A case against mandatory life imprisonment or the death penalty for sex offenders [View All]

This thread was inspired by another thread on the subject, which can be found here.

As it is undoubtedly clear, there are some here who believe that sex offenders (or to be more specific, offenders who commit crimes against children) should be either sentenced to life without the possibility of parole or the death penalty (I'm guessing depending upon the specifics of the crime committed). This argument either (a) rests upon a number of mistaken assumptions which I will address or (b) is pure retribution dressed up in an argument resting upon a number of mistaken assumptions. A much better approach would be to take cases on an individual basis and avoid casting wide nets with laws such as this. It is my contention that such an approach would not only avoid undue incapacitation or specific deterrence, but if it were applied to other areas of the law as well (such as sex offender registration laws) would actually make society safer than it currently is.

To begin with, it seems appropriate to set out some definitions given that the terms like sex offender, child molester, and sex crime are all incredibly vague. When most people thing of a child molesting sex offender, the worst typically comes to mind. Indeed, this category does include individuals such as John Couey, who abducted, raped, and murder Jessica Lunsford. However it is also important to note that it also contains people such as William Elliott who, had sex with his 17 year old girlfriend while he was (I believe) 19. So it is important to keep in mind that these legalistic definitions run the gamut - encompassing all kinds of different people who have done all sorts of different things. Plus, if you broaden it to mean "sex offense against a child" - as the linked thread does, then you have anything from public urination to rape and murder. Applying a one-size-fits-all law to all child sex offenders makes little sense.

According to the Center for Sex Offender Management, an adjunct of the Department of Justice, recidivism rates for sex offenders are relatively low (around 11-15% over a five year follow-up) - especially when compared with other classes of criminals. The recidivism for many groups of offenders drops further once you look at them individually. For instance, the majority of sex offenses against a child are committed by someone that the child knows and trust (roughly 90%). The majority of those offenses (that is, excluding perpetrators who are unknown to the victim) are committed by family members. Intra-familial offenders are typically on the lower end of the risk scale for reoffense. They tend to be what is known as "situational" offenders in that they are not typically predators.

One-size-fits all laws such as this can do much more harm than good. Hypothetically, say that the law is altered to give mandatory offenders life sentences. That means everyone from William Elliott to John Couey goes away for life (or gets the death penalty). Also, given that the majority of these crimes are committed by family members it would also place additional burdens on that family. Moreover, stricter laws might discourage the reporting of ongoing abuse (for example, if a wife knows that her husband has abused their daughter, but doesn't want him to get the death penalty) which lessens the probability that the offender will seek some kind of treatment.

And finally, laws like these (including laws concerning sex offender registration) provide camouflage for people who truly are predators and need to simply be incapacitated. These laws are geared towards such individuals, but they represent a very small percentage of the whole. Another hypothetical: suppose that a predator is released into a community and, in accord with law, registers as a sex offender with police. Suppose further that there are (including this individual) 100 people on the local registry. It then falls to the police and public to be aware of these 100 people, but what if only this individual is an actual threat? While the percentage might be a bit off, it's not much of a stretch. In addition, Sheriff departments around the country are reporting that more offenders than ever are absconding from the registry due to increasing restrictions (read: no one knows where they are) and it is also not much of a stretch to believe that offenders would be more likely to murder their victims to avoid either life imprisonment or the death penalty themselves.

In closing, creating one-size-fits all laws for a very heterogeneous group makes little since from both a criminal justice and a public safety perspective. Cases should be handled on a case by case basis, where an individual is evaluated to determine his level of risk to the public and treated accordingly.

This is not to say that strangers do not commit sex crimes or that former offenders do not commit new sex crimes. It does happen. What it does mean, however, is that our collective focus is woefully misplaced. That is understandable, since these crimes arouse a great deal of emotion in people (and they should). What I fear, however, is that we are allowing our desire for retribution overshadow the sense of fairness that is the bedrock of American jurisprudence. In many cases, deterrence, affirming of social norms, and retribution are all appropriate in the criminal justice system. However, it is also my contention that laws such as this seek to make retribution the primary justification of criminal justice. If that is the case, it would certainly be less disingenuous if they just came out and said it as opposed to pushing for ever increasing punishment under the guise of protecting the children.

Edited for spelling.