Finding a place for sex offenders
American society is getting tough on sex offenders. Governments are adopting residency restrictions that essentially shut convicted offenders out of entire cities. National TV personalities have launched a concerted effort to rid communities of “predators.” Several states are considering joining the 16 with civil commitment statutes (figure) that allow them to keep sex offenders in state custody—usually in secure facilities operated by state mental health or human services agencies—after they have completed sentences for their crimes.
Figure. States with civil commitment laws for adult sex offenders. Source: Washington State Institute for Public Policy
But it is not just lawmakers and everyday citizens who are concerned. In several states, a chorus of offender treatment professionals, victim services providers, mental health advocates, and in some cases even law enforcement and corrections professionals believes that the policy discussion's tone is furthering misconceptions about who sex offenders are and whether they ultimately can be housed safely in the community. And they say the misinformation that's out there actually can serve to make communities less safe, by diverting attention from a hidden majority of offenders.
“We need the public and policy makers to understand that offenders are not all the same,” says Anne Liske, executive director of the New York State Coalition Against Sexual Assault. New York legislators this year discussed but did not adopt a potentially broad and expensive measure for civil commitment of sex offenders upon sentence completion. Liske terms such a strategy as “a solution that addresses a small portion of the population with a huge allocation of resources.”
Indeed, the term “sex offender” applies to a broad range of individuals in most states, and the parameters vary from state to state. In Ohio, for example, the crimes that fall under the umbrella of sex offenses encompass four separate categories in the law. While these categories of crime include violent offenses such as rape and the sexual assault of a child, they also include illegal use of a minor for sexual activity, menacing/stalking activity that is conducted with a sexual motivation, and crimes such as kidnapping if it is committed with a sexual motivation.
While the public and media's attention is transfixed on the stranger who invades a community, the more typical profile of a sex offender is the relative, family friend, or other meaningful person in a victim's life, many advocates say. Yet they say strategies such as civil commitment tend to consider all offenders as having the characteristics of the habitual child predator, ignoring data showing that most sex offenders are less likely to commit repeat offenses than other categories of felons.
These advocates are careful not to minimize the dangers that the “worst of the worst” offenders pose, and acknowledge that for these individuals a treatment-focused, community-based approach is virtually certain to fail. But many say that when they try to highlight the progress that can be made through treatment for the vast majority of offenders, they too feel under siege.
“People who say that something can be done end up getting attacked,” says David D’Amora, who runs the Center for the Treatment of Problem Sexual Behavior in Connecticut. “As treatment professionals, we end up becoming suspect, so we find that we need to connect with victim services, police, and other groups to get the message out.”
D'Amora's outpatient treatment agency originally was established by Connecticut corrections officials who realized they needed a better system for assessing the risk posed by sex offenders as they transitioned from prison to the community. The center conducts assessments that help corrections officials determine proper community services for released offenders, with the services overseen by specially trained probation officers.
Dividing the Ranks
The management and treatment of sex offenders undoubtedly stir the emotions as a policy issue. Sometimes it even causes divisions within the mental health community.
This occurred last year in a situation that had never before been seen in Rhode Island. Todd McElroy was a 39-year-old diagnosed with schizophrenia who had been committed to a psychiatric facility during his teens and later received a 17-year prison sentence for two sexual assaults in the community. He was about to finish his sentence and be released. Following media reports of the impending release, the state Department of Corrections filed a court petition to keep McElroy, who generally has been considered resistant to treatment, in state custody. It was the first time the state's corrections system had initiated a civil commitment process on an inmate about to be released.
Rhode Island does not have a civil commitment law for adult sex offenders, however. While the matter proceeded to the state courts, the case caused a bitter debate among state mental health leaders. The outspoken head of the state's mental health advocate office, H. Reed Cosper, found himself in the unusual position of arguing that a client remain in state custody because of the danger to the community. Brandon Krupp, MD, chief of psychiatric services for the state hospital system, argued that McElroy did not need hospitalization and that the initiation of the commitment petition amounted to politics overriding medicine.
Dr. Krupp resigned from state service over the matter; he did not answer requests for an interview from Behavioral Healthcare for this story.
Cosper is no longer directly involved with McElroy's case, and the matter has been out of the public eye for several months. (A judge ruled earlier this year that McElroy's commitment hearing should be closed to the public.) But Cosper says that in general, these discussions point to the need to assess each individual offender carefully to determine a proper course of action.
“We have always had sexual psychopaths among us. We should identify them, detain them, and treat them, in a setting as close to the community as we can reasonably make it,” Cosper says. But he adds, “There are some people for whom treatment has so little impact that they need to be detained to protect the public. That type of person merits supervision.”
Experience in Washington State
Several states have found that treatment-focused approaches to managing sex offenders can pay off, an observation that contradicts growing public sentiment that sex offenders as a group cannot be successfully treated and inevitably will reoffend. Yet it appears that the habitual offender constitutes the exception.
The Washington State Institute for Public Policy, which in 2004 was directed by state legislators to analyze the impact of sex offender sentencing policies in the state, reported last year that among felony offenders, sex offenders had the lowest recidivism rate for felony offenses (13%). By comparison, recidivism rates for other violent felony offenders and nonviolent felony offenders were 31.5% and 33.7%, respectively.
Washington was actually the first state to adopt a civil commitment statute for sex offenders, having done so as part of an omnibus legislative package on sex offenders enacted in 1990. Roxanne Lieb, director of the public policy institute, which legislators commissioned to track the long-range effects of the legislative initiatives, says commitment proceedings have been pursued relatively rarely, with only about 1% of incarcerated sex offenders targeted for commitment as their sentences are ending.
Lieb says that in some cases, the individuals who are committed under the statute have an underlying mental condition or personality disorder that makes them a danger to the community. But the statute does not specifically require that an offender have a mental health diagnosis.
Asked how most leaders in the state would assess the effectiveness of the commitment statute, Lieb says, “Many would say it is good to have the capacity to control an individual who poses a high risk.” But she adds that others remain concerned about costs, as the state spends about four times as much to confine civilly committed offenders in facilities with treatment staff as it does when these offenders are incarcerated. Few offenders have left state custody after being committed under the statute, Lieb says.
Pushing Commitment
Despite some promising recidivism statistics, many state policy makers around the country are moving to apply punitive measures to a broad range of sex offenders. In this year's legislative session in New York, both the state Assembly and Senate passed legislation that would permit civil commitment of sex offenders completing their incarceration. Although the two chambers were not able to reconcile differences in the bills before the legislature's June adjournment, an advocacy coalition that includes treatment providers, victims rights organizations, and mental health advocates believes the issue is far from dead.
Michael Seeriter, director of public policy at the Mental Health Association in New York State, says the adopted Assembly bill was somewhat more targeted than the Senate bill in focusing on individuals most likely to reoffend in the community. Some advocates said the Senate bill, on the other hand, was so broadly defined that a 19-year-old man could have been civilly committed for having sex with an underage girlfriend.
The bills were introduced at a time when the administration of Gov. George Pataki had suggested spending more than $100 million to establish a separate facility to house civilly committed sex offenders. The governor would like to see this type of facility operated under the direction of state mental health officials. Many advocates see this approach as misguided because it is unnecessarily punitive toward offenders who can be managed safely under community supervision, while on the other end of the spectrum there is little a mental health facility can do with the small percentage of violent predators most likely to reoffend.
“Our state should be making investments in areas to address these problems,” says Seeriter, with a focus on reaching out to potential perpetrators and victims in the community before incidents of sexual abuse occur. With most incidents involving a victim who knows the perpetrator, educating the community on the warning signs of sexual abuse and on reporting unusual situations becomes critical, he says. (For an example of a prevention approach, see the May 2006 issue of Behavioral Healthcare, page 8.)
Moreover, opponents of civil commitment proposals in New York have urged the state to use existing mechanisms for managing offenders and keeping communities safe. Existing provisions in law already may allow the state to retain custody of the most dangerous offenders without adopting a broad measure to commit less dangerous offenders as well, Liske says. In addition, the state has received a grant from the U.S. Department of Justice to explore a range of victim-focused approaches to sex offender management, and the advisory group for that grant should be allowed to explore options before the state moves toward an expensive civil commitment effort, she says.
Treatment in the Justice System
Officials in Ohio, another state that does not have a civil commitment law for sex offenders, have tried to prioritize treatment services for offenders. While the corrections system does not have enough treatment slots to meet the need—as is the case in virtually all states—any offender within three years of release who scores at least moderately high on a risk-to-offend scale is referred to a mandatory sex offender education program, says Dave Berenson, director of sex offender treatment services for the Ohio Department of Rehabilitation and Correction.
The education program lasts 17 weeks and is considered a pretreatment program. A more comprehensive stage of treatment available in the Ohio corrections system involves 12 to 18 months of treatment using a cognitive-behavioral approach, generally considered to be the most effective treatment strategy for reducing recidivism in this population.
“If an offender has not received services in prison and we think they should, they will get them in the community,” Berenson says. Each parole region in the state has a sex offender specialist who oversees these community-based services.
In addition, Ohio has a sexually violent predator law that addresses criminals most likely to commit sexually violent offenses again, such as adult rapists or child victimizers with a primary arousal to children. For persons convicted under this law, a judge can overturn a parole board decision to relinquish custody at the time an offender is eligible for release from prison. Berenson says that only 1 offender out of 85 prosecuted under this law has been released from custody. This law isn’t considered a civil commitment law, per se, because it doesn’t involve transferring offenders to the custody of mental health/social service agencies.
“What's most important is that we base our policies and practices around what the research tells us,” he says.
An important part of Berenson's job these days involves the community education that many mental health advocates support. He conducts public forums around the state, in which he outlines strategies for managing sex offenders in the community and tries to counteract misconceptions. “When the general public thinks of these offenders they think of the extremely rare case,” Berenson says.
Yet these ingrained public perceptions are difficult to overcome. Even in a state that is trying to expand treatment services and already has a predator law designed to confine the worst offenders, legislators this year debated the merits of a broader civil commitment bill. The state corrections and mental health directors both have testified against the proposal, Berenson says.
