Fight over treatment for sex offenders

Courts probe whether forced treatment is form of double jeopardy or safer for society.

By , Staff writer of The Christian Science Monitor

It's one of the most sensitive questions communities confront today: What should be done, if anything, when a sex offender is released from prison?

Increasingly, a growing number of states have been committing the offenders to treatment centers once their time behind bars is up.

The argument is that the criminals get much-needed help, while communities are protected for an extended period of time. But many civil libertarians and defense lawyers argue that the practice amounts to a form of double punishment.

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Now a case is waiting to be heard by the US Supreme Court that may go a long way to settling the fundamental question of whether sex offenders represent a special kind of criminal who needs treatment.

The decision will have significant ramifications for more than a dozen states that have enacted civil-commitment statutes, each in various stages of court battle.

The case revolves around Andre Brigham Young, a convicted rapist who was transferred to a civil treatment center in Washington State after serving his criminal sentence. He claims the treatment center is not doing enough to help him get well - and thus amounts to another form of incarceration. As a result, he claims he's being punished twice.

The Supreme Court has already ruled on the general issue of double jeopardy in such cases. Three years ago, in a Kansas dispute, the justices found that the act of committing a sex offender to a treatment center after serving prison time doesn't, by itself, constitute double jeopardy. The reason is that one is a criminal act and the other a civil one.

The new case hinges on the narrower question of what kind of treatment the offenders are receiving. This is a far trickier legal area. Psychiatrists disagree on which treatment works and who can be treated, leaving states to figure out the complexities.

Massachusetts case

In Massachusetts, for instance, a decision is expected any day by the Supreme Judicial Court on whether the state can continue holding sex offenders who have completed their criminal sentences. Its civil-commitment statute was enacted last fall, and since then 75 people have been transferred to a mental-health facility run by the Department of Corrections. Until the court settles the issue, they are not receiving any treatment.

But opponents say treatment is not the state's true intent anyway, rather public safety is. "It's hard to say with a straight face that what's really going on here is anything but punishment," says Stan Goldman, a lawyer with the Committee for Public Council Services in Boston. "We have to wait until someone's sentence is almost up until any thought of treatment is given."

While Washington State was the first to pass a civil-commitment statute in 1990, the debate over what to do with sex offenders is hardly new. Early this century, many states adopted legislation that ordered "sexual psychopaths," as they were called then, to mental hospitals instead of prisons. But those laws were either appealed or fell into disuse.

More recently, a series of high-profile cases of sex offenders being released from prison and committing horrible crimes has once again ignited public indignation. "There's such crazy hysteria around the country regarding sex offenders. It's the new boogeyman for our modern-day society," says Jerome Miller, a psychiatrist and president of the National Center on Institutions and Alternatives in Alexandria, Va.

States are quickly adopting community-notification and civil-commitment laws, he says, "but there is not a scintilla of evidence that they do any good."

Research shows that sex offenders have lower recidivism rates than other types of criminals. A 10-year study in Massachusetts recently reported that 17.7 percent of sex offenders were rearraigned on another sexual offense.

National studies have shown that within the first several years, recidivism rates among this group ran between 10 to 15 percent, but can jump to over 30 over a 10-year period. That's still below rates for other criminals.

Still, because this is a highly charged topic, society has little tolerance for any repeat offenses.

" says Howard Zonana, a professor of psychiatry at Yale University in New Haven, Conn., and chairman of a task force on sexual offenders.

Another misperception, critics say, is that sex offenders are untreatable, even incurable. Some new drugs and different types of counseling work on some types of sex offenders.

But states are asking: What do we do with other types - the chronic offenders, for instance - for whom treatment doesn't seem to help? In the Massachusetts study, 8.5 percent of the sex offenders were responsible for 37 percent of all the re-arraignments in a 10-year period.

Supporters of civil-commitment statutes argue that sexual offenders are a special group and shouldn't just be let out in the community without treatment. They say treatment is better for society and the individual.

"From the perspective of the potential victim, if you know someone's dangerous, why would you let them out to go hurt someone?" Massachusetts Gov. Paul Cellucci recently said in defense of the state's civil-commitment statute. "It makes no sense at all."

Impact of treatment

Others note that treatment is, in fact, proving effective.

In Washington State, Sarah Sappington, state assistant attorney general and council of record for the coming Supreme Court hearing, says five men have been released after successful treatment and several more are close to being released.

While there have been some problems in implementing the Washington law, Ms. Sappington says great strides have been made in the treatment and care given sex offenders at the state hospital.

"You don't get to go back into the community simply because there are problems implementing the law. Your remedy is either to seek damages or improve the conditions," she says.

The real problem, she says, is that the Supreme Court has yet to define the level of treatment required to meet constitutional standards.

(c) Copyright 2000. The Christian Science Publishing Society

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