Footnotes[1]
The new laws include community notification and registration for life of
those considered dangerous, requiring ever greater numbers of people to report
suspected sex with young people, and the prohibition of computer generated
images depicting sexual children. [2] As of September, 2000. Lieb, R. and Matson, S. (1998, September). Sexual Predator Commitment Laws in the United States: 1998 Update. Olympia, WA: Washington State Institute for Public Policy. Available at www.wsipp.wa.gov/ September 2000 statistics personal communication with Lieb. In some states "person" replaces "predator". [3] Prosecuted as Kansas' first sexually violent predator and portrayed in the news media as highly dangerous, the state never alleged Leroy Hendricks used or threatened violence. The crime for which he served 10 years before he was committed indefinitely was to touch the crotch of two clothed 13-year-old boys. Andriette, B. (1997, August). America's Sex Gulags. The Guide. Available at www.guidemag.com This type of exaggerated portrait is standard when advocating repressive legislation, notably in the drug scare ushered in by New York State's Rockefeller laws in 1973, which filled the nation's prisons and jails with low-level, non-violent offenders. Schlosser, E. (1998, December). The Prison-Industrial Complex. The Atlantic Monthly. Available at http://www.theatlantic.com/issues/98dec/prisons.htm [4] In discussing Addington
v. Texas,
441 U.S. 418 (1979), Eric Janus notes how standard
civil commitments are designed to facilitate professional review and error
correction with short time limits for confinement and discharge decisions being
made by treatment personnel rather than by courts, leaving treatment
professionals free to discharge patients if hospitalization is not therapeutic. Janus,
E. (Winter, 1996). Preventing
Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender
Commitments. Indiana Law Journal, Volume
72, Number 1. Available at http://www.law.indiana.edu/ilj/v72/no1/v72no1.html [5] Barnickol, L. (2000). Missouri’s Sexually Violent Predator Law: Treatment or Punishment? Washington University Journal of Law & Policy. Volume 4, p. 332. Available at http://www.wulaw.wustl.edu/Journal/4/ [6] Lieb and Matson (note 2). [7]
According to Lieb and Matson (note 2),
most states use either "likely" or "substantially
probable". California courts have employed a "more likely than
not" standard: People v. Dacayana,
2d Crim. No. B122454, Superior Court, Ventura County; People v. Hedge, Court
of Appeal, Fourth Appellate District, June 23, 1999. [8] Whitestone Foundation newsletter, August 2000. Hereinafter Whitestone. [9] Parsons, C. (2000, May 7). Sex offenders find no way out; law aims to treat them, but most stay locked up. Chicago Tribune.
[10] Morris, K. and Carter, M. (2000, August 19). Jurors reject request to free eight-time rapist. Seattle Times; Brodeur, N. (2000, August 17). Crux over justice for sex offenders. Seattle Times. [11]
Foucha
v. Louisiana,
504 U.S. 71 (1992), italics
added. [12] Grossman, T. (1999). Kansas v. Hendricks: The Diminishing Role of Treatment in the Involuntary Civil Confinement of Sexually Dangerous Persons. New England Law Review. Volume 33, Winter, pp. 491-493. Available at [link did not work] http://www.nesl.edu/lawrev/vol33/toc332.htm [13] Janus (note 4). [14] Peres, J. (1997, June 24). High Court: Pedophiles Can Be Held After Prison. Chicago Tribune. Allen wrote the National Mental Health Association's brief to the Supreme Court opposing the Kansas law. [15] Curtis, K. (1999, February 27). Does treatment for predators work? Associated Press in (San Luis Obispo, Calif.) Tribune. Also (1997, August). Psychiatric Times. Volume XIV, Issue 8.
[16]
ACLU news release. (1996, June 26). ACLU Calls H.R. 3565 a Civil
Liberties Nightmare for Nation's Children.
[17] Isaac, K. (1998). Kansas v. Hendricks: A Perilous Step Forward in the Fight Against Child Molestation. Houston Law Review, Volume 35: 1295-1331, p. 1317. [18] Falk, A. (1999). Sex Offenders, Mental Illness and Criminal Responsibility: The Constitutional Boundaries of Civil Commitment after Kansas v. Hendricks. American Journal of Law & Medicine, Volume 25, Number 1, pp. 117-47. [19] Isaac (note 17), p. 1322. [20]
"Titicut Follies", Frederick Wiseman, 1967. Massachusetts
banned the film, a portrayal of the conditions that existed at the State Prison
for the Criminally Insane at Bridgewater, Mass. One Flew Over the Cuckoo's
Nest, Ken Kesey, 1962; Milos Foreman directed and Jack Nicholson starred in
the movie version, released in 1975. The protagonist was committed as a sex
offender for consensual sex with a 16-year-old girl. [21] Kligman, D. (1999, May 1). Mental hospitals fast becoming penal institutions. Associated Press / Seattle Post-Intelligencer. [22] A recent federal government report admitted "striking disparities" in access to and quality of mental health care for minority and non-minority groups, terming this "of grave concern to public health". U.S. Department of Health and Human Services. (2001). Mental Health: Culture, Race, and Ethnicity —A Supplement to Mental Health: A Report of the Surgeon General. Rockville, MD: U.S. Department of Health and Human Services. [23] Although the Justices agreed the requirement for mental abnormality combined with dangerousness passed the substantive due process test (note 12), the dissenters believed Kansas' statute was punitive and thus violated constitutional prohibitions against double jeopardy and ex post facto. This put states on notice the constitutionality of their predator programs will be judged in part by the effectiveness of their treatment. Hendricks, cited in Connelly, C. and Williamson, S. (2000). A Review of the Research Literature on Serious Violent and Sexual Offenders. Edinburgh: Scottish Executive Central Research Unit. Available at http://www.scotland.gov.uk/cru/resfinds/crf46-00.asp
[24] Whitestone, April 2000. [25]
Treleven, E. (2000, September 23). Falsifying Documents Alleged In State
Firing; doctor was head of treatment program for sexual predators. Wisconsin
State Journal. (Madison, WI); Schultze, S.
(2000, April 25). State officials call for tighter rules on 'sex predators'. Milwaukee
Journal Sentinel. [26] Whitestone, December 2000, citing Minnesota District Court Case number S-12169 MN0400000 920011724, Counts I and II, Crim. Sex. Assault in 5th Degree. [27] Whitestone, December 2000. [28] Carter, M. (2000, March 21). Sex-offender center: 10 years of trouble. Seattle Times; Whitestone, October 1999. [29] Whitestone, April 2000. [30] Carter (note 28). [31] Whitestone, August 2000.
[32] Whitestone, July 1999. [33] Steven Whitsett, age 24, escaped from the Martin Treatment Center via a helicopter piloted by his long-time younger lover. Whitsett had one conviction on his record for molestation of a 15-year-old male when Whitsett was 20. He was awaiting his sex-predator commitment hearing when he fled. The county sheriff reported, "We do consider them armed and dangerous, and frankly, desperate." The helicopter crashed. The pair fled into nearby woods and eluded police for a day. A jury subsequently found Whitsett not to be a predator though he has remained in custody on escape charges. Goldstein, A. (2000, June 19). The Boy Who Loved Me; a child molester and his ex-lover try an ill-fated escape. Did a Controversial law drive them to it? Time; Keough, C.J. (2001, August 1). Chopper escape bid keeps sex offender behind bars. The Miami Herald. [34] Office of Program Policy Analysis and Government Accountability. (2000, September). Effectiveness and Monitoring of Martin Treatment Center for Sexually Violent Predators. Tallahassee, FL: OPPAGA. Available at http://www.oppaga.state.fl.us/ [35] Parsons (note 9); Curtis (note 15). [36] Blanchette, K. (1996, August). Sex Offender Assessment, Treatment and Recidivism: A Literature Review. Research Division, Correctional Services Canada. [37] Doren, D. (1999, June). The Accuracy of Sex Offender Recidivism Risk Assessments. Presentation at the XXIV International Congress on Law and Mental Health, Toronto; cited in Hanson, K. and Thornton, D. (note 38). [38]
Hanson, K. & Thornton, D. (1999, February). Static 99: Improving
Actuarial Risk Assessments for Sex Offenders. [39] Hanson, K. (1997, April). The Development of a Brief Actuarial Risk Scale for Sexual Offense Recidivism. [40] Cochran, G. (1998, June 3-6). Perverted Justice. San Francisco Weekly. Available at www.sfweekly.com [41]
Judges for Florida's Sixth Judicial Circuit Court wrote, "none of
these 'actuarial instruments' seem to include whether the person has been or is
being treated, whether he has been or still is incarcerated, is under house
arrest, or is comatose, although to the unsophisticated, one or more of those
factors would seem to bear heavily on future conduct." Whitestone,
October-November 2000.
[42] Parsons (note 9) for use of ammonia; Blanchette (note 36) for ineffectiveness of behavior modification. [43] Lupron's use at Atascadero, personal conversation with an inmate. Side effects and a January 2, 2000 expose on the TV program "Dateline", Use in controlling sex fantasies, see, e.g., Ott, B.R. (1995, October). Leuprolide treatment of sexual aggression in a patient with Dementia and the Kluver-Bucy syndrome. Clin Neuropharmacol. Volume 18, Number 5, pp. 443-7; Realmuto, G.M., et. al. (1999, April). Sexual behaviors in autism: problems of definition and management. J Autism Dev Disord. Volume 29 Number 2, pp. 121-7; Briken, P. et. al. (2000, May). Treatment of paraphilia and sexually aggressive impulsive behavior with the LHRH-agonist leuprolide acetate. Nervenarzt. Volume 71, Number 5, pp. 380-5.
[44] Blanchette (note 36). [45] OPPAGA (note 34) re Florida; Whitestone, June 2000, re Atascadero. [46] See the controversy around the publication of Rind, et. al. (1998, July). A Meta-analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples. Psychological Bulletin. Volume 124 (1), which found no support for the belief adult-child sex is always harmful. The article ignited a controversy which the authors discuss in Rind, et al. (1999, November 6). The Clash of Media, Politics, and Sexual Science. Presentation to the Society for the Scientific Study of Sexuality and the American Association of Sex Educators, Counselors, and Therapists (St. Louis, MO). [47]
Blanchette (note 36) for the necessity "to recognize and accept full
responsibility for his/her criminal behaviour and its damaging
consequences" before treatment can be effective. [48] Moral Panic (note 1), page 223. [49] Prentky, R.A. and Burgess, A.W. (2000). Forensic Management of Sexual Offenders. New York: Kluwer, pp. 17-18. [50] Janus (note 4), quoting U.S. v. Chisolm, 149 F. 284, 288 (S.D. Ala. 1906). |