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Dissent drowns out in sex predator bill.

April 09, 1998
By: Ann S. Kim
State Capital Bureau

JEFFERSON CITY - Widespread support has all but drowned out the voice of dissent in the emotionally charged issue of locking sex offenders up indefinitely -- an issue promoted by the governor and approved by both the House and Senate.

Sex offenders deemed dangerous by the state would be kept in jails after they completed their prison sentences. Technically, the law would allow courts to put these offenders in custody of the Mental Health Department indefinitely.

Gov. Mel Carnahan highlighted the issue in his January State of the State address. Missouri's Mental Health Department has endorsed the measure. Two versions of the bill have moved smoothly through the legislature, easily winning first round approval in both chambers.

Despite the near unanimity in state government about that idea, however, criticism has been voiced by both the psychiatric and legal communities.

"This bill allows sex offenders to be committed after they've already been incarcerated. We don't do this for any other type of offender. Not for murders, not for anyone else," said Denise Lieberman, legal director for the American Civil Liberties Union of eastern Missouri.

Lieberman did not accept bill proponents' argument that commitment is not the same as imprisonment. Proponents insist that commitment is a purely civil procedure, with sex offenders in the mental health department's custody.

"When the state locks you up without your consent," Lieberman said. "That sounds like incarceration. Forced treatment doesn't make it not incarceration."

Lieberman and other critics said that the problem of sex offenders should be dealt with through harsher sentencing laws.

"If they're a danger to society, we should change the law about keeping them in prison," said Marsha Richeson, lobbyist for the ACLU.

In addition to the ACLU, the prestigious American Psychiatric Association (the psychiatrists' equivalent of the AMA) and the Missouri Association of Criminal Defense Lawyers have opposed the approach taken in the bill.

Opponents to the bill acknowledge the unpopularity of their views.

"My remarks will probably not be persuasive," said Thomas Carver of the Missouri Association of Criminal Defense Lawyers. Carver testified before a the House committee that passed the bill unanimously. Carver's testimony followed that of victims of sex offenders.

The American Psychiatric Association filed a brief with the Supreme Court opposing the Kansas law upon which the Missouri legislation is based. The APA argued that the Kansas law was a misuse of psychiatry and that psychiatric hospitals should not be used as repositories for sex offenders who are not mentally ill.

APA's guidelines for commitment are more stringent than the standard proposed in the bill, said Dr. Howard Zonana, professor of psychiatry at Yale University and the chair of APA's task force on dangerous sex offenders.

The APA's guidelines require that the person's disorder actually be treatable, that the person's mental condition is seriously deteriorating, or that the person is unable to make informed decisions. To commit them, the bill requires sex offenders to have a "mental abnormality," which is defined as a predisposition to commit sexually violent crimes. That standard is very broad, Zonana said.

"You can't lump all sex offenders into one category," Zonana said.

Psychiatry is unable to deal with all sex offenders, said Dr. T.R. Anderson, a Columbia psychiatrist and central Missouri representative to the APA. About two-thirds of sex offenders are not treatable with current methods, Anderson said.

"Obviously there's some behavior which is undesirable, but it is not pathological. We're concerned that people are going to be dumped on the psychiatric community," Anderson said. "A psychiatrist has a lot of difficulty saying that this person will never behave this way again. The human mind is not programmed like a computer, that we can predict."

"This legislation is a step toward punishing people not for what they have done, but what they might do," Carver said.

Other critics say the legislation is a misuse of psychiatry.

"They distort the purpose of our mental health system," which is to treat or care for people who are mentally incompetent or are unable to make choices and accept responsibility for their choices, said Eric Janus, professor of law at William Mitchell College of Law in St. Paul, Min. Janus is co-counsel in a case challenging the Minnesota version of the law.

"Treatment is one of the main purposes of civil commitment," Janus said. "We've never in our society said that we want to lock competent people up to 'treat' them."

Janus warned it was dangerous to treat sex offenders as if they were sick.

"That's a terrible message to send, to suggest to sex offenders they are not responsible for their actions. And it suggests to us as society that we can't do anything about sexual violence in our society," Janus said.

These arguments, however, must compete with the often heart-wrenching testimony of the law's supporters.

Peggy and Gene Schmidt, the parents of a sex offender's victim, have become key players in the crusade to bring "Stephanie's Laws" to the states. Their daughter Stephanie, for whom the laws are nicknamed, was raped and killed by a paroled sex offender in 1993. Stephanie accepted a ride home with him, unaware that her co-worker had a criminal past.

Kansas, the Schmidts' home state, adopted the law was adopted by in 1994. The Kansas Supreme Court struck it down in 1996, but the U.S. Supreme Court upheld the law in June, giving states the green light to proceed with similar laws.