Erickson, Technocorrections, and Sex Offenders

The always level-headed Steven Erickson offered some thoughts about sex offender policy in response to this article that I blogged about here.  There are a lot of interesting points made by Erickson (so check out the whole post), but here is something I wanted to strongly endorse:

Sex offender registries and the numerous community supervisory laws are beginning to look a lot like parole and probation. This comparison is rather institutive and hardly illuminating and yet the underlying question begs: how satisfied are we with our current parole and probation system? For many "law and order" citizens, these areas of the penal system are an embarrassment at best and a farce at worst. They epitomize the bureaucratic system with its obsession of form over substance; or to put it differently, emphasis on check-box structure over prudent management of recidivists. Indeed, how many stories of parolees who repeatedly fail their conditions of parole only to re-offend do we need before we rethink our parole system?

Perhaps this strong sentiment is somewhat unfair towards the men and women who work in the corrections field. After all, they are given the nearly impossible task of maximizing the efficiency of our prison system by maintaining large numbers of offenders within the community which is surely cheaper than keeping those same folks in prison. What parole and probation have really become is less about rehabilitation and so much about mortgaging safety and deferring punishment to support the huge appetite of our ever-expanding criminal codes. It is hardly a secret that the legislative template for bad behavior during the past 30 years or so has been to outlaw it at an astonishing pace (see, e.g., William J. Stuntz, Criminal Law's Pathology, 101 Michigan Law Review 828 (2002) for one such discussion)).

It's important to remember that registration and residency restrictions are even more significant than parole and probation requirements because they normally last for a lifetime.  As I said before, go check out the whole post.

Comments

[Ilah]

"Sex offender registries and the numerous community supervisory laws are beginning to look a lot like parole and probation."

Which will, in the end, either solidify the sentence-may-change-at-any-time movement that is embodied within registry laws, or drive registry and registry-related laws back to where they were a dozen years ago. If conditions of supervision can be imposed by a legislative body decades after the original sentence is completed, we'd be sacrificing a great deal to maintain a regulatory databse scheme that national and international studies have deemed irrelevant to the cause of public protection.

Yes, our probation and parole system needs to be overhauled. No system with so high a failure rate should be acceptable, let alone become the template for post-sentencing restrictions. Yet many of the reforms that are showing progress in the U.S. and in other countries are disdained by current policymakers. They simply don't sound "tough."

Bottom line is, it no longer matters if a policy fails, just so long as it sounds as if the right people are being treated nastily.

[David Hess]

"Sex offender registries and the numerous community supervisory laws are beginning to look a lot like parole and probation."

Of course, the U.S. Supreme Court's 2003 Smith v. Doe decision found Alaska's registry law constitutional because it could be distinguished from parole and probation:

"The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F.3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v. United States, 529 U.S. 694 (2000); Griffin v. Wisconsin, 483 U.S. 868 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision."

If the distinction has disappeared, the Supreme Court ultimately may decide that the registry laws must disappear too.

[LB]

I was specifically released 2/3 early from probation for a sex offense based on my clear demonstration that the rules applied to me after probation were redundant to probation.

Of course, following the terms of probation went a long way into the early release.

Since my early release, the new rules I have to follow are actually stricter than my original probation terms, and all trends drawn on a basic time line indicate that within 3-5 years, the new rules that apply to me will be stricter than my incarceration.

[Mark]

The supreme court originally uphead the use of the registries based on the notion they were just 'information' to keep the public aware of potential threats to the community. At least thats how I interrupted their reasoning.

These new laws have already changed that completely.

[jjoe]

"Sex offender registries and the numerous community supervisory laws are beginning to look a lot like parole and probation."

Absolutely, conditions imposed by the Judge, or delegated to the P.O. as part of the sentencing (punishment), which are appealable (unless waived). Post some judicial conditions and you'll see how the registry laws mirror those conditions. The big difference is society has now replaced the P.O. as the supervisor, and violating the registry condition is a new crime, instead of a techinical violation.

Part of the problem with the probation system (at the Federal level) is that punishment is the overriding factor, not reform. So defendants are released unprepared to re-enter society, and the P.O. is forced to deal with it.

It's interesting that Erickson's post begins with the St. Louis article about the technology end of it. I called the reporter of the article to point out an error and quiz him on why it wasn't more in depth.

He said he was a technology writer, and was given a word limit, which he exceded, and that was his focus as he knew little about the current litigation and various studies.

But it highlights how business has seized the opportunity to make a buck which fuels more legislation. A perfect example is the comments to the AWA guidelines from LexisNexis Special Services: http://www.filebam.com/download/29351-5d59ac/Lexisnexis.pdf