Featured Issue: 4-8-05
Why the Child Predator Act of 2005
is BAD LEGISLATION!
Part-II: What Congress and Legislatures have failed to consider.
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4-8-2005 US Congress:
The Child Predator Act of 2005 |
.While the Child Predator Act sounds like it would be a very good law, what the act does is distort the current definition of "Predator." Under this proposed law an offender automatically becomes a "predator" if the victim is 13 years old or younger; a simple kiss would make a predator. The circumstances of the crime have no bearing on the determination of whether the offender is a "predator."
At first blush that sounds fine, however, that means juvenile and young adult offenders, with those circumstances would automatically be DECLARED a "Predator." (married couples in states that permit 13-year olds to marry would be predators) A review of our "Politically Correct? Incorrect?" will reveal many cases that should not be predators. This bill, as written, would result in many tragic cases, young people destroyed for a lifetime.
In Part-I we showed that "high recidivism" is and has been a myth. So far legislatures have taken the tact that, to prevent further recidivism, one must monitor prior offenders when they return to the community. Part-II picks up monitoring after the period of parole or probation, or other form of state control, with a flashback covering when therapy should be taken.
The Megans' law type of monitoring is address-monitoring, a mere illusion, as enacted is a feel-good law. The illusion of address-monitoring begins by knowing where a registrant sleeps at night, but what about when he is on vacation, visiting relatives, or friends or celebrating a reunion. Often folks at a party may stay there rather than drive drunk. At all times he is free to roam wherever he choses.
Annually, or once a quarter, the registrant either, mails a notice sent to him -back to the registering agency- certifying his current residence, or the registrant presents himself to the registering agency to verify his residence. Maybe, just maybe, once a year or so, the registering agency sends someone out to the address to perform an on-site residence verification.
If a registrant fails to verify his residence, then he is considered missing, and an arrest warrant may issue. Technically, every moment in time that the registrant -is not in the physical presence- of agency personnel, he is missing because the agency does not know where he is. I.e., missing. The illusion of monitoring is apparent. Megans' laws are really nothing but address-monitoring laws under the pretext of public safety, an attempt to make the public feel good, and after 10 plus years they have been proven to be a failure.
Residency laws preventing former offenders from living (residing) within xx feet of schools, day cares, or other places where children congregate, are residence-exclusion laws prohibiting registrants from residing in that area. These too are ineffective, he can still go to the proscribed area. If residency laws were extended by some manner to prohibit offenders from venturing onto these proscribed properties, or areas, such person-exclusionary laws would not stop an offender if she or he chose to commit an offense.
Haste and poor vision results in ineffective laws:
Legislatures are mentally stuck in the mindset of address-monitoring and distance-monitoring, tethers and GPS devices, yes, they will tell you where a person is at any given moment, and they can be programmed to sound alarms when a person ventures into proscribed areas. Yet, as we have seen in Iowa and Florida, neither of these little girls homes could have been programmed as proscribed areas. Hence these devices are virtually useless to prevent recidivistic sex offenses, as each of these offenders could have been wearing them and still committed the same crime without anyone knowing in time to stop the offense.
The Congressional bill introducing Child Predator Act of 2005, is another form of address-monitoring, a law which makes life more onerous for prior offenders, and significantly harms some -juvenile offenders- (including their families) for a lifetime, and could cause more juvenile and young adult suicides. The bill -does not- focus on the root causes of new sex offenses, or non-illusory prevention. The bill in no way changes the offender. It is totally focused on control issues.
How many times should one trip over the same rock before recognizing it is time to do something about it; monitoring and exclusion laws simply do not work. A tremendous expenditure of money and police resources and they just do not work. There are those who wish to blame the offender, but they simply ignore the inherent illusion of the law. True longer sentences are a step in PUNISHMENT which hopefully will deter others from doing what some have done. I think that has been tried a few times and maybe have deterred some, but we still have new sexual offenses, including murders.
Know Offenders' Backgrounds:
Logic tells this writer that you must look closer at the persons committing new offenses, get into their backgrounds before leaving prison. It is ironic that, legislatures have enacted laws to require that businesses do background checks to prevent offenders from working around children, yet, legislatures have not grasped the concept of "background checking" and employed it to decide how to prevent recidivistic sexual offenses; legislators are stuck in the mindset of monitoring and exclusion laws. Ineffective!
Criminal Justice System:
In the background of every person who violates a law, is the criminal justice system. The courts sentence, the person goes to prison or jail, or is placed on probation. This period of time under state supervision is supposed to be the rehabilitation period. At the end of this period, assuming the person completes all that is required of him, the sentence ends and the person is considered rehabilitated and released back into the community.
This is precisely where so many states have failed in their duty to provide the means by which the person may rehabilitate themselves. This is the "background-period" where much can be done to assure this person has every opportunity to again become a productive member of society. This is where the person should be assessed and appropriate programming provided, programming that is geared to future safety of the community and rehabilitation of the person. Vision, is needed to get offenders to accept the programming, not force.
Apparently there is a question of how to handle folks who refuse therapy, or if forced become 'bad apples' and endanger others in their therapeutic efforts.
Given the essential nature of therapy and future public safety, it seems that judges would have a very easy path to resolve this circumstance as they already sentence folks in other crime types to take anger management courses, or how to be a parent, etc. and if they refuse these courses, or other adverse conduct, then they spend a significant time in a cell, until they recognize the value to them personally.
Judges have a way with words when needed, further, I seriously doubt any such order would be overturned on appeal.
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Let us look into the "background-period" of the offenders in Iowa and Florida who have murdered two little girls. Could those states have previously done something to lessen the risk to the community of these offenders? Yes!
Therapy during incarceration:
These two offenders, either, refused to take sex offender therapy (Iowa - Roger Paul Bentley [11]) or the state failed to provide sex offender therapy (Florida - John E Couey [12]), during the "background-period" of their prior sex offense. Accordingly they were released back into the community and their risk of reoffense was higher than it would have been if they had sex offender therapy during that "background-period."
To those who may claim that "therapy does not work"or that "there is no-cure," I have this response, you are absolutely correct, as long as states' fail to provide any "therapy" and do nothing to find a "cure" or an effective relapse prevention program. Thankfully this is not the attitude taken with most illnesses of mankind, like cancer. It is interesting that states have often said, we will do anything to prevent one-child from being harmed, but they then ignore the "therapy-cure" issues. It is also important to note that, the "cure standard" is not applied to anyone or anything else in life, it is an impossible standard for any human being, yet required only of sex offenders. I think it is further punishment by condemnation.
The following is said recognizing there will always be an exception to the rule, states need to have employees that -convince- sex offenders that "therapy" is a proper avenue, and I do not mean by force I mean by choice, further, states need to get away from the mentality of "further prosecutions" for acts revealed in therapy and provide offenders immunity from further prosecution -in moderation-, murder and maiming excepted. However, the second time through such a system, strict rules need apply.
If the true goal of states is "future public safety," then they must make concessions. Prosecutors do this all the time, even in cases of murder, why can it not be done for future public safety where sex offenses are concerned? Recognizing appropriate exceptions to a "concessions-rule," the revenge-mentality has proven not to solve the problem, throw it out!
Currently many states already have laws which permits juveniles or young adults to plead guilty to an the offense (some offenses excepted) and do probation, community service or something similar including therapy, then if all is completed without fail, no conviction is entered into the record and all files are sealed. States need a system likened to that, coupled with immunity from prosecution for revelations in therapy
(see 9th Cir Court of Appeals: USA -v- Antelope, January 2005) -and- [10] -and- [13], so that -victims are revealed and treated- -AND- offenders are treated, so they may return to the community with a low risk factor. Long term public safety!
Now, just in case there is a fraction out there who think the above "providing therapy scheme" is bunk, I ask them, why do so many states and the U.S. Supreme court believe in civil commitment? I.e., a period of time following a sentence where therapy is the rule. Civil commitment would be unconstitutional if the U.S. Supreme court found that its only purpose is, to house sex offenders forever or until their death.
Further, the U.S. Supreme court has also held, that "states have an interest in providing therapy in prison" (McKUNE, WARDEN, et al. v. LILE ) for the purpose of future public safety and required sex offenders in prison to take therapy. See also "Treating the Sex Offender at Any Cost: Fifth Amendment Privilege Against Compelled Self-Incrimination in the Prison Context" by Abigail E. Robinson (Excellent paper). Why should any state be allowed to eliminate therapy during the rehabilitation period? Alaska does because of its DOC director's belief that it does not work, absurd!
Once courts decide that, neither life without parole or the death sentence is appropriate in a persons criminal case, then states have the responsibility to rehabilitate at all costs because that offender is going to return to the community. On the point of "sex offender therapy" Iowa and Florida have failed these two little girls.
Registry fails because of focus on offenders' addresses:
News reports hark, do you know if a sex offender lives close to you, and police suggest check the registry so that you will be safe, legislators also carry the same messages. The registry, the Idol of Safety, or that is what they would have you believe, in reality it is an illusion of safety.
We have laws requiring employers to do backgrounds before allowing someone to work at a business if it involves children, and state agencies must also perform background checks before placing children in foster homes. When a person commits a crime and goes to court, they want a complete history of that person before sentencing, likewise in jail or prison. When sex offenders are released into the community, parole boards and probation officers make their decisions based upon the person's background.
Background, background, or the history, this is the most important factor, at least until the person is back in the community, then the importance changes, it becomes, the person's residence his address and maybe where he works too or what he looks like. So the prevailing theory becomes, the community is safe if they know where the offender lives, works and what he looks like.
The illusion of safety is embedded in the mentality of addresses and photos. This allows people to point the finger, he is over there, see him, so we are safe. The problem is neither of these pieces of information will prevent what just happened in Iowa or Florida under the cloak of secrecy and darkness. In fact, if a registry was in place before the other crimes which have occurred in history, it is unlikely those crimes would have been prevented based upon currently available registry information.
The outrage over these crimes has legislators wanting to make it tougher on current RSOs, alleging public safety, actually the unwritten -someone has to pay for crimes of newer offenders-. Iowa legislators want to keep RSOs away from schools, so they changed a prior unconstitutional residency law which prohibited RSOs from residing within 2,000 feet to now 1,000 feet from the school or day cares. The problem is, that even before the first residency law, there has never been a crime that such a law would prevent if it were in place, residency laws are a public smoke screen.
In Florida, that offender had not updated his address (as it was, he wasn't at the new address police knew of either, he had fled the state), some legislators want to shorten the time frame in which to notify the police of an address change. Another wants to make the punishment for failure to notify of an address change, stiffer. Neither of these would have prevented the crime or warned anyone that a crime was about to happen. These responses are also smoke screens. Other legislators want to add more sex offenders to the registries, in no way will that prevent recidivistic sex offenses.
Legislators are focused on knowing where the offender -resides-, and putting -more offenders- into the Megans' laws mix, which has become a melting pot of confusion. Everything from urinating in the park to statutory rape. The fear mongers want everyone to think, all sex offenders are alike, and like the one removed from society because of their latest crime. The community will be safe if they know where RSOs live, ignoring the fact that offenders can go where they want and do what they want.
So, why is it that Megans' laws do not work, simple, because it is focused on an address, a physical place, the law is not focused on the offender and the offender's background. As a rule, and it seems to be 99.99% of the time, former offenders do not commit crimes where they live. The only one I can recall is the one that caused Megan's law to be enacted. Legislators need to stop looking at that address. It is a place where former offenders sleep, and no more, his home.
Change focus of registry to offenders' backgrounds:
Consider this, when a high profile crime is committed (ex: Iowa and Florida) the first thing the police do is, to create a profile of a person who is likely to have committed the crime, including background information. Exactly what is missing from Megans' laws, a "profile code." However, do not confuse that with what we currently know as the Low-Medium-High Risk code which signals likelihood of committing another crime code used by some states.
A "profile code" is derived differently than risk assessment -Low, Medium, High risk code-, a profile code system would be based upon, data of past high profile crimes involving sex offenders, and the individual sex offender's background.
Accordingly, if each offender had a "variable profile code" displayed on the registry, then anyone could quickly determine how close that offender's aggregate background resembles the profile of past high profile cases. The closer the resemblance the more folks would be concerned about him. Megans' laws would truly be focused on, those who have demonstrated by their background, to be a person that bears watching; a -RATIONAL Offender REGISTRY-.
The merits of a RATIONAL REGISTRY:
The "profile code" system (RATIONAL Offender REGISTRY [ROR]) needs to be designed so that, each offender's profile code is lessened over time; the system needs to have mitigating factors built into it. Likewise should the offenders' circumstances change negatively over time (say probation violation, etc.), the system needs graduated aggravating factors also, to appropriately increase an offender's profile code. Such a system is not very hard to establish, and in Part-III "The RATIONAL Offender REGISTRY," that will be addressed.
The primary merit of a variable "Rational Offender Registry" is that, each offender is held accountable only for their own acts, and not held equal to the worst of the worst; the high profile offender. It would be a system with incentives built into it, and if there are further failures (crimes or otherwise) incentives could be lost. Given a graduated incentive-based system, it is more likely offenders would remain compliant as they have something to gain, periodically, and ultimately, removal.
Further, the choice of the name "Rational Offender Registry" is no mistake since today, in some states, registries include many offenders who have no sex conviction, and allows states to expand to include other crime types which are equally dangerous to children today.
Since the ROR is intelligent and parameter-based, that means it can learn, and the public registry portion would be based upon the "profile code" and would automatically exclude those registrants who should not be on the Public Registry, and purge them at their term.
For those who think this is impossible or it would require too many changes, or any other conjured up reason, we have spent 10-years with Megans' laws and they have not worked yet, it is not all the offenders fault, but we still have occasional murders of little children.
It is time for a SMART CHANGE and not one based upon, hatred of all offenders and retribution, instead based upon INTELLIGENCE and VISION, prevention of future victims. The Child Predator Act of 2005 is not rational. It is arbitrary!
eAdvocate (Copyright 2005 - All Rights Reserved)
We strongly urge everyone, including family members, to write to your U.S. Senators and U.S. Representatives, as well as your State Representatives, and ask that they OPPOSE this bill as written.
Next Part-III
The RATIONAL Offender REGISTRY |
Footnotes:
10: "The Self-Incrimination Clause of the Fifth Amendment, which applies to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1 (1964), provides that no person "shall be compelled in any criminal case to be a witness against himself." This Court has long held that the privilege against self-incrimination "not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also `privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). In this case the Illinois Supreme Court ruled that a person whom the State attempts to commit under the Act is protected from use of his compelled answers in any subsequent criminal case in which he is the defendant. What we have here, then, is not a claim that petitioner's statements to the psychiatrists might be used to incriminate him in some future criminal proceeding, but instead his claim that because the sexually-dangerous-person proceeding is itself "criminal," he was entitled to refuse to answer any questions at all." ALLEN v. ILLINOIS, 478 U.S. 364 (1986)
11: "Records show that in November 1994, a judge sentenced him to the maximum five years in prison. Three months later, Bentley was transferred to prison in Mount Pleasant, which offers a sex offender treatment program that Bentley refused to take part in. He was released after serving 2½ years because of credit for good behavior which can cut a sentence by more than half. "He refused treatment, and we did all we could. And we kept him until the last day. But the last day came and he left," said Elizabeth Robinson, of the Iowa Board of Parole. "If they're not getting treatment in the prison and they're not getting treatment in the institution, we have a problem," Robinson said."
3-29-05: Lawmakers Want Stiffer Sentences, Treatment For Sex Offenders
12: In November of 2000, the State of Colorado, Department of Corrections, released a survey entitled "State Sex Offender Treatment Programs: a 50 State Survey (495 pgs PDF)" which shows that Cognitive Behavior Therapy is the most effective way to prevent recidivism. Further, certain states fail to provide therapy for sex offenders while in prison, Florida is one of them.
13: Position Paper for Clinical Polygraph Examinations in Sex Offender Treatment, California Coalition on Sexual Offending, January 2004. pages 4-6 "Confidentiality - Deviant History"
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