State legislators trooped back to Albany for one day last week, primarily to try to iron out differences on a tough new sex-offender law. But despite the media attention before the special session, legislators failed once again to reach an agreement.
The law, which New York politicians have been haggling over for 13 years, is called a "civil confinement" law. It would permit the state to hold many sex offenders in psychiatric hospitals after they've served their prison sentence. The idea is popular with politicians: few crimes disturb the public more than those involving sex offenses.
The debate in the legislature isn't whether offenders should be sent to psychiatric facilities, and it's not about whether they should be confined again after they've served their time in prison. Instead, legislators are disagreeing about process. Governor Pataki and the Republican-controlled Senate want certain offenders sent directly to a specially designated facility after they leave prison. The Democratic-controlled Assembly wants a jury to help decide whether the offenders should be confined again.
While the legislature has been arguing over a civil-confinement law, Pataki has had 100 offenders sent to psychiatric hospitals after they completed their sentences. Twelve of them sued the state, saying the confinement violated their rights. And late last month, the state Court of Appeals agreed. (The remaining 88 prisoners have also sued, but their cases haven't been heard.)
Eighteen states have laws permitting civil confinement. But critics say the laws aren't the best way to protect the public --- or to help sex offenders change their behavior. They may, in fact, result in confining people who aren't likely to re-offend. And, the critics say, civil confinement will be expensive. The state could end up spending a huge amount of money that would be better spent on effective treatment.
A core issue is whether the offenders are mentally ill.The Supreme Court has ruled that civil confinement doesn't constitute double jeopardy. But states must show that sex offenders are mentally ill before they can be involuntarily confined in a psychiatric hospital. Dr. David Barry, a clinical psychiatrist and associate professor at the University of Rochester, says there is a difference between offensive criminal behavior and mental illness.
Sex offenders, he says, have abnormal sexual desires, some of which are serious crimes. But Barry, like many professionals in the field, stops short of calling those abnormalities illnesses.
Sex offenders, he says, "are not mentally ill, and a state hospital is not the place for these people."
Treatment for the mentally ill is not the same as treatment for sex offenders, says Barry. And, he says, it's risky to confine sex offenders with mentally ill patients. "We have been concerned," he says, "because some could harm a very vulnerable group of people in these facilities."
Another core issue:whether the offenders will commit their crime again.
The serious nature of sex offenses can't be ignored. "This isn't like stealing a car," says Richard Hamill, a researcher in Albany who has extensively examined the problem of predicting sex-offender recidivism. "These crimes often impact a person's entire life, how they think and feel about themselves. There may be injuries involved."
"And you can't replace this like you can a car," says Hamill. Some victims "will deal with this the rest of their lives," he says.
But there's more than one kind of sex offender. The common perception is that all sex offenders will commit their crime again after they've been released from prison. That perception is based on blurry, sometimes contradictory data, however.
Recidivism rates for sex offenders are actually lower than those of other types of criminal behavior, says Hamill.
"There are those that are quite unlikely to re-offend," says Dr. David Barry. "Then there are those driven by strong, abnormal sexual compulsions. I've had them tell me that they can't change because this is their sexuality. This is who they really are."
In 1995, lawmakers attempted to differentiate among the types of offenders when it passed the New York Sex Offender Registration Act. The registry is designed to track offenders and let the public know where they live. And it is supposed to identify the people most likely to re-offend.
Under the 1995 law, sex offenders are assigned "risk levels" based on the likelihood that they'll commit their crime again. Level 1 offenders are considered the least likely to re-offend, Level 3 the most likely.
The risk levels are assigned to sex offenders 60 days before they're discharged from prison. The assignments are made by a five-member board, two who are members of the state parole board and three who are experts in "the field of psychology, behavior, and treatment of sex offenders," according to the state's Division of Criminal Justice Services. All five are state employees.
But the risk levels haven't necessarily corresponded to the severity of the crime. For instance, a 17-year-old boy who gets his 16-year-old girlfriend pregnant could be declared a Level 2 or 3 rapist. A person found guilty of incest could be a Level 1 offender.
Nor do the risk-level assignments identify the most dangerous offenders, the critics say.
"These risk-level assignments are all over the map," says Al O'Connor, an attorney with the New York State Defender's Association. "There is no consistency within New YorkState or from state to state. And they don't hold up in court, because they can't be defended."
Illustrating his point: some of the 12 defendants in the recent court case were not Level 3 offenders, even though they were being held in confinement as "sexually violent predators."
"Risk assessment of sex offenders is getting there," says Carl Christensen, a sex therapist in Penfield who works with both offenders and victims. "But we're a ways away from knowing for sure which offenders are likely to go back out into the community and commit another offense. And that means that we risk confining some people who are low risk or not likely to do it again, and miss the person who will."
Critics are also concernedabout the violation of the offenders' rights.
Some sex offenders may indeed need longer confinement, "but you need to go through legal process," says Stephen Harkavy, an attorney with Mental Hygiene Legal Service who represents all 100 men involved in suits against New York. The state can't strip offenders of their rights, he says.
The offenders need to be evaluated by doctors, Harkavy says, and those doctors shouldn't be state employees. Parole boards and state employees are not there to protect the sex offenders' rights, Harkavy and other attorneys critical of the process say.
Finally, there's the issue of effectiveness. What's the best way to deal with sex offenses and protect the public?
There are alternatives to civil confinement, and the state ought to be looking at them, says Hamill. States that permit civil confinement are finding it both expensive and ineffective, Hamill and Barry say. Some are already having to release thousands of sex offenders from prison each year due to overcrowding.
"What people don't understand about civil confinement is the cost," Hamill says. "We're talking about $200,000 to $250,000 per person per year. The legal proceedings alone for each patient will cost about $50,000. Even if you're talking about confinement for a small number of people, it will soar up close to a quarter to a half billion dollars a year, and that's a recurring cost."
That could siphon off money that's badly needed for mental-health care, worries the UR's David Barry.
Long-term parole and probation are better alternatives to civil confinement, Hamill and Barry say. And they and other mental-health professionals say that contrary to popular belief, most sex offenders can be successfully treated.
"The problem comes up when we start talking in terms of cures," says Hamill. "We don't talk about alcoholism or drug addiction in terms of becoming cured. We work toward long-term management."
Cognitive therapy combined with drugs that reduce testosterone have proved effective in reducing recidivism rates, says Barry.
"One drug, Dep-provera, is a long-acting injection that reduces the hormone in men and women that causes sex drive," he says. But the drug isn't enough, says Barry. The offenders "still have to come in for their injection and therapy in order for it to help them control these behaviors," he says.
New York already has what are considered some of the toughest sex-offender laws in the nation. Convicted offenders now face long incarceration and parole times; Level 1 offenders, for example, face mandatory 20-year probation periods.
The legislature's 2006 session ended without resolving the civil-confinement issue, and a new governor takes office next month. Although sex offenders weren't a big topic during the governor's race, Governor-elect Eliot Spitzer will have to face the issue at some point. And with the Senate and Assembly still disagreeing, politics is likely to continue to drive the discussion.
After the legislature failed to pass a civil-confinement bill last week, Pataki lashed out at Assembly Leader Sheldon Silver, insisting, the New York Times reported, that the result could be "another 3, 4, 10, 12, more than a dozen violent sexual predators who are released into our neighborhoods to prey on children, to prey on women...."
Critics of the current proposed bills insist that politics is overwhelming a rational approach. Sex offenders' criminal behavior should be covered by their sentencing, the critics say. If they're mentally ill, their illness should be documented and treated.
New York, say the critics, is headed down the same path with sex offenders that it pursued with the Rockefeller drug laws, which have proved to be expensive --- and misguided. And, the critics warn, once such laws are in place, as the Rockefeller drug laws have shown, it's almost impossible to get rid of them.