What are we to do with convicted sex offenders? Obviously, the current criminal justice system is not equipped to deal with these convicts. On Monday, in a 5 to 2 ruling, the California Supreme Court upheld portions of Jessica's Law (Proposition 83) involving residency restrictions as applied to convicted sex offenders. Proposition 83 is an initiative passed by California voters in the Nov. 7, 2006 election. For those cinematically inclined, the classic German film, M, by Fritz Lang describes how one German town in concert with local gangsters and beggars attempt to deal with a child predator/murderer.
Among other things, Proposition 83 prohibits registered sex offenders from living within 2,000 feet of a school or park where children gather. The Court ruled that the state can continue restricting convicted sex offenders from living near parks, schools and any other place where children might gather. The ruling also held that the law would apply retroactively to thousands of sex offenders that were on parole when Proposition 83 passed in 2006. Two dissenters from the ruling said that the residency limitations should not apply to registered sex offenders whose crimes predated the law's passage.
The Court left open the following issues:
That the law is so broad and intrusive, it violates the constitutional rights of convicted sex offenders. In a Missouri Supreme Court case it was argued that the Jessica's Law-type acts:
"...violate substantive due process rights and equal protection rights because it infringes on fundamental liberty rights, imposes a lifetime stigma, has no express purpose and, even if it serves a compelling interest, is not narrowly tailored or rationally related to that interest. They assert that, if the act is deemed to be criminal in nature, it violates the prohibition against ex post facto laws because it imposes an additional punishment, thereby altering the consequences for a crime for which they already have been sentenced."
The provision that permits the state to lock up sexually violent predators indefinitely through civil confinement is open to litigation. The Justices have ordered new hearings in the lower courts to litigate that issue.
If there is anything to be learned from all of this is we must find a way to deal with sex offenders and preditors. Perhaps the problem is not making the clear distinction between sex offenders and sex predators. In some, but not all states, people are sex offenders because they have engaged in the relatively lesser "offenses" of public urination, Romeo and Juliet relationships, streaking, or mooning. Except for the "Romeo and Juliet" relationships, the other offenses might also be described as public nuisances, rowdiness, stupidity, a public health issue (public urination), disturbing the peace, or visual urban blight (streaking). Depending upon the facts of each case, these offenses are not for the most part, sexual in nature.
Thus we have a further distinction in that some so-called sex offenses might not be as bad as others, e.g., the Laguna Niguel, (Orange County), California Amtrak Mooners. In the past, the City was somewhat tolerant of the event, however, in response to the apparent rowdiness in 2008, passed two ordinances in 2009, prohibiting public urination and public alcohol consumption specifically aimed at the lawlessness that the event seems to be inspiring.
The more heinous sex crimes like rape and child molestation require a combination of penal and mental health institutionalization. Where needed, this should be for life. Jurisdiction should also continue over offenders unless the Court determines that offender is no longer a clear and present danger to society. However, there could a halfway colony in which carefully screened offenders learn to live in society through self governance, i.e., under close supervision these "colonists" would be running their colony. This is sure to be opposed by NIMBY's everywhere. But isn't it better to concentrate the offenders in one location than to solely rely on the Megan's Law registry to discover any potentially dangerous sex offenders in your area.
There may be the need to address this issue with a Consitutional amendment to stake out legal guidelines for handling the more egregious of sex offenders. Be advised that the ACLUseless (protectors of NAMBLA and tormentors of the Boy Scouts) and other Leftist legal organizations will fight this. So then what is their suggestion as to how to deal with these obviously sick people that might not be mentally fit enough to live like law abiding citizens in an open society?
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