December 13, 2007

The Criminal Justice Policy Coalition (CJPC) opposes the introduction of mandatory minimum sentencing for certain sex offenses and increasing the restrictions in housing as found in House Bill 1688. The proposed longer mandatory minimum sentences for certain sex offenses, and the new state wide residency restrictions for former sex offenders give an illusion of being tough on sex crimes, but would be extremely costly and actually counterproductive to the ultimate goal of reducing sexual violence. CJPC is strongly committed to seeking effective ways to reduce the level of sexual violence in our community. Nothing in House Bill 1688 would do this.

SEX OFFENDER RESIDENCY RESTRICTIONS

This bill prohibits all registered sex offenders convicted of more than one offense on a child, or of one offense on a child and classified as a level 3 sex offender, from living within 1,000 feet of any school, day care or child care facility.

There is no evidence that these kinds of residency restrictions have any effect on the rate of sex offenses against children. A number of studies have been done on the effect of residency restrictions, and all have concluded that they are NOT an effective way to prevent sexual recidivism.

Residency restrictions are counterproductive to the goal of reducing recidivism by former sex offenders. Since Iowa enacted statewide residency restrictions, the state has lost track of over half of its registered sex offenders. The Iowa County Attorney’s Association now opposes the statewide residency restriction because the law “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restrictions with more effective protective measures.” The same factors which prevent recidivism in other offenders are equally applicable to released sex offenders, in particular having a stable place to live, employment, and access to appropriate social and health services, particularly sex offender treatment. To the extent that residency restrictions would disrupt the living arrangements of former sex offenders who have been living law abiding lives in the community, they increase the chances of recidivism.

Residency restrictions would violate the Massachusetts Declaration of Rights Article 1, and quite possibly the United States Constitution when applied retroactively. The Maine Supreme Judicial Court in a very recent unanimous decision held that a former sex offender could challenge recent amendments to the Maine sex offender registry law which imposes restrictions similar to those in H.B. 1688. Two of the seven Maine Justices in a separate concurring opinion went further to point out that the new amendments would violate Article 1 of the Declaration of Rights to the Maine Constitution which is identical to Article 1 of the Declaration of Rights to the Massachusetts Constitution, and which provides greater protections than the U.S. Constitution including the right to “pursuing safety and happiness.” Although there is a division among court decisions, more recently courts have been finding sex offender residency restrictions to be punitive and a violation of the ex post facto clause when applied retroactively, and also a violation of the due process clause when depriving former sex offenders of their property interest for homes owned in restricted areas without just compensation.

H.B. 1688 presumes that the classifications made under the current sex offender registration law accurately predict the likelihood that particular former sex offender will reoffend. A recent news report highlights the lack of professional qualifications by the current members of the Sex Offender Registry Board and its staff;, qualifications needed to be accurately making these kinds of predictions. More importantly, research into the accuracy of comparable sex offender classification systems in Washington State has concluded that such classifications have no predictive validity.

MANDATORY MINIMUMS

The bill, in sections 3 through 12, would create new mandatory minimums for host of crimes and would increase the existing mandatory minimums for other crimes up to 35 years.

There is no evidence that increasing these penalties would in any way reduce the rates of these offenses. Mandatory minimums have not been effective in reducing the incidence of drug offenses. There is no reason to believe that mandatory minimums would be effective in reducing sexual offense rates. The practical effect of mandatory minimums has been needlessly to increase prison populations. At a cost of $43,000 per prisoner per year and with a total Department of Correction budget approaching one billion dollars per year, the cost of increasing the prison population is substantially detracting from the ability of state government to provide basic services to the citizens of Massachusetts. More importantly, if even a fraction of the money that it would cost to implement these mandatory minimum sentences was spent on research into what is effective at preventing sexual violence, it would be possible to adopt evidence based programs which would actually reduce the level of sexual violence.

JUDICIAL RESTRICTIONS

The first sections of the bill would eliminate existing judicial discretion in certain well considered instances to relieve a juvenile sex offender of the duty to register; the second section eliminates such judicial discretionary consideration of all former offenders who would be considered unlikely to reoffend. Absent a demonstration that judicial discretion has been consistently abused or a significant number of wrong discretionary decisions, the CJPC believes that the exercise of such discretion is a proper and necessary function of judges to avoid a "one size fits all" approach to punishment.

CONCLUSION

Human Rights Watch recently concluded there is “no inherent contradiction between protecting the rights of children and the rights of former sex offenders.” “Those who care about ending sex crimes must demand that policy makers reject one-size-fits all laws to address sex abuse and begin to invest the political and financial resources in policies that actually work.”

The CJPC believes that sensible criminal justice policy should not create ineffective burdens on former offenders merely for the sake of demonstrating an abhorrence of certain criminal acts. Increased residency restrictions, further curbs on judicial discretion and increasing the length of prison sentences are all policies which do not provide any increased safety of our communities, but only provide a false impression of legislative responsiveness.