In Some States, Sex Offenders Serve More Than Their Time
By CAREY GOLDBERG
ROCKTON, Mass. - In 1997, Thomas Wilcox, a soft-spoken delivery
truck driver, put his hand down the bike shorts of a 13-year-old
girl he knew and molested her. He was convicted of child rape and
served three years in prison. He spent them partly in the state
treatment center for sex offenders and was scheduled to be released
last summer.
Not so fast, Mr. Wilcox was told: Under a new Massachusetts law
there was no guarantee that he would get out at all.
Enacted in recent years here and in 15 other states, "sexually
violent predator" statutes say, in essence, that longer prison
sentences and "Megan's Law" sex offender registries are not enough;
society needs a way to keep potentially dangerous perverts off the
streets after their sentences have been served.
And that way is a civil trial of the sort that Mr. Wilcox, 37,
just went through, a hearing before a judge and jury to determine
whether sexual predators are still dangerous and whether they
should continue to be locked up and treated indefinitely.
"They're saying, `You have to serve until we think you can get
out,' " Mr. Wilcox's sister, Vonita, complained.
As of last year, nearly 900 sex offenders were locked away for
indefinite terms, or as the courts put it "from one day to life."
The laws have withstood major legal challenges, including
arguments that locking up a criminal after he has served his
sentence amounts to double jeopardy. The United States Supreme
Court has upheld the laws twice, most recently in January.
But where such laws are in use, states are facing an equally great
challenge: sheer cost, a cost that only goes up as the number of
sex offenders committed in civil trials rises. Washington State,
which passed the first of the laws in 1990, estimates that it costs
up to $110,000 a year to hold and treat a sex offender, plus up to
$70,000 for legal bills, because most can appeal each year for
release.
California is planning to build a prison-and-treatment center for
up to 1,500 sex offenders expected to cost more than $360 million,
and Washington expects to pay about $81 million for a 400-bed
center.
In New York, two bills on sexually violent predators are pending,
and supporters recognize the potential price. "But it's something I
think government is supposed to be there for," said Assemblyman
David E. Seaman, a Republican who is sponsoring one of the
measures. "We're not supposed to just blindly sentence somebody and
then let that person out knowing the person is very likely to
brutalize victims again. We've got to do something about that."
Cost is not the only problem. If Mr. Wilcox's trial in Superior
Court here last week is any indication, sexually violent predator
laws raise deeply troubling questions for many of the lawyers and
psychologists involved with them. In particular: Can predictions of
behavior be good enough to justify locking someone away?
As Michael Farrington, Mr. Wilcox's lawyer, told the jury in his
closing argument, "This is a law that asks you to determine the
future of a fellow human being based not on what he has done but on
what you think he may do."
Jeanne Holmes, the assistant district attorney, countered: That
prediction "also will decide whether or not the community, and the
children in the community, are safe from Mr. Wilcox. The decision
is not just about Mr. Wilcox, it is about the community as well."
Besides, Ms. Holmes asked, isn't past behavior the best predictor
of future behavior?
Mr. Wilcox's trial was one of the first to be held in
Massachusetts as the new law finally took effect; it was passed in
1999 but stalled by months of court challenges. The proceedings
lasted a week and focused mostly on whether the dire predictions
being made about Mr. Wilcox were scientifically sound.
Mr. Wilcox's lawyer, Mr. Farrington, cited studies indicating that
psychologists who tried to predict a patient's behavior based on
their clinical judgment were wrong more often than they were right.
The correct approach, he argued, was to use new actuarial models
that estimate the odds that a sex offender will commit new crimes
based on facts about him. Studies have shown, for example, that
chances of another assault rise if an offender has had multiple
victims, has molested boys or has dropped out of treatment, among
other things.
Ms. Holmes argued that top researchers in the field approved the
use of clinical judgment; and in any case, she said, even using
tests based on the actuarial models, Mr. Wilcox scored enough
danger points to be considered high risk.
That depends, responded Dr. Daniel Kriegman, a psychologist
testifying on Mr. Wilcox's side, on what you consider high risk.
According to one actuarial model, he said, Mr. Wilcox had a 26
percent chance of committing another sex crime. If an airplane had
even a 5 percent chance of crashing he would not get on it, he
said, but whether 26 percent is high in this case was a "social
decision."
The testimony highlighted a painful calculation: If 100 men like
Mr. Wilcox are locked away, 74 of them could spend many years
behind bars for no good reason at all. If the 100 are set free, it
could produce 26 or more new victims. The field of sex offender
risk assessment has made great strides in recent years, experts
say, but not great enough to solve such a knotty problem.
Two theoretically neutral psychologists hired by the state to
assess Mr. Wilcox and one hired by the prosecution all said they
believed he was still sexually dangerous, though one acknowledged
it was a difficult case.
Mr. Wilcox had been caught in a sex offense before, they pointed
out. In 1984, he had a sexual encounter with a girl who, he found
out later, was only 12 or 13, Mr. Wilcox told psychologists. She
had looked much older, he told them. Because she had not resisted,
he was put on probation for three years.
Put the 1997 and the 1984 crimes together, the prosecution
psychologists said, and you get a pattern of pedophilia. The
Massachusetts law allows for civil commitment of a sex offender who
suffers from "a mental abnormality or personality disorder" - like
pedophilia - that "makes him likely to engage in sexual offenses if
not confined to a secure facility."
A psychologist speaking in Mr. Wilcox's defense pointed out that
pedophilia refers to an attraction to prepubescent children, and it
was not clear that either girl was prepubescent; 13-year-old girls
may or may not be. He and Mr. Farrington also emphasized that Mr.
Wilcox had voluntarily sought sex offender treatment while in
prison, and had undergone about two years of it.
When Mr. Wilcox himself finally took the stand, he exuded misery
and remorse; at times his voice was barely audible, and he
occasionally wiped his eyes. He described the course of his life,
his failed marriage, his moves from New York State to Virginia to
Florida to Massachusetts, the birth of his daughter.
Had he learned anything? Mr. Farrington asked.
"Yes I have," he
replied. He had learned, he said, about dealing with risky
emotional states - anger, entitlement, rejection. He had learned
how to share his feelings, ask for help, have positive people in
his life.
"I've learned that every decision I make in my life" - he broke
off and swiped his eyes - "I've learned that every decision that I
make, no matter how small it is or what it's about, I have to
reckon with how it will affect someone else, how it will affect
people close to me. If I'm doing something, breaking laws or doing
things inappropriate in society, how much pain they can cause other
people."
The jury appeared convinced. After deliberating less than two
hours, the predominantly white, predominantly female jury found
that Mr. Wilcox was not sexually dangerous, and freed him to go
face a parole violation in Florida.
"There was no way I saw him as a pedophile," said one juror,
speaking on condition of anonymity. "Do I think he used bad
judgment? Of course I do." But "he obviously seemed like he wanted
to do better. He does not want this to happen again. I don't think
he'll let it get to that point."
The evidence is only anecdotal, but lawyers and psychologists say
it appears that juries are likelier than judges to let sex
offenders out, during civil commitments and when offenders bring
their yearly appeals for release from treatment centers.
Defense lawyers theorize that jurors are more willing to bet on an
offender because their responsibility is shared. They say that
judges, on the other hand, dread seeing their own pictures in the
newspaper next to a picture of an offender they released who has
now committed a horrible new crime.
There have been only a handful of civil commitment trials in
Massachusetts, prosecutors say, and they have brought verdicts of
both "dangerous" and "not dangerous." Dozens more are backed up in
the courts.
Mr. Wilcox says he hopes to live in Fort Lauderdale with his
younger sister, Vonita, who sat through his trial with visible
distress as she heard psychologists describe her brother as too
dangerous to set free.
"I do not condone any misconduct with children or teenagers; Tom
knows how I feel about that," she said. " `You did this, you have
to serve your time.' But what they're trying to do is wrong."
Given the costs and legal troubles of such civil commitments, some
states are exploring alternatives, said Roxanne Lieb, director of
the Washington State Institute for Public Policy, which tracks how
sex predator laws play out there and around the country. Some
states are trying longer terms of supervision for released sex
offenders. Others have imposed tougher sentencing measures,
particularly for repeat offenses.
Among the 900 or so sex predators who have been committed, many,
it seems, may never get out. In a draft report on the laws' effects
last year, Ms. Lieb and her co-author, Scott Matson, found that
among the 121 sex offenders Washington had committed in the last 10
years, just five had been conditionally released.
The sexually violent predator laws are "one of the most extreme
responses we've had in society to dealing with sex offenders," said
Mr. Matson, a research associate at the Center for Sex Offender
Management, a federally financed project that trains those who work
with sex offenders.
But "you can't really say civil commitment laws are wrong and bad
because there are those offenders that you know will reoffend," he
said. "What to do with them I don't know and I don't think anybody
knows. And this is the best solution that's come up so far."
