I'll be speaking this weekend at a conference in Washington, D.C., devoted to the reform of sex offender legislation. One hundred or so folks from around the nation are gathering to brainstorm on what to do about a body of law that is often harsh and indiscriminate. I should have reached out to readers here long ago for suggestions, but I didn't. If you have suggestions, please leave them in the comments section here. There's still time for me to amend my remarks.
My sense is that relief must come in the form of legislative action. The courts are simply ill-equipped to do much good. There are rare victories, such as the Ohio ruling by the state Supreme Court removing offenders from the sex offender list because the registration requirement violated the state's separation of powers doctrine. But this rare legal victory can be undone simply by drafting new requirements through the appropriate branch of government. Politics is where relief will come, not the courts.
What I see behind closed doors is frustration among judges and prosecutors in the following areas:
1. Requiring prison time and making felonious the violation of so-called Romeo and Juliet laws. These statutes typically involve claims of statutory rape between a minor and a suitor close in age. Consent is not a defense in these cases, and prison is mandatory. My sense is that there is support for legislation eliminating the requirement for prison time in such cases. It might also make sense to downgrade the offense from a felony to a misdemeanor to avoid the disabling effect of a felony on a young person's career chances.
2. Elimination of mandatory prison time for Internet-related crime in which there was neither attempted nor actual physical contact with another person. Many states and the federal government now require prison sentences for possession of even a handful of pornographic images of children. Judges often despair over the rigidity of statutory schemes requiring imprisonment of defendants in which there are no tangible victims proximately related to the possessory offense.
3. Increased accessibility to diversionary programs for those accused of child pornography offenses. Connecticut, for example, recently enacted a new psychiatric accelerated rehabilitation program. This program permits folks to submit to a period of probation and to get treatment for mental illness. If the applicant successfully completes the program, the criminal case is dismissed. The only problem with this law is that lawmakers have decreed that it is inapplicable for those accused of possession of child pornography.
This legislative decision should not trump medical judgment.
4. Elimination of mandatory prison time for non-violent sex offenses. Lawmakers can easily and constructively express social disapproval of deviant conduct by rewriting these statutes to create a presumption in favor of prison time. But this presumption should be rebuttable for good cause shown.
5. The current mania over sex offender registries is little more than moral panic. The overwhelming majority of sex offenses are committed against victims by family members or caregivers with direct and consensual access to the victim. Sex offender registries are fueled by fear of stranger danger. Putting a man who abused a family member on a public registry merely stigmatizes an offender who little danger to the community at large. There should be a broader use of law-enforcement only registrations. These lists should not be disseminated to the public.
There is traction for these ideas among judges and prosecutors. When no one is watching, and they are free to speak their mind, judges and prosecutors are often in despair about a law too rigid in conception, and too inflexible in implementation to serve the ends of justice.
What other options have you heard mentioned behind closed doors?