In 1989, Earl Shriner raped and sexually mutilated a 7-year-old Tacoma, Washington, boy. Washington state officials later admitted they knew that Shriner—who had a 24-year history of sexual violence—would assault someone: He had bragged that he would while serving a previous prison term for sexual assault. But they were powerless to stop him; they couldn't keep him locked up after he had served his sentence.
The Shriner case outraged the people of Washington. There were calls for castrating rapists or giving life sentences to sexual offenders. But in their emotional state, Washingtonians may have chosen the worst option of all. After Shriner was arrested, the Washington state legislature unanimously approved the nation's first "sexual predator" law, allowing the state to lock up indefinitely anyone who has ever been convicted of a sex crime, if it can demonstrate that he has a "mental abnormality" that will cause him to commit another sex crime.
Since the law was passed, 15 men have been imprisoned as sexual predators. It's important to note that each of these men has already served his time for his past offenses. Thus, they aren't being jailed for crimes that they have committed but for crimes they might commit. This violates the most basic principles underlying our system of justice. A person should only be punished for the crimes he has committed, and that punishment should be proportional to the crime. Preventive detention is clearly unconstitutional, except when the person is mentally ill.
The Washington predator law gets around these thorny constitutional issues by simply declaring that some sexual criminals are "mentally abnormal" and leaving it to psychiatrists to figure out which ones meet the test. The problem is that most psychiatrists now regard sex offenses as antisocial acts, not as signs of mental illness. In a rare occurrence in modern society, psychiatrists have turned down the power the state wants to grant them.
The Washington State Psychiatric Association has filed a friend-of-the-court brief in a challenge to the state's sexual predator law, urging that the law be overturned. The brief states, "Sexual predation in and of itself does not define a mental illness. It defines criminal conduct." Moreover, studies of sex offenders in New York and in Massachusetts have been unable to pinpoint any signs that would indicate which ones will repeat their acts and which ones will never commit another sex crime. Since the law says that sexual predators can be freed only after they are "cured," and since psychiatrists can't cure sexual predation, the Washington psychiatrists say that the law effectively gives these men a sentence of life imprisonment.
It also removes from them any personal responsibility for their acts. They couldn't help themselves; they were sick. But why shouldn't we extend this notion to other types of criminals. Is a career thief mentally ill? Does a man convicted of numerous armed robberies suffer from a mental abnormality? There is just as much evidence to answer yes to these two questions as there is to say that sexual predation is a mental illness.
At its heart, the Washington sexual predator law is an emotional reaction to the too-lenient sentences levied on sexual criminals. In a recent study, economist Morgan Reynolds found that the expected sentence for rape is a mere 60 days. This probably isn't enough to deter many rapists, and it certainly isn't enough to provide retribution.
And when Wesley Allan Dodd was executed in January for raping and killing three children, one of the most shocking things revealed by coverage of the case was that, despite a history of sexual assaults against children, Dodd had never served more than 118 days in jail.
But the answer to this problem is to increase the penalties for sex crimes, not to pass a sexual-predator law of dubious logic and constitutionality.
This article originally appeared in print under the headline "Sex Crime and Punishment".