracy.
The contention is that these predictions produce a high proportion of "false positives," persons predicted to be violent in the future who turn out not to be. Some scholars, including Professor Steinbock in her recent article on notification statutes, claim that the false positive rate in predictions of future dangerousness is as high as two-thirds of all predictions, resulting in the unnecessary and unjust confinement of two out of three past offenders. For this proposition Professor Steinbock does not cite any original studies, but simply quotes from a student law review article.(24)
This one-in-three counter-intuitive conclusion, based primarily on the research findings of several social scientists, has been taken by many in the field as received wisdom for two decades. These findings have profoundly influenced mental health professionals, lawyers, judges, and even academics, furthering the objective of reducing the institutionalization of mentally ill persons whose involuntary commitment requires a finding of dangerousness. But recent and more rigorous research has demonstrated that the methodology of the earlier studies was gravely flawed and that the ominous conclusions drawn from them are unwarranted.(25)
More recent studies show that the earlier research is highly questionable because it excluded and ignored significant samples of persons; used inadequate outcome criteria; did not account for undetected or unreported violent behavior; and did not account for variations in the definition of dangerousness used by the predictors. These methodological inadequacies seriously distorted research outcomes and promoted invalid conclusions. Even the progenitor of the one-in-three position, Professor John Monahan, has changed his views.(26)
But there is an even more significant problem in the application of these data and conclusions to sex offenders. When applied to pathological sex offenders, as though members of the different cohorts are fungible, research results involving psychotic persons or general criminal offenders do not take into account enormous differences in pathology and behavior between the various cohorts.
Experts who have studied the behavior of pathological sex offenders point out that the nature of their pathology makes their behavior far more predictable than that of psychotic persons or criminal offenders. Dr. Vernon Quinsey of Queen's University in Ontario, who has studied sex offenders for many years, estimates that the prediction of future violence by certain sex offenders can realistically be expected to be in the eighty percent range of accuracy.(27)
Predictions concerning the future behavior of pedophiles have been shown to be particularly trust-worthy. The United States Supreme Court has stated that predictions of future dangerousness, especially by psychiatrists, are constitutionally valid even when the death penalty is based on such a prediction.(26)
A second argument in opposition to sex offender civil commitment statutes is that violent sex offenders are not mentally ill in a "medically recognized sense " and that legislatively labelling them mentally abnormal, ill, or disordered does not make them so. Of course, many sex offenders are not pathological, but, as pointed out earlier, the civil commitment statutes dealt with here do not address them. The statutes apply only to offenders whose pathologies fit within the DSM-IV or who have comparable disorders not yet included there.
A third argument is that treatment is a necessary requirement for civil commitment and that treatment for violent sex offenders, because totally ineffectual, is a hoax. If so, it is claimed, the civil commitment of sex offenders is really punishment in disguise.
There is today much controversy on the question of the efficacy of treatment for sex offenders. While some experts claim that treatment can be effective if properly administered to offenders motivated to change, there are many studies in which the results disparage the effectiveness of most treatments. Outcome studies comparing the recidivism rates of treated sex offenders with the rates of those not treated strongly suggest that in most cases treatment does not change offenders or reduce their recidivism.(29) Least of all does treatment change violent offenders. These studies have been challenged on the ground that they deal with earlier, less effective, forms of therapy.(30) But there are as yet no meaningful outcome studies of the newer therapies.
The Washington legislature took careful note of the difficulty of treating hard-core violent offenders, acknowledging that, unlike the case of other cohorts of mentally disordered persons, "the prognosis for curing sexually violent offenders is poor" and that the "treatment needs of this population are very long-term." Thus, there is no legislative hypocrisy and no pretense that treatment is sure to work. Rather, the emphasis of the statute is on the protection of women and children, coupled with a commitment to use whatever available state-of-the-art treatment is constitutionally required.
The United States Supreme Court has never ruled on the question whether it is necessary that treatment for civilly committed persons be efficacious. Treatment for some untreatable committed persons can never be. The question is whether we should discharge dangerous persons who continue to be mentally disordered simply because we cannot treat them effectively.
Existing law suggests that, for purposes of constitutional validity, it is sufficient that the state provide reasonable treatment in good faith, even if it may not be effective. Federal litigation underway in Washington state which challenges the quality of treatment offered to sex offenders there may ultimately result in a clarification of treatment standards.(31)
Ironically, there are promising organic treatments, such as Depo-Provera, an antiandrogenic medication which sharply reduces sex drive, that have not yet been adequately explored or used, in large part because of concern about side-effects.(32) Of course, such treatments do not "cure" offenders, but they do make it possible in some cases for an offender to control his behavior, especially if his diminished sexual needs are coupled with other forms of therapy. However, antiandrogenic treatment is not a panacea.
If criminal sexual behavior is to be controlled, such new treatment modalities may have to be employed, despite concern about unpleasant side-effects, as is already the case with the use of antipsychotic medications for persons with psychosis.
The major alternative to treatment is long-term imprisonment, which is recommended by many experts in the field. But long-term imprisonment can be excessively cruel to offenders who simply cannot control themselves and costly to society. Therefore, it is imperative that we continue to experiment with treatment and take it seriously.
Registration and notification statutes do not significantly change the behavior of a sex offender. They tend mainly to facilitate the functioning of the criminal process. Only successful treatment or incapacitation by institutional confinement can prevent sexual crimes. Civil commitment statutes accomplish this objective but apply only to a small, though significant, cohort of offenders.
The enactment and judicial review of the three new sex offender statutes discussed here reflects a substantial shift that is taking place in legislative and judicial emphasis away from civil libertarian concerns for the offender toward greater protection of vulnerable women and children. These new protections inevitably result in some diminution of the liberties of sex offenders, raising difficult constitutional and moral questions concerning the balance to be struck between these two antithetical social values.
Many of these critical issues are currently in litigation. On the registration and notification front, the issue of constitutionality of both statutes will ultimately be resolved only by the United States Supreme Court.
The conflict between the Washington Supreme Court and the federal district court on the constitutionality of the Washington civil commitment statute, which will affect as well the New Jersey commitment statute, is also inevitably headed for the United States Supreme Court. The Supreme Court of Wisconsin has recently upheld the constitutionality of its violent sexual predator commitment statute. What is happening in New Jersey, Wisconsin, and Washington is simply a prelude to further developments elsewhere in the country.
Although the emphasis in this article is on the three major approaches to the sex offender problem established by Megan's Law, it seems clear that what is needed is a carefully crafted comprehensive and integrated legislative plan that deals with all of the many facets of the sex offender issue, not just a few. Abroad attack on the problem of sex offenders should involve an examination of many issues not yet adequately dealt with either by legislatures or the judiciary.
One of these is endemic plea bargaining, which not only commonly results in inappropriately sharp reductions of sentences but also in serious sexual crimes being downgraded to minor non-sexual ones. In an earlier article in this journal, Professor Nathaniel Pallone called attention to the fact that Megan Kanka's killer, Jesse Timmendequas, could have (and should have) received a thirty-year sentence for his second sexual offense against children but instead successfully plea bargained and received only a relatively short term of seven and a half years at Avenel, of which he served six. The Timmendequas plea bargain was so commonplace that the prosecutor in the case did not even remember having recommended it.(32)
Other issues that should receive attention include the tracking and monitoring of repetitive sex offenders who are regarded as particularly dangerous. In addition, the practice of giving excessively lenient sentences should be evaluated. Many criminologists regard current sentencing for recidivistic sexual offenders as outrageously lenient and recommend lengthier sentences. Washington state has already increased penalties for many sex offenses. But it is also critical that judges use their discretion to sentence potentially dangerous offenders to the fullest extent permitted by statute. Judges often sentence offenders to concurrent rather than consecutive sentences for several offenses.
More care should be used in making determinations as to which offenders are appropriate for treatment. Sex offenders should not be sent to a treatment center unless it is determined that they are amenable to treatment, motivated to accept treatment for its own benefit, and not because there are other external advantages to being in a treatment center.
However compulsive and repetitive an offender may be, if he refuses treatment, he is not an appropriate candidate for a treatment center. He belongs in prison. For many years the administrators of Avenel, New Jersey's prison/treatment center, have ignored this obvious fact and have purported, without success but with stubborn perseverance, to "treat" hundreds of obdurate refusers who leave Avenel completely unaffected by the pitifully inadequate treatment provided there.
Offenders, whether they have been paroled or have "maxed out," should be provided with and be required to accept after-care treatment intended to reinforce the benefits of institutionalized treatment, and should be monitored. Professor Steinbock, commenting on Jesse Timmendequas' case, points out that following his discharge from Avenel, Timmendequas had no obligation to accept outpatient therapy or to report to authorities, although it was recommended that he undergo intensive therapy in the community following release.
Finally, appropriate programs for juvenile sex offenders, now notable by their absence, should be provided. Researchers have indicated that a large proportion of paraphiliacs develop their deviant arousal patterns during their teenage years. Whatever success may be possible in controlling their behavior may depend in part on assessing and treating their problems at an early stage.
This brief list of issues that have not yet been adequately considered is intended to be suggestive, not definitive.
Historically, many legislatures (the state of Washington is one noteworthy exception) have tended to respond to horrifying sexual crimes by hurriedly enacting "quick fix" statutes that soothe an outrage public by giving the appearance of dealing effectively with a serious problem, yet which tend too often to have an insufficient practical effect.
Moreover, legislatures typically ignore serious research and thoughtful analyses that might lead to more effective approaches to the curbing of sex crimes. Some of these legislative behaviors are cynically opportunistic, but just as often they reflect ignorance, lack of understanding, and impatience with a more searching approach to a complex problem.
The issue of sexual crimes has many dimensions, involving both the criminal justice and mental health systems. An effective approach to the curbing of sex offenses should involve not only the legislature, but also police, prosecutors, judges, treatment personnel, and researchers. Above all, legislators should recognize that they should respond to the sexual offense problem in a more considered, thoughtful, measured, and comprehensive way.
(1) N.J. Pub. L. 1994, c.133.
(2) The other six statutes provide that: (1) the murder of a child under fourteen may be punished with the death penalty; (2) life imprisonment may be imposed for sexual assaults on children; (3) a central registry for sex offenders is established; (4) lifetime supervision of compulsive sex offenders is required, (5) DNA testing of convicted sex offenders will take place; and (6) "good time" credits are denied to imprisoned sex offenders who refuse treatment when it is offered to them.
(3) Artway v. Attorney General of New Jersey, 876 F. Supp.666 (D N.J.1995).
(4) Artway v. Attorney General of New Jersey, Nos.95-5157,95-5194, 955-5195, Third Circuit Court of Appeals, April 12, 1996, at 8 and 13.
(5) Doe v. Poritz, 142 N.J.1, 662 A.2d.367 (1995).
(6) Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. No. 103-322, 170101, 108 Stat. 2038 (1994), codified at 42 U.S.C. 14071.
(7) For recent data and analysis of registration acts, see Note, Sex Offender Registration Acts: An Added Dimension to the War on Crime, 28 Ga. L. Rev. 729 (1994).
(8) S. Thomas & Lieb, Sex Offender Registration: A Review of State Laws, Washington State Inst. for Pub. Pol'y 10(revised Feb. 1995).
(9) N. J. Pub. L. 1994, c.128. For an early discussion of Megan's Law, see Montana, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey's Megan's Law, 3 J. L. & Pol'y 569 (1995).
(10) See supra note 5, passim.
(11) Steinbock, A Policy Perspective, Crim. Just. Ethics, Summer/Fall 1995, at 4-8.
(12) Personal communication with Roxanne Lieb, Associate Director, Washington State Inst. for Pub Pol'y, (Dec. 28, 1995).
(13) Megan's Law Vigilantes Jailed, Trenton Times, Aug. 27, 1995, at A2.
(14) See supra note 12.
(15) Four Men Indicted Under Megan's Law, Trenton Times, Dec. 24, 1995, at A4.
(16) Schram & Milloy, Community Notification: A Study of Offender Characteristics and Recidivism, Washington State Inst. for Pub. Pol'y (1995).
(17) See supra note 12.
(18) N.J. Pub. L. 1994, c. 128.
(19) Wash. Rev. Code [sections] 71.09 (Supp. 1990-91). For an extensive discussion of the Washington Sexually Violent Predator statute, see Brooks, The Constitutionality and Morality of Civilly Committing Violent Sexual Predators, 15 U. Puget Sound L. Rev. 709 (1992) and Symposium, Predators and Politics: A Symposium on Washington's Sexually Violent Predators Statute, 15 U. Puget Sound L. Rev. 507-911 (1992) for a variety of analyses.
(20) Nelson & Seven, Sex Predator Program a Center of Trouble, Seattle Times, Aug. 7, 1995.
(21) In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993).
(22) Young v. Weston, 898 F.Supp. 744 (D. Wash. 1995).
(23) Baxstrom v. Herold, 383 U.S. 107 (1966).
(24) See supra note 9.
(25) See the methodological analysis in Brooks, supra note 19, at pp. 740-750 and see also Litwack, Assessments of Dangerousness: Legal, Research, and Clinical Developments, 21 Admin. & Pol'y in Mental Health 361 (1994).
(26) Monahan, Risk Assessment of Violence Among the Mentally Disordered: Generating Useful Knowledge, 11 Int'l J. L. & Psychiatry 249, 255 (1988).
(27) V. Quinsey, Review of the Washington State Special Commitment Center Program for Sexually Violent Predators, 9 (Feb. 1992) (appendix to Review of Sexual Predator Program: Community Protection Research Project, Washington State Inst. for Pub. Pol'y).
(28) Jurek v. Texas, 428 U.S. 262 (1976) and Barefoot v. Estelle, 463 U.S. 880 (1983).
(29) See, e.g., Furby, Weinrott & Blackshaw, Sex Offender Recidivism: A Review, 105 Psychol. Bull. 3 (1989).
(30) Marshall, Jones, Ward, Johnston & Barbaree, Treatment Outcome With Sex Offenders, 11 Clinical Psychol. Rev. 465 (1991).
(31) See Turay v. Weston, No. C91 - 664, W.D.D.C. Wash., June 3, 1994 and Reports of Special Master, Dec.13, 1994 and Feb.13, 1995.
(32) Depo-Provera Therapy as an Alternative to Imprisonment, 23 Houston L. Rev. 801 note (1986). (33) Pallone, A View From the Front Line, Crim. J. Ethics, Summer/Fall, 1995, at 9-11.
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|Author:||Brooks, Alexander D.|
|Publication:||Criminal Justice Ethics|
|Date:||Jan 1, 1996|
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