The New Outcasts

Civil commitment is a sanitized term for statutes that keep sex offenders behind bars long after they have served their prison sentences. Indefinite commitment laws of this kind have been rapidly increasing around the country, and thousands of people are being held far beyond their actual terms. As sure-fire vote-getters in the wake of a handful of high-profile sexual abuse murders, such laws are to a large extent politically driven, with little thought given to unjust consequences. The latest such law, the 20th, was passed in New York. Governor Eliot Spitzer signed legislation in mid-March that he claims will become a national model.

Civil rights and prisoners’ rights advocates correctly point out, however, that civil commitment legislation incarcerates a person not only for crimes he has committed, but also because of crimes he might commit. What is often overlooked, too, is the fact that the vast majority of child molesters are not strangers, but relatives or family friends of the victims. And contrary to popular belief, once-caught sex offenders have a very low recidivism rate. The Bureau of Justice Statistics found in a three-year study (2001-4) that only 5.3 percent of people arrested for sex crimes were rearrested for a later sex offense.

The U.S. Supreme Court approved the constitutionality of the indefinite detention of sex offenders in a case brought in 1997 in Kansas, so long as they receive treatment. And skilled treatment can indeed be effective in reducing recidivism rates. According to researchers at the National Center on Institutions and Alternatives, reliable studies indicate that high quality programs do work. But in some facilities to which offenders are sent after completing their prison sentences, the treatment may be of poor quality, administered by minimally trained therapists. According to Jerome G. Miller, co-founder of the National Center on Institutions and Alternatives and himself a therapist, civil commitment laws have birthed a therapy industry.


Even if sex offenders do not remain physically confined after completing their sentences, their lives are so constrained by residency restrictions that homelessness becomes a real possibility. There are laws that prohibit them from living within a certain distance of schools, playgrounds or other places where children gather. Registries of sex offenders now exist online, with close to three-quarters of a million names. Mandated community notification may include the circulation of flyers with photos of released offenders, which can make it impossible for ex-offenders to find a place to live.

Miami offers an extreme example of the lengths to which residency restrictions can go. Aware of the inability of a group of released offenders to find housing in communities reluctant to accept them, the state’s corrections department finally allowed the men to live below a Biscayne Bay causeway. Their belongings in plastic bags, they sleep on mats on the pavement, with the rumble of cars overhead. The Miami situation, Dr. Miller told America, is a sign of where the laws are leading: taking residency restrictions policies to an extreme.

The danger of harassment and vigilantism becomes all the more likely too. The homes of released offenders have been shot at and even set on fire, in order to drive them away. Vigilantism can lead to murder. In April of 2006, two released offenders were shot dead in Maine. Both were listed in sex-offender registries with their names and addresses. One victim was a man who, at 17, had a relationship with his 15-year-old girlfriend. A legislative proposal in Ohio would require convicted sex offenders to have green florescent license plates on their cars. Such tactics would surely attract harassment or even violence, and be tantamount to a modern form of the scarlet letter.

Emotionally driven laws that not only punish sex offenders but also push them to the edges of society are counterproductive. Researchers at the National Center on Institutions and Alternatives point out that if we truly want fewer victims, the focus must be shifted from more and more punishment to the actual funding of treatment programs, as well as research. Fred S. Berlin, M.D., founder and executive director of the Johns Hopkins Sexual Disorder clinic in Baltimore, Md., has observed that the issue is not solely one of criminal justice, but also a public health matter, an aspect of the situation that is largely overlooked. It is time to stem the rush to enact more demonizing laws that are both unjust and irresponsible, stemming as they do from extreme cases that hold the popular imagination in thrall.

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11 years 10 months ago
You have been rather reckless in your use of examples to invigorate the feeble argument that sex offenders are the victims of society instead of the children and women whom they have abused. I find it impossible to believe that your example of a 17 year old boy and his 15 year old girlfriend are the norm for sex offenders since, probably from the time of Adam and Eve, half of the human race was conceived by this age group. The truth is that pedophiles and rapists as well as batterers and incest perpetrators, in fact all perpetrators of violent sex, are the norm. And it is these persons whom society wants to protect children and all the vulnerable from. You claim that the rate of recidivism among once-caught offenders is only 5.3% if they have quality treatment. What quality of treatment did the clergy have who continually offended, were caught, received therapy, were reassigned and offend again and again and again traumatizing multiple victims? Over and over again psychologists have said that it is next to impossible to change a person's sexual orientation. If that orientation is directed toward children or involves violence it is going to stay that way regardless of what the quality of therapy is. I don't want to lynch anyone. In fact I am a political and social Liberal, but I am also a realist. Until science and society have determined a more effective way of keeping those at risk from being harmed the offenders need to be identified and their whereabouts known. Although there is a statute of limitation on acts there may be none on their consequences. Anyone who gets convicted of drunk driving too often or under certain circumstances can lose the right to drive for the rest of his/her life. Staying sober does not affect the penalty once it has been imposed. Intent does not seem to come into play in these circumstances. As a mother and grandmother I want the real victims protected. Let's not be disingenuous about what's really going on. Julia Hamilton
11 years 9 months ago
I have written you once by regular mail, once by e-mail to your "letters" dept. and once in this form of e-mail. No sign of my comments anywhere. I strongly disagreed with the editorial. Was that the problem? Julia Hamilton
Thomas Carpenter
11 years 9 months ago
Look around the rest of the world to see how this type of aberrant conduct is dealt with. A key concept that my Jesuit education instilled in me fifty years ago is that if one is responsible (public official) for the wellbeing of others (the children of our society), whatever his personal inclinations in charity to a fellow son of God, he has overriding obligations in justice to protect the truly innocent (the children). Another old time concept, the exception does not make the rule. A law of general application will misfire a portion of the time. No justice system is perfect. So, please do not use the exception (17 year old who committed statutory rape) to prove your point. In addition to philosophy at Loyola - Chicago, I studied law and practiced for over 45 years. I grow weary of the increasing trend to be more concerned about the perpetrator than the victim. I believe there is still some validity to the old common law concept of treating the "outlaw," who has placed himself outside of the King's peace by breaking the King's law, as outside the King's protection. Society has a right and an obligation to protect itself. Tom Carpenter


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