Sex Offender Reentry Courts: A Proposal for Managing the Risk of Returning Sex Offenders to the Community

Vol. Sex Offender Reentry Courts: A Proposal for Managing the Risk of Returning Sex Offenders to the Community∗ John Q. La Fond 2 Bruce J. Winick 2 0 A vicious sexual attack on a young boy generated the first sexually violent predator statute implemented in Washington State in 1990. See David Boerner, Confronting Violence: In the Act and the Word, 15 U. P , USA 1 Stuart Scheingold & Toska Olson, The Politics of Sexual Psychopathy: Washington State's Sexual Predator Legislation, 15 U. P , USA 2 We first proposed this concept in John Q. La Fond & Bruce J. Winick, Sex Offender Reentry Courts: A Cost Effective Proposal for Managing Sex Offender Risk in the Community , 989 A Enraged by sex crimes against young children committed by convicted sex offenders,1 the public has demanded that government do whatever is necessary to prevent sexual recidivism. Victims' groups mobilized public opinion and politicians rapidly responded.2 Since about 1990, policymakers in the United States have adopted two distinct strategies to prevent convicted sex offenders from committing more sex crimes. One strategy emphasizes long-term confinement either in the prison system or in the mental health system. The other strategy relies on information compilation and dissemination. - than other criminals and are likely to reoffend during their entire lives. They also require public officials to predict whether a convicted sex offender will commit another sex crime if released into the community. These strategies present public officials with rather stark choices: confining sex offenders for a very long time or simply releasing them with minimal supervision into the community. This Article explores why it is so difficult to predict when sexual offenders will commit another sex crime. It then proposes the use of sex offender reentry courts to control sex offenders in the community, using a risk-management approach that will protect the community effectively at reasonable cost and also create incentives for sex offenders to seek rehabilitation. Sex offender courts, which are based on principles of Therapeutic Jurisprudence, can provide more intensive community supervision for a much larger group of sex offenders, while at the same time motivating them to change their attitudes and behavior. A. Limited Choices: Long-Term Confinement or Information Control 1. Longer Criminal Sentences Most states have aggressively used the criminal justice system to prevent sex offenders from committing more sex crimes. They have dramatically increased sentences for sex crimes, passed mandatory minimum sentences for repeat offenders, including sex offenders, and enacted life-time sentences under “one, two, or three strike(s)” laws. Between 1993 and 1995, twenty-four states and the federal government passed “three-strike” statutes. They increased sentences for repeat offenders, including serious sex crimes. Some of these laws required mandatory life sentences for specified repeat offenders.3 While the prison population in the United States increased by 206 percent from 1980 to 1994, the number of imprisoned sex offenders increased even more—by 330 percent. Between 1985 and 1993, the average time served by convicted rapists in state prisons increased from about three years to five years, an increase in 3 John Clark et al., U.S. Dep’t of Justice, Three Strikes and You’re Out: A Review of State Legislation (1997), available at http://ncjrs.org/pdffiles/165369.pdf (last visited June 15, 2004). percentage of sentence served from thirty-eight percent to fifty percent. Put differently, for sex offenders released from prison from 1985 to 1993, there has been a significant increase in the average length of stay in prison and in the percentage of sentence served before release. Since 1980 the number of prisoners sentenced for violent sexual assault other than rape increased by nearly fifteen percent—faster than any other category of crime except drug trafficking.4 2. Critiques of Criminal Sentencing Mandatory minimum and lifetime sentences confine many sex offenders who, in fact, do not pose a high risk of committing another sex crime. Thus, they are overinclusive. Because these sentencing laws use only an offender’s criminal history and use it inaccurately to determine the risk of sexual recidivism,5 many sex offenders who do not pose a serious risk of reoffending will be confined. These sentencing schemes are also underinclusive. Many sex offenders who pose a serious risk of committing more sex crimes will not be confined because these schemes do not use the best risk assessment techniques to identify dangerous sex offenders. Mandatory minimum sentences are also excessive because many sex offenders will be incarcerated much longer than is necessary to prevent them from committing another sex crime. As a result of these sentencing initiatives, sex offenders are an incredible “growth industry” for our prisons and jails. 3. Indeterminate Civil Commitment S (...truncated)