Starting in the 1990s, sex offenders have been targeted by some of the more boneheaded crime laws the country has ever produced. Take the combination of registration and notification laws. The former requires convicted sex offenders to provide valid contact information to law enforcement authorities, and the latter forces corrections officials to post information on sex offenders publicly. The policies seem reasonable enough on their face, but a new study by University of Michigan's J.J. Prescott and Columbia University’s Jonah Rockoff found that notification might actually increase recidivism rates by imposing “social and financial costs on registered sex offenders” and making “non-criminal activity relatively less attractive." Like a scarlet letter, publishing details of past behavior can complicate the process of finding work and reintegrating into community life for those who have already served their sentence.
Inconsistencies in registration and notification programs haven't stopped punitive legislators and policymakers from passing further, unproven regulations of sex offenders, either. Civil commitment is another striking example. Similar to the “sex psychopath” laws of yesteryear, these statutes force the state to retain custody of an individual found by a judge or jury to be a “sexually dangerous person.”* We've witnessed a staggering growth in the use of these draconian laws; according to U.S. Justice Department statistics, 20 states currently employ civil confinement, involving near 4,000 rapists, pedophiles, and other sex offenders nationwide. Yet comprehensive data documenting their effectiveness has never been produced. Indeed, it's not even clear that courts are capable of determining who among us is "sexually dangerous."
That very question has confounded criminal justice experts for decades. Our earliest sexual psychopath policies (PDF) were crafted with four basic assumptions in mind: sexual psychopaths are distinguishable from generic sex offenders; individuals commit sexual offenses because of a mental disease; mental diseases are treatable and curable; and mental health professionals can successfully predict which sex offenders are likely to reoffend in the future. Critics, however, said the labeling of offenders as sexual psychopaths lacked scientific merit and the prediction of future offending was suspect. Law professor Deborah Denno points out that “dangerous offender” is not a psychiatric diagnosis at all but a legal term, and is thus “overinclusive, misleading, and confusing.”
Recently, courts have started to use more advanced tools for assessing the dangerousness of individual offenders. In Washington State, the End of Sentence Review Committee, which makes recommendations regarding sex and kidnapping offenders prior to their release from the Department of Corrections and Department of Social and Health Services, requires a forensic psychological evaluation to conclude whether those offenders who appear to meet the definition of a sexually violent predator do in fact warrant civil commitment. According to their state statute, the evaluation is completed by a member of the Joint Forensic Unit (JFU), a pre-selected group of expert forensic psychologists who specialize in sexually violent predator and sex offense risk evaluations. If a JFU evaluator decides that an offender qualifies, he is referred to the appropriate prosecutor’s office for civil commitment consideration. Then, civil commitment referrals are reviewed and processed by the King County Prosecutor’s Office Sexually Violent Predator Unit or the Washington State Office of the Attorney General SVP Unit.
This particular system provides several levels of bureaucratic accountability, limiting the likelihood of subjectivity in the sentencing process. Still, members have questioned how lawmakers defined "mental abnormality" in the text of the law. This problem is not new; even in 1950, E.H. Sutherland argued the concept of the "sexual psychopath" was so vague that it could not be used for “judicial and administrative purposes without the danger that the law may injure the society more than do the sex crimes which it is designed to correct.”
Actuarial formulas -- akin to the tables used for life insurance -- play another central role in deciding who is menacing enough to be committed. By looking at factors such as the number of prior sex offenses and the sex of the victims, judges will calculate someone’s risk of offending again. Men with male victims are graded as a higher risk, for example, because statistics show they are more likely to repeat their offenses.
Actuarial advocates profess that their formulas outperform clinical judgments when utilized at a civil commitment hearing. Although actuarial data can be used to identify a group of persons to be considered for possible civil commitment, it cannot predict accurately the likelihood of future acts of sexual violence for any specific offender within such a group. And by introducing actuarial data at the commitment hearing itself, courts run the risk of committing offenders inappropriately. As Eric Janus puts it, “the danger is that these numbers will blind people.”
Before states build more $388 million facilities to house former sex offenders, it might behoove policy makers to figure out whether or not it’s even possible to identify future transgressors.
*Offenders are involuntarily and indefinitely committed to a secure rehabilitation facility after his or her prison sentence is complete.