John Weston Parry, J.D.
Three relatively recent New York Times articles help document a disturbing reality: how our criminal justice and quasi-civil detention systems deal with offenders and ex-offenders who have sexual and other mental disorders does not correspond to good social science, justice, or humane treatment. The desire for retribution and perceived security at almost any cost, when combined with blatant discrimination and unfairness, distorts rational analysis and deprives us of cost-effective policies at a time when our total human resources are scarce and growing scarcer. Indeterminate incarceration followed by a lifetime of costly, highly intrusive supervision and monitoring—in lieu of meaningful care, treatment and rehabilitation—for only these “special” offenders and ex-offenders is a counterproductive approach, which also has become economically irresponsible.
Hundreds of thousands of individuals, who deserve to be released from government custody or to have a reasonable opportunity to earn their release, are either incarcerated or dumped into costly but barely livable residential situations, while highly dangerous offenders slip into or remain in our communities without ever having received the care and treatment they require in order to curb or eliminate their criminal proclivities. Mostly, we only can guess which individual offenders with sexual or other mental disorders might have responded well to meaningful care and treatment because so few actually receive those needed services. Not surprisingly, our guesses have tended to be inadequate both in terms of reliability and accuracy.
Also, those guesses have been overwhelmingly biased towards not providing needed care and treatment, since, for the most part, that is what our criminal justice and quasi-civil detention systems are inclined and equipped to do. Some jurisdictions are better or worse than others, but few if any have the resources in place to be deemed rational, humane, or cost effective, much less all three, which should be a minimum requirement for any law that has been enacted. [See, John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths About the Presumption of Guilt (Rowman & Littlefield, October 2013) for a comprehensive discussion and analysis of these laws and why and how they should be reformed.]
Our Criminal Justice and Quasi-Civil Detention Systems Are Often Based on Crowd-Pleasing, Unscientific Fictions
A N.Y. Times op-ed piece by Erik Parens of the Hastings Center of Bioethics and Public Policy about the somewhat obscure philosophical notion of “binocularity”—viewing ourselves as individuals who are able to exercise free will, yet understanding that we are still manipulated and influenced by internal and external forces—makes the intriguing and controversial observation that “advances in neuroscience [may] move reasonable people to abandon the idea that criminals deserve to be punished.” In other words, if our neurological compositions largely determine what we are likely to do and how we are likely to behave, then the concept of free will is turned upside down and could be rendered irrelevant or substantially incomplete by future scientific developments.
This perspective is very different from the popular contention that advances in neuroscience can or should be used to identify who among us are likely to behave in criminal or antisocial ways. The fundamental distinction is that while we already should be able to understand, based on persuasive evidence, that certain aspects of genetics and neuroscience have undermined traditional notions of free will, whether we will ever have the ability to use that growing body of information in order to make accurate and reliable predictions about future behaviors is highly uncertain. Regardless, these two divergent perspectives about the potential for neuroscience to affect the law raise a much larger concern, which reflects a far more encompassing socio-legal critique.
Our criminal and civil justice systems and the laws that they rely on are surprisingly inadequate and naïve in how they incorporate social science and other knowledge in beneficial ways. In our courtrooms and tribunals legal fictions and procedures too frequently outweigh rational thought, especially where popular notions of justice should be put to the test. This has been true in America since well before the Salem Witch Trials. There continues to be no comprehensive and authoritative approach to bring the law up to date. The process is mostly ad hoc and uneven at best and practically nonexistent at other times. Getting it right should not mean balancing what we know or can prove with what popular constituencies want us to believe.
Nowhere is this legal over-dependency on ignorance, fallacies, and fictions more pronounced than when people who have sexual and other mental disorders are the targets. There is a whole system of laws and policies, both criminal and civil, based on bad social science and prejudice that may unfairly intrude upon these people’s lives leading to indeterminate governmental interventions for many. Judges and juries in a system stacked against enlightenment and towards popular prejudices issue penalties and other intrusive dispositions against defendants and respondents, who are among the most despised and feared individuals in our society.
The judiciary is aided in these legal fictions by many so-called experts, who pretend or convince themselves that they are able to reliably predict future behaviors—particularly dangerousness—even though the available empirical evidence overwhelmingly indicates that their predictive powers are woefully lacking as compared to the standards of proof that the law normally demands or should require. Perhaps the most blatant affront to truth and knowledge are the creation of registries and lists for people with sexual and other mental disorders that permanently deprive them of their fundamental rights with no fair opportunity to challenge the validity and accuracy of those computerized amalgamations. These listings are inherently deficient both in terms of the laws that are used to determine what information is gathered and the haphazard methods of compiling that information. In concept, it is similar to the most influential members of the community making these ex-offenders wear scarlet apparel with the words “sexual offender” or “mental offender” emblazoned on the front.
A Mental Disorder Is Not a Crime
Law Professor Margo Kaplan made a compelling argument in the N.Y. Times that what we call pedophilia, having an attraction to prepubescent children, is a status and not a crime. “[P]edophilia is [not] the same as child molestation….” Many individuals with pedophilia never act on their sexual preference or do so in virtual ways that do not involve child abuse.
As the U.S. Supreme Court has ruled or noted on numerous occasions, a person’s mental or physical status should not be used to convict them of a crime or impose penalties or intrusive restrictions on their lives. Thus, people with pedophilia should have the right to live freely in our society without intrusive governmental interference, unless they commit a sexual offense. Moreover, by not providing these individuals with meaningful care and treatment and alternatives to offending, we fail to take advantage of “opportunities to prevent child abuse.”
Scientific studies indicate that pedophilia may well be one of those conditions, which has “neurological origins…a failure in the brain to identify which environmental stimuli should provoke a sexual response.” At a minimum, it is clear that pedophilia creates compulsions or cognitive imbalances that tend to override free will. Whether those dysfunctions are due in large part to an individual’s neural make up, however, is debatable.
Kaplan’s arguments could—and arguably should—be applied more widely to encompass all sexual or mental disorders that involve strong compulsions or that otherwise decimate or undermine free will. As with pedophilia, our laws intended for individuals with these disorders are “inconsistent and irrational.” They also are highly discriminatory and unfair in legally targeting, prosecuting, and sentencing people with these disorders differently than other Americans, typically to their detriment.
As Kaplan points out, even the Americans with Disabilities Act (ADA) and other federal laws intended to protect people with disabilities have a specific exclusion for citizens and residents with pedophilia. That same broad exception to coverage applies to many other sexual or mental disorders, which she does not mention. The ADA (42 U.S.C. sec.12211(B)(1) excludes: “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism… compulsive gambling, kleptomania, or pyromania, or … current illegal use of drugs.” Moreover, commonly mental disorders have been the ADA’s unwanted stepchildren, which, as a practical matter, have much lower levels of compliance and enforcement associated with them than physical or sensory impairments.
Kaplan also discusses the fact that many individuals with pedophilia are able to control their compulsions—or to control them longer—if they receive care and treatment and other assistance, which helps ensure that they do not succumb to their sexual urges by abusing children. People correctly diagnosed with pedophilia are likely to always have these feelings, but “a combination of cognitive-behavioral therapy and medication can help [them]…manage urges and avoid committing crimes.” Unfortunately, we know very little about what prevents people with pedophilia from offending “because research has usually been limited to those who have committed crimes.” A similar research gap exists for people with other sexual or mental disorders that are thought to make them potentially dangerous. Thus, we really do not know much about the factors that explain why many people with sexual compulsions or other cognitive imbalances do not commit crimes.
Beyond our general ignorance about treatment, we are further stymied in dealing with sexual offenders, including people with pedophilia, because one of the most obvious alternatives to sexually abusing children, adolescents, and adults has become increasingly illegal. What our society outlaws as obscenity, especially child pornography, include the very images that can provide alternative outlets for individuals with these sexual compulsions or desires. As a society we have had two overriding subjective reactions to pornography, which have prevented it from being used as a treatment tool or a pleasurable diversion.
The first is a deeply seeded disgust or disapproval towards what we view as being “obscene,” especially if it involves anything that is considered to be outside societal or religious norms. Determining what is obscene has been a highly subjective, arbitrary, and prejudicial process. As Justice Stewart famously opined in Jacobellis v. Ohio, “I know it when I see it,” which often means “I will choose to condemn it if I don’t like it or those who practice it.” Thus, until 1967 when the U.S. Supreme Court decided Loving v. Virginia, interracial marriage was a criminal offense in over a dozen states.
Hugh Heffner helped make certain types of sexual images and acts socially acceptable or more acceptable. (After all, even Gloria Steinem was a Playboy bunny, although she subsequently explained that her involvement was a sociological exercise.) Yet, many sexual images or acts have remained on the fringe or have been outlawed. They have included homosexual relations of any kind, sex between people of different races, sex between unmarried partners, and of course the broad umbrella of sodomy, which among other things has included oral and anal sex. Sodomy vaguely encompasses acts “against nature,” even though those who have passed such laws had no idea what science actually had discovered in nature. Through the early 1970’s, both the American Psychiatric Association and the American Psychological Association viewed homosexual conduct as a mental disorder, although apparently there was never a successful insanity or diminished capacity defense pleaded by “sodomy” defendants based on their being gay or bisexual.
Today, we have various social prohibitions against people who change their gender or have an ambiguous relationship with their gender. Wellesley, which apparently tries to be a diverse college for women, cannot seem to figure what it should do about its current students who decide to become men, as if that requires a great deal of thought. How about helping them with their transitions? The Catholic Church still prohibits priests and nuns from having any type of sexual relations. And twelve states still have sodomy laws on their books ten years after the Supreme Court declared those statutes unconstitutional in Lawrence v. Texas.
The second overriding reaction towards pornography is a belief or impression—which once again is not supported by empirical data—that providing alternative sexual outlets to people with nontraditional sexual preferences will somehow increase the likelihood of sexual crimes occurring. This is the same strained and often irrational argument that is used to try to limit birth control for minors. Yet, the most substantiated dangers have occurred by making the production of pornography illegal. Too often in the course of the black market operations, which produce these banned sexual materials, those who are filmed or videoed are exploited or abused, particularly children and young women.
If these sexual images were produced and widely distributed in ways that were regulated and avoided such exploitation and abuse, they could provide potential sexual offenders with acceptable alternatives that would help manage any potentially criminal urges they might have. Instead, we put people in prison—often for many years—and place them on sexual offender registries—likely ruining their lives forever—not for sexually assaulting and abusing children, adolescents or adults, but rather for watching or sending images or representations that violate societal sexual norms.
Placing Highly Intrusive Restrictions on Offenders with Sexual and Other Mental Disorders
Reporter Joseph Goldstein wrote an article in the N.Y. Times, which decried the fact that sexual offenders in New York City often are kept in “prison beyond their release dates… because … of a state law that governs where they can live.” Specifically, these ex-offenders are prohibited from “living within 1,000 feet of a school… [including even] in “homeless shelters.” What makes this law far more intrusive and counterproductive is that the “onus of finding a suitable residence … is on the sex offender…,” not the New York Department of Corrections and Community Supervision. However, that Department will not release these ex-offenders “until a suitable residence is available to them.” This means that if state officials are inclined to keep these ex-offenders incarcerated, which often they are, they may do so by helping to ensure that reasonable housing alternatives are unavailable or simply doing nothing constructive to help.
This singular injustice has much broader and more pernicious implications. To begin with, throughout the United States there are many similar types of restrictions and intrusions on the lives of ex-offenders with sexual and other mental disorders: where they may live, where they are allowed to walk and work, how they may use the Internet, who they may associate with, and prohibitions that prevent families and loved ones from receiving social services if they choose to reside with these ex-offenders. Such sanctions have little to do with the prison sentences that these ex-offenders have received and almost everything to do with the difficult or impossible to refute presumption that they remain dangerous after their prison sentences expire or would have expired. In addition, the same or a similar battery of restrictions is placed on anyone who has committed a sexual felony and/or ends up on a sexual offender registry.
At the same time, many other similar living restrictions are imposed by judicial or pseudo-judicial fiat against offenders and ex-offenders with sexual or non-sexual mental disorders. The only requirement is that these restrictions be somehow justified by broadly interpreted legal standards or another vague umbrella known as “public safety.” There are plenty of experts or pseudo experts affiliated with the corrections departments and the courts, who will assert that reasonable legal standards have been complied with if any question arises about the propriety or fairness of those restrictions. The primary objectives tend to be maintaining plausible deniability and avoiding bad publicity.
Perhaps the worst injustices involve individuals, who either never sexually abused any other human being, but violated felony laws against pornography, homosexual conduct, or exposing themselves in public areas, or found themselves on the sexual offender registries by an inadvertent or deliberate mistake that—even more so than identity theft—can be very difficult if not almost impossible to correct. Despite the fact that their offenses are non-violent and do not even involve nonconsensual touching, generally these offenders—or victims of mistaken identity—are subject to the same restrictions as serial rapists.
The complicated matrix of federal and state laws and policies that apply to defendants, respondents, inmates and ex-offenders, who have been diagnosed (or misdiagnosed) with sexual and other mental disorders in our criminal justice and quasi-civil detention systems, should be revamped. The existing laws and policies have been and continue to be counterproductive on many different levels. Furthermore, even those relatively poor results are unsustainable given the extent of the economic downturn and how it continues to negatively affect our governmental systems. We need to substantially reduce or even eliminate the burgeoning array of highly expensive, discriminatory, and often poorly managed detention facilities and programs that are intended to indefinitely incarcerate these offenders and then monitor and intrusively restrict them in the community should they be released. Increasingly, these individuals are being placed in government custody for the rest of their lives.
Regardless of the approach that is used, there always will be a substantial percentage of recidivists. That is inevitable. We need to acknowledge, however, that ex-offenders already have served their sentences. Furthermore, recidivism rates can be highly deceptive and misleading because they are so difficult to measure and the measurements often are biased towards complying with predetermined outcomes. These difficulties are magnified substantially when recidivism predictions are applied to individual offenders rather than groups.
The more important and reliable measure for our society should be the total number of violent offenses that are committed. Meaningful and targeted care, treatment, and other related services would be far less costly—and far more effective, just, and humane—in reducing the number of those offenses, than continuing to do what we have done in the past. The potential benefits would be much greater still if needed social services were provided voluntarily in the community well before a first offense might occur. An ounce of judicious prevention is worth a pound of expensive incarceration and intrusive community supervision.