NY Likely to Adopt Sexual Predator Law

By TChris, Section Legislation
Posted on Fri Mar 02, 2007 at 01:55:00 AM EST
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New York is the latest state to abandon the principle that people should be punished, once and only once, for what they have done, but never for a crime they have not committed. Sexual predator laws deprive sex offenders of their liberty after they finish their sentences -- a detention that seems to many (but not to a majority of the Supreme Court) to be a second punishment that isn't moored to a new crime.

Those convicted of any of a wide range of sex-related felonies would be reviewed for potential detainment after their prison sentences end, including those convicted of some nonviolent crimes like giving minors indecent material.

States are permitted knock the cap off sentences by changing the label from "punishment" to "treatment." The state claims the power to detain and treat dangerous and disordered sex offenders to protect against future sex crimes that it fears the detainee will otherwise commit. The laws depend on the assumption that a court can accurately gauge the likelihood that a particular offender will commit a future sex crime -- as if judges, or anyone else, can reliably predict an individual's future behavior. It's sad that New York has joined the score of states that use fear of future criminality to justify the continued imprisonment of sex offenders who have fully served their sentences.

The agreement would also create a new “sexually motivated felony” that would apply to those who intended to commit a sex crime but did not.

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NY Likely to Adopt Sexual Predator Law | 7 comments (7 topical)

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What about Federal depredations? (none / 0) (#1)
by jarober on Fri Mar 02, 2007 at 07:34:36 AM EST

I've always been troubled by the double jeapardy aspects of Federal Civil Rights prosecutions. Yes, the outcomes often delivering justice to truly bad people, but I don't like the "ends justifying the means" nature of it. With Sex Criminals, if NY (or any other state) believes that they are an ongoing danger, then they should lengthen the prison term.

Good point..... (none / 0) (#2)
by kdog on Fri Mar 02, 2007 at 08:20:13 AM EST

If a convicted offender is such a danger, it is up to the courts to sentence them accordingly. The state cannot just arbitrarily keep people locked up after their sentence is complete...that is insane....tyrannically insane.


most, if not all states (none / 0) (#3)
by Deconstructionist on Fri Mar 02, 2007 at 08:34:45 AM EST

have civil commitment statutes allowing the state to have people involuntarily committed to mental health facilities-- including one's with very high security and very severe limitations on liberty based upon a finding that due to mental illness or defect the person is a danger to himself or others.

I think the REAL issues relate to due process. What level of "danger" is ncessary to prove? How imminent must the danger be? Do less restrictive but effective options exist? What are the notice requirements? How is the right to effective assistance of counsel enforced? How are the rights to confront the state's evidence and present one's own evidence guaranteed? What is the state's burden of of proof? what avenues of appeal exist with what standards of review? etc.

: An interesting book (none / 0) (#4)
by roy on Fri Mar 02, 2007 at 09:37:08 AM EST

Those civil commitment statutes can be extremely difficult to make use of. Crazy talks about it detail, from the perspective of a parent trying to force his schizophrenic son to get treatment.

minors and indecency (none / 0) (#5)
by zaitztheunconvicted on Fri Mar 02, 2007 at 10:48:12 AM EST

I don't know of any cases in which police or prosecutors have made a case of this, but consider a lot of yahoogroups or the other similar email groups. A significant portion of them trade erotic material. And, another significant portion trade in photos that are not an explicit hardcore depiction but suggestive and may include nudity in photos.

Nudity in photos can range from documentary and educational, to artistic, to gently erotic and more plainly erotic.

Long ago--in the 1960s--the original case in which the SCOTUS decided that it was OK to criminalize the act of giving material harmful to minors to a minor (but materials that were not otherwise obscene) was a case of a bookstore owner selling a Playboy or similar mag to a teenager who asked for it. Now, I think that was a horrendously bad decision, and if I remember right, the bookstore owner I think was set up.

Anyway, today, in dozens and hundreds of yahoogroups and other egroups, there are dozens and hundreds and thousands of minors. A prosecutor--in some states--who had a lot of time on his hands could similarly charge that those who share nudes on these groups are sharing material harmful to minors with minors. I've never heard of it happening, and I presume that police and prosecutors have other more important things to do.

anyway, that portion of the law--at least how it was enforced back in the 1960s--is crazy.

note the contrast (none / 0) (#6)
by zaitztheunconvicted on Fri Mar 02, 2007 at 11:32:37 AM EST

In Ginsburg v New York

appellant and his wife ran a lunchette and stationary store. Among the items sold were some girlie magazines, so-called. A 16-year-old bought 2 and a judge found that they depicted nudity and appealed to the prurient interest of minors . . .

Appellant argues that there is an invasion of constitutionally protected rights. SCOTUS rejects the argument and says state can control what minors view if the legislature can rationally suppose the material may be harmful . . .

In a recent case decided by the 8th circuit court re violent video games:

Before the county may constitutionally restrict the speech at issue here, the county must come forward with empirical support for its belief that violent video games cause psychological harm to minors . . . the county has failed to present the substantial supporting evidence of harm . . . the County may not simply surmise it

civil commitment (none / 0) (#7)
by diogenes on Fri Mar 02, 2007 at 08:41:02 PM EST

Please wait until the first people are civilly committed. If some benign person is committed after his 20 year sentence, feel free to put it to some "Innocence Project" and have the NY Times pressure the Democratic governor Spitzer.
This is actually more humane than long prison sentences. If a sex criminal is sentenced to life and is decrepit and cancer-ridden at 74 years old, he's still in prison. With civil commitments, such a person could perhaps be released.