Sex offenders are the lepers of the 21st century – outcast and feared, with treatment elusive and at times inhumane. For centuries, the best medical minds thought leprosy was incurable – the first effective treatment emerged only in the 1940s – so colonies appeared, usually in remote places next to monasteries, where the lepers could live and die safely out of sight, out of mind.
We don’t have a cure-all treatment for people who commit sex crimes, nor do we have sex-offender colonies. Perhaps we should.
Sooner or later, a convicted rapist or child molester will complete his prison sentence and return to society. Maybe he’s rehabilitated, maybe he’s not. We demand he register his name and address, and require that he stay away from parks, schools and other places with children. Nearly 74,000 are living across California.
The recidivism rate among sex offenders remains higher than the average for all criminals. A sizable percentage return to prison for parole violations, rather than for new sex offenses. But each time a sex offender rapes another woman or hurts another child is a shock and an outrage, leading many of us to conclude they cannot live among us.
In 2006, California voters overwhelmingly approved Proposition 83, also known as Jessica’s Law. The measure was named after Jessica Lunsford, a 9-year-old Florida girl who was kidnapped, raped and buried alive in 2005 by a known sexual predator. Proposition 83 barred registered sex offenders from living within 2,000 feet of a school or a park. In fact, the residency restrictions were one of the major selling points of the initiative.
But it created complications for registered offenders who live in large cities or densely populated counties, where it’s easier to identify where they can’t live than where they can. On Monday, the state Supreme Court ruled that the blanket residency restrictions are unconstitutional.
In brief, the justices unanimously found that the limits hampered ex-offenders’ ability to find housing; hindered their access to medical treatment, as well as counseling for substance abuse and mental disorders; and undermined parole officers’ ability to keep track of them.
Although the decision applies only to San Diego County, you don’t need a law degree to see where this is headed. Even if you believe, as I do, that authorities need to keep a close watch on registered sex offenders for the greater public good, it’s hard to disagree with the outcome of the case.
The facts are compelling. The four San Diego County plaintiffs had lengthy criminal records that include theft, burglary, assault and drug crimes in addition to their convictions for sexual offenses such as lewd conduct and rape. The court noted, however, that each of the four had committed their sex offenses decades ago and had not reoffended. All four also have serious medical disabilities and substance abuse problems.
But because of Proposition 83’s residency restrictions, two of the plaintiffs ended up living in alleyways or by the San Diego River – at the suggestion of their parole officers.
Putting sex offenders on the street, where authorities may or may not be able to find them, serves neither the cause of justice nor the public good. And intentionally or not, Proposition 83’s blanket residency restrictions have spurred parole violations. In one instance, a plaintiff had his parole revoked for failing to register his address at the intensive care unit of a Vista hospital.
The court’s ruling does give state and local officials flexibility to restrict where sex offenders live on a case-by-case basis. But that may not be reason to breathe easier. Parole officers are as overworked as ever, and they can’t keep track of everybody. And another well-intended measure, Proposition 47, now makes it more difficult to use the threat of felony parole to get drug addicts the treatment they need.
Also, opponents of Proposition 83 have been successfully suing cities and counties to repeal local ordinances that added restrictions beyond the initiative’s 2,000-foot buffer. The measure gave local governments the authority to do so, but the courts have said some local governments have gone too far. As a result, nearly 40 cities have repealed their sex offender ordinances, leaving them with a blanket residency restriction that’s almost certain to be lifted. Thus, local governments will be left with fewer tools to keep registered sex offenders in check.
Cities and counties need that flexibility back. But what most of these registered sex offenders need is treatment. Many of them are addicts or mentally ill. They commit crimes to fuel their addictions. Some may require civil confinement.
Maybe the best way to resolve these myriad challenges is to establish a sanctuary for them – not prison, but a place to live and work in peace, where they won’t pose a threat to society or to themselves.
Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Contact him at firstname.lastname@example.org.