By Charles Patrick Ewing, Oxford University Press, New York, N.Y. 238 pages, $44.95
This book examines the interplay of psychology, law and public policy in an exceedingly controversial area of criminal justice: sex offender laws. Four areas are examined: civil commitment, sex offender registration, child pornography and Internet sex offenses.
The author is well qualified to address psychological and legal aspects of the complex issues here, being a forensic psychologist as well as a lawyer. Additionally, as a social policy analyst, trained in program evaluation, along with his academic background as a law professor at University at Buffalo Law School, this lends strong support to his assessment of sexually violent predator (SVP) laws and other legislative efforts to address crime.
The book is of particular interest with some chapters focusing on the experience in New York, where legislation and decisions continue apace. Earlier this year the New York Court of Appeals in People v. Harnett, —N.Y.3d—, 2011 WL 445643, held it unnecessary to inform a defendant that civil commitment was a possible consequence of pleading guilty. In doing so, New York specifically diverged from New Jersey’s decision in State v. Bellamy, 178 N.J. 127 (1997).
Last year, the Court of Appeals held that the requirement of registering under the Sex Offender Registration Act, Megan’s Law, was a “collateral consequence” in People v. Gravino, 14 NY3d 546. That is, a defendant pleading guilty who is unaware of a lifetime registration requirement is nonetheless making a knowing, voluntary and intelligent decision.
Parts of this book are not easy to read: at the outset the author notes that he has not spared the reader from describing some of the offenses. The first page of the first chapter provides a stomach-turning list of the sex crimes committed against children by Leroy Hendricks, the litigant in Hendricks v. Kansas, 521 U.S. 346 (1997), in which the U.S. Supreme Court upheld “civil commitment” for sex offenders. Other criminal acts are spelled out elsewhere, including verbatim exchanges of Internet sex offenders soliciting minors. The purpose is to avoid glossing over these crimes and to allow readers to make their own judgments.
In one other way this book is not easy: From psychological studies the author references empirical data in psychological studies, quoting at length rather than summarizing them. At several points this makes for dense reading, and frustration with various psychological studies that are seemingly contradictory or inconclusive.
Even meta-analyses of psychological studies are found to “suffer from serious methodological flaws,” which tends to drive the reader nuts (perhaps not the best word to use in reviewing a book on a psychology topic).
But frustration with opposing psychological studies is far better than how legislative bodies have handled far-reaching legislation in these areas. When a particularly grisly sex crime occurs, Megan Kanka’s abduction and death being but one example, legislatures have responded by enacting statutes without holding hearings, employing a “no-matter-what-it-costs” approach.
The author repeatedly returns to this, stressing that costs of various types need to be assessed. Financial costs are one aspect: with civil commitment in New York, the “cost of providing confinement, care and treatment was recently estimated to be $100 million by 2012. …New York is currently spending approximately $175,000 per year per offender for these purposes.”
State laws have been enacted in response to federal mandates: those states that failed to comply with the Sex Offender Registration and Notification Act faced losing 10 percent of federal law enforcement funding. The estimated first-year implementation cost for New York was more than $31 million; failing to comply with the new federal mandates would have been less than $1.5 million.
Other costs are considered: Again, with civil commitment, intangible cost is harm done in compromising the fields of psychiatry and psychology and their patients. The author quotes a 1999 psychiatry study critical of “bending civil commitment to serve essentially non-medical purposes.”
Both prosecution and defense in civil commitment cases require expert witnesses: “In New York State, for example, these independent experts were, until recently, paid $300 per hour for their services, including review of documents, offender interviews, report writing, testimony, consultation with counsel and travel. They are now limited to $250 per hour for all services and $100 per hour for travel time.”
Another cost, which the author properly acknowledges, is one that “lies in the eyes of the beholder and certainly cannot be quantified”: court decisions have “constitutionally authorized SVP civil commitment based on reasoning that is at best highly debatable, at worst disingenuous.” It is this perversion of justice that the book’s title alludes to.
One other “cost” is whether these approaches to sex crimes are effective. Central to this is the pervasive but false belief that sex offenders will offend over and over again: To the contrary, “the known recidivism rate for sexual offenders is remarkably low.” And the perception that sex crimes are on the rise: For the past two decades the number of reported sex offenses in the United States has declined steadily.
One place where increase has occurred is the number of federal prosecutions of child pornography offenses. Over the past decade, federal sentencing guidelines have ratcheted up enhancements for various reasons, such as child pornography occurring via the Internet. But nowadays nearly all child pornography occurs in digital media.
One federal judge has written: “As widespread as computer use is now, enhancing for use of a computer is a little like penalizing speeding but then adding an extra penalty if a car is involved.” In an important decision last year, the Second Circuit deconstructed the sentencing guidelines in this area in United States v. Dorvee, 604 F3d 84, amended 616 F3d 174.
The author is deeply critical of certain “checklists” that judges and lawyers give credence to and regularly refer to as “tests”: “These checklists are problematic because of the great likelihood that the ‘scores’ they provide will erroneously categorize individual offenders.”
In considering the notion of “proportionality,” imposing prison sentences of 10 and 15 years and higher for possessing child pornography makes little sense when someone who engages in the physical assault of a child may receive far less.
Proportionality figures into other criticisms: The author compares Internet solicitation of sex with minors to statutory rape. He recommends that Internet soliciting “should be a misdemeanor and thus carry at most a sentence of 1 year of incarceration to be followed by a period of probation.” (Repeat offenders should receive higher punishment.)
Here I would disagree. The Internet’s accessibility for repeated attempts with a vulnerable population who uses it makes this a crime where a greater deterrent should be in place. In any event, statutory rape, in New York at least, is a felony.
In responding to the call of “common sense” approaches to SORA registration, the author’s argument is particularly telling. He quotes W. Somerset Maugham: “Common sense appears to be only another name for the thoughtlessness of the unthinking.” He details why registration laws have “no statistically significant effect on sex offender recidivism and thus fail to provide the protection upon which they are premised and which they promise the public.” While these laws are mostly ineffectual at best, he concludes that “the basic registration aspects of Megan’s Laws should be retained.”
This is a book that could not have been written before these laws were enacted and implemented, but whose rigorous analysis should have been considered then. The book is thoughtful and persuasive, worthwhile for judges, lawyers, criminal justice officials, psychologists and even perhaps legislators.