Wrong Turn on Sex Offenders

With little public discussion and no opposition to speak of, Gov. Eliot Spitzer has made New York the latest state to travel down a murky legal road, to a place where laws are made not in response to facts, but to wishfulness and fear. It is a place where prisoners who finish their sentences remain locked up for crimes they might commit, submitting to psychological treatment that nearly always fails and whose only sure outcome is the open-ended spending of tens of millions of dollars a year.

This is the result of the Legislature’s passing a bill last week calling for the civil commitment of sex offenders. Nineteen other states have such laws, which are motivated by the public’s intense revulsion at sexual crimes and fear of predatory offenders. Gov. George Pataki pushed for one for years, but never was able to get a bill past the Assembly. Then Mr. Spitzer tried and quickly got a different result, using the method he supposedly went to Albany to abolish: hashing legislation out behind closed doors and presenting it to the public as a done deal.

Mr. Spitzer says New York’s system will be a model for the country. It had better be, given that other states’ experiences are so troubling. These were laid out in a recent three-part series in The Times, which found that civil commitment laws have led to post-prison warehouses, where offenders check in, but don’t check out.

About 2,700 men are being held involuntarily in civil commitment programs around the country. The legal basis for their confinement, affirmed by the Supreme Court in 1997, is treatment for a mental abnormality. But no one knows for sure if therapy works, and there are no studies of civil commitment’s effectiveness in preventing new crimes because so few offenders have been released from it.

There is, however, evidence that civil commitment can become a judicial fraud, with men being sent away on the psychological testimony of uncertified nonexperts, into programs compromised by their conflicting mandates of offering therapy and being lockups. They cost, on average, four times more per inmate than prison, but almost never make an offender fit to rejoin society.

Sometimes the results are disastrous, like the Florida program, where offenders got drunk and reportedly had sex with staff members and one another. Offenders often shirk treatment; most never complete it. A few do, then get out to rape and murder again. Others are warehoused long past the time anyone would consider them a reasonable threat. Leroy Hendricks, the offender who challenged his confinement in the Supreme Court and lost, is now a 72-year-old stroke survivor who uses a wheelchair and costs Kansas taxpayers $185,000 a year.

There are other ways to handle the agonizingly difficult problem of sexually violent predators, and the bill, to its credit, contains several. It creates an elaborate regime of quasi-judicial proceedings, panels of experts and juries and judges that should satisfy many due-process concerns, though at a far higher cost than prison — hundreds of thousands of dollars per patient per year. It sharply increases criminal penalties for sex crimes, eliminates parole for sex-related felonies and provides long-term supervision for offenders who go free. It mandates treatment in prison.

It is clear that Mr. Spitzer and many lawmakers — though not the braying Republicans who sought a pandering lock-’em-all-up measure — have grappled seriously with the issue and fashioned a bill that is more decent that it could have been. But it is easy to doubt that the layer of protections they have created will work in the real, messy world.

And when you consider the recent explosion of local laws designed to keep sex offenders at bay — restricting where they can live and work, forcing them to the literal fringes of society, like some human form of toxic waste — what you see is not a rational system for managing risks and rehabilitating people, but a system for managing public fear. The state must be sure to monitor civil commitment to measure its effectiveness and be prepared to quickly revamp the program as flaws become apparent.

If the goal is to prevent as many sex crimes as possible with the resources at hand, then the state should be prepared to conclude that it might be smarter to spread its effort around. This might mean treating and supervising the large cohort of criminals who would never qualify for civil commitment, rather than lavishing resources on the impossible task of identifying one tiny subset, the worst of the worst, locking them indefinitely in dubious therapy as a much larger universe of offenders continues to abuse at will.