Should Sex Offenders Be Jailed Indefinitely?

On Monday, the Supreme Court released two important decisions about the prison system: one ruling that juveniles can't receive life sentences for crimes other than murder and another that the federal government is allowed to hold sex offenders in custody indefinitely, even after they have completed their sentences. The first ruling was hailed as a victory for civil rights, but the second barely occasioned any outcry on behalf of the inmates it affects. The reason is obvious: who wants to be on the record defending sexual offenders?

The ruling "is in line with what a lot of communities have been doing already," says Tony Grubesic, an associate professor of geography at Indiana University, Bloomington, who has studied how prison systems deal with sex offenders. Many state governments already detain offenders after their sentences in "civil commitment" programs if the inmates are judged to be at risk of molesting or raping again. Yesterday's decision simply extends that power to the feds. "The trend is toward increasingly punitive measures," Grubesic says. "I'm not surprised by the court's decision."

That doesn't mean, however, that Grubesic is pleased with it. In fact, he says, he's worried the ruling will mean that "by de facto there are going to be life sentences for every serious offender, that people might get thrown into the system and never return even if they can be rehabilitated." Yes, rehabilitated. Despite the common perception of them as irredeemable deviants, many sex offenders can change their ways. By some measures, their recidivism rates are lower than those of other criminals: according to Pamela Schultz, an Alfred University professor who has studied the issue extensively, untreated sex offenders relapse 18.5 percent of the time, a rate better than that of drug users (25 percent) and violent criminals (30 percent). Treatment can cut that rate down further. A 2002 study found that only 9.9 percent of treated sex offenders relapsed. So how can the state justify holding these criminals after they've served out their time?

The court's decision doesn't apply to all sex offenders, only to those who are proved by the state to be mentally ill, potentially violent, and probably unable to control themselves once they're out of prison. Inmates who have been successfully rehabilitated won't fall into this category. Indeed, part of the point of "civil commitment" is to give inmates another chance to change if they've failed a first round of behavioral therapy. It's difficult, however, to judge the effectiveness of rehabilitation, as New York state, which has devoted substantial resources to the practice over the last few years, has discovered. According to The New York Times, "too little research has been conducted into how to treat sex offenders, experts say, putting psychotherapists and others working in civil commitment centers at a distinct disadvantage."

Sex-offender treatment strategies generally fall into two categories, says Schultz, "behavioral treatments, which have to do with the physical impulses [and] those that focus on what's above the neck." In the first category, the aim is to "deaden the sexual impulse," either through "chemical castration" with hormonal drugs such as Depo-Provera or through exposure to unpleasant sensations—the smell of ammonia, for example—in conjunction with sexually suggestive images. (Counselors test whether this last treatment is working with a device called a penile plethysmograph, which measures blood flow and arousal.) Literal castration is sometimes used—it's popular in Texas—but as Slate has noted, "even castrated men are often still able to maintain an erection, and some castrated men have managed to reoffend."

In the second category are cognitive behavioral therapies like those used to treat many other mental disorders. "These are more about the thought processes and the warped value systems," says Schultz. "Generally, it's group therapy, counseling, where there's a focus on trying to retrain or restructure their thinking, with other programs in tandem, like victim-empathy training, social-skills training, or relapse prevention: trying to discuss different things that would help the offender avoid the situation and know his own impulses." This may sound touchy-feely, but Schultz says it can work. For instance, in some programs, offenders have to write letters to themselves using the voices of their victims. "I have seen the impact of this kind of stuff," she says. "Some of them really want to change and are sincerely working. And for them, it's like it's an epiphany. Once they actually break down the barriers and get into looking at a situation through the eyes of the victim, it's a complete turning point for them."

Unfortunately, despite the statistics showing a general drop in recidivism, there's still not much data as to what kinds of rehabilitation programs are most effective, or why some people respond to treatment while others seem unable to change. One Portland clinic followed a huge number of offenders it had treated. The results were promising: "Using...stringent measures to follow some men for as long as 17 years post treatment, success was achieved with 94.7% of heterosexual and 86.4% of homosexual pedophiles. Rapists showed 73.5% success, exhibitionists and public masturbators about 92%, with men referred for various other paraphilias ranging from 100% for zoophiliacs to 80% for frotteurs." However, there's a civil commitment program in Iowa that has a staff of 70, a budget of $7 million, 80 inmates—and no "graduates." None of the inmates who have come through the program has been judged fit to return to society. And as The New York Times story points out, a different study in California found that "those who entered relapse prevention treatment were slightly more likely to offend again than those who got no therapy at all." Many other studies are too small to shed much light on the issue either way.

Clearly, we need more research if we're going to determine the best way to deal with sex offenders. A University of Utah study that found that "convicted sexual offenders who are in their 40s, are either married or divorced, and who earn at least $11 an hour" are the most likely to make it through halfway-house programs is a good start.

Grubesic's work can also help communities decide what to do with those offenders who are released. In March, he and a colleague published a mathematical model that allows local governments to determine where registered sex offenders should be allowed to live in order to minimize the risk to surrounding families. Unlike the Supreme Court's decision, which grants quite a lot of power to the federal government, the model allows communities to tailor their policies to their own needs, "depending on the quality of their rehabilitation programs and the resources of the systems," says Grubesic. "These are really local and regional issues. What works in New York City may not work in Bloomington, Indiana."