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It is hard to make any sense out of such a sentencing scheme. Ostensibly, the law punishes people for possessing child pornography because their demand for this material encourages its production, which necessarily involves the abuse of children. That is the main rationale cited in Osborne v. Ohio, the 1990 Supreme Court decision that said mere possession of child pornography can be banned without violating the First Amendment. But the minimal, indirect role that any one consumer of child pornography plays in creating a market for the stuff can hardly justify sending him to prison for years or decades, and this argument has little relevance now that people who look at child pornography typically get it online for free. “They are not protecting a single child,” says Dean Boland, the defense attorney. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.” The harsh treatment of people who like to look at child pornography seems to rest on the mistaken premise that they are equivalent to child molesters. In essence, they are being punished for the crimes they are expected to commit.
The same could be said of sex offenders who are confined indefinitely to mental institutions after they have completed their prison sentences. In the 1997 case Kansas v. Hendricks, the Supreme Court upheld this policy of post-sentence detention, ruling that a state law authorizing civil commitment of “sexually violent predators” was not punitive and therefore did not violate the Constitution’s Double Jeopardy Clause or its ban on ex post facto laws. The Court also concluded that the criteria for commitment satisfied the requirements of substantive due process.
Under the Kansas law, an offender can be committed if a jury decides he is likely to engage in “predatory acts of sexual violence” due to a “mental abnormality” or “personality disorder.” The law defines “mental abnormality” as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” Writing for the majority, Justice Clarence Thomas said these criteria “serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.” Thomas added that the “lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes [sexually violent predators] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.”
The thing is, the child molester who brought this case, Leroy Hendricks, did go through criminal proceedings, a fundamental premise of which was that he was able to control his behavior and could have chosen to act differently. Based on that premise, he was convicted of “taking indecent liberties” with two 13-year-old boys and served a 10-year sentence, whereupon the state declared that Hendricks could not go free because he was unable to control his behavior.
That was not the only apparent contradiction in the case. The Court ruled that indefinite commitment was not tantamount to a life sentence because the prisoner-cum-patient is “permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired.” At the same time, the Court said the state is not constitutionally required to provide treatment that might help eliminate the danger. Indeed, the state legislature suggested that sex offenders covered by the law cannot be successfully treated. The preamble to the statute called them “a small but extremely dangerous group of sexually violent predators…who do not have a mental disease or defect that renders them appropriate for involuntary treatment” under the state’s general civil commitment statute. These offenders, the law said, “generally have anti social personality features which are unamenable to existing mental illness treatment modalities.”
Predictably, offenders confined under sexually violent predator laws after completing their prison sentences are almost never declared well enough to release. In 2007 the Washington State Institute for Public Policy counted discharges by the 20 states that had implemented such laws at the time. Of the 4,534 offenders who had been committed since the first such law was passed in 1990, 188 (about 4 percent) had been released based on a “program staff recommendation.” According to 2011 legislative testimony by Rob Siedlecki, acting secretary of the Kansas Department of Social and Rehabilitation Services, only two out of 247 prisoner/patients (less than 1 percent) have successfully completed that state’s Sexual Offender Treatment Program since it was created in 1994. Taxpayers are paying a pretty penny for these dismal results. The Washington state study found that committing a sex offender cost an average of $97,000 annually, compared to $26,000 for a year of prison, a gap that a 2007 investigation by The New York Times attributed to “higher costs for programs, treatment and supervised freedoms.”
Contrary to the beliefs of legislators, there is not much evidence that psychiatrists or psychologists can predict which individuals will commit sex crimes. While sex offenders can be sorted into high-risk and low-risk groups based on their criminal histories, says Karl Hanson, the Public Safety Canada researcher, “the best that we can do for identifying high-risk offenders is identifying groups that have approximately 50 percent observed recidivism rates.”
What’s theoretically possible, of course, is not necessarily what government agencies actually achieve. A 2006 report from the Washington State Institute for Public Policy concluded that the methods used by the state to classify registered sex offenders by risk had “little or no accuracy in predicting sex offender recidivism.” By contrast, a 2004 study by Lynn University psychologist Jill Levenson, reported in the International Journal of Offender Therapy and Comparative Criminology, found that sex offenders recommended for commitment in Florida “scored significantly higher on actuarial risk assessment instruments” and were more likely to have “other risk factors that have been empirically correlated with sexual recidivism” than sex offenders who were recommended for release.
Even when evaluators do the best they can, per Hanson’s estimate, the most they can say is that half the offenders who meet certain criteria will commit new offenses if they are released, which means half will not. Such probabilistic assessments, even for crimes that have already occurred, are not usually considered sufficient grounds for depriving people of their liberty. “This is prison,” says Jamie Fellner. “We shouldn’t pretend otherwise. Basically, this is a form of preventive detention.”
When you strip away the quasi-medical language, what states are really saying when they indefinitely commit odious individuals like Leroy Hendricks to mental hospitals is this: “Whoops. We should have given this guy a longer sentence.” But it is no mere formalistic quibble to point out that a defendant’s sentence should be imposed at the time of his conviction as determined by a judge within the parameters set by statute. These are basic requirements of due process and the rule of law, and we make exceptions to them at our peril. Clarence Thomas may be confident that preventive detention won’t be extended to “other dangerous persons,” but I am not. It seems to me that all it would take is a new law attached to a new scientific-sounding label invented by legislators or grabbed from the Diagnostic and Statistical Manual of Mental Disorders. How many convicted criminals could qualify for a diagnosis of, say, anti-social personality disorder?
In a 2004 Criminal Law Bulletin article, William Mitchell College of Law professor Eric Janus argued that “sexual predator laws provide a model for undercutting…constitutional protections.” The process, Janus said, starts with a universally despised group of people who, like suspected terrorists, attract no public sympathy. He warned that “we are at risk of becoming a ‘preventive state,’ in which the paradigm of governmental social control has shifted from solving and punishing crimes that have been committed to identifying ‘dangerous’ people and depriving them of their liberty before they can do harm.” To most Americans, I fear, this prospect is not nearly as scary as the possibility that a sex offender lives down the street.
Senior Editor Jacob Sullum (firstname.lastname@example.org) is a nationally syndicated columnist.