CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 9, 2012

Cucolo & Perlin on Preventing Sex-Offender Recidivism

PerlinHeather Cucolo and Michael L. Perlin (pictured) (New York Law School and New York Law School) has posted Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration on SSRN. Here is the abstract:

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the availability of meaningful treatment for this population remains uncertain in its availability and debatable as to its effectiveness. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to authentically treating individuals who have committed sexual offenses with humanity, will it be possible to reduce recidivism and foster successful community reintegration.

This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

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Applaud. The punitive nature of the associated stigma that individuals who have committed a sex offense and their families face far out weighs fictitious public safety presented by emotion driven legislation.

Posted by: Dolley | Aug 11, 2012 5:39:32 AM

I'm writing a brief on an aspect of this: mandatory LWOP for recidivist sex offenders. Trying to find some safety valve. Proportionality analysis very difficult, but the sentencing schemes push so many offenders to the very top end that "vertical proportionality" sometimes works (especially in Oregon). Something is wrong when, at the moment of the offense, all other facts being the same, the offender would be "better off" (from a sentencing standpoint) murdering his victim rather than undressing her. (In my client's case, attempted sexual contact.) I know Joshua Dressler has written on this principle generally.

Posted by: Doug Miller | Nov 20, 2012 6:18:22 PM

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