Wednesday, December 30, 2009

Tort Lobby Stands in the way of Tougher Child Sex Offender Laws

The kidnapping and murder of 11-year-old Sarah Haley Foxwell, in Salisbury last week—allegedly committed by registered sex offender Thomas James Leggs—is spurring calls for stricter child sex offender laws.

Jerry Norton, head of Citizens for Jessica’s Law in Maryland told the Baltimore Sun, “We need to make it clear to citizens of Maryland that we are not going to let these pedophiles molest our children with just a slap on the wrist. We're tired of these watered-down sentences - they come out and do it again."

Senator Nancy Jacobs of Harford County is preparing to re-file her bill eliminating diminution (good behavior) credits for child sex offenders currently incarcerated. Delegate Mike Smigiel from the Eastern Shore is also filing a similar bill and is looking into the possibility of wiretapping suspected child sex offenders.

The Foxwell case may indeed, as Jacobs said, “inspire” some legislators to push for tougher penalties. However, they will face perhaps the single most powerful faction in the General Assembly—the tort lobby. Trial lawyers dominate both the House and Senate judicial committees. Rarely does a bill deleterious to trial lawyers ever make it out of Joe Vallarrio’s or Brian Frosh’s desk drawers, the chairmen of the House and Senate judiciary committees respectively.

Norton, who led the effort to pass Jessica’s Law in 2007, knows better than anyone what supporters of tougher restrictions are up against. “What we succeeded in getting passed was just a piece of the pie,” Norton said. “Not because of lack of due diligence, on the contrary, the problem was that your Maryland legislators fell short.” They want you to believe that Maryland is really tough on child sex offenders, but here's an example of what the REAL story is. Under the so-called Jessica's Law, a convicted child molester is given a 20 year sentence for second degree child rape. Chances are very high the he/she will spend less than 10 years of that behind bars, because the current law provides the possibility of parole and additional time off for good behavior.”

Both Jacobs and Smigiel have tried to close the loophole Norton describes, only to have the aforementioned committee chairs sit on them.

To see just how powerful the tort lobby is let us look at the Herculean effort it took to get a version of Jessica’s Law with any teeth past the trial lawyers, who loathe the law’s mandatory minimums, which cut into their billable hours. I don’t mean to say trial lawyers don’t care about protecting children. It’s just that their concern is situational, as in only when there is a huge monetary settlement on the line.

An extremely watered down version of Jessica’s Law passed in the 2006 special session. Months prior to that during the regular 2006 session, then delegate Anthony Brown led the fight to kill the bill by strong arming delegates on the house floor to kill Jessica’s Law on a procedural vote. The prospects for strengthening Jessica’s Law in 2007 were bleak to say the least. However, a determined group of citizens led by Norton, the Maryland Federation of Republican Women, survivors, the Republican minority, and media allies pulled a recalcitrant Democratic majority over the finish line.

This loose coalition cajoled, hectored, shut down the phone lines, and swamped the email accounts of legislators to persuade them into passing the bill. Opponents of Jessica’s Law resorted to boorish tactics. Frosh made survivors and advocates wait hours to testify, and Vallarrio was unconscionably rude toward survivors who testified before his committee. The resulting public and media pressure on the Senate president’s office compelled Mike Miller to force Frosh to bring the bill up for a vote.

In Vallarrio’s case it took a Bill O’Reilly camera crew showing up on a Saturday morning committee vote to get old Joe to let the bill out of his committee. According to one judiciary committee member the bill was due to be voted down, but that changed once the O’Reilly camera crew rolled in. I’ll never forget witnessing Vallario’s apoplectic fit during his interview with O’Reilly’s producer, Jesse Waters.

Of course, once the spotlight was on him, Vallarrio added his name to the sponsor list and stood up before the entire house to pontificate about how Maryland needed to be at the forefront of protecting children. Stay classy Joe!

My point in rehashing this recent history is to emphasize the very steep road that lies ahead for any legislation to strengthen our state’s sex offender laws. It’s going to take a similar effort to pass even a modest reform. It means phone calls and emails to legislators, contacting media, writing letters to the editor, and convincing others to do the same. We must bring overwhelming public pressure to bear.

It can be done.

UPDATE: Delegate Smigiel has posted to his blog, specifics of what he believes we can and should do to strengthen Maryland's child sex offender laws.


Letsgetreal said...

Tougher laws means more dead children. Dead witnesses don't talk.

We have passed one tough on crime law after another until there is hardly any more to pass.

The laws as they are written today "do more harm than good."

Isn't it time that we rely on "Evidence Based Research," when making law.

Emotion based, knee jerk, laws have done absolutely nothing but endanger children and the whole of our society.

Lets get smart on crime and stop this madness of politicking every time something happens.

Exploiting the murder of a child in the name of protecting is just plain evil.

Mark Newgent said...

Is there an argument anywhere in that or do are you relying on non sequitors.

These aren't knee jerk emotional efforts. People have been working to implement tough mandatory minimums and eliminate diminution credits for going on four years now.

Furthermore you can't explain away the fact that if these predators are in jail then it is impossible for them to harm children.

No one is exploiting a child here. The tragedy of the Foxwell case illustrates the very need for the tougher penalties called for.

Eric Knight said...

Letsgetreal has a point, Mark. I've noticed a huge increase in the punishment factor in sex offender laws in the past three years. I DO agree on tougher penalties for criminals, but I DON'T agree on specifying the TYPE of crimes that get tougher penalties, at least in the way the public perceives them. In addition, I believe Lets has another aspect of the law that he or she is referring to.

First of all, the penalties against child sex offenders, from an unbiased, rationally based observational standpoint, don't make sense. We treat ALL sex offenses from the standpoint of the WORST possible scenario, namely that of the predatory offender who also murders his, or even, her victim. That emotion stems from the innate rage we feel when trying to protect our children.

But we cannot base laws on emotion. We have done that by instituting a registry, which to this day has done far more to inflame communities to take action against sex offenders and their wives and children by banishing them from, cumulatively, 83% of residential areas in those states (depending on its particular ordinance). I believe that is what Letsgetreal is referring to.

Since you feel Lets is giving you non sequitors, let me refer you to the most salient fact, sex offender recidivism.

The vast majority of registered sex offenders do not reoffend with another sex offense. This is based on the Department of Justice statistics, not ACLU or defense attorney statistics. The reoffense rate (recidivism rate) is 3.8 to 5.3% (for another sex offense) for ALL sex offenders, but even that rate is skewed by certain breakdowns. Suffice to say that 19 out of 20 registered sex offenders will not commit another offense.

Again, we have in our mind that sex offenders run the gamut from tree urinators to child rapists- murderers... just like regular crime runs the gamut from shoplifters to murderers. However, to concede a point, let me use the TYPICAL "child" molestation offense: statutory rape of a post-adolescent, pre-adult teen (age 14-17) by an adult. In most cases, statutory rape consists of relatively consensual sexual activity, including intercourse, with no physical violence attributed to forceful rape, or rape with assault (such as Leggs).

The judicial system is uniquely handled, FOR THE MOST PART, to handle such sentencing for each case, as is constitutionaly mandated. In the case of Leggs, undoubtedly he will at the very least never see the light of day again, or be executed. In other cases involving child murderers, I've never heard of anyone getting less than life, by the way, so the laws in place already will take care of them.

But when you look at what the politicians are trying to do, in this case implement mandatory minimums on ALL child sex offenses, then you are also acknowledging that the system is completely broken. Which it is, actually. But not in the way you think.

Part of the very reason that Leggs got out early was the fact that he was not properly processed through the correctional system in the first place. The fact he was a registered sex offender, on the face of it, is not the big issue that needs to be addressed. The fact that he was a MULTIPLE OFFENDER, with one offense that was child sex related, was the FAR GREATER issue. In other words, he is one of the 3.5% (actually, less than 1% using a more objective standard based on law enforcement statistics, not DOJ) of registered sex offenders who should have been watched or monitored more in the first place, or preferably kept in jail.


Eric Knight said...


Now, you probably don't get too many conservatives like myself who promote ideas that would, on the surface, are perceived more to protect the ACTUAL rights of sex offenders than of their POTENTIAL victims. Please note my emphasized words in context: actual rights of sex offenders ARE being abridged because of society's natural impulse to be fearful of those who have committed a sex offense in the past.

But now to concede YOUR point: what are the courts doing to ensure these individuals are locked up for good? The answer is that when you sweep in ALL individuals who commit sex offenses in one group, then you devalue the victims' rights by dilluting limited law enforcement and correctional institution funds to those who, by and large, will never commit another crime. And THAT, I believe, is the point that Letsgetreal was trying to make.

And to that end, yes, the politicians are, unfortunately, exploiting the life of a child. In fact, when you "emotionalize" a law by attaching a victim's name to it, by definition, you inject a non-rational component into a law which can set the seeds for more irrational laws.

-Megan's law only added fear to communities and their treatment of registered sex offenders;
-Jessica's Law, in most states, mandate residency restrictions on most offenders based not on reality but on perceived threats that, unfortunately, has increased the danger for communities because of a greater increase of non-compliance to registration laws
-Finally, the Adam Walsh Act federalizes the sex offender registry, greatly increases the length of registration, and provides the base for fully segregating all registered sex offenders from society, even after they have successfully reintegrated back into society following their conviction and sentencing requirements.

I hope you don't mind the length of my post, but it is vital that we separate the emotional from the rational, and with sex offender laws based on a registry, or crimes that are not properly adjudged because of either faulty court procedures or, just as bad, ill-informed legislative intent, we will only serve to create a perpetual condition where sexual crimes against children are not only effectively prevented, but actually lead to the perpetual villification of individuals and their families (ESPECIALLY their families) for an indeterminate time.

Eric Knight said...

I just saw your update to Michael Smigiel's blog, and I am in 100% agreement with his proposed directions. Repeat offenders, or at least offenders who have been registered, who commit another sex offense SHOULD see a lengthy jail sentence. On the surface, Smigiel's reforms (really, enhancements) are valid.

The problem, again, is that the vast majority of registered sex offenders do NOT fit the profile of the predator/pedophile or repeat offender. As said in previous posts, attention should be given to concentrating law enforcement and judicial resources on the top 1% of registered sex offenders such as Leggs, a smaller but still escalated concentration of resources on the top 10%, and a systematic migration of the rest of the registrants to more appropriate notification schedules and privacy concerns.