Tuesday, February 26, 2013

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration

Original Article

Heather Cucolo
New York Law School

Michael L. Perlin
New York Law School


Temple Political & Civil Rights Law Review, Fall 2012
NYLS Legal Studies Research Paper No. 12/13 #33

(View the PDF) The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment are often inaccurate and that meaningful treatment for this population is often unavailable and ineffective. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to treating sexual offenders humanely, will it be possible to reduce recidivism and foster successful community reintegration.

This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

'They're Planting Stories in the Press': The Impact of Media Distortions on Sex Offender Law and Policy

Original Article


Heather Cucolo
New York Law School

Michael L. Perlin
New York Law School

NYLS Legal Studies Research Paper No. 12/13 #55
NYLS Clinical Research Institute Paper No. # 33/ 2012

(View the PDF) Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as “sexually violent predators” to civil commitment facilities post incarceration and/or conviction. Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. Targeting, punishing and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even more restrictive legislation that breaches the boundaries of constitutional protections.

The advancement of technology and mass media communication have spawned a constant influx of information about sexual predators. News headlines and Internet webpages are dedicated to reporting on and highlighting sexual crimes and their infamous perpetrators. There is little disputing that the newest surge in legal attention and efforts to contain sexual predators stems from the mass dissemination of sexual offender media stories available to the general public. Thus, we cannot discuss our national obsession with sexual offenses and offenders without considering how the role of the media has framed our conceptualizations of offenders and influenced resulting legal decisions and legislation.

The public perception of what constitutes a “sex offender” is undoubtedly linked to the media’s portrayal of these types of heinous crimes. The media’s attention to high profile, violent sexual offenses has been shown to elicit a panic and fear of rampant sexual violence within our communities. This, in turn, places extreme public pressure on legislators to enact more repressive legislation and on judges to interpret such laws in ways that insure lengthier periods of incarceration for offenders. The media’s portrayal of a “largely ineffective” criminal justice system heightens fear; fictionalized portrayals of crime on television dramas may lead viewers to believe that “all offenders are `monsters’ to be feared.” The media, in short, shapes and produces the reality of crime, as it influences “factual perceptions of the world.” A “moral panic” has developed primarily due to the media’s depiction of a “sex offender” in the news and newspaper articles. As a result of the incessant media coverage, the general public has conceptualized what it believes to be the prototype of this “monstrous evil” – a male who violently attacks stranger young children .

This paper is not the first inquiry into the media’s influence on public perceptions and moral panic: the media’s influence on sex offender policy, legislation and public opinion has been highlighted in depth throughout much of the literature and academic writings. The other discussions have generally focused on the media’s role as a precursor to the enactment of sex offender legislation, the upholding of sex offender laws in the courts, and as a significant influence on the continuation of moral panic. But what has not been looked at significantly, is whether and how the media coverage and presentation of these issues has been transformed over the past two decades, and what effect, if any, this has had on public perception. What if the media has begun to shift away from simply highlighting and describing the feared beast and has begun to focus more on the problematic results of laws and legislation? Would that, in turn, have an effect on public perceptions and inevitably on the formation and enactment of laws and judicial decisions?

Slowly and somewhat recently, it appears that the tone of the media’s portrayal of sex offender issues has begun to shift. In addition to highlighting salient and horrific sexually violent offenses and contributing to community outrage, the mainstream media has increasingly begun to report on significant concerns surrounding the conceptualization, treatment and containment of the sex offender population. News articles – published in popular newspapers and media sites – more readily dedicate information to expressing expert opinions (that were previously embedded in articles dedicated solely to describing heinous crimes and community outrage), reporting on statistics that question the factual basis of our perceptions, questioning the efficacy of the laws designed to protect the community, and touching on the cost of human rights violations resulting from our laws.

This article will consider the role of the media in sex offender issues and further theorize whether the shift in media presentation has affected public perceptions of sex offenders and whether it has had any impact on recent legislation and the future enactment of sex offender laws. As part of this inquiry, we will employ the lens of therapeutic jurisprudence in an effort to assess the broader societal impact of these media depictions.

Part I will offer an overview of the major (media-centered) sex offender laws and legislation, focusing on the media accounts of the crimes upon which they were based. Part II will consider the impact of the media’s portrayal of offenders as the pariahs of society in the civil and criminal justice system; Part III will detail the proposed recent shift in media presentation and consider how, if at all, this shift has made an impact on new laws, legislation and court opinions. Part IV weighs these developments in the context of therapeutic jurisprudence, and considers its potential impact on dealing with the aftermath of the first decades of the media’s volatile influence on this area of law and policy. We conclude by offering several policy recommendations.

MA - Proposed Sex Offender Bylaw will not Affect Landlords, Property Sellers

Original Article


By Mary MacDonald

Milford Police Chief Thomas O'Loughlin has re-introduced a sex offender bylaw proposal, which would reduce the area they are restricted from working or living in under his original plan.

Adjustments made in the past few weeks to a proposed sex offender restriction bylaw would reduce the area they would be prevented from working or living in in Milford.

In addition, the newly introduced proposal would drop the idea of requiring landlords or property owners from knowing the status of their tenants or buyers.

The revised plan is expected to be discussed Monday night at the Milford Board of Selectmen's meeting.

It more clearly defines which registered sex offenders would be subject to the restrictions, and eliminates some of the restrictions that had been questioned earlier by selectmen.

Milford has 77 people who live or work here who are registered sex offenders. Of those, 59 are classified by the state Sex Offender Registry Board as Level 3 or 2, the most serious.

The bylaw proposal, drafted by Police Chief Thomas O'Loughlin and Town Counsel Gerry Moody, would require the sex offenders with the most serious classifications to live at least 250 feet from facilities and spaces including churches, town-run parks, schools, elderly housing facilities, libraries or daycare centers.

In addition, the individuals would be prohibited from loitering for more than 15 minutes within 250 feet of bus stops, facilities for the elderly or people with intellectual disabilities, and other spaces.

Violations would be subject to up to a $300 fine and a criminal complaint.

In an initial review of the original plan, several selectmen had questioned whether the provision requiring landlords and sellers to know whether their tenants or property buyers were registered sex offenders would put too much of a burden on them.

In his overview of the new proposal, O'Loughlin wrote: "Eliminated Section 3F concerned with landlords and people selling their homes. This amendment places the responsibility where it should be, squarely upon the registered sex offender."

The reduction of the proposed restriction area, from 500 feet to 250 feet, was done so to not be overly restrictive, he wrote.

In addition, the proposal now defines the sex offenders subject to restrictions as those who are designated as "sexually violent predator," those who are classified as Level 3 offenders, where a state panel states "the risk of reoffense is high," and Level 2 offenders who were convicted of committing sex offenses on a child, an elderly person or someone with an intellectual disability.

Other than a requirement to register their address with Milford Police when they move into Milford, or obtain a job in Milford, convicted sex offenders are not restricted.

Several communities in Massachusetts have sex offender restriction bylaws, O'Loughlin said, including communities in MetroWest from which sex offenders have relocated to Milford.

In an overview for the meeting tonight, he stated the town had four newly registered sex offenders in 2012, and three each in the three previous years.

Based on his survey of police chiefs in Massachusetts, O'Loughlin reported that of 71 chiefs who responded, 29 towns or cities have a sex offender restriction bylaw, while 40 do not.

Ashland, Bellingham and Marlborough are among the communities that already have sex offender restrictions in place.

Auburn and Tewksbury are proposing bylaws this year.

Because it is a bylaw change, approval of Town Meeting voters would be required.

ID - State's top court: Sex offender not exempt from registering

Original Article


The Idaho Supreme Court upheld a 1st District Court ruling from Kootenai County that said a 2009 amendment to the state's sex offender registration law does apply to a Coeur d'Alene man, according to a Monday opinion.

[name withheld], 55, was sentenced in July 1991 to 10 years in prison for felony lewd conduct with a minor, but the sentence was suspended and he was placed on probation for five years. His probation ended in July 1996, and the case was dismissed in February 2011.

At the time [name withheld] was sentenced, Idaho didn't have a sex offender registration statute.

But in 1993, the Idaho Legislature passed the Sex Offender Registration Act. The act applied retroactively to people convicted prior to July 1993, and those who were still on probation.

The act required sex offenders to register while on probation and "for a period of 10 years after the date of discharge from probation, parole or release from incarceration, whichever is greater."

In 1998, the Legislature repealed the Sex Offender Registration Act, and enacted the Sexual Offender Registration Notification and Community Right-to-Know Act.

The new act applied retroactively to people convicted of crimes before the statute was enacted. It also applied to those on probation.

So, because [name withheld] was still on probation, the statute applied to him and he had to register as a sex offender.

[name withheld] sought an exemption, but his offense, lewd conduct, is considered an aggravated offense so he wasn't eligible. The District Court in Kootenai County denied his petition for an exemption.

"When a legislative act is expressly stated to be retroactive, subsequent amendments to that act are also retroactive, as long as retroactive application would not violate the Constitution," according to the Supreme Court opinion.

The justices added, "Mr. [name withheld] does not contend that applying the amendment to him would violate any constitutional provision. Therefore, the district court did not err in dismissing Mr. [name withheld]'s petition."

CANADA - Reaction to Hudak's sex-offender policy

Video Description:
Leamington parent Paula Pimiskern explains why she supports making the sex-offender registry public.

NY Law - Do / Should Sex Offenders Have Rights?

Video Description:
Picking up after "Sex Offenders: Rights vs. Protection," Brad Sussman continues the provocative interview with Prof Heather Cucolo on what we think and need to know about this problem of society. Anger, fear and justice all have to be considered. This is the full un-edited version of the broadcast version.

NY Law - Sex Offenders: Rights vs. Protection

Video Description:
Attorney, Bradford J. Sussman, discusses rights, protection, punishment and treatment of this complex and sensitive subject with New York Law Professor and sex offender expert, Heather Cucolo.

See Also:

ATTN: Reporter looking for stories of collateral damage from the registry

Facebook Post

ATTN: Reporter looking for stories of collateral damage from the registry. You can be from any state and have any type of relationship with your loved one on the registry. Shana Rowan, Executive Director, is working with him to put together a comprehensive, respectful, accurate portrayal of the plights of family members. Email Shana at shana.rowan@usafair.org or PM us here for more info.

ARC RADIO - SPECIAL GUEST Shana Rowan Executive Director of USA FAIR

Don't forget to view our calendar for upcoming events.

UPDATE: Shana has notified us that she will not be on the show tonight due to illness ~ we'll have her on next week. The show WILL go on, but topic TBD.

Hosted by: RealityUSA (TalkShoe | Website)

Title: SPECIAL GUEST Shana Rowan Executive Director of USA FAIR

Time: 02/27/2013 08:00 PM EST

Episode Notes: Please Join us as we welcome Shana Rowan as our special guest on ARC TALK RADIO. As executive director of USA FAIR, Shana promises to work as hard as she can to fight for law abiding former offenders and their families and to insure that their struggles and successes are reported by the news media. And she pledges that she will not quit until the myth of high sex offender recidivism is erased from our culture and our registry laws are based on reason.

IN - One man commits a crime and all sex offenders are punished for it?

Sex offender = Scapegoat?
Original Article

See the video at the above link.


By Russ McQuaid

After a convicted rapist was set free from the Marion County Jail last summer only to be charged with rape in Greenwood shortly afterwards, changes have been put into place to keep sex offenders in Indianapolis behind bars and off the streets.

[name withheld] is accused of brutally raping a young mother at the Ashmore Trace apartments just days after his release from the Marion County Jail. [name withheld] had been arrested for the sexual assault of an Eastside woman, but that charge was dropped when she couldn’t positively identify her attacker.

Investigators said [name withheld] and his family members lied about the convicted rapist’s sex offender status and that’s why he was free to attack again.
- You are blaming this on the family members?  When a person is convicted of a crime and booked into jail, isn't a background check done or all their records available?  If so, then they knew, or overlooked it, and released the man.  Also, he was never charged with the crime mentioned above, so was he a sex offender before this arrest, or are you just labeling him that because you want to?

Due to pretrial publicity, jury selection for [name withheld]'s trial was held in Bloomington Monday. That jury includes eight men and four women. His trial is set to begin Tuesday in Johnson County.

The case has certainly gotten the attention of local officials, influencing them to make some key changes.
- Yeah in the usual knee-jerk fashion.  He hasn't even been convicted of the crime, yet the politicians are already jumping to pass more draconian laws!

Marion County Sheriff’s Captain Mike Hubbs oversees a team of detectives that digs deeper into the criminal records of sex offenders arrested in Indianapolis and determines if there are any additional charges they might be held on after misdemeanors or unrelated arrests.

A lot of times these sex offenders are processed on criminal matters unrelated as to why they’re on the list and they’re providing information, address information or vehicle registry information, which is either erroneous or hasn’t been reported to us that could in itself substantiate a criminal charge,” Hubbs told Fox59.

Hubbs said if a shoplifter or drunk driver is a sex offender, and found in violation of his registry rules, that person could be held on additional charges even if the original case is dropped or the person makes bail.
- WTF?  If a person has committed a sex crime in the past, served their time, and is now off probation / parole, then they commit some other crime, then charge them with that crime if their is proof he/she did it.  Their sex offender label should have nothing to do with it if it wasn't another sex related crime.

Three hundred sex offenders have been booked since August on unrelated offenses and then, based on our investigations, out of those 300 roughly investigations, we’ve filed over 30 felony charges,” he said.

Those additional charges are often enough to hold an offender in jail or until his home county revokes his status.

I am confident today that with those over 30 felony arrests we made, this could have easily prevented a heinous crime like the [name withheld] incident,” said Hubbs.
- We doubt it!

This past weekend, sheriff’s deputies alerted California authorities that a west coast sex offender was in the Marion County Jail.

Sex offenders are also required to wear white jumpsuits while in jail to distinguish them from other prisoners and so that they’ll receive additional attention from deputies.
- Yeah, put a bullseye on them so other prisoners can target them for harassment!

Hubbs said at least two sex offenders a day are booked into the Arrestee Processing Center, often for non-sex offender-related charges.

IA - Sex offenders are once again scapegoated for the murder of children, nobody arrested, no sex involved?

Sex Offenders = Scapegoat?
Original Article



DES MOINES - Sex offenders could be hunted for their crimes indefinitely under legislation introduced Monday by an Iowa lawmaker.

Sen. Jeff Danielson’s bill would remove the statute of limitations on sex offenses involving children, a provision that drew praise from some during a Statehouse hearing.

Sometimes it takes decades before the trauma can be spoken of,” said Kim Hiscox, an organizer and spokeswoman for the National Child Safety Council. “A statute of limitations doesn’t make sense.”

The bill, which Danielson, D-Cedar Falls, said “was a starting point,” makes several other changes to existing law. They include:
  • Modifying the state’s sex offender registry tier structure so offenders are ranked on the list based on an assessment of their propensity to reoffend. Currently, offenders are placed on the list based on their conviction.
  • Putting aside $2 million for a state revolving fund under control of the Department of Public Safety to pay for training and best practice protocols for law enforcement agencies involved in tracking missing children, including new alert systems and establishment of a statewide human trafficking task force.

Witch-Hunt Mentality
The legislation is in response to the abduction and killings of cousins Elizabeth Collins, 8, and Lyric Cook-Morrissey, 10, who were reported missing in July and whose bodies were discovered by hunters in December.
- And is was mentioned that they were probably killed by drug dealers, not ex-sex offenders, so instead of punishing murderers, they go after the scapegoat, sex offenders, and from a quick scan of the news, we do not see that sex was involved, so why punish ex-sex offenders for the crime of a murderer?

No arrests have been made in the case.

It does not go far enough, but it’s the step in the right direction,” Sen. Kent Sorenson, R-Milo, said.

Sorenson has pushed for a reintroduction of the death penalty in the state since the girls’ bodies were discovered.

I think capital justice is something we can have a discussion on,” Sorenson said, adding he could support Danielson’s bill. “I’m hoping we can make it a work in progress.”

Robin Arnold, a Cedar Falls woman who turned in 15,000 signatures from people who supported tougher sex offender laws to the committee, said she hoped the legislation would make it possible for quicker responses from law enforcement and the community at large when children are missing.
- Come on, this is insane!  Why do we continue to punish ex-sex offenders when a child goes missing or murdered instead of punishing the person who committed the act?  This is just wrong!

I listened to them say every day for seven days ‘We have no reason to believe the children had been abducted,’” Arnold said. “So on the seventh day when it came across that ‘We now believe the children have been abducted,’ I cried, I prayed, I started the petitions.”