« Mississippi Supreme Court looking into capital case delays | Main | Noting the juve LWOP cases before SCOTUS across the pond »

November 1, 2009

"Let juries determine sex offenders’ fate"

The title of this post is the headline of this interesting new editorial in the Boston Globe.  Here is how it begins and ends:

Middlesex District Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences.  It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend.  Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital.  Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters.  Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life.  But juries are not acting reflexively, either.  In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future.  Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases.  It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially.  That’s how it works already when convicted sex offenders get to appeal their commitment after one year — either the offender or the prosecutor can demand a jury trial....

The cases are often awash in conflicting medical testimony and legal fine points.  Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen.  Twice prosecutors had tried to convince judges to commit Flavell.  Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment.  Would a jury have seen it the same way?  It’s not certain.  But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter.  Community acceptance of verdicts is a pillar of the legal system, as any judge would attest.  And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

As regular readers may know, I am a fan of greater jury involvement in the operation of various aspects of the criminal justice system.  I am intrigued to learn that juries already can and do play a role in Massachusetts' sex offenders civil commitment scheme, and I am pleased to see this editorial make an effective case for this kind of community involvement in tough criminal justice decisions.

November 1, 2009 at 12:46 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Let juries determine sex offenders’ fate":


Sorry to say there is a lot of garbage in that editorial. While I certainly support increasing the role of juries this is a bad place to do it.

First, I'm generally opposed to civil commitment. Locking up people in behavioral hospitals simply because they don't qualify for a regular prison any more is bad public policy. It detracts those institutions from their primary mental health focus. Juries may not be acting reflexively (whatever that means in this context) but it's highly dubious that 75% of sex offenders have a mental defect requiring civil commitment unless one starts from the place that sexual offenders are mentally deformed to begin with and that has no psychological basis whatsoever. I'd be more open to juries doing their job if the data went the other way, 75% free because that's the more likely psychological reality.

I also object to the sickening theory that "But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens." That really is putrefying. First, the burden of proof should be on commitment, not freedom. We should be looking at juries to explain why they are locking people up, not why they go free. I think judges do a better job of that. Second, the reason that we put more faith in a jury verdict is not because it is rendered by "fellow citizens" but because we believe that more brains equal less errors. It's the same reason we have a judicial appeals process.

I would probably be open to a system where the jury recommends to a judge a decision. But I am not comfortable at all with the jury making that decision.

Posted by: Daniel | Nov 1, 2009 2:27:20 PM

I said to psychologist friends, why not have psychologists run the criminal law? They know a lot about punishment, the sole tool of the law. Unanimously, they said, that was a very bad idea. One can understand why. Psychologists would coddle the criminal far more than the lawyer does.

Civil commitment results from a need for treatment, and a refusal to get treatment. The public may not have the vocabulary, but their judgment on the need for treatment is excellent. They recognize mental illness in all cultures, from pygmy to eskimo. They will also focus on the defendant, will not get swayed rather than on lawyer gotcha and procedure, as a judge might.

As all legal theories should, it should get tested in a small jurisdiction. The outcome measure would be the rate of sex victimization.

Posted by: Supremacy Claus | Nov 1, 2009 2:52:16 PM

Daniel, your concern is obviously a substantive disagreement with the use of civil commitment. Fine, but you should recognize that judges acting alone are probably more likely to preserve AND KEEP HIDDEN such a system. Juries have a transparency value, and that is why I generally support their involvement in any and every criminal justice setting.

Posted by: Doug B. | Nov 1, 2009 3:14:36 PM

Professor, do you mean this jury pool?

Halloween Display Sends Message To Child Predators

A couple of snips.

Everyone who drives by Grove Street near Ward Avenue in Eustis sees what looks like a bloody person hanging from a tree. There is a sign next to the display that reads “Child Molester…What He Deserves.”

"But people who live and work in the neighborhood say having a figure hang from the tree is just fine."

Do you think the jury can be impartial?

While protection of children is noble and hatred of those that harm them is understandable, sexual abuse is only about 7-10% of all child abuse. I still say a Skinner v. Oklahoma-like challenge is on the horizon as the loss of liberties mount.

Posted by: George | Nov 1, 2009 6:04:35 PM

I know this is anathema but I'm for less jury involvement going forward. I've seen more than my share of criminal jury verdicts rendered on something other than the merits to know that today's juries are hardly the objective, unbiased, paradigm we think they are. Their decisions are very often result-oriented. The machinations that go into modern day jury selection provides a window into what is not a pretty picture.

Civil juries are more problematic. Verdicts and judgment awards are routinely decided to "make a statement" rather than an impartial and fair assessment of the facts.

Posted by: mjs | Nov 1, 2009 6:39:14 PM

The adversarial process. From Scholasticism.

The jury had knowledge in the old days, not today. They also investigated unanswered questions. Today, they are a truth detector using their gut feelings. Basically they decide whom they like and don't like. The smooth sociopath does great with them.

From the Catholic Encyclopedia, p. 747.

Exposition of the Text (namely the Bible).
Disputation of a Question. Appeal to authorities. The lecture on a text was given in the morning. In the afternoon, the disputation would take place. The master summarized the state of the question, methodically presented his own solution, and resolved major questions.

Posted by: Supremacy Claus | Nov 1, 2009 7:05:46 PM

The combination of civil and criminal law under one event is that same type of bad law that plagues the child support judgments. Some states arrest and incarcerate people for not paying child support. Other states deny drivers licenses and professional licenses. That system is broken.

Parties advocating criminal and civil commitments for sex offenders want to get their way with or without the law. Sentencing laws are set by legislatures and must pass constitutional muster. To circumvent criminal sentencing, people have advocated civil commitments to keep offenders off the streets, not for treatment. They cant execute non-violent sex offenders, so they just try and keep them under civil commitment for 20 years. If courts can recognize that this is intent to commit double jeopardy, then our court system is fundamentally broken. Advocates attempting to throw juries into the mix are just trying to civilize the contempt for the constitution.

Posted by: aaaaburn | Nov 1, 2009 7:13:28 PM

Doug. I agree with you the juries provide transparency. But they provide transparency of decision making, not transparency or explanation. A jury can tell us what it did but it takes judge to tell us why it happened. If juries are going to make complex mental health evaluations, they should be forced to do so in a way that enables peer review. After all, that's what ordinary professional psychologists have to do. Why should juries be held to a lesser standard than professionals? That makes no sense.

It seems that your chief goal is transparency. Fine, it's a worthwhile goal. That's while I said that the jury should recommended a decision to a judge and then let the judge explain his ruling so that the explanation too is transparent. Otherwise, all you are doing is hiding prejudice under the cloak of 'transparency'.

Posted by: Daniel | Nov 1, 2009 7:50:31 PM

this is a complete crock!

"In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend."

IF this is done it should have been done BEFORE any crimnal trial to even come close to LEGAL. Done after the fact like most sex offense laws passed in the last decade it is completely ILLEGAL.

Posted by: rodsmith3510 | Nov 2, 2009 4:42:22 PM

As Daniel said, this is a big crock of bullshit!
I hope NO MORE alleged sex offenders accept plea deals!
They should all DEMAND a jury trial and drag their alleged victims through the courts and make them testify.
I cannot IMAGINE agreeing to a plea deal then having to do LIFE after agreeing to do years!
If it were me, I would give them plenty of justification to hold me for life!

Posted by: expostfacto | Nov 4, 2009 11:28:46 PM

On a related note with regard to civil commitment as a whole:

Doesn't civil commitment indicate that the offender is "not sane," as defined in the fact that he is not allowed to join society at the end of his sentence because of a perceived abnormality of sanity?

If this is the case, then why isn't his original sentence vacated, with the guilty verdict thrown out, as he could not be judged and sentenced in a court of law unless he was presumed "sane" in the first place, and instead recommended for civil commitment from the very beginning? At least, if he's ostensibly "cured" at that point, then there are mechanisms for him to honor the sentence at THAT point.

I realize I'm being a bit over-simplistic here, but as a layman, can someone explain to me why this obvious breach of constitutional authority has not been vetted?

Posted by: Michael | Nov 23, 2009 1:35:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB