Sex Offender Tuesday in House Criminal Jurisprudence

It looks like Tuesday is sex offender day in the Texas House Criminal Jurisprudence Committee. See their agenda here. What a heavy topic for their first day of real committee work!

When I see all these git-tuff proposals targeting child molesters and sex offenders, I can't help but think of James Waller, who was the 12th recent person exonerated in Dallas County by DNA evidence. Waller was convicted in 1982 of the rape of a child, and he was lucky there happened to be DNA evidence available to disprove his conviction 24 years later. Many such cases are made solely through eyewitness identifications, as in Waller's case, which are notoriously inaccurate.

Given Waller's case, as Texas prepares to make sentences for child molesters more "tough," I wonder why isn't more attention being paid to making sure the right person is being punished?

Sometimes it seems like public safety really isn't the goal. I mean, it's not as though Texas isn't plenty tough on sex offenders already, especially those who commit crimes against children. According to the House Research Organization (p. 3):

Offenders convicted a second time of the two most serious offenses against a child – sexual assault of a child or aggravated sexual assault of a child – automatically receive a life sentence under Penal Code, sec. 12.42(c)(2). Inmates sentenced to life in prison are eligible for parole only after serving 35 years, without consideration of time off for good conduct. Parole can be granted to these offenders only upon approval by at least five of the seven members of the Board of Pardons and Paroles.

Even so, Reps. Riddle and Phillips would get tougher on sex offenders, still, by removing their few remaining options for parole. (That's problematic for at least two reasons: it makes inmates more dangerous while inside prison and massively boosts healthcare costs for elderly prisoners.)

Given documented problems with eyewitness testimony, it would especially concern me to expand the statute of limitations to 20 years after the victim's 18th birthday, as Rep. Riddle proposes. That means cases would be more likely to turn on eyewitness testimony and less likely to involve DNA or other tangible evidence. I just turned 40, and events that occurred when I was ten years old, I assure you, aren't clear enough to me for anyone to rely upon in court beyond a reasonable doubt.

I hear all sorts of ill-informed, do-gooder rhetoric supporting these types of laws, particularly from liberal Dems. On the Burnt Orange Report, Todd Hill, who courageously recounts his own experience with child abuse, improperly draws conclusions from his own experience that just don't hold up to scrutiny. "Trust me," he writes, "a pedophile never stops no matter how old they are." But it's just not true.

The best research on the subject says child molesters are far less likely to recidivate than other types of offenders. This recent study from Washington State (see the chart on p. 12) found that:

Sex offenders who victimize children have the lowest felony recidivism rates as well as the lowest sex (2.3 percent) and violent felony (5.7 percent) recidivism rates.

By contrast, Texas' statewide felony recidivism rate is 28.3%.

So I'm sorry, Todd, I won't "trust" your word over those who have applied social science methodologies to the question. I regret your pain and the trauma you went through, but there is a reason an enlightened society does not allow crime victims to decide sentencing. It's too easy for emotion to trump facts and logic. That's the point I think we've reached in the sex offender debate. It's ridiculous to be "tougher" than we are - we've reached the maximum level of "tuffness" that generates any public safety benefit and now politicians are just grandstanding on the topic, often in ways that make us less safe.

Of the other sex offender bills up Tuesday, all by Democrats, two would implement new residency restrictions on sex offenders and another attempts to keep them out of public parks. (Regular readers know I think such residency restrictions harm public safety more than help it by boosting absconder rates and driving sex offenders underground instead of complying with their supervision because they can't find a place to live.)

The last bill up, by Chairman Peña, would allow anonymity for victims receiving compensation from the state victim compensation fund. I don't know much about how that fund is administered, but I've gotta say I don't like the idea of a state fund doling out compensation to anonymous people, you know what I mean? If the victim went to the authorities with a complaint and the accused person was convicted, their name is already public - certainly the offender, who is the only person a victim might fear, already knows who they are.

So in sum, I don't like any of these bills. None are necessary; all risk potentially greater harm than any likely benefit. But I'm discouraged that I suspect one or more will pass, especially with Democrats like Mr. Hill urging their legislators to "Steal the legislation" in an ill-conceived strategy to out-tough the Republicans.

If Democrats, who control the committee with a 7-2 majority, did want to "steal" this legislation, they should do so by remembering James Waller and making sure that, for the toughest penalties on the books in Texas, safeguards are in place to ensure that no innocent person is ever convicted again. Those reforms might include:

• Improving eyewitness identification procedures.
• Requiring corroboration for eyewitnesses that did not previously know the defendant.
• Giving indigent defendants access to independent crime lab experts.
• Require District Attorneys to maintain an open file policy to ensure disclosure of exculpatory evidence.

Getting reflexively tuffer without fixing these problems makes little sense to me. If we're going to enact draconian punishments that follow people around for life, we need to do a better job of making sure we're punishing the right people.

Ask Mr. Waller.

BLOGVERSATION: See excellent commentary on the subject from Corrections Sentencing, which calls for differentiating punishments for sex offenders in much the same fashion as suggested by the Texas House Corrections Committee interim report, and another post supporting Jessica's Law from Todd Hill at BoR. Also, meet the Sex Offender Issues blog.