Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.
True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.
Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.
To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have someone with no appropriate training making these judgments and thereby controlling the destiny of a defendant.
When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine1 [pdf]. If he fails to admit2[pdf], then he has violated his probation.
So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.
Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (SeeState v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.
There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).
It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.
Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.
The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.
While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found. The outcome is generally not good.
So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.
I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?
1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).
Montana has a high rate of sex offenders and a very high rate of revoking probation at 94% due to technical violation. I had an inmate just ask me how does he do the SOP class where they are wanting to talk about what made him do the crime and that he has to admit why he did the crime and that he did it. This is not the first time I have had an inmate ask me this. If they are innocent how do they make something up to appease the system?
Let’s play a little game. I’ll post some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
MONTANA ARE WE GOING TO START BEING SMART ON CRIME? MONTANA WHY DON’T WE QUIT CONVICTING INNOCENT PEOPLE? ARE WE THAT BACKWARDS TO BE RESORTING TO WITCH HUNTING AGAIN?