Endless Punishment for Pervs?

It is doubtful that many of the more than two million people who voted for Proposition 83 in last week's California election gave the matter much thought. It was entitled: "Sex Offenders. Sexually Violent Predators. Punishment, Residence Restrictions And Monitoring. Initiative Statute," and most voters probably assumed the measure would "protect our kids," as the proponents argued. It was proposed by George and Sharon Runner, state senator and assemblywoman, respectively, married Republican conservatives from Southern California. Both candidates for governor backed it. The proposition passed overwhelmingly, with 71 per cent of the vote, one of only two out of eight state ballot measures to be approved by the electorate.

Maybe hanging is too good for someone who rapes a woman or molests a child. Perhaps we should cut off the hand of someone who touches another person in a sexual inappropriate manner. Or gouge out the eyes of anyone who looks at child pornography. Too tough? Do you think going back to an "eye for an eye, tooth for a tooth" criminal justice system is too radical? You might be in the minority today.

At the very least, let's put convicted sex offenders in prison and leave them there, forever. If we can't do that with sentences handed down in the courts, then let's restrict where they can live and follow their whereabouts with an electronic eye in the sky. Forever.

That's what Prop. 83, "Jessica's Law," named after the kidnap, rape and murder of a 9-year-old Florida girl by a registered sex offender last year, intended to do. Every state now has laws, which require persons convicted of sex crimes to register for life as sex offenders every year and when they move. While this might seem an additional punishment, violating the constitutional protection against double jeopardy, the Supreme Court ruled otherwise in 2003, declaring that registration was reasonable public protection. The idea that criminals can pay their debt to society does not apply to registered sex offenders (RSO). Prop. 83, in addition to increasing sentences and parole terms, would expand registration requirements to prohibit all RSOs from living within 2000 feet of a school or park, and mandates lifetime electronic surveillance by GPS devices.

There are problems, however, with Prop. 83 as written, and with the practice of registering sex offenders and making their names and residence locations available to the public. Will this law and the public branding of a class of criminals with the scarlet letter "S" make woman and children more safe, or is it part of a general trend of eroding civil liberties which leads to the abuses of Abu Ghraib and Guantanamo and to the recently passed Military Commissions Act which does away with habeas corpus and permits torture?

Less this slippery slope claim seem exaggerated, consider this. Not all RSOs are child molesters and rapists. They are also teenage boys convicted for having sex with underage girlfriends, breakers of sodomy and oral copulation laws, downloaders of internet pornography, incest violators, indecent exposurors, and those engaged in lewd and lascivious behavior (a drunken "prank" like mooning, perhaps). Currently, sexually violent predators (SVP) are categorized separately as more serious offenders, and have more severe restrictions. The Runners' law would change that, and requires all RSOs and SVPs to live outside urban areas, with multiple schools and parks, and to be tracked electronically until death. In addition, RSOs are exposed to vigilante justice. Last year a man in Maine killed two RSOs whose names he found on the web; one had raped a child and the other slept with his girlfriend before she turned 16. The murderer committed suicide before explaining his motives.

Minors in Connecticut have to register for having consensual sex in Connecticut. A criminal attorney in that state, Norman Pattis, argues that “sex crimes are the equivalent of what witchcraft was in Salem…a lot of the law is draped in Victorian convictions about sex and sensibility. There have always been young teenagers who were sexually active, but we don’t want to admit it so instead we criminalize it…the state is overreacting to the public’s hysteria.”

The morning after the election a lawsuit was filed in a federal court in San Francisco, and the judged ruled that the measure "is punitive by design and effect" and likely unconstitutional. She issued a temporary restraining order blocking enforcement and set a hearing date later this month. The plaintiff, identified as "John Doe," argued that the measure, if applied retroactively, would effectively banish him from his community and the home he owns with his wife "for a crime he committed, and paid his debt for, long ago." The proposition's sponsor, State Sen. Runner, claims it was not intended to be applied retroactively, but nothing in the language says that.

Other problems with Prop. 83 include questions about who will enforce the electronic surveillance of ex-cons no longer on parole and who will pay for the expensive equipment. RSOs currently register with local police but they would need additional staff and funding to keep track of increasing numbers of RSOs. How will the law define "park"; the measure is not clear on this. And the language of the proposition includes no new section to be added to the Penal Code. For Prop. 83 to be applied it will have to be amended in line with future court rulings by the state legislature which requires a two-thirds majority.

Still, if all this protects women and children, shouldn't we consider limits to civil liberties therefore beneficial? According to John LaFond, author of Protecting Society from Sexually Dangerous Offenders: Law, Justice and Therapy, there is "no evidence that registration or notification [to citizens of a sex offender’s presence in the neighborhood] either reduce sex crimes or help in their solution." LaFond says his concern "is the misdirection by public officials and parents toward strangers and away from the real threat: the family and friends they know.” Almost 80 percent of sexual crime victims know their perpetrators. “These new monitoring laws are symbolic gestures by politicians to show that they are doing something. But in the long run, they do a disservice to the community.” Pamela Schultz, author of Not Monsters: Analyzing the Stories of Child Molesters, said, “It’s not the creepy guy who moves in next door you need to be most concerned about, but family, friends – people who have access to your children on a regular basis.”

We should not so easily give up the idea that a person convicted of a crime can pay their debt to society and get a new start. If RSOs must be watched for the duration of their life, why not bank robbers? Some think child molesters are mentally ill. If so, they should be hospitalized. Restricting their residence but not their freedom to walk around will not make our children safer.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, says that electronic monitoring of sex offenders opens a Pandora’s box. “If you start tracking convicted sex offenders, what about convicted drunk drivers or registered handgun owners? What about people law enforcement might consider suspicious but have no basis to arrest? States should proceed down this road carefully.”

And, finally, this should be a lesson to the idea that we can govern by proposition, by ballot measures designed by citizens with an ax to grind rather than legislators trained and experienced in balancing conflicting objectives. Prop. 187, designed to deny immigrants social services, health care and public education, passed in California in 1994 with 59% of the vote, but it was overturned by a federal court. We should demand that our politicians govern, rather than stand by while popularity contests determine our laws.