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Modern Leper Colonies
People infected with the bacteria mycobacterium leprae were once so feared they were banished from society. Lepers were quarantined — and essentially imprisoned — for the public good. We’ve thankfully since discovered that leprosy is both treatable and not highly contagious, so the practice of exiling the diseased is no longer practiced, though the last leper colonies in the United States (Kalaupapa in Hawaii and Carville outside of New Orleans) were only shut down within the last 20 years. We no longer give non-penal life sentences to people considered too dangerous to exist in society, except when we do.
Unsympathetic cases make the best tests of our principles. There exists today a new kind of leper, a category of persons considered too dangerous to be free in society and given life sentences in exile. The inhumane treatment once suffered by lepers is now being thrust upon this class of people. The least sympathetic of all who are treated more like animals than humans are, of course, violent sex offenders.
The Supreme Court this term had an opportunity to clarify the constitutionality of imprisoning sex offenders indefinitely and answered affirmatively to Reason.com’s question, Will SCOTUS Let Fear of Sex Offenders Trump Justice? By denying certiorari in Karsjens v. Piper, the court lets stand the Minnesota program which “has detained sex offenders released from prison in a ‘therapeutic program’ conveniently located on the grounds of a maximum-security prison in Moose Lake. The ‘patients’ are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.” [quote source]
As the Reason and Cato amicus brief puts it, “It is functionally impossible to distinguish between Minnesota’s civil commitment for sex offenders and imprisonment.” In the 24 years of its operation the program has only successfully treated and released one individual. The program offers no hope of a return to society. The trial court held that the plaintiffs had a “fundamental right to liberty.” The Eighth Circuit disagreed with this position, and now the Supreme Court has confirmed that no such right exists, at least not for those who are the modern equivalent of lepers.
Beyond the incarceration there is also the material treatment of these sex offenders being called into question. A recent case filed by sex offenders secluded on McNeil Island in Washington State contends that the drinking water provided to them by the facility is not safe. Cases filed by the incarcerated are often taken with a grain of salt, but this one is likely worth watching. As a society we’ve deemed that even the worst among us retain some degree of humanity and should be treated humanely, even if just barely so. Contaminated drinking water likely fails that standard.
I’m not arguing here that these are not monsters. I’m not even sure where I stand on indefinite civil commitment because the data on recidivism are dicey at best. But I am saying that if we are to do these things as a society we better be damn sure we’re right about it. Angels still don’t govern men, and I fear this is a situation which demonstrates it.
Published in General
I’m afraid my solution to these folks would be worse than confinement and crappy water.
Yet you raise and interesting point.
As with the gun debate, fear and emotion are terrible foundations for public policy. How can we in this situation with these people be the society we want to be? It’s a tough question.
I think we need to be much, much clearer about whether sex offenders are criminals, or incurably/uncontrollably mentally ill.
If they are criminals, they are charged, convicted, sentenced and, when their sentence is up, released.
If they are incurably mentally ill, then we need to have long-term care facilities that need not be punitive but might need to provide levels of supervision up to and including locked wards. Since we need these for other mentally ill persons who likewise require supervision to ensure that they are not a danger to themselves or others, why not have these? Was John Hinkley shuffled around St. Elizabeths in chains, and deprived of clean drinking water? (For that matter, wasn’t he eventually released?)
I’m assuming that some of these people are child molesters. Are there children in the facility that they might, if allowed to wander about unchained, attack?
What does love look like in this situation? That’s an uncomfortable question as well as a tough one!
That’s the crux of the issue. They’ve served their time but are deemed to be dangerously mentally ill, but then are treated as criminals. I think it likely a moral failing to be ok with this.
The leper analogy is apt, by the way. There was a fire chief in a town I lived in who was caught molesting a fourteen year old boy. The kid had been assigned by the juvenile court to work at the fire station as a community service dimension of his probation for some crime or other. He lived with his grandparents. He was, in other words, vulnerable.
And after the arrest, all sorts of people said they’d always thought there was something weird about that Fire Chief. They weren’t too happy when he drove the school bus, blah blah. It’s always the way.
Anyway, the FC went to the slammer for a few years, and then he got paroled and he reappeared in town. He got a job at the Pik Quik, started going to the Baptist Church.
General consternation…how can we let this monster live among us? What about the children?
My take on this was that this was the safest possible place for the FC to be…because everyone knew. The Baptist pastor, the manager of the Pik Qwik, all the parents, all the kids, all the teachers and of course, all the cops. If we drove him out, somehow, all that would happen is that he would go to some other town where people didn’t know him and his history. And chances are good that—even if he genuinely hoped to reform—he would re-offend.
Not sure that story helps, really, but I was struck by how the “disgust” reflex attributes to sex offenders (and others) a magical power to contaminate by their very presence.
Incidentally, @DocJay, what about chemical castration? Does it work?
The phrase “served their time” is interesting in this context.
I absolutely believe in the rule of law and due process, and I don’t want anything done that is prohibited by the courts or by the Constitution. But this may be more a matter of regularizing — legally formalizing — the confinement than of ending it. (Perhaps that is the point of the the Reason/CATO efforts.)
If one looks at prison as primarily a mechanism for administering justice, as opposed to primarily a mechanism for protecting society, then “served their time” means that the allotted punishment has been meted out, and the convicted criminal should go free.
In the case of “violent sex offenders,” I think I am quite comfortable with indefinite detention. That isn’t a requirement of justice, per se, but quite possibly a requirement of protecting society.
There are undoubtedly a lot of hills one might choose to die on in the world of criminal justice. This must be the least attractive one.
That makes it a good proving ground for principles. If they can’t be applied here then they aren’t really principles.
That invites an interesting discussion (well, I think it would be an interesting discussion) about the fights we pick and why we pick them. How much time should we spend asserting/reaffirming principles at the margin — the “hard cases” — versus trying to make incremental improvements in areas where we have a greater prospect of success?
It might be the evolution versus revolution debate. I favor the former, perhaps because I have more confidence in its effectiveness.
I don’t want to derail the direction of your thread. The question of whether or not we are dealing legally and humanely with “violent sex offenders” is an important one: I want us to achieve both.
But, beyond that, I’m probably unenthusiastic about them being a test case for much of anything.
I’d guess that it’s legally permissible to detain these convicts indefinitely in the sanitarium because that facility exists only as an alternative to permanent incarceration in the prison proper. In other words, those violators would have been sentenced to life in prison if the mental facility was not created specifically for the transfer of such inmates. The alternative to being kept in the prison is not being set free.
Not all legally defined sexual predation is morally or psychologically equivalent. A college guy having consensual sex with an 18-year-old high schooler is not equivalent to the violent rape of a prepubescent child, obviously. Mentally healthy men do not entertain the latter scenario even as a fleeting fancy of imagination, let alone a deliberate act. So it should be clarified which offenses are reliably associated with permanent deviance.
But such abhorrent deviance being identified, the more relevant question is why the attacker should even be allowed to live given his permanent disposition.
As a Christian, I try to maintain hope for reformation of the most twisted souls. But that hope does not necessarily outweigh other values, such as protection of the innocent and the free will of citizens to determine whose incarceration they are willing to pay (work) for. Love is not blind to risks and consequences, some very harsh.
Whether or not a violent sexual predator’s tendencies are innate is irrelevant to how he must be dealt with. Whether by nature or nurture, he is who he is and must be treated accordingly.
If he can improve, then we should consider enduring the costs of helping him and granting legal mercy, while also punishing him because (as in parenting) the act itself must be addressed and possible amends should be made.
If he can’t improve, then what is the purpose of keeping him? Who does it help? If life itself was our highest value, we would surrender to criminals and invaders rather than fight wars and otherwise risk our lives. Banishment is an alternative to execution, but permanent imprisonment doesn’t serve anyone unwilling or unable to change.
Absolutely. Love—if it is love—must see.
Henry, I was hoping you’d weigh in on my abortion thread too (speaking of fights picked and asserting/reaffirming principles at the margin) since the OP is planned to be directed toward progressives. You know, those conversations you’ve been encouraging us to have?!
We permanently imprison other people. There are people who cannot safely function outside an institution, but within the institution they do quite well. There are murderers who turn out to be pretty good hospice volunteers in the prison hospice; rapists (no doubt) who do a passable job maintaining the card catalogue at the prison library. There was a guy at the Maine State Prison who was a terrific artist—they sold his work at the Maine Prison Showroom. Every now and then he’d get paroled. He’d go out, get drunk, and do something awful and [deliberately?] get himself imprisoned and painting again.
I remember once listening to a sermon in which the pastor was waxing theological about a scientific factoid (we pastors love to do this). “Every molecule of air we breathe has been in circulation for millions of years!” he said. “That means that the air molecules you are breathing right now might have been breathed in by Jesus Christ!”
Everyone took a deep breath—myself included. But then I thought “okay, but this air was probably breathed by Hitler too…” at which point I forcibly blew all the air out again and did my best not to breathe again until I had to.
Fear of contamination, that.
This bothers me immensely. I have no respect and little compassion for sex offenders generally, but specifically, I know one man who offended once, paid his debt, both in terms of prison time and the permanent loss of family, friends, and job prospects, but he has followed all rules and has been exemplary over the last 12 or so years. He was known to my parents before and became friends after, and he’s been quite nice and helpful in a very normal way.
I don’t know if he’s an exception, but he is proof that these people can reform of they choose.
Beyond that, I don’t really know what to think of this matter.
What are the possible functions of prisons as a system of justice? In order of historical development:
Is it fair to say that the more toward the latter a system progresses, the more trouble it has fulfilling its former roles? Practical justice and transcendent justice do not play well together. Governments are poorly suited for the latter.
I’m not sure of my thoughts on this. Generally, I believe prisons are overused and should often be replaced in sentencing with a wide variety of other punishments… including corporal punishments (harsh in the short term but ultimately more merciful and in some circumstances more effective).
Few use the term ” sanitarium” anymore, but that’s exactly what this is. Sanity is a legal term denoting a person’s ability to control his or her actions. Thus, a sanitarium is for people who can’t control themselves, be that because of innate or learned impulses and habits. A sanitarium is not just for “crazy” people (or political opponents).
Were sanitariums always government facilities or did they rely on patronage? Perhaps permanent containment and opportunities for self-improvement can be provided by consensual donors, thereby relieving the requirement of citizens generally to work for the housing of rapists and murderers.
Part of the problem is that the reasoning behind civil commitment may be flawed. If we’re locking people away forever based on what they might do, and our assumptions about the probability are wrong, then we’re committing great injustice.
I appreciate why you would say this, but I think there is another perspective.
We often have to make choices, even consequential choices, with imperfect knowledge. When evaluating risk, we have to consider both the probability (as best we understand it) and the consequences — the damage done — of the event.
If shoplifting has a very high recidivism rate, we can still take a chance and release someone based on our hope that they won’t commit the same crime: the consequences of kleptomania are fairly small. The same argument can not be made in the case of violent sexual assault. In that case, it’s reasonable to err much more on the side of caution. I don’t think it is an injustice to say “we could be wrong, but we aren’t willing to take a chance that we might be,” when the stakes are very great.
Again, it’s necessary to consider different manifestations of sexual predation and such. I once knew a guy who was supposedly put on a sex offender list for the “sexual assault” of lewd remarks and a slap on the butt. For that, he was legally a pariah whose presence was advertised to parents without explanation.
As Henry says, we must make educated guesses. If we judge a person likely to offend again, then we risk keeping a reformed man in prison. If we judge him reformed, then we risk being mistaken and seeing another woman devastated.
In war, we kill many men whose crime was to be born into a sick society and, like most people, to find things to love about their home; misplaced loyalty. If that is justifiable, then execution or banishment — life in prison, at the very least — of repeat rapists is justifiable. Actions have consequences. The worst actions have the worst consequences.
True. Because recidivism statistics reflect only offenses that come to the attention of authorities, they are a diluted measure of reoffending. Research has clearly demonstrated that many sex offenses are never reported to authorities.
Additionally, sex offenders often disclose in treatment or in surveys that they had committed a large number of sex crimes before they were first caught or arrested.
In one study paraphiliacs (i.e., those with a diagnosed psychosexual disorder) were interviewed under conditions of guaranteed confidentiality. The researchers found that only 3.3 percent of their self-admitted hands-on sex offenses, such as rape and child molestation, had resulted in an arrest.
I certainly would not condone mistreatment of any incarcerated person. However, the thought of locking up violent sex offenders indefinitely gives me no problem. Violent sex offenders are not thieves or crooks. For me, the idea of “paying their debt to society” doesn’t apply here because the extremely high probability that they will re-offend makes their incarceration a case of protecting society.
I’ve met lepers. I can tell who is a leper by looking at them.
I have no idea if I’ve met a sex offender.
So I’m not sure it’s such a good analogy.
But the idea of incarcerating someone permanently that isn’t on the basis of law is frightening. @aaronmiller has given examples above of why there needs to be gradation. Dorothy Rabinowitz has also reported on prosecutors being overzealous. Balance of protecting the public and individual rights will be tricky and may require more elasticity than the law can provide.
Did you really fall for that? Think of what happens chemically when you breathe and you’ll see – no it’s not Hitler’s air and it’s not Christ’s air.
To quote extensively from one of the articles linked in the OP:
The recidivism rate is clearly unknown or at least mischaracterized in both directions. The result is that we are depriving people of liberty indefinitely after their criminal sentences are fulfilled based not on what they have done but what we fear — a potentially unfounded fear — they might do in the future. If we believe in liberty, then we need more to go on than fear and bad social science to deprive fellow citizens of theirs.
As others have said, assuming that this only pertains to actually violent offenders and not the soft sexual deviancy that too often gets lumped in with the worst of the worst, this is a sentencing issue that can fixed by legislators. Increase the maximum sentence for violent sexual offenders to life in prison, so that they can be legally denied parole and held indefinitely. Otherwise, we need to let people go when their sentences are up, and if we don’t like that we need to fix it on the other end rather than fudging the rules.
I’m afraid too many are ok with just fudging the rules.
As the example I provided earlier shows, legal definitions of “sexual assault” (like “assault” generally) have been broadened to absurdity. It’s possible that recidivism studies would reflect that by lowering rates because of non-violent, trivial offenses. It’s also possible that the high recidivism rate was bogus from the start or applied only to a specific subgroup, like child molesters.
The more serious the sentencing, the more evidence should be required that it’s necessary. On that I think all agree.
One major problem: Social Studies is a notorious hotbed of hippie nonsense. Psychology shares that reputation to a lesser extent. What sources are trustworthy? Perhaps this is cause for more localized sentencing.
I confess that I am a little bit unclear what is being argued here. It seems that, per the article, there is quite a lot of judicial activity surrounding the treatment of these people. Having read the article (but not any additional commentary about the court decisions involved), I can’t say that I see clear indications of injustice, versus differing assessments about the risks these people pose to society. As long as their detention is occurring within the bounds of law, and they and their advocates continue to have access to the courts, I don’t find this alarming.
It also seems worth observing that the sentencing process is undoubtedly carried out with full knowledge of the post-incarceration restrain these people will face. If that’s the case, I would expect that the terms of actual imprisonment in a criminal facility would become correspondingly longer, thanks to more aggressive sentencing, if it were known that these people would be released soon after their prison terms ended.
Whether they are better off in prison or in a psychiatric hospital, I don’t know.
Having said all that: I’m one of those who has a very dim view of violent sexual offenders. I’d probably opt for life imprisonment for most of them. There are a lot of causes out there, and this is one for which I can’t develop much enthusiasm.
That’s really the rub in this: they are not in psychiatric hospitals. They are incarcerated in prisons merely called treatment facilities. They are being subjected to life sentences without a criminal conviction attached to it. If they should be given life with no parole then that should be the law and the sentence handed down after conviction by a jury.
(emphasis mine)
Well, no — or, at least, no evidence is provided to support that claim. It’s entirely plausible — likely, even — that they are in treatment facilities that, because they are populated almost entirely by convicted violent sex offenders, bear quite a resemblance to prisons.
If there is no reasonable prospect of treatment for these people (and the American Psychiatric Association’s comments in the amicus brief seem to suggest that), then permanent separation from society seems to me the best choice. That should be done in a legal manner. Per the courts, it is currently being done in a legal manner. If we shut down the post-release psychiatric confinement program, I hope the courts will correspondingly increase sentencing.
I don’t believe that justice demands that people convicted of violent sexual assault ever be returned to society.