Albany County’s district attorney recently caused a firestorm when he criticized our costly criminal justice system, which continues to grow because of the laws we pass.

David Soares made his incendiary comments at a conference in Canada, part of a speech on failed drug policies in our country; he came home to apologize to local law-enforcement officers. Supporters rallied behind Soares on the same issue that helped get him elected — an upset in the Albany Democratic party — opposition to the Rockefeller drug laws.

Law-enforcement officers can do only that — enforce the law. The larger problem is created by the lawmakers.

In the early 1970’s, public hysteria over drugs, fueled by politicians eager to show they were being tough on crime, led to the passing of cumbersome laws that led, in turn, to lengthy prison sentences for users and small-time dealers, effectively tying judges’ hands when it came to meting out punishment.

The state prison population swelled from 12,500 in the early seventies to more than five times that today. Drug use has not abated.

Lawmakers now are considering another cumbersome and poorly-thought-out law, again as a reaction to public hysteria, fueled by politicians eager to show they want to keep our children safe. The bogeymen now are sex offenders, and the bills are to add terms of civil commitment after sentences have been completed.

Such laws flout the basis of our legal system: Once the agreed-upon debt to society has been paid, the sentence served, the convict is free to re-enter society.

Many widespread fears about sex offenders are unfounded, among them: Sexual abuse is rising fast, especially abuse of children; it is primarily strangers who abuse children; sex offenders are repeat offenders.

Actually, the United States Department of Justice has outlined a steep decline of child sex abuse — by 40 percent from 1992 to 2000. Also, the Rape, Abuse, and Incest National Network has found the numbers of rape and sexual assault against all victims has dropped 65 percent since 1993.

According to a 2000 publication by the National Center for Juvenile Justice, only 7 percent of abused children are abused by a stranger; 93 percent are abused by a family member or acquaintance.

Finally, recidivism rates are much lower for sex offenders than for other felony offenses, like burglaries.

Dale Volker, the Republican sponsoring the Senate’s bill, has said many times that there are high recidivism rates for sexual predators — this plays to people’s fears, fueling the movement to pass a civil commitment law.

In truth, sex offenders as a group have one of the lowest recidivism rates. According to the United States Department of Justice, of the 272,111 people released from prisons in 15 states in 1994, an estimated 67.5 percent were re-arrested for a felony or serious misdemeanor within three years. Of the 9,691 male sex offenders released from prisons in 15 states that same year, 5.3 percent were re-arrested for a new sex crime within three years of release, and of the 4,300 child molesters released from prisons in 15 states in 1994, an estimated 3.3 percent were re-arrested for another sex crime against a child within three years.

Certainly crimes must be punished and it is difficult to think of a crime more heinous than sexual abuse. But the bills currently under consideration in New York — one in the Senate and another in the Assembly — are ill-conceived. If one of them, or a combined version, is adopted into law, we will find ourselves in coming years with an even further expanded, more costly, and still ineffective criminal justice system.

Sixteen states and the District of Columbia have laws to civilly commit sex offenders after they have completed their sentences; very few of these programs have released individuals for completing treatment. Under the law in Kansas, on which the New York proposals are based, only four people have ever been released.

In 2005, in Florida, 486 sex offenders were committed, and six were released; in Illinois, 216 were committed and seven were released; in Massachusetts, 306 were committed and four were released; in New Jersey, 311 were committed and none were released.

New York would be the first state since 2000 to enact a civil-commitment statute for sex offenders. Two of the states that currently have such laws — Kansas and Florida — are considering dismantling their programs. They are costly and have not increased public safety.

Governor George Pataki has said he hopes to commit about 500 sex offenders by 2009. Pataki’s proposal to upgrade an old minimum security prison in Chenango County to make it a secure hospital would cost $130 million for 500 beds. It would cost $250,000 annually to keep each individual, three times what an inmate costs the state each year. The cost for the first decade is estimated at a billion dollars. Eventually, the system could cost the state billions more annually as more people are committed each year and few to none are released.

Diverse groups — ranging from the Mental Health Association of New York Sate and the New York State Coalition Against Sexual Assault to the Prisoners’ Legal Service of New York and the New York City Bar — have opposed civil commitment, and for good reason.

It is instructive to look at what has worked in other states. The program in Texas is the most effective. Texas does not civilly commit sex offenders; instead, it releases them to outpatient care and keeps close tabs on them. Outpatient programs have twice the success rate of inpatient programs, according to a 2005 study by the Texas Council on Sex Offender Treatment.

Many inpatient programs allow individuals to refuse treatment, which their lawyers advise, because thoughts or actions disclosed in treatment can be used against the patients at annual reviews, keeping them committed longer. Also inpatient programs lack the stresses found in daily life that can cause relapse, such as alcohol, drugs, and contact with potential victims.

A narrow definition is also useful and would better serve the public.
In New York State, the term "sex offender" includes, for example, a 21-year-old who has consensual sex with his 16-year-old partner.

The New York bills apply to any person who has committed a sex offense or a designated felony that was sexually motivated — including assault, manslaughter, murder, kidnapping, burglary, arson, robbery, or an attempt to commit any of these offenses.
And the New York bills are vague in their definition of what qualifies as a sexual predator, merely requiring the person to be suffering from a "mental abnormality."

Defining sex offenders as being mentally ill in order to fall within the required parameters increases the stigma against mentally-ill individuals while the majority of sex offenders have no diagnosable mental illness.
The state of Washington has a more limited definition of "violent sexual predator," so the state releases about 800 sex offenders a year, 200 of whom are classified as Level 3, or most dangerous. Prosecutors in Washington file petitions for civil commitment in about 10 to 15 percent of Level 3 sex offenders’ cases.
The Assembly’s bill is preferable to the Senate’s, because it is focused as much on the improvement of mental health of the sex offenders as on the importance of public safety. The Assembly’s bill would allow a jury to either commit the individual or place him under "strict and intensive supervision," so he can re-enter society and participate in treatment while dealing with outside stresses. The Assembly’s bill also sets up treatment options during the prison term, which would likely decrease the number of individuals who would then be placed under civil commitment after finishing their sentence. But neither of the New York proposals have a system like Kansas’s for stepping down the level of commitment and supervision.

Studies have shown recidivism can be cut 40 to 60 percent by using supervision, monitoring, and treatment.

So public safety is directly tied to treatment.

The majority of sex crimes are committed by first-time offenders. You can’t jail someone before he commits a crime. But the billions of dollars that will be spent to run a civil commitment program could be used to counter the situations that tend to produce sex offenders, to educate people, and to open more mental-health facilities for low-income neighborhoods. All of these could help break a vicious cycle: Many sex crimes are committed by people who were themselves once victims.

It makes no sense to lock up huge numbers of people who are not likely to commit future sex crimes to get the few who might when the money could be better spent preventing the problem. Once a state adopts a civil commitment law, more effective strategies for managing sex offenders in the community are no longer politically feasible.

Rather than spending billions of dollars on the lock-up of so-called mental patients, we would be wiser to craft a law with a narrower definition of violent sexual offender; to provide treatment during incarceration and lengthen sentences if needed; to lengthen parole periods, making sure treatment is part of parole and penalties for parole violations are harsh; and to provide programs that will stop the vicious cycle.

Several months ago, when we wrote the last in a series of stories on individual sex offenders living in our community, we quoted Melanie Trimble, executive director of the New York Civil Liberties Union. Her words ring true today. Most of the proposed legislation, she said, doesn’t speak to real solutions.
"Experts all recommend programs that really help rehabilitate offenders and keep them from re-offending," she said. "Those programs are woefully underfunded...If legislation focused on real solutions, we could better protect the public and children."

— Melissa Hale-Spencer, editor