Sex-Offender Laws Doomed by Flawed Reasoning

Laws and policies intended to control sex offenders are ineffective, expensive, unenforceable—and unlikely to be changed.

Ellen Dallager

“These laws are preventive and punitive in intent and effect, motivated by a desire to contain but not to treat,” said Paul Appelbaum, M.D., the Dollard professor of psychiatry, medicine, and law and director of the Division of Law, Ethics, and Psychiatry at Columbia University. Appelbaum spoke at APA’s 2012 Institute on Psychiatric Services in New York in October.

Sentencing of convicted sex offenders underwent a major change about 30 years ago, he explained. For most of the 20th century, sex offenders were given sentences of indeterminate length in hopes that they would become rehabilitated. With little evidence of efficacy using that approach, courts in the 1980s switched to “determinate sentencing,” with fixed prison terms.

“The change went from punishing the offender to punishing the crime,” said Appelbaum.

In addition, “sexually violent predator” statutes were passed in many states, reflecting a state of panic in the 1990s about sex crimes against children. They mandated civil commitment “in a treatment facility” once offenders had completed their prison sentences. Treatment might be offered, but was voluntary. As of 2010, 5,300 sex offenders were committed under these statutes.

The process also shifted a new burden onto mental health systems, filling beds needed for other patients and diverting funds from an already under-funded system.

Detention is expensive. A Minnesota study revealed costs of $120,000 annually per offender. Since none of the offenders in the state had been released since the program’s inception in 1994, costs can only go up.

“Still, this system was seen as akin to civil commitment and thus raised fewer constitutional issues,” said Appelbaum. The Supreme Court has upheld the system three times. “But is civil commitment a pretext for preventive detention, and is the mental health system the right place for that?” he asked.

Other Strategies Questioned

Confinement is not the only way that governments have attempted to restrict convicted sex offenders as a means of reducing recidivism.

State and federal laws call for registration of offenders and, as of July 2012, more than 700,000 were registered nationwide.

Community notification laws require that local jurisdictions be alerted to the presence of offenders and the information displayed on a Web site.

“Yet many of these laws cover non-contact offenses, or sex by underage teens, or even offenses by young children,” said Appelbaum. “Offenders are often harassed and find it hard to reestablish their lives, find a job, or receive mental health treatment.”

A third approach in 20 states and hundreds of cities restricts residency and workplace options to points at least 1,000 to 2,000 feet from schools, churches, day-care centers, or even bus stops.

“This has placed entire towns completely off limits,” said Appelbaum. “And is creating sex-offender ghettoes a good idea? Maybe it’s better to not have them around each other.”

A study by Appelbaum and Jacqueline Berenson, M.D., found that 92 percent of registered sex offenders in Buffalo, N.Y., and 100 percent of those in Schenectady, N.Y., lived in restricted locations in those cities.

Clearly, these laws are not being enforced, reflecting a choice by police, said Appelbaum.

“The law doesn’t make sense to the police,” he said. “They see it more like jaywalking than homicide.”

Flawed Reasoning Underlies Laws

He listed a number of flaws in the thinking behind registration, notification, and residency laws. They are indiscriminate, based on weak premises, and are likely to be counterproductive, he said.

“For one thing, most sex offenses against children are committed by family members and friends, not by strangers,” he said. “and while the premise of such laws is that sex offenders are likely to re-offend, in fact only 13.4 percent do so, compared to 60 percent of felons in general.”

Although the laws are intended to protect children from sexual predators, many of the offenders did not commit crimes against children. There are no data indicating that they target children near where they live or work—and some anecdotal reports indicate that those are the last places they would commit their crimes.

Also disturbing is the dearth of research on the treatment of sex offenders, especially in the United States, Appelbaum noted.

“Medications like SSRIs, depoprovera, or lupralide are understudied and underutilized,” he said. “Treatment has been dominated by therapists who favor cognitive-behavioral therapy and resist medication.”

“This area is a major challenge for rational policy making, and there is little political support for change,” he said.

Ideally, it might be better not to create a new system but instead keep offenders within the correctional system while beginning treatment soon after they are incarcerated, Appelbaum suggested. A return to indeterminate sentencing might permit many to be released once they had responded adequately to treatment.

An abstract of “A Geospatial Analysis of the Impact of Sex Offender Residency Restrictions in Two New York Counties” by Appelbaum and Berenson in Law and Human Behavior is posted at http://psycnet.apa.org/?&fa=main.doiLanding&doi=10.1007/s10979-010-9235-3.