Should New York Release Sex Offenders?

Illustration by Amanda Lanzone

Under a New York state program, sex offenders who have been deemed dangerous and unable to control their criminal urges can be held in civil commitment after their incarceration. But last fall, a court of appeals ruled that a man could not be held for an antisocial personality disorder (ASPD) diagnosis. Others like him are expected to be released. Symptoms of sociopaths, or people with with ASPD, include impulsivity, dishonesty, and little or no empathy. These symptoms often result in sufferers violating the rights of others.

New York's civil commitment program for sex offenders exists to make sure those who have been diagnosed with conditions such as ASPD are treated and kept from the public after completing their incarceration. The New York State Office of Mental Health currently reviews civilly confined sex offenders on a case-by-case basis. Their possible release has opened an ethical debate on civil commitment programs: Are we protecting the public from incurable criminals, or have we fallen into a Minority Report future where individuals are held against their will for crimes that haven't yet committed?

To better understand the dilemma, I spoke with notable forensic psychiatrist Dr. Michael Welner, the Chairman of the Forensic Panel, who has worked on high-profile cases including those of Elizabeth Smart, Omar Khadr, and Andrea Yates. Dr. Welner has been spearheading an effort to emphasize the role of evidence in distinguishing the worst crimes through what he calls a "Depravity Standard." Still in research stages and actively seeking participants, the idea is intended to guide court decisions using public opinion. I spoke to Welner about his research, his thoughts on sex offenders, and the debate in New York.

VICE: What are people debating when they talk about New York's treatment of sex offenders?
Dr. Michael Welner: Defense advocates would assert that antisocial personality is essentially criminal deviance and, without more illnesses present, not appropriate for a treatment setting. Prisoners' rights advocates rightly point to confining the nominally treatable as disguised punishment. In the case of civilly committed sex offenders, prosecutors may not care that people are confined who, lawfully, should not be. Their concern is public safety and even then the perception that they are prioritizing public safety.

What is the known correlation between ASPD and sex offenders?
Sex offenders encompass the range of pedophiles, exhibitionists, voyeurs, rapists, and more. The relationships between crimes that directly violate another person's rights naturally overlap with the essence of antisocial behavior. The particular quality of those who do have antisocial personality disorder and [commit sexual offenses] is that they don't care about whose rights they violate, for anything—be it financial, sexual, or material.

How are sex offenders diagnosed?
History is the most important contributor to diagnosis. An examiner arrives at a diagnosis by gathering history of one's offense behavior, sexuality, functional background in social, interpersonal, and vocational spheres, past mental health assessment and treatment, substance abuse, emotional symptoms, medical and head injury history, coping skills and styles, and developmental dynamics, such as the quality of one's earlier life experiences, to inform consideration of the most likely diagnoses.

For the assessment of any sex offender, of any age, the diagnostic challenge remains the deconstruction of what happened. That's why, for psychiatrists like myself, it is imperative for victims to create a clear and full—with all disturbing detail—record of what happened, from beginning to end. Offenders routinely employ what are known as "cognitive distortions" to rationalize, justify, and minimize what happened in order to gain social desirability in the interviewer and to minimize responsibility. Furthermore, because of unwilling traumatized victims or parents who want to protect their children from testifying, prosecutors are forced to offer plea deals that ultimately render hidden the antecedents and actions of a crime. Even the psychiatrist later evaluating an offender is then left in the dark—were it not, for example, Elizabeth Smart's willingness to talk to me about her kidnapper and rapist, he would be free now, falsely depicted as ill.

Can you explain the Depravity Standard?
There are crimes whose intent, actions, victim choice, and attitudes distinguish them for their severity among comparable offenses. There are murders that are worse than other murders, pedophile cases that are worse than others—yes, that are worse than other rapes. The Depravity Standard is an evidence-driven way for distinguishing crimes by their severity, in order to drive sentencing and release decisions that are more evidence based and free of bias, prejudice, favoritism, and other sources of injustice.

How could the Depravity Standard be used in regards to sentencing sex offenders?
Civil commitment is the alternative right now for exceptional sex assaults involving perpetrators whose crimes engender fear among a public to which they will be released. Certainly civil commitment provides treatment for some, but for others, it is clearly a tool for extended confinement that responds to a desire to punish some more. Whether that is justifiable is not the point. What is undeniable is that distinguishing crimes for greater punishment and confinement—absent true therapeutic considerations—is not based on more than the prosecutor's discretion right now. And while most serving the public trust are honorable, human nature creates risks of bias and error when such decisions are left to one's gut.

The Depravity Standard presents a range of items that can hold the justice system accountable to prove that a sex crime was indeed exceptional among its peers with evidence to support greater accountability. At the same time, the Depravity Standard protects criminal defendants from the abuses of power or lack of resources that enable the system to pile on to an offender whose crime—by its intent, actions, victimology, and attitudes—does not otherwise distinguish itself.

Likewise, early release decisions should not favor the powerful who contribute to political campaigns, or those who afford better attorneys. Early release should have means of guaranteeing more compassionate disposition with low depravity of a crime relative to a crime of high depravity.

Has civil commitment been proven to help prevent crimes?
The science of sex offender risk assessment has significantly improved and continues to do so. For those who do represent higher risk, civil commitment statutes are clearly promoting public safety, whether the offenders are treatable or not. What is more problematic is when one, treatment is not a realistic option because the inmate has a personality disorder and no real treatable condition, and two, risk of sexual reoffense is arguable, because the offense was one of many general aspects of irresponsibility and public nuisance.

This is a worthwhile ethical debate because this scenario is more common than officials are willing to admit. Public administration positions do not attract risk takers. Theirs is a priority policy of staying off the front page of the New York Post for taking even the slightest chance and getting burned.

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