Saturday, April 4, 2009

Can sex offenders be safely released from prison?

You may have read the Supreme Court's emergency interim ruling in the ongoing case of U.S. v. Comstock, announced yesterday.

The Supreme Court has blocked the imminent release of dozens of sex offenders who have served their federal sentences after the Obama administration claimed many of them remain "sexually dangerous."

Chief Justice John Roberts on Friday ordered that the men be kept in custody while the case works its way through a federal appeals court, which had ruled as many as 77 North Carolina inmates should be released, some as early as next week.

At issue is whether the government has the power to indefinitely detain prisoners who have served their sentences but could pose a public threat upon release. Such laws are known as "civil commitments."

The Justice Department filed papers with the high court Friday, asking that any release be put on hold until the justices have more time to consider the larger legal issues raised in their appeal.

Such an early release "would pose a significant risk to the public and constitute a significant harm to the interest of the United States," wrote Solicitor General Elena Kagan, who took office this month.

There's more at the link.

I have a deep and very personal interest in this matter, arising from my years of part-time and full-time work as a prison chaplain. I can see both sides of the situation. A prisoner who's completed his sentence has 'done his time', and wants to be released. He may have undergone treatment during his incarceration, and may genuinely believe that he won't reoffend. On the other hand, the track record of the majority of sex offenders demonstrates that most of them remain prone to reoffending. (Of course, I'm talking about real sex offenders, not those created by a stroke of the pen - for example, by legislation defining consensual underage sex between teenage lovers as a sex crime. It's not. It's human nature, and has been going on for as long as homo sapiens has been in existence, and will until we die out. The fact that dumbass legislators have decided to label it as a sex crime, equating it with rape, etc., doesn' t make it so in reality.)

There have been several occasions when I sat with psychologists at a prison, discussing the case of an inmate scheduled for release. All of us knew - knew, beyond a shadow of doubt - that he'd reoffend within a matter of weeks, even days. There was no doubt about this whatsoever in our minds . . . but we had no legal grounds to keep him behind bars. Even if we'd gone to court, and pleaded with the judge in the name of his future victims to keep him locked up, there wasn't anything the judge could have done. We've had to release them, and later read the reports of their new crimes. It's soul-destroying. (By the way, these weren't only sex offenders. Many were violent criminals, former drug addicts, who'd fried their brains through prolonged exposure to illegal narcotics, and no longer had any sense of judgment or morality.)

On the other hand, I'm sure that this new law - and others that will follow it - will be misused from time to time. I've no doubt that some corrections officials will try to apply it across the board, to any inmate who might possibly reoffend. They'll fear being sued if they don't, and he's released, and commits another crime. This means that some inmates who aren't a danger to society any longer will probably be locked up past the completion of their sentences, perhaps for the rest of their lives. That's completely unjust and unfair . . . but what's the alternative?

It's a heck of a dilemma. Part of me supports an indefinite sentence for any and all criminals likely to pose a serious risk to the physical safety of others, whether through sexual or violent assault, arson, etc. On the other hand, part of me is unequivocally opposed to such indefinite sentences, knowing that bureaucrats will use them indiscriminately in an attempt to cover their own backsides against future problems, irrespective of whether or not this causes undue harm to prisoners who don't deserve it.

What's your answer, readers? I'd love to hear from you in Comments.



Joe Allen said...

I'm afraid it's an abrogation of a necessary restriction on the state's power to incarcerate.

Holding a prisoner past their socially agreed upon release date is getting perilously close to prior restraint. Pointing at someone who has yet to commit an offense: "All established psych profiles say this guy is going to commit rape sooner or later, so let's just lock him up now and be done with it"

We can have a completely safe society or a completely free society, but not both. We've established a social compact that creates an equitable compromise - one that has been stable for over a hundred years. This, however, is pushing the balance too far in favor of a "safe" society.

It is my most fervent desire that more violent criminals would fail to survive their criminal enterprise, thus reducing sentencing guidelines, parole hearings and recidivism rates to moot points.

Sevesteen said...

I've no idea what do to here. I don't think sex crimes should be treated specially--in part because prosecutors use it as a club. If a violent offender is likely to re-offend and cripple or kill another innocent victim, is that less of a problem than a rapist? Shouldn't they be registered, and the public warned where they live?

On a Wing and a Whim said...

If you want to incarcerate sex offenders for longer, give them harsher sentences. If you want them to be removed from society, change the laws to make it a crime with punishment that removes them from society.

I will NOT agree to letting a government made of flawed, potentially corrupt human beings often in pursuit of power determine that they may do to a citizen whatever they feel for however long they feel without checks and balances.

Consider the death penalty: no matter how much you may agree or disagree that some people "jus' need killin'!", the concept of letting our government decide that it may kill people is a weighty one, fraught with consequences - including the very real consequence that it's killed people innocent of the crime for which they were convicted.

And consider that every law is a restriction on human freedom, and it is very, very rare that freedoms are expanded instead of retracted. Do not consider only the best of intentions when contemplating a law; consider how it can be abused by corrupt men with the worst of intentions.

Becky said...

I'm fairly liberal in a lot of areas but think all violent offenders that are very likely to repeat should remain locked up. A local case about 10 years ago in which a man in his late 80's raped two little girls comes to mind. The kids were friends of my kids. So much for old enough to be "safe".

There are laws to identify and require registration, but there's little the public can do except move or become vigilantes.

Peter (NOGH) said...

A nice, even noble sentiment, but turn this around: is this the sort of power you want in the hands of your worst enemy?

I mean, what could possibly go wrong?

What is your plan, if, God forbid, each and every person detained for dissent suddenly is found to have "seemingly indecent pictures of underage children" on his/her hard drive? Third party candidates? Whistle blowers?

Don't think I have any answers here, because I don't. However, keeping people, no matter how dangerous they might be, past their sentence is Very Bad News.

Perhaps we could 'adjust' the profile for sexual offenders to include a near-universal tendency for these guys to jump off a tall building when approached by the authorities....

fuzzys dad said...

As a former Correctional Officer I have seen the same things you have.
And more. I disagree with some of the silly crap law makers have done with laws. There are lots of offenders that should never be released.

makeumdothechicken said...

As mentioned in your post the first thing that needs to happen is the classification for sex offenders needs to be overhauled. It is not reasonable to lump a 19 year old who had sex with his 16 year old girlfriend in the same category as a 35 year old man who raped a 3 year old.

It is a proven fact that the recidivism rate among the worst of these offenders is astronomical. It should be a capitol offense. A great deal of these offenders have dozens of victims that are either dead or physically and/or emotionally scarred for life. Why pay for them to sit in a cell and think their sick thoughts with the hope of conning some psychiatrist or parole board into cutting them loose so they can hurt more people? Executions for these type of offenders solves the problem.

Mikael said...

I'm with makeumdothechicken on this.

And share the view with many that giving the state the power to indefinately hold people past their sentences is probably not the greatest idea in the world.

Rape should have a minimum sentence of 15 years for a single offense, and multiple offenses should be life without parole or death.

Likewise any sexual congress with a child under oh say 14, should be considered rape. (Not necessarily saying sex with a 14 year old should be legal, just not automatically be considered rape if they're consenting).

Age of consent is 15 here, but I know my sister had a 20 year old boyfriend when she was 14, and probably didn't stay a virgin through it... and I'd say it's more likely she badgered him into it than the opposite, if any badgering was necessary.

Word verification: Suing

Steve said...

Let em go when their time is up. The restriction on our rights is not worth it.


William said...

If they served their time, they served their time. If you want them kept from society longer, give them a longer sentence, or sentence them do death and have done with it. You can't punish people for what they might do.

I concur, would you like this power in the hands of your worst enemy?

Jim March said...

All I know is, if this is going to work at all, there has to be OBJECTIVE standards for such delayed releases rather than SUBJECTIVE.

If the process is subjective, subject to any person's whim, then it will be abused, guaranteed, end of discussion.

That's not at all the only question that has to be asked and even if objective criteria can be found this may still not be a good idea.

But if the standards are subjective, then it will definitely fail.

makeumdothechicken said...

I agree that Objective Standards have the appearance of being much more fair than Subjective Standards. We read of people who commit a heinous crime and receive a ridiculously light sentence and then its compared to someone who commits a lesser offense and receives a harsher sentence. Sometimes it's because the person stands before a liberal judge, is wealthy or politically connected. No doubt this is a travesty of justice.

On the other hand there have been some very bad results from minimum sentencing as well. I work in law enforcement and I can tell you that discretion is an integral part of the entire legal system. In the court system and on the street the system works best when people with common sense utilize that sense, taking into consideration the totality of the circumstances to make a decision. The main problem is that common sense appears to be becoming less and less common. The other problem is that the risk of civil liability often leaves no good deed unpunished. Unfortunately, the primary question is no longer, "What is the right thing to do in this situation?" It has become, "What do I need to do to cover my ass in this situation?" This response is not an over reaction. If you want to keep your career and continue to support your family it is your only option.

I'm not certain that true justice has ever existed on this earth. I can tell you it doesn't exist now. I do know that there are some very dangerous people that are locked up and awaiting a release date. I understand why people would distrust government and individuals in particular to have the authority to say that even though these people have served their time they are too great of a risk to release on society. Power corrupts and absolute power corrupts completely. However, I think there must be a system in place to do just that. This wouldn't have been an issue a hundred years ago because the offender would have been dead. Either at the hands of a relative of the victim or by the executioner. Our society has become more liberal in it's sentencing of these offenders and they are not killing them anymore. If we are going to fail to execute them then there at least needs to be a safeguard in place to keep them from preying on the most innocent and vulnerable among us.

Jim March said...


My dealings with subjective standards comes from the California CCW "process", which is a corrupt joke. Sheriffs and police chiefs regularly sell the permits for campaign contributions or under-the-table cash, or restrict them to cronies, or even handle them on a racist basis. The pervasiveness of this leads me to suspect that law enforcement across the US is just flat dirty. Not 100% of course,'s just bad.

Anonymous said...

Makeum said: Executions for these type of offenders solves the problem.

As Jim March notes, there needs to be an objective standard to determine the parameters of punishment. But one thing that we MUST do is to have a higher level of evidence. In the late '90s there was a trial against several day care workers accused of abusing nearly every child in their care. There were allegations of Satanic rituals and other horrific acts. The only problem was, none of it happened. The investigators lead the children, some as young as 3, to answer questions in a certain way. Some of those "sex offenders" spent a decade in prison.

If we are going to stiffen penalties for sex offenders, I want physical evidence. The testimony of a 13 y.o. is suspect when there is no proof.


makeumdothechicken said...


I work for a Sheriff's Dept. so I know exactly what you are talking about. One point I would make is that the corruption is not with the men and women in the field doing the work. It is with the "politicians" who are in the administration of these departments. I can tell you in my years of law enforcement I have never come across a co-worker, that is to say a Deputy or Detective, who was dirty or on the take. At the end of the day a Sheriff is a politician and we all know what goes along with that title.


I agree that if you are going to execute someone you certainly need the highest standard of proof. Today with DNA testing we often have that higher level of proof. There is no doubt that there have been instances of people being wrongfully convicted but by and large they are the vast minority. The argument could be made that this all well and fine unless you are the one wrongfully convicted. Conversely, the argument could be made that it is all well and fine to err on the side of caution in granting the authority to further detain these subjects after their release date unless you or someone you love is victimized by them upon their release.

dave said...

It is a proven fact that the recidivism rate among the worst of these offenders is astronomical.

Actually, that "proven fact" is the subject of some debate. To wit:

Even if we focus on repeats of the same offense, rapists do not stand out. Less than 3 percent of them were arrested for a new rape in the three years covered by the study. By comparison, 13 percent of robbers, 22 percent of (nonsexual) assaulters, and 23 percent of burglars were arrested again for crimes similar to the ones for which they had served time.

Studies that cover longer periods and include other kinds of sex offenders find higher recidivism rates, but still nothing like those claimed by politicians.

Saying that "a great deal of them" are the worst of the worst probably wouldn't stand up to serious scrutiny. Be careful when listening to what the politicians tell you; they usually have a greater agenda.

Mario in PY said...

I would like to put forward a different approach. A paradigm change if you will.

Unfortunately the "western" judicial system seems to have failled at recovering and resocializing offenders in a way that makes them worthy and productive members of society. Could it be because it because it ignores the hurts and needs of the victims and the offenders and the community?

I have been studying the principles of Restorative Justice and find them very much in line with biblical principles. And they even seem to have been practised by many "primitive" cultures.

1. focuses on harms and needs
2. addresses obligations
3. uses inclusive, collaborative process
4. involves stakeholders (victims, offenders, communities)
5. seeks to put right the wrongs and harms
Doing it in an attitude of respect for all involved.

In a nutshell:
Restorative justice requires, at minimum, that we address victims' harms and needs, hold offenders accountable to put right those harms, and involve victims, offenders, and communities in this process. (Howard Zehr, Ph.D.)

I believe that society - and more so the community - has a lot of responsability for the causes of crime. A traumatized person, who has not been able to deal with that experience in a meaningfull way (counseling, frindship and/or medical treatment), will very likely become violent himself.

The 1941 movie Meet John Doe available for downloading free at shows some of these issues rather clearly.


BobTheWitch said...


You cite discrepancies in recidivism numbers, and I concur politicians hand wave a lot. That aside, my concern which is somewhat born out by statistics, is that the recidivism rate is much higher than detected, as the offenders increase in sophistication and escape capture in future cases.

Having said all that. I am completely against any government official having the ability to keep someone in custody based on their judgement. A reduction of the malum prohibitum felonies combined with stiffening of the penalties for truly felonious behavior would address my concerns here.