No one ever lost an election by being too hard on sex offenders. The public thirst for the severe punishment of molesters and pedophiles is both understandable and unquenchable.
That reality, however, brings obvious dangers. It suggests, at a minimum, that justice may not best be served by leaving the fate of the most abhorred category of criminals in the hands of politicians.
A controversy that is roiling Albany points to the same conclusion.
The furor centers on the practice variously referred to as civil containment, civil confinement or civil commitment. Whatever the preferred term, the meaning is the same: authorities use powers more typically deployed in relation to the mentally ill to lock up sex offenders after they have served their sentences.
The people in question serve the indefinite extra time in secure mental hospitals or, sometimes, in purpose-built facilities. Sixteen states have civil commitment on their books, and the principles underpinning the measure have been upheld, with some qualifications, by the U.S. Supreme Court.
New York does not yet have a civil-commitment statute for sex offenders, much to Governor George Pataki’s frustration. Every year since 1998, he has introduced a bill that includes such a provision. Usually, it has been passed in the Republican-controlled State Senate, only to die in the Democratic-controlled Assembly.
Late last year, Mr. Pataki decided that he would no longer bother waiting for the Legislature to act. He set events in motion that led to 39 men being placed in mental institutions at the conclusion of their prison terms.
To nobody’s great surprise, legal challenges to the men’s confinement were mounted. The challenges were duly upheld by the courts—which was also no surprise, since judges do not look kindly upon attempts by politicians to circumvent their authority.
The most charitable interpretation of Mr. Pataki’s move is that it was an attempt to shock the State Legislature out of its torpor. In this, he seems to have succeeded.
Some form of civil-commitment law looks inevitable this year, since both the Senate and the Assembly have drawn up bills on the issue.
There are significant differences between the proposals; in short, the Assembly’s plan is less draconian. Nevertheless, attempts to hammer out a compromise are ongoing and, at the time of writing, appear likely to succeed.
Civil commitment is therefore poised to become law after little public discussion. The question of whether it’s a good thing to give the state the power to detain people indefinitely, with only anemic safeguards against abuse, surely deserves more debate.
Commitment involves prolonging the incarceration of people not because of criminal acts, but on the mere suspicion that they might commit such acts in the future. It seems like a classic example of the first step on a slippery slope.
Civil commitment is also rationalized on the basis that sex offenders, alone among all types of criminals, can never be rehabilitated.
In fact, the evidence on that topic is mixed. Senate Majority Leader Joseph Bruno, a strong supporter of civil commitment, issued a statement in January that included the claim that “almost half of the people who commit sexually violent offenses” end up back behind bars after their release.
But a survey in the state of Washington found that felony-level sex offenders had a recidivism rate of only 2.7 percent, which was lower than the rate for drug offenders and other comparable criminals.
Perhaps the single worst element of the civil-commitment practice is its basic dishonesty. In most states where it’s on the statute books, it has been used as a way for the authorities to extend criminal sentences without openly stating that they are doing so.
The practice was first introduced in 1990 in Washington State. By 2004, almost 3,500 sex offenders had been held under the laws nationwide. A nonpartisan Web site, Stateline.org, noted last month that Massachusetts has placed 306 people in civil confinement since 1998. Four have been released.
Maybe sex offenders need to be locked up for a longer time than is currently the case. There are valid arguments to be made for moving in that direction. But if that is our objective, then we, as a society, should be debating longer criminal sentences. We should not be dodging that discussion by hiding behind genteel terms like “civil commitment.”
The disingenuousness of the terminology has concrete effects. It creates victims in the form of people already housed in institutions for the mentally ill, as well as taking its toll on the workers who treat them. New York’s threadbare commitment to the mentally ill will be stretched to the breaking point by the demands of people who should either be in prison or under close supervision on the outside.
The urge to protect the weakest members of our communities from the depredations of sexual offenders is natural and powerful. But its sheer potency can lead us down dangerous trails in the search for safety and justice.
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