Minnesota Proactively Cracks Down on Sex Offenders

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Here's an Associated Press story about Minnesota's decision to lock up indefinitely about 40 sex offenders who have already served their sentences for their crimes. Says Attorney General Mike Hatch:

We have approximately 40 sexual predators who are unable to control their sexual impulses on the street, or about to be on the street, due to the failure of the department to do its job.

The criminals in question are "Level 3" offenders, meaning they have been designated as high risks of committing more sex crimes. (As Thomas Szasz wrote in this Reason article about Catholic priests-pedophiles, it's far from clear whether sex criminals in general are more likely to repeat their crimes).

The impulse to round up such people is totally understandable but it also flies in the face of a criminal justice system predicated upon serving time for past crimes. And it obviously opens up major civil liberties issues–and creates a precedent for proactively locking up other sorts of potential criminals, too. At least 16 states currently allow for the indefinite lockup, typically in mental hospitals, of past sex offenders.

This much is clear: This is as much (or more) a political issue as it is a criminological one. Attorney General Hatch is, says the AP, a "potential Democratic candidate for governor in 2006" and "has accused Republican Gov. Tim Pawlenty's administration of not doing its job or following the law."

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  1. Jennifer,
    One reason I am hesitant to treat sex crimes as some extra special heinous category of crime is alluded to in your post. Sure we can all agree to some awful punishment for a serial rapist, but when statutory rape somehow ends up under the same umbrella it seems unfair that some otherwise decent people have to talk to their new neighbors everytime they move because they happened to turn 18 before their girlfriends. Then again I’m also pretty skeptical about a one size age of consent anyway, since different people reach sexual maturity at different ages.
    The situation reminds me a little of the narcoterrorism bill that would turn regular drug offenders into terrorists, subject to a secret trial and execution but don’t worry because we’ll only use the law against terrorists.

  2. “Sex criminals are not insane in the legal sense but at the same time they face unusual temptations and pose an unusual risk to the rest of the population.”

    Again, assault, robbery and homicide convicts re-offend at about the same rate as sex offenders. Psycho thugs are released every day from prison because they completed their sentence. Why are sex offenses so special that they warrant torturing the constitution and the entire history of criminal law?

  3. I’m with Ruthless. Legally, Constitutionally, preventive detention and state-sponsored maiming are violations of presumptive innocence and unecessary cruelty.

    If a vicitm maims an attacker in process, or a mob lynches a suspect, let that victim or that mob stand trial for their alleged crimes. Then leave it to a fully-informed jury to determine the outcome.

    Shannon: If the objects of my desire were widely known to possess arms and be skilled in their use, it would greatly help my effort to resist temptation. Much more so than the abstract threat of a court.

  4. Wanted to point out a semantic detail: the issue here is not people who have ‘aberrant sexual desires’ or any sort of ‘desire’ for that matter; we all have that. The issue is people who have a history of causing deliberate, unwilling harm to other people in the name of satisfying those desire. You there, Mark Fox–I’d imagine there are a lot of gunless women whom you find desireable, but how many of them have you raped lately? Probably none.

  5. I’ll point out that this is one of those ugly points where textbook libertarian impulses flounder against the very real base function of civilization to protect it’s members against threat. We have given up certain rights to be part of society (specifically, to pre-emptively kill those we consider a threat) but if those functions are not met, the consequences (vigilantism, gang membership, private justice) are more severe than the problem of a few habitual criminals not getting their due process.

  6. Jennifer: At some point society may decide I am a threat to unarmed women (or ducks or whatever O’Reilly is into these days). That determination may be made because I finally succumbed and took a Mallard unwillingly, or it may be made based on a profile of legal behaviour pointing toward likely assault. If it acceptable to punish people for possible future acts, what check is there against society cracking down upon minorities it fears?

    The first line of defense, and the primary agent of responsibility for individual safety, is the individual. It nice that those gangs with badges might come to save me, although usually a bit too late. The greater a society delegates its protection to the state, the greater the need for preemptive punishments. Since we cannot know the future certainly, preemptive punishment and the state-reliance it stems from leads to more incarcerated innocents.

    More acceptable to me might be stronger sentences on the first conviction. “Multiple-strike” sentencing arises from some notion of rehabilition. If there’s a possibility of rehab, then it seems preemptive punishment is even more arrogant. How long must one remain incarcerated to prove there’s no chance of doing a crime the prisoner has not yet committed? If society decides some things are not worth the risk of recidivism, mete out stronger punishment in the first place. It might help me walk quietly past those tasty waterfowl. Either way, I’ll know the rules before I go in.

  7. On the one hand, I’m nervous about keeping people imprisoned indefinitely past the end of their official sentence.

    On the other hand, I’m nervous about letting sex offenders run free.

    I hear Michael Jackson is short of cash and looking to sell his ranch. Maybe we could put up a big fence around it, and anybody who has completed his sentence but still isn’t safe to be in society can live there. Among the inmates there’d be plenty of priests to attend to their spiritual needs, and Michael could attend to their entertainment needs. And we’d all be safe knowing these guys are locked up.

    Come on, what say you? 🙂

  8. Another side issue in this. When the Minnesota sex offender finishes his sentence in the corrections system it has been costing about $30,000 a year. At the end of the sentence he now goes to a secure hospital-type setting that costs about $80,000 a year – for the rest of his life.

  9. Mark Fox–

    I am operating under the assumption that you have not committed any rapes, let alone violent ones, in the past, which is why I am not worried about the theoretical possibility that you might hurt someone. If, however, you were approaching the end of a prison sentence served for doing some unspeakably hideous things to women, and you were talking about how much you looked forward to getting back to your old ways, then things would be quite different.

  10. Regardless of the arguments in fact for pre-emptive detention of certain types of offenders (or all types?), there are no solid arguments in law. The notion that individuals can only be punished for acts they have actually committed, and that they are presumed innocent until convicted of such acts, is the ABSOLUTE basis of our legal system. If the majority decides it is willing to live without those protections, then that’s one thing, but we simply cannot allow the state to bypass critical portions of the Constitution and not even raise a whimper. Remember that whole thing about ‘nation of laws and not of men’? The Founding Fathers were smart chaps – they’d read their Thucydides…

  11. I believe that for many pedophiles, there is a definite insanity aspect going on, and as such, they may well be worthy of continued detention until ‘cured’, while acknowledging that said cure may never be realized or for that matter even very well defined.

    This is fresh on my mind on accounta the news this past Monday that a former business associate of mine had been extradited from Texas back here to Florida on local charges.

    Dude is 39 years old and had a previous conviction for sexual battery of a 5 year old boy in 1985 in Texas. He did 10 years in Texas and then relocated to Florida as a registered sex offender in 1997.

    He and I shared some contracts (we were both residential gardeners) during 2000 and early 2001, then stopped associating due to simple incompatability in business.

    About 18 months later, in Oct 2002, local police were alerted that he had for quite some time been using a number of local 11-14 year olds (male and female) to assist him in mowing lawns for his business. One of the parents found him his RSO on the Florida website and began questioning his child. This led to revelations that Dude had been routinely messing with them, and also taking photographs of them in nude and compromising poses. He heard of the police inquiries and bolted town, then was found in Texas about 14 months later.

    Anyway, I heard about the charges due to local newspaper coverage and I was obviously wierded out.

    HOW does the thought process work?

    Dude KNOWS that his actions are not only morally critical, but also strongly illegal. But HE KEEPS ON DOING IT.

    SURELY he knows that at some point the word is going to get out, given that a number of kids are involved.

    Isn’t that therefore a form of insane thought processes? Or is ‘irrational’ a more accurate term?

  12. Oh, I should note that I was unaware of his criminal record history until the news broke in 2002. I’ve never had that happen with anyone else.

    Anyone else in here ever had someone in their life be revealed as a convicted sexual offender only when they reoffended?

  13. I’m always a little surprised that the courts allow this kind of detention order, which seems to me to be prima facie illegal – the state is holding individuals based on an unprovable presumption of what their future actions might be… one, moreover, that cannot be meaningfully challenged in court since it is purely subjective. Almost by definition, there cannot be a clearer violation of the statutory rights to presumption of innocence and due process. I’m not usually one to give credence to ‘slippery slope’ arguments, but as our government at all levels develops an unhealthy taste for pre-emptive detentions, one has to ask ‘where is it going to end?’ And where is the outrage? In a rational country, this is the kind of thing that should ignite a furious debate and leave a trail of ruined political careers – but I suppose that has become too much to hope for in the home of the free. Have we really come to this?

  14. So what’s the solution? Life sentences? Just let ’em out when their sentences are up? This is just anecdotal evidence but a woman I know was attacked last year in a parking lot–in broad daylight, in front of a strip mall–by a rapist who had been out of jail 10 days. (Fortunately for her, she knew he was out there, and she knew how to defend herself, and she beat the hell out of him.)

  15. I think they claim that 50% of ALL inmates re-offend within 3 years of release, about the same rate as sex offenders. That sex thing just drives us Americans nuts.

    Incidentally, check out the eighth Amendment. One sentences that is clear as a bell. We routinely deny and set excessive bail, though.

  16. I think the criminal-model and the disease-model of sex crimes are both fatally incomplete. Each is half-right, half-wrong.

    The criminal-model is correct that individuals can choose whether to commit the crimes but is incomplete in that it fails to recognize that the sexual desire that presents the choice in the first place is deeply rooted in an individual’s psyche. No matter, the social condemnation or the criminal penalty, the sexual desire will always exist.

    The disease-model is correct that most sexual criminals are driven by deep rooted sexual desires, many of which spring from childhood abuse, but it ignores that the existence of a destructive desire does not mean that a person cannot choose to not act on that desire. Most people who were raped as children do not rape children (or anyone else) in turn. Most people with pedophiliac desires never act on them.

    The problem for the criminal justice system springs from the inherency of the desire. People who commit economic crimes may find other means of dealing with their desire for easy money but we have no reliable means of altering an adult’s sexual desires. Just think if you woke up tomorrow to discover that your sexual attractions to blonds, red heads, brunettes or fill-in-the-blank was suddenly illegal to act upon. You couldn’t just turn that attraction off like a switch. You might choose to conform to the new law but the attraction and the temptation would always be there. Could you trust yourself enough to be sure you would never succumb?

    People with destructive sexual desires who do not act upon them are in some sense heroic. Most cannot find true sexual and emotional gratification except in the forbidden sex act. They essentially adopt a life of celibacy to avoid hurting others. It is a hard thing to do.

    Preventative detention seeks to create a solution that address both the criminal and mental health aspects of sex crimes. Sex criminals are not insane in the legal sense but at the same time they face unusual temptations and pose an unusual risk to the rest of the population. Once a person demonstrates a repeated tendency to hurt other people in pursuit of their own sexual gratification, I think it fair to stop thinking in terms of balancing the scales of justice for each individual crime and start asking how to stop the person from ever doing it again.

  17. Life sentences for certain sex offenders is being proposed in MN. It’s a story here because a just-released sex offender kidnapped and killed (presumably, she hasn’t been found yet) a college student from a mall. She was good looking and had a lot of friends so it made a good story.

    I’d prefer life sentences that can be shortened to shorter sentences that are later extended indefinitely. Not sure if the offender in this case would have been sentenced to life under the proposed law. And that doesn’t settle what to do with people who have offended and are nearing release.

  18. As we Southerners like to say: Some people just need killin’.
    But the idea of governments ramping up… I’d much prefer vigilante justice.

  19. Pike Poles. Thats the solution.

  20. I remember reading in a medieval history book that old-fashioned amputation punishments–say, cutting off the hand of a thief–were not considered barbaric at the time; instead, they were considered a merciful and humane substitute for execution. At the time, I guess that really was a step forward.

    As for this topic, I hesitate to even mention this but I wonder if it might not be more humane to offer such sex criminals a choice: stay in prison the rest of your life or have your testicles surgically removed. (When I say sex criminals, I am talking about actual violent rapists, not 24-year-olds who have consensual sex with 17-year-olds.) Eunuchs don’t rape, and they’re too passive to do much of anything else, either.

  21. Gadfly: Then we must lock up the sky! The weather may kill our children at any moment.

  22. If I remember my FBI data correctly, the last recorded recidivism rate for sex offenders for sex offenses is something like 6%. The recidivism rate regarding general criminality for sex offenders is just shy of 50%.

    So, if a sex offender lives next door, it’s more like a 6% chance he’ll commit a sex offense, but almost 50/50 he’ll steal your car or something.

    I think of all ex-cons, 1.5% commit sex crimes as their crime on release.

  23. You’re right, of course. The definition of recidivism (re-arrest? conviction? misdemeanor? felony? parole technical violation?) is so murky that it’s almost worthless. I mentioned worse-case rates which are those that the media always uses.

    The chance of you being abducted and raped by a stranger is less than being struck by lightening.

  24. If you are going to use stats back them up!

    http://www.ojp.usdoj.gov/bjs/abstract/rsorp94.htm
    http://www.ojp.usdoj.gov/bjs/pub/ascii/rsorp94.txt

    Recidivism studies typically find that, the older the prisoner when
    released, the lower the rate of recidivism. Results reported here
    on released sex offenders did not follow the familiar pattern. While
    the lowest rate of rearrest for a sex crime (3.3%) did belong to the
    oldest sex offenders (those age 45 or older), other comparisons
    between older and younger prisoners did not consistently show older
    prisoners’ having the lower rearrest rate.

    Registering our disapproval
    It is impossible to open the papers at the moment without noticing that they are even more full than usual of horrific accounts of sexual offences against children. In recent weeks, we have had the convicted sex offender who escaped while on a day trip to Chessington Zoo, the schoolgirl murdered in her dormitory while on holiday in France and the reports of the trial of Howard Hughes, accused of murdering Sophie Hook. This media interest has coincided with the publication of the Home Office Green Paper, “Sentencing and Supervision of Sex Offenders”. This document also makes for horrific reading. The aim of the proposals is to compile a register of convicted sex offenders. Anyone on the register would have severe limitations placed on their subsequent freedom of action, including a requirement that they notify the police of any change in their address, a prohibition on attempts to gain employment involving access to children, a restriction on the access of individuals accused of sexual offences to the victim statements and photographs which make up the case against them, forcible DNA sampling of sex offenders and supervision of sex offenders following their release. All these constraints are placed on sex offenders interminably.

    These proposals undermine basic rights and freedoms. They encroach upon the freedom of movement of sex offenders and upon their right to know the case against them. More fundamentally, they are inimical to the basic principle of justice that people are tried and punished for a particular offence, and that once they have paid for their crime with a period of incarceration, they are accepted back into normal society on the same terms as other citizens. These proposals remove any possibility of a punishment being spent. Their significance is that they mark a shift from policing offences to policing a type of person: the object of the criminal justice system is no longer the sexual offence but the sexual offender.

    The importance of this shift is that it rejects the notion that people can and do change, that yesterday’s criminal is tomorrow’s law-abiding citizen, and vice versa. However, according to the Green Paper, this proposition does not hold good for sex offenders because “men convicted of sexual offences as adults will often describe a history of (mainly undetected) sexual offending which began in childhood or adolescence and which involved an escalation to more and more serious offences; once a pattern of repeated sex offending is established, the risk of re-offending persists over many years, perhaps for life” (p 2). No evidence is produced by the Green Paper in support of these assertions. In fact, the research disproves each one.

    Nobody can establish the number of crimes of any nature which go undetected, and this “hidden crime” argument is always trotted out in support of the latest panic about crime. However the assertion that sex offenders have a history of sexual offences is found to be based on the assumption that sex offenders underestimate the number of offences which they have committed: it is as least as plausible that they exaggerate in order to emphasise their prowess. This hypothesis is supported by the evidence, which shows that the vast majority of sex offenders admit to no more than one sex offence, while a tiny majority claim a huge number (Abel et al 1987): this sounds more like a handful of braggers than widespread recidivism.

    The evidence does not support the assertion that sex offenders work their way up the scale of offences against children (Canter and Kirby 1995). Indeed, those who did reoffend tended to stick to the same type of activity (King 1996). Finally, and most importantly, the evidence does not support the Green Paper’s assertions about the recidivist nature of sex offenders. Sex offenders have a lower rate of recidivism than criminals generally (Adamson 1996) and only 10% of sexual offences against children were committed by people with a previous conviction for a sexual offence against a child (King 1996). In effect, therefore, the overwhelming majority of people convicted of sexual offences (90%) cannot be shown to reoffend.

    The assumptions in the Green Paper are groundless. More fundamentally however, the Green Paper’s attempt to regulate a type of person, the sex offender, rather than to police particular sexual offences, is fundamentally flawed. Although we may have a strong image of a sex offender as a socially inadequate misfit, Canter and Kirby found that sexual offending against children did not equate with social ineptness, that the sex offender was far more likely to be married with children of his own, and to fit in. Interestingly, they also found that where child molesters did have previous convictions, these convictions were more likely to be for theft or burglary than for previous sexual offences against children. Our image of the local pervert is more likely to be based on the fact that he doesn’t wash and scratches himself in public than that he is actually a risk to children.

    On a broader level, this research provides support for the view that people change. The most common explanation for the sex offender these days is that he is trapped in a “cycle of abuse”: because he was the victim of abuse as children, he is now the perpetrator. Although it is true that people are formed by their experiences, they are not fixed by these circumstances: they are constantly made and remade by their changing experiences: we recreate ourselves every day of our lives and adapt to the different situations in which we find ourselves. It is true to say that the boy who commits a sexual offence at the age of seventeen is no longer in existence when he comes out of prison aged twenty one: he is a different person.

    Not only are we not fixed by our experiences but we are not determined by them: we decide how to react to our experiences. The majority of people who are the victims of sexual offences as children do not grow up to become sex offenders. Whatever may have happened in a sex offender’s childhood, as a conscious adult he makes a choice when he commits a sexual offence, for which he deserves to be punished. Ironically therefore these proposals, while removing the rights of sex offenders, ultimately allow them to evade responsibility for their offending, for if there is a type of social inadequate who is programmed to continue committing sex offences whatever punishment or treatment is meted out, then ultimately it is not his fault.

    These proposals contribute to a culture in which all of us, not just sex offenders, are positively encouraged to evade responsibility for our actions. Watch any episode of Oprah Winfrey or Vanessa, and you will see people wheeled out to explain how they cannot help themselves, how they are the victims of anorexia or compulsive shopping because of their childhood experiences. The label which accompanies these specimens, for example, “woman who cannot trust men since her first boyfriend cheated on her” underlines the point that we are deemed incapable of controlling our destiny, that we are not the products, but rather the victims, of our circumstances. The difference between Oprah’s chat show and Michael Howard’s Green Paper is simply that while the former provides us with excuses for our actions, when Michael Howard substitutes himself for Oprah Winfrey, he actually codifies these excuses in law.

    Although an abdication of responsibility for our actions has struck all of us as attractive on occasions, it denies us the capacity to change, and the possibility of learning from the past. The thinking behind the Green Paper condemns us all to repeat our mistakes ad infinitum. It is this capacity for conscious change, for conscious adaptation to new circumstances and for learning from the past which sets humanity apart from all other animals. Ultimately it is only if we accept that we can and do change ourselves according to our circumstances that we have any hope of realising that we can actually change the circumstances themselves.

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