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Tougher Sex Offender Laws Constitutional

To watch the news recently, one would think that more children are being kidnapped than ever before.

Statisticians tell us that child abductions have not occurred in recent years at a rate any greater than decades prior. What is different about recent child abductions is that even with the widely adopted protections of Amber alerts (search) and Megan’s laws (search), many children still seem to disappear and be found murdered several days later.

Sex offenders, and in particular pedophiles, have an extraordinarily high rate of recidivism. So high, it’s been argued, that an apparatus should exist that permits the state—in order to protect the community—to continue to hold the sex offender even after his sentence has been served. The alleged killers of Jessica Lunsford (search), Sarah Lunde (search) and Carlie Brucia (search) were all already convicted sex offenders when those girls were killed.

Jessica Lunsford’s case is truly disturbing because the 9-year old was in her bedroom, inside her home, when she was kidnapped. All of the crimes perpetrated against her seem to have taken place within close proximity to her home.

In response to Jessica’s slaying, the Florida legislature has created a new mandatory minimum sentence for sex offenders of 25 years to life, to be followed by lifelong electronic monitoring.

Fourteen states already have laws that permit the state to commit a sex offender to an additional period of incarceration beyond the sentence imposed at conviction. Called a civil commitment (search), it can be ordered when there is convincing evidence that a sex offender continues to pose a grave risk to the community.

Such state action met Constitutional muster in the 1997 Hendricks v. Kansas decision. There, the Court treated the Kansas civil commitment statute for sex offenders (called the ‘Sexually Violent Predator Act’) as being similar to longstanding commitment statutes for other types of people who are unable to control their actions and pose a danger to the public— such as violently mentally ill people.

Some civil commitments are conditional—that is, they are conditioned on the state continuing to show, at regular intervals, that the sex offender remains a grave risk to the community. This is normally done after examination by a court-appointed expert and an expert hired by the state, which initiates the civil commitment action in the first place.

What of the more traditional remedy of drumming these men out of town?

“This is not a solution,” says Mark Klaas, father of Polly Klaas (search) and director of klaaskids.org. “There are over 533,000 registered sex offenders in the U.S., and driving one out of town only deposits him in another. Doing that might on some level pose a double jeopardy problem, and if something like a Megan’s law is being used for this purpose, we might risk losing those laws.”

Assuming that there are 533,000 registered sex offenders and 3,141 counties, there would be an average of about 170 registered sex offenders in every county in the US.

“There’s no question we have to do a better job of managing these people,” says Klaas. Until now, effective management involved making sure all the neighbors knew that a sex offender had moved into town, and then keeping a close eye on him. Florida’s new law, with lifelong electronic monitoring, might take that one step further by causing the sex offender to know that every one of his movements is tracked, and that the tracking might serve as evidence in a future criminal prosecution, were he to decide to re-offend.

This depends, of course, on just how closely the sex offender is monitored.

When you consider that Jessica Lunsford was allegedly taken from her home by a man few, if any, in the neighborhood knew was a sex offender, and who allegedly killed her within sight of her home, you realize that Megan’s law and the Amber alert issued would have had little utility in saving her.

The new Florida law might be just what is needed.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon-to-be-published "The New Immigration Law and Practice."

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