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The New Disappeared

by DAVID ROSEN

One of the first acts of New York’s newly-elected “liberal” governor, Eliot Spitzer, was to secure passage of the nation’s most far-reaching civil confinement law. With its passage, New York joined nineteen other states that permit the continued imprisonment of sex offenders after they have completed their prison sentence. These inmates are defined as suffering a mental disorder and, thus, posing the threat of committing new crimes upon release. Civil confinement permits the state to transform a criminal sentence with a specified duration into an indeterminate life sentence.

Convicted sex offenders are joining a growing list of what can only be called “the new disappeared.” Latin American dictatorships (under CIA and U.S. military supervision) pioneered “disappearance” as a government practice to deal with radical opposition during the tumultuous ’70s and ’80s. Today, both U.S. federal and state governments are instituting a less barbaric, but no less effective, means to ensure the disappearance of a variety of unacceptable citizens. In effect, once a person is convicted, sentenced and imprisoned, he or she can be disappeared from civil society for life.

Today, the terrorist, particularly the Muslim jihadist, and the sex offender, especially the pedophile, are perceived as the gravest evils to civil society. But they are not alone.

The new disappeared also includes those swept up in the CIA practice of “extraordinary rendition” or identified as “enemy combatants” and imprisoned in the American gulag, Guantánamo; those, like Sami Al-Arian, the Palestinian educator, and Josh Wolf, the indie video journalist (recently released), being held for an indeterminate sentence for contempt of a grand jury subpoena to testify under a questionable (if illegal) order; those, like Mumia Abu-Jamal and Leonard Peltier, the former Black Panther journalist and American Indian Movement activist, respectively, serving a life sentence or are on death row with no likelihood of release; those given extraordinarily punitive prison sentences reaching to 100 and 200 and even 900 years; and the nearly 6 million ex-felons and those awaiting trial who have been disenfranchised from civil society. America is practicing disappearance with a bureaucrat’s smirk.

* * *

Sometimes the “New York Times” gets is right. Following Spitzer’s signing of the civil confinement law, the Times ran an in-depth, three-part exposé and a strongly-worded editorial seriously challenging the practice. In the editorial, it stated: the Times “found that civil confinement laws have led to post-prison warehouses, where offenders check in, but don’t check out.” [New York Times, March 4, 5 and 6, 2007; editorial March 13, 2007]

Gov. Spitzer insists that New York’s confinement law has sufficient safeguards to protect the interests of the incarcerated. It calls for a panel of mental-health experts to assess sex offenders before they’re release. Based on its recommendations, the state attorney general will then determine whether to go to court to seek further confinment. A jury must unanimously agree that confinement is necessary before, finally, a judge approves the confinement.

In keeping with current Supreme Court rulings, the New York law makes treatment mandatory both during incarceration and after release. Confined offenders are to be placed in secure psychiatric facilities and segregated from other patients. In addition (and reenforcing today’s punitive climate), it imposes longer prison terms for sex crimes and requires longer periods of paroled supervision for those not confined. Most troubling, it establishes a new crime catagory (i.e., sexually motivated felony) that attempts to identify potential sex offenders prior to committing a crime ­ the Bush-Cheney war policy of preemptive strike applied to domestic life.

America has never known what to do with sex offenders. They have been part of the social landscape since the nation’s earliest colonization. However, in the pre- and post-WWII era, about half of the states had sex offender laws targeted to those suffering mental disorders, be they ascribed to a disease or defect. These laws permitted states to confine those convicted of sex crimes to indeterminate sentences. In the ’60s and ’70s, these laws were challenged by calls for determinate sentencing.

Americans have never been comfortable with indeterminate sentencing, especially for non-criminal behavior. The one area long accepteble for civil confinment concerned a person who was assessed by medical experts as either suffering from a mental disorder or being dangerous to him/her-self or others.

In 1990, Washington enacted the first state law to formalize civil commitment. (In the intervening period, it has sought 208 confinements and secured 135 of them.) The policy was legitimized by the Supreme Court in 1992 in Foucha v. Louisiana. In this decision, the Court held that a person who had served his/her criminal sentence could not be further confined for merely being dangerousness without a proven mental disorder.

However, facing the growing politicalization of sex offenders in the ’90s, especially what came to be called the “violent sexual predator,” legislators throughout the country moved aggressively to maximize the term of their imprisonment and, if they do get out of jail, severely regulate their lives after prison. One method employed was to expand the definition of mental disorder to encompass the less precise condition of “mental abnormality.”

In 1997, the Supreme Court upheld this new nomenclature in the Kansas v. Hendricks decision. Writing for the majority, Justice Clarence Thomas argued that mental abnormality covered under Kansas’ Sexually Violent Predator Act was a constitutionally permissible basis for civil confinement of a dangerous sex offender. He insisted that such confinement was civil, not punitive, because it was to be accompanied by treatment for the offender.
* * *

Civil confinement has been a failure in terms of dealing with deeply troubling sex offenders. As practiced by states across the county, confinement is a punitive sentence, a form of double jeopardy. Other than postponing indefinitely the release of criminals who have completed their formal prison sentence, it hasn’t work.

Sex offense is a serious issue. The (mostly) men arrested and convicted for such crimes often commit some of the most horrendous offenses imaginable, including the abuse, rape, torture and murder of children and women. These are often truly troubled ­ and socially troubling ­ men; no one seems to know how to effectively deal with them.

Unfortunately, an informed consideration of this issue seems nearly impossible. The growing politically-motivated social hysteria that drives most discussion of sex offenders provides little room for anything other than the most knee-jerk punitive response: Jail ’em and throw away the key!

Matters are made worse by TV shows like NBC Dateline’s “To Catch a Predator” that reduce the men who pursue online contacts with apparent underage young people into a moralist’s prurient spectacle: Viewers are sexually titillated by the apparently illicit if not illegal behavior of innumerable “predators,” yet implicitly scolded for being seduced by the very titillation that drew them into watching the show in the first place. The show refuses to address more fundamental issues like why these men seek out juvenile girls and boys, nor how to deal with them other than through vindictive criminal prosecution and incarceration.

The “reported” incidents of sex offenses, like all other crimes, have been falling over the last decade. While the self-serving Police Executive Research Forum recently released a dubious study reporting an increase in certain violent crimes in a pre-selected sampling of cities, FBI and Department of Justice data tells a different story. [see Alexander Cockburn, “Here Comes Another Crime Wave,” “The Nation,” April 2, 2007; PERF report at www.policeforum.org]

The most recent data, the FBI’s statistical summary, “Crime in the United States, 1986-2005,” shows that sex crime has dropped significantly. Forcible rape, the only sex crime tracked, peaked in 1992 at 110,000 and, by 2005, was at 94,000, a 14 percent decline. The Justice Department found that, in 1979, the rate of rape per 1,000 people was 2.8 and by 2004 it had fallen to 0.4 per 1,000 people. In addition, FBI data reveals that between 2002 and 2004 other sex offenses (statutory rape, incest) were down 31 percent and prostitution and commercial vice was down 19 percent.

“USA Today” reported that sex assaults against those 12-17 years declined 79 percent during the 1993-2003 decade and sex abuse of all children under 17 dropped by 39 percent during the same period. While estimates by scholars vary, estimate suggest that overwhelming number of all child molestations, 80 percent of girls and 60 percent of boys, are committed by people who know the victim, including relatives, friends, baby-sitters, persons in positions of authority over the child, or persons who supervise children. The FBI reports that juveniles under 17 years commit 15 to 20 percent of all rapes of young people and 30 to 60 percent of all child sexual assaults. [USA Today, August 25, 2005]

The issue of “reported” sex crimes is most problematic; no one really knows the true level of sex offense taking place in America. The basic sources for “reported” crime are the FBI’s Uniform Crime Report (UCR), an annual compilation of national crime statistics, and it’s more recently introduced (and more realistic) system, the National Incident-Based Reporting System (NIBRS). Both seem woefully inadequate in documenting “actual” as distinct from “reported” sex offenses.

The Department of Justice’s Center for Sex Offender Management (CSOM), citing a 1992 study of women rape victims, found that 84 percent did not report the crime. The National Crime Victimization Surveys (NCVS) conducted in 1994, 1995 and 1998 reported that just about one-third (32%) of sexual assaults against persons 12 or older were reported. Other reports mirror these findings.

Sex offenders are grouped into three categories: Level I, low-level repeat offender; Level II, moderate-level repeat offender; and Level III, high-level repeat offender, with one or more conviction for what may have involved a violent sex crime.

These fluid categories contribute to one of the most punitive aspects of current confinement laws, they’re very arbitrariness. Inherent inconsistencies among the twenty different state laws governing confinement is indicated in the range of sex offenders covered. Normally, confinement is limited to those considered Level III offender. These are, allegedly, the worst of the worst.

For example, in Tacoma and Pierce County, WA, Level III sex offenders include: a 29-year-old male convicted in 1996 for second-degree child rape of a 12-year-old girl; a 25-year-old male convicted in 1999 of first-degree incest with a 12-year-old younger female family member; and a 23-year-old male convicted in 2002 for third-degree assault of a 10-year-old girl.

However, confinement also includes far less threatening offenders. According to the Times, an exhibitionist and a released sex offender picked up for a DUI incident were confined, while rapists were not. Offenders are confined on an ad hoc basis depending of the whims of individual states.

(One can wonder whether New York’s newly proposed public lewdness statute, as advocated by City Councilman Peter Vallone, Jr., will become law. Offended by public flashers and subway gropers, Vallone requested state legislators add public lewdness to the list of crimes covered by the public registry of convicted sex offenders.

(In Texas, people arrested for streaking or public nudity are classified as sex offenders; in Illinois, convicted skinny-dippers (i.e., people engaging in “public indecency”) must register as sex offenders. One-two-three: A flasher is confined for life.

(Similarly, one can only wonder as to the fate of Jeffrey Hayes of Battle Creek, MI. He was recently arrested for bestiality, sexually assaulting two sheep, Thelma and Louise. Under pressure from animal rights advocates, he was added to the state sex-offender registry and might well find his way into confinement.)
* * *

Although the current Christian conservative, get-tough climate can make the fixation on sex offenders appear as a joke, such offenders are really not a laughing matter. According to CSOM, sex offenders commit many crimes for 16 years prior to finally getting caught. At yearend 2005, approximately 2.3 million people were imprisoned by federal and state authorities throughout the country. At yearend 2003 (the last available data), sex offenders accounted for approximately 12 percent (61,300 rapists and 87,500 other sex assaults) of the 1.3 million of those incarcerated in state prisons; the federal system does not separate out sex offenders. One scholar cited by CSOM estimates that the quarter-million sex offenders incarcerated in state and federal jails represent less than 10 percent of all sex offenders in the U.S. today. In addition, there are approximately 2,700 people serving civil confinements for sex offenses.

Recidivism among sex offenders is lower than many other criminal offenses. According to the Department of Justice, “Sex offenders were less likely than non-sex offenders to be rearrested for any offense.” To be a recidivist, a released criminal must commit a new offense, whether sexual or other (e.g., DUI), or technically violate the conditions of parole.

An estimated 5.3 percent of sex offenders are rearrested within three years for a sex crime. However, recidivism differs markedly among sex offenders and over time. While this is a hotly debated issue with innumerable interpretations, recidivism rates are relatively as follows: Incest at 8.4 percent; rapists at 17.9 percent; and child molesters at 19.5 percent. Exhibitionists tend to have the highest rate of recidivism. [Dept. of Justice, “Criminal Offenders Statistics”; “Sex Offender Treatment,” Pennsylvania Dept. of Correction, March 2004]

According to the Times and other sources, there appears to be no accepted longitudinal studies demonstrating that confinement works. As the Times states: “Reliable studies on the treatment of civilly committed offenders do not exist, since so few have been set free.” It is understood to be the final option to be imposed when all other treatment methods have failed. Current treatment options fall into two broad approaches, therapeutic and chemical/surgical. [New York Times, March 6, 2007]

Therapeutic approaches include: relapse prevention therapy, much like AA, focusing on specific activities that need to be avoided; cognitive behavior therapy (CBT), a short-tem method dealing with self-destructive habits; and a variety of other therapies, including cognitive distortion (i.e., encourages addressing deviant sexual behavior), victim empathy training (i.e., sensitizing offenders to the harm they are inflicting) and social functioning training (i.e., building self-confidence to overcome maladaptive beliefs and behavior).

Chemical/surgical interventions include: prescribing anti-aggressive drugs, like Lupron, to reduce aggressive impulses; chemical castration, the use of anti-androgen drugs like Depo-Provera to reduce testosterone levels and a treatment option in California, Florida, Georgia, Illinois and Texas; and surgical castration, a limited practice, but, as in California, paid for by the offender. [New York Times, March 5, 2007]

Still other approaches have been part of the treatment arsenal. Electric aversion conditioning (i.e., shock therapy) was long popular, but fell into disrepute in the ’70s. Olfactory aversion, the pairing of a noxious order with a deviant sexual fantasy, still finds some employment.

Civil confinement is further complicating by still other obstacles. First is the high cost involved. Estimates place the special confinement centers cost four times more than conventional imprisonment, running at $100,000 per year per convict compared to $26,000 annual for a regular prison; some estimates peg the New York State confinement plan at $185,000 per inmate annually.
A second factor has to with the offenders themselves. It is estimated that 16 percent of all those imprisoned and 12 percent of sex offenders suffer from a serious mental disorder like schizophrenia and bipolar disorder. The costs associated for such specialized treatment are often prohibitive. Many offenders, due to advice of council, will not participate in therapy fearing that discussing their past activities could lead to new charges. And many of those who do participate in therapy intentionally falsify their admissions so as to increase their likelihood of probation.

Finally, civil confinement centers like the one run by Liberty Behavioral Heath Corp. in Arcadia, FL, and detailed by the Times, are failures. Poor or no oversight is in place; offenders have access to home-brewed alcohol, drugs are easily smuggled in, violence among inmates is common and sex among offenders and offenders and staff is a regular feature; and, worse still, little treatment takes place. [New York Times, March 5, 2007]

Even well-intentioned efforts are easily tripped up. For example, Texas appears to be the only state that runs an outpatient program that releases offenders into community-located halfway houses. Critics argue that it is a sham, doomed to failure because it is poorly funded and offers little public protection. They point to the experience of Mark Petersimes, who was in a Dallas facility and simply sliced the electronic monitor from his ankle and disappeared.

Critics insist that the Texas program has not successfully rehabilitated a single offender, that no one has been released from civil commitment since the program began in 2001 and that more than 40 percent of the offenders have been sent back to prison for mostly minor infractions. However, none of the inmates appears to have committed a new sex offense.

This situation has reached its most absurd level in Florida where the state authorized five recently released convicted sex offenders to live under Miami’s Julia Tuttle Causeway. The offenders are required to stay at the bridge from 10 p.m. to 6 a.m. and, because of the absence of electricity, they have a problem recharging their tracking devices.

* * *

Since the earliest European colonization, America has been besieged by the threat of evil. Historically, evil has taken innumerable forms. In Puritan New England, evil was embodied in witches, Native people and Quakers; even nature itself was experienced as a threat of the devil. Later, evil took the form of male African slaves and free black men, culminating in innumerable lynchings. Over time, evil assumed the continence of the sodomite, anarchist, communist and pornographer. Recently, it has included those early male gay AIDS sufferers and even Giuliani’s homeless squeegee men.

Evil has always been an elastic category combining unacceptable behavior with unforgivable personality traits. Behavior included practices specified by those in power as illicit if not illegal, while personality (including physical and psychological characteristics) involved a self-hood that is irredeemable. Evil branded the perpetrator a menace to acceptable society, one who had to be expelled from the community in order to not simply punish his/her wrong-doing, but save all others from being tempted by the evil-doer’s moral corruption.

Throughout the country’s history, evil has been dealt with essentially the same way. To be resisted, suppressed, the evil-doer has had to be expelled, removed from acceptable society. Removal serves both symbolic and pragmatic ends, each embodying aspect of the other, whether taking the form of public humiliation, shunning and whipping or branding, imprisonment and even killing. It serves to disappear from public life those who have been stigmatized as “evil.”

Since the nation’s founding such disappearance has taken (for the most part) a particularly American form. Following British concepts of jurisprudence, the accused had to be tried before a judge and a jury of one’s peers. The trial sanctified both legal and moral authority.

Thus, judgment and punishment are not the arbitrary actions of a despot but a community’s collective decision. With rare exception, as with lynchings of African-American men and murder of labor organizes, all those deemed evil for challenging conventional morality and civil society were judged guilty by their peers.

Today’s evil is symbolized by the terrorist and the sex offender. These “evil doers” have become highly politicized, each serving to instill fear whether of international or local threats. Under the Bush administration, evil has been secularized into a national obsession.

The policy implications were most acutely demonstrated in the days leading up to last November’s election when Attorney General Gonzales held a press conference to announce the success of “Operation Falcon.” He told the nation that three thousand law enforcement agents in twenty-four states had rounded up 10,700 fugitives, included 140 wanted on murder warrants, 232 on firearms warrants and 3,660 on drug charges.

However, in the Times and other media, the headline announced: “Over 1,600 Arrested in Sex Offender Roundup.” More than half of these offenders were picked up for a federal crime of failing to properly register in their respective state. While perfectly timed, this much-ballyhooed roundup of fugitives did not turn the election for the Republicans. [New York Times, November 3, 2006]

A further example of the increasing politicizing of “evil” sex offenders is suggested by the lengthening of prison sentences. For example, Virginia has increased mandatory sentences for certain sex offences to 25 years, up from 10 years. In Pennsylvania, Gregory Benner, who had in 1994 pleaded guilty to sexually abusing an underage girl, was recently arrested for possessing more than 115,000 pornographic images of minors; he was charged for 2,237 of them and each image representing an individual criminal count; local officials believe he could be sentenced to more than 900 years. This trend is in line with last year’s Supreme Court decision to decline to review the 200 year sentence that Arizona handed down to Morton Berger; the state imposed separate, consecutive 10 year sentences for each of the twenty pornographic images of minors in Berger’s possession.

The politicizing of sex offenders at the local, state and federal levels makes it difficult to question the efficacy (let alone the ethicacy) of civil confinement. Worse still, this politicizing makes it very difficult to really consider how to deal with these seriously threatening men (and a few women). Public officials are hiding behind indeterminate life sentences masquerading as treatment so as not to admit this failure.

These officials fail to see that most exaggerated sex offenses like pedophilia, rape, sex slavery and lust murder are more than sex offenses or even mental disorders. Rather, they are existential crises of self and society, at once moral and criminal violation of the victim’s, and the perpetrator’s, humanity, requiring a new social policy and method of treatment to be successfully addressed.
Making matters worse, these offenders are being swept-up into the growing universe of the “new disappeared.” It is a black hole for those deemed evil. While the concept of evil has all but disappeared from secular discourse, federal, state and local authorities (along with media pundits) rely on an unstated characterization of the unacceptable as evil to engender moral repugnance to legitimize civil disappearance.

The same unstated characterization marks those labeled “enemy combatants,” those serving a life sentence or are on death row, those facing extraordinarily punitive prison sentences and the millions of disenfranchised ex-felons. It is a politically-dug black hole that more and more Americans are being disappeared into.

DAVID ROSEN can be reached at drosen@ix.netcom.com.

 

 

David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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