Tougher laws keep sex offenders behind bars

5-18-2010 Utah:

SALT LAKE CITY — In 1983, when Sen. Lyle Hillyard, R-Logan, then a state representative, pushed through a bill imposing tougher sex-offender laws, it was a different era.

"I was convinced at the time that society had not really looked at sexual abuse," Hillyard said. "There were things going on, even within families, that nobody dared talk about."

And while 1996 legislation, also proposed by Hillyard, eliminated mandatory minimum sentences and widened options for prosecutors and judges, Utah still has one of the country's toughest stances on sex crime — with the prison population to show for it.

That's why it's unlikely a program like the one upheld Monday by the U.S. Supreme Court to indefinitely hold the most dangerous sex offenders after their prison terms, will come to the state anytime soon.

The court held that the Adam Walsh Child Protection and Safety Act, signed in 2006 by President George W. Bush, was a proper exercise of federal authority. The four men who challenged the law were held after serving prison terms from three to eight years for possession of child pornography or sexual abuse of a minor.

The law only affects federal inmates, although 20 states have similar civil commitment programs.

Hillyard said such a program would be too expensive in Utah. Indeed, officials are already struggling to house and treat the sex offenders who make up 30 percent of the state's prison population — well above the national average of 12 percent.

The number of sex offenders in the Utah State Prison jumped from 864 in 1996 to 1,967 in 2008. Meanwhile, prison funding remained static.

"Programs are spread thinner across a higher number of inmates," said Utah Department of Corrections spokesman Steve Gehrke. "That means some inmates end up waiting a while before they get into treatment programs. You have a small number of staff pressed to do more."

The prison's Diagnostic Unit, a wing where new inmates underwent a roughly 45-day pre-sentencing evaluation, closed last year for lack of funds. Now, though Gehrke says other methods provide much of the same information, offenders who could have received probation end up in prison instead.

Changes in state law in 1996 replaced mandatory minimum sentences for many sex crimes with indeterminate terms of six, 10 or 15 years to life. At the same time, many attempted sexual assaults became more-serious first-degree felonies, with the possibility of probation or prison sentences as short as three years.

That gave prosecutors more options, more ways to reach plea deals — even to first-degree felonies with maximum life sentences — without forcing victims on to the witness stand.

"Prosecutors wanted it but didn't dare ask for it" for fear of public outcry, Hillyard said.

According to Paul Boyden, director of the Utah Statewide Association of Prosecutors, those options have protected the public and led to fairer outcomes.

"When we got rid of mandatory minimums, the actual time spent in prison increased substantially," Boyden said. "Now when we have a dangerous criminal who shouldn't get out of prison, the Board of Pardons just doesn't release them."

Elements of Jessica's Law adopted in 2007 bumped sentencing guidelines higher with increased penalties for sex offenses against children, including a minimum of 25 years to life for rape, object rape and sodomy.

While the 1996 laws gave more flexibility to prosecutors, they have also sometimes created dilemmas for judges.

Last month, 4th District Judge Claudia Laycock wrestled with the case of an 18-year-old Springville man who pleaded guilty to attempted sodomy on a child, a first-degree felony, after originally being charged with sodomy, one of the crimes carrying a minimum punishment of 25 years to life.

The slightly built young man, who admitted to a sexual encounter with a 13-year-old boy in a Highland park, still faced at least three years to life in prison, while the judge also could impose a minimum term of six or 10 years. But even the most lenient sentence, which she chose, seemed to haunt Laycock.

"Because of your age and build, you will suffer a great deal in prison. I'm very aware of that," the judge said. "Frankly, I hope you survive prison. I think you're facing horrors you can't even imagine, and I'm very worried for your safety."

Laycock also noted the damage done to the victim and said if the man abuses anyone else after getting out of prison, "I will live to rue this day and this decision."

Jim Hatch, spokesman for the Utah Board of Pardons and Parole, said that while the majority of sex offenders are released after a few years, a "handful" have been ordered to spend the rest of their natural lives behind bars. The makeup of the prison population does not affect when offenders are paroled, and if there is overcrowding, those who committed property and drug crimes will be released before sex offenders and other violent criminals, he said.

Hillyard says the state has come a long way toward better understanding offenders and doing more to help victims, but there is still room to improve.

"I think we're doing a fairly good job of convicting people. Where we're not doing a good job is treatment," he said. "I think we need to be a little more aggressive in weeding out those who are really sick, and lock them up forever to make sure they're not posing a danger."

Striking that balance between punishment and therapy is difficult when policymakers are driven by "emotion and anecdotes" to impose ever-tougher sanctions, says Kent Hart, director of the Utah Association of Criminal Defense Lawyers.

"We're very reactive and when (a sensational crime) happens, we throw more people in prison," Hart said. "But that's not solving any problems."

He urges more emphasis on intervention and prevention by looking at the causes of sex crimes.

Hart also criticized increasingly strict laws placing more people on the state's sex-offender registry.

"We're driving these people underground to where they don't want to report, where they can't get jobs or housing," he said. "We're basically dooming these people to fail." ..Source.. Paul Koepp