View the article here.Last year, Gov. John Lynch lobbied vigorously for the passage of the Sexual Predators Act, urging lawmakers repeatedly to crack down on the "people who prey on children."
The bill, the governor's top priority in a year without a budget and with an election, earned the strong support of House and Senate leaders from both parties. Written by the attorney general with input from prosecutors and police chiefs, the legislation carried the stamp of the law-enforcement community and passed by a wide margin.
Now that the law has taken effect, though, even those who championed it acknowledge that it needs adjustment. Meanwhile, defense attorneys are questioning the constitutionality of some provisions in the law, which they say was unnecessary and capitalized on public fear about sex offenders. And at least one veteran lawmaker who worked on the bill last year believes it was rushed to passage without full review.
"I've never seen a law work that was put through so fast," said Rep. Laura Pantelakos, a Democrat who serves as vice chairwoman of the House Criminal Justice and Public Safety Committee, which reviewed the bill last year. "I don't feel it can be said that we did it right."
Pantelakos, a 15th-term lawmaker from Portsmouth, said she and other committee colleagues wanted to hold the bill for a year of study and development but were overruled by the governor, legislative leaders and others who wanted to pass it in 2006. "They were hell-bent to get it out," she said.
The legislation's two sponsors disagree. "It's probably going to have a few tweaks here and there, but overall I think the bill is in there as what I had hoped for," said Rep. Peter Batula, a Merrimack Republican and the main sponsor.
Senate Majority Leader Joe Foster, a Nashua Democrat and the bill's cosponsor, said he thinks the Sexual Predators Act is experiencing the minor "growing pains" associated with any comprehensive new law.
"It's a piece of legislation dealing with a lot of specific matters, and it doesn't surprise me that we may have to look (again) at certain things to get it right," he said. Moreover, Foster said, the act as written will protect children. "It's a good piece of legislation that I suspect other states will look at and model theirs on."
Multiple provisionsThe Sexual Predators Act contains more than two dozen provisions that supporters hope will act in concert to make children safer. Lynch - who said he started the process in mid-2005 by asking the attorney general to work with prosecutors, law enforcement and victims' advocates to study New Hampshire's laws and compare them with those elsewhere - has said repeatedly that the act gives the state "some of the toughest and most comprehensive child protection laws in the nation."
The attorney general's office modeled the law on statutes adopted elsewhere, including a Florida package known as Jessica's Law, named for the young girl whose kidnapping, rape and murder prompted lawmakers there to adopt 25-year minimum sentences and lifetime electronic monitoring of sex offenders.
Critics of New Hampshire's law are careful to note that they abhor sex crimes and assault on children. At the same time, they see it as legislation that addresses problems - the predator who lurks near schoolyards or on the internet; the repeat offender - that exist as much in perception as in reality.
Critics also saw it as an unusual move for New Hampshire legislators - where limited-government proponents talk often about not passing legislation for legislation's sake - to adopt a bill that germinated elsewhere. The state should not have looked far south for sex-offender legislation, Pantelakos said.
"We should never follow a Florida law," she said. "Sometimes I think their brains are burnt out down there."
Batula disagrees. He perceived a growing problem in New Hampshire "simply by what you're reading in the paper, that all these kids were victims. And then you were also reading that some of these penalties by the judicial system, some of them were just a slap on the wrist," he said. "We wanted to make sure that was not the case in New Hampshire."
Despite the length of the bill, nearly all of the debate in the Legislature centered on one component: mandatory minimum sentences. The governor, the attorney general and others wanted to scrap the maximum 10- to 20-year sentences for first-offense sexual assault on children and first-offense physical abuse to children that leaves permanent damage; they wanted to raise the mandatory minimum sentence to at least 25 years. They also wanted to replace the 20- to 40-year maximums for second offenses with life without parole.
The House - where Rep. David Welch, then the chairman of the criminal justice committee, warned against legislating by "emotion over logic" - removed the minimum sentences, but Lynch and others lobbied to restore them in the Senate. The two bodies ultimately compromised with a provision to create minimum mandatory sentences but also allow a judge some discretion to deviate, provided the judge provides a detailed written explanation.
A shorter debate occurred over a provision to keep sex offenders from living near schools and parks, which lawmakers deleted - some said it would force sex offenders to move from urban to rural areas, and others said it would not improve public safety. Otherwise, most aspects of the law received little or no debate in the Legislature, where few lawmakers were fully versed in the intricacies.
Among other aspects, the law increased the frequency with which released sex offenders must register their whereabouts and toughened the penalties for failing to do so; it gave law enforcement and parents more information about sex offenders living in their communities, in part by expanding the list of sex crimes that lead to inclusion on the public database of offenders; and it created a "civil commitment" process for keeping some violent sex offenders off the streets even after they've finished their prison sentences.
Civil commitmentsBecause the law took effect Jan. 1, lawmakers and observers say it's too early to tell how most aspects of the law are working. But the last component - civil commitments - has generated some early complications and yielded a test that could prompt judicial review, adjustments by lawmakers, or both. It has also prompted a debate between commissioners of two of the largest state departments, and it has given critics of the overall law an opportunity to question whether the entire package was reviewed sufficiently before passage.
The Sexual Predators Act added a new form of involuntary confinement to cover "a small but extremely dangerous number of sexually violent predators," in the language of the law. Those predators do not have mental defects that qualify under previous commitment laws but instead have "antisocial personality features" that render them unfit to return to society after prison because they are likely to commit additional violent sex offenses. The laws says it could be the result of a "mental abnormality or personality disorder."
Enter William Decato, 50, as a test case. Decato went to prison in 1999 after pleading guilty to raping one exotic dancer and kidnapping and attempting to rape a second dancer at his home. He served all eight years of his sentence, partly because he refused to participate in the prison's sex offender treatment program, according to court records.
Just before Decato's scheduled release last month, Merrimack County Attorney Dan St. Hilaire - one of several county attorneys who participated in the drafting of the new law - petitioned to keep Decato off the streets through the civil-commitment statute.
The law allows prosecutors to seek additional confinement in five-year increments for the most violent sex offenders, provided they can prove the offenders suffer from personality disorders that make it difficult for them to control their violent sexual behavior. The law established a three-person "multidisciplinary team," including two trained psychiatric or psychological consultants, through the Department of Health and Human Services, to evaluate the convicts.
The convicts are entitled to judge or jury trials in superior court to determine their fate. Nearly all superior court proceedings are open to the public. However, traditional civil commitment cases are heard in probate court, where proceedings are closed. In the Decato case, both the prosecutor and the defense asked for most of the court file and the proceedings - dealing with Decato's mental state - to be sealed for Decato's privacy.
The Monitor and the New Hampshire Union Leader petitioned for full access on the grounds that court proceedings are presumed open in New Hampshire and that the public has a right to know how the new law is working. Mangones opted for what he called a balance; he sealed most of the records and held nearly all of the court hearings in the matter behind closed doors.
Last week, Mangones found probable cause that Decato remains a violent sexual predator and ordered him held in prison until an April trial.
Lawmakers did not address the public-access question in establishing the civil commitments last year. Also, they created the commitment process with the intention of treating retained convicts through the Department of Health and Human Services - though no facility exists to house them at New Hampshire Hospital and offenders would be forced to remain after their sentences at the state prison, albeit in a segregated unit.
David Hirsch, Decato's public defender, said that's a significant difference between New Hampshire's new civil commitment law and laws elsewhere to confine and treat sex offenders beyond their sentences, a concept that has passed muster with the U.S. Supreme Court. About one-third of states now have such statutes.
Further prison confinement amounts to a second sentence and violates the constitutional prohibition on "double jeopardy," said Hirsch, who has defended convicts in civil commitment cases elsewhere and was recently hired to lead a new office of the New Hampshire Public Defender to handle such defenses here.
Hirsch said the Legislature was also too vague in creating its "antisocial personality features" standard for determining which sex offenders can be civilly committed. The Supreme Court established a test to distinguish between ordinary inmates with antisocial traits and those who are dangerous sex offenders likely to recommit, Hirsch said.
"Virtually all criminals have antisocial personality features. That's what makes them criminals!" Hirsch wrote, in an e-mail interview. "Our law doesn't pass the test."
If the prosecutor succeeds in securing additional confinement for Decato, Hirsch will almost certainly contest the law, he said.
Claire Ebel, executive director of the New Hampshire Civil Liberties Union, shares Hirsch's disdain for the civil commitment, especially because it relies on a "clear and convincing" standard of proof instead of the "beyond a reasonable doubt" standard.
"Predicting likely future behavior is at best an educated guess. Deprivation of liberty based on that projection ought to scare the hell out of everyone," she said. But unlike Hirsch, Ebel believes the proceedings should be open. "People need to know why someone is being deprived of his or her liberty based on an assumption that some professional makes," she said.
A short billFoster, one of the co-sponsors, submitted a short bill this session to clean up some of the language in the civil commitment statutes. The bill clarifies that the Department of Health and Human Services is supposed to adopt rules for the psychological analysis by the multidisciplinary team, while the Department of Corrections is supposed to adopt rules to provide for the housing and basic treatment of convicts who are civilly committed.
Foster considered the bill to be merely "a housekeeping measure." But Health and Human Services Commissioner John Stephen and Corrections Commissioner William Wrenn disagreed over the rule's authority. And each used a committee hearing on the bill last week to raise a series of concerns about the law.
Stephen said he has two issues with the civil commitments. First, he wants lawmakers to clarify the law to provide public access to the civil commitment proceedings. He also wants them to clarify whether they intend to define "mental abnormality or personality disorder" themselves or intend to leave it up to the multidisciplinary evaluation teams.
Lynch and the Executive Council recently approved an authorization of $100,000 to hire psychiatrists and psychologists for the multidisciplinary teams, at a rate of $200 an hour. That's a footnote in the costs associated with the Sexual Predator Act. The myriad expenses - to prosecute and defend the civil commitment cases, to treat and house those committed, to increase the monitoring of sex offenders in the community, among other costs - are likely to run in the millions.
Stephen and Wrenn agree that lawmakers should approve a $24 million proposal for the capital budget to build a facility at the New Hampshire Hospital to treat and house people who are civilly committed, to remove them from the prison.
If that happened, the Department of Corrections would be free of the responsibility to house - and write rules associated with the housing of - civilly committed individuals. But assigning rulemaking authority to corrections even for the time being should be seriously reviewed, said Wrenn, who believes that's more than a housekeeping measure. Wrenn, who thinks it would be a mistake to give his department civil-commitment authority, said the rulemaking question gets at the essence of the commitment law.
"We have to determine, first of all, if in fact the intent of this law is for further treatment of the sexual offenders, or is it incarceration?" he said.
New viewpointWrenn's perspective has changed on the law since his days as Hampton police chief, when he participated in the drafting of the legislation through his leadership role with the state Association of Chiefs of Police. A little over a year ago, Lynch named Wrenn corrections commissioner.
Wrenn said he thinks lawmakers should give more attention to what they expect to accomplish by civilly committing those who have served prison time. Providing for a transitional period at the end of the five-year commitment term - such as halfway housing - would signify that it's intended to be treatment, not a perpetually renewable incarceration, he said.
Overall, though, the Sexual Predators Act is a good law, Wrenn said. "We just need to work with it, and we need to grow with it, and we need to adjust and modify it where we find in a practical sense that it may not be working quite the way we had intended it," he said.
Welch, who was Republican chairman of the House criminal justice committee last session, said lawmakers on the committee - which was charged with reviewing the legislation and making a recommendation to the full House - didn't spend much time debating the civil commitments.
Sensing the inevitability of passage, lawmakers who wanted to question an aspect of the bill picked a portion that would affect more cases: mandatory minimums.
"I think what we accomplished last year was to make the bill more reasonable," said Welch, of his committee's work, adding "I think we'll likely revisit this bill several times."
Lynch, a second-term Democrat, said last week that he understood some aspects of the bill may need to be reviewed or clarified. But he said the same underlying goal would continue to drive any work related to the act: "The protection of our children, the safety of our children, drove the discussion with regard to every provision of the Sexual Predators Act, and I think it will continue to drive the discussion," he said.
But Pantelakos isn't sure the law will accomplish its goal as written. "I don't think it's going to make anybody any safer," she said.
Defense attorneys share that view. Michael Iacopino, president of the New Hampshire Association of Criminal Defense Lawyers, said the Sexual Predators Act "makes for good politics, but it makes for bad policy," he said, adding that it relied on "popular myths about sex offenders" preying on random children.
Iacopino and Hirsch both said the cost of trying or housing the expected handful of civil commitment cases a year would be better spent expanding treatment and transition programs for sex offenders who committed less severe crimes and will be re-entering society from prison. The same goes for the money being spent to monitor those sex offenders on the outside, they said.
Each side in the debate cites statistics to make its case. Recent studies by the federal Department of Justice's Bureau of Justice Statistics found that 93 percent of children who were victims of sexual assault were victimized by family members or people they knew. Another federal study found that sex offenders had lower recidivism rates than other criminals, and that three years after their release from prison, only 3.3 percent had been arrested for another sex crime against a child.
On the other hand, a long-term Canadian study, which tracked offenders for 25 years, found that nearly 74 percent of those who sexually abused children outside their family were reconvicted for a second offense.
Ebel, the executive director of the NHCLU, said it was inevitable that a bill of this nature would have passed without debate about each component.
"It would have taken a politician of almost unimaginable courage. I mean, who speaks well of sexual predators?" she said. But there's a chance now for lawmakers to monitor it in practice: "We have an opportunity to create a more civil discourse, an opportunity to talk about these things and to right some of the wrongs that occurred last year," she said.
Though Welch didn't succeed in wiping out the mandatory minimums, he said the legislation is important and necessary.
"We tried to craft the bill as carefully as we could. Nothing is perfect," he said. "The proof of the pudding is in the eating it - and I think the meal won't be over until at least the end of the year."
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