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Increase Penalties for Sex Crimes Against Children

State law should be amended to enhance penalties for repeat sex offenders and to require stricter monitoring and mandatory treatment of these offenders.

Background
On September 4, 1993, a seven-year-old girl named Ashley Estell was kidnapped from a Plano, Texas, playground by a paroled sex offender. The next day, Ashley's body was found in a ditch about six miles from the park. The 24-year-old parolee convicted of killing her had served only 18 months of his 10-year sentence for burglary and indecency with a child. Public outrage prompted the 1995 Legislature to pass 11 sex-crime bills referred to as "Ashley's laws." The 1997 Legislature continued the trend of toughening penalties against sex offenders.

There are 23,182 sex offenders in Texas prisons. Of these, there are 17,705 with a current sex offense conviction, about half or 8,458 were incarcerated for sex crimes against children, 1,234 for sex crimes against adults, and 721 for sex offenses against both.[1]

Longer prison sentences for sex offenders
Between 1991 and 1997, the number of sex offenders in Texas prisons increased by 130 percent. The average sentence length for sex offenders increased from 13.9 to 15.1 years, mainly because of increased sentence lengths for sex crimes against children. The average sentence length for sexual assault of a child increased from 16.5 to 18.6 years.[2]

Offenders convicted of sexual assault of a child, indecency with a child by contact, or aggravated sexual assault must now serve 50 percent of their sentences, without consideration for "good time," before they are eligible for parole. Before 1991, offenders convicted of these crimes had to serve only 25 percent of their sentences. Under present parole practices, most offenders convicted of sexual assault of a child or indecency with a child by contact will serve 80 percent of their sentences before being granted parole.[3]

The Legislature eliminated mandatory release in 1987 for aggravated sexual assault and sexual assault; in 1993 for indecency with a child by contact; in 1995 for sexual assault of a child; and in 1997 for indecency with a child by exposure. For each category, only offenders sentenced under policies in effect before the above dates are eligible for mandatory release.

According to a report by the Criminal Justice Policy Council (CJPC), longer prison sentences for sex offenders appear to be having the desired effect. Between 1989 and 1992, the number of sexual assaults reported to the Department of Public Safety increased by about 19 percent and the per-capita rate of sexual assaults increased by 14 percent. From 1993 to 1995, however, the number of sexual assaults and the per-capita rate both decreased by 17 percent. While many factors may have contributed to this decline, the CJPC report states that longer prison sentences can reduce the number of repeat sex offenses by reducing the number of sex offenders released.[4]

Enhanced penalties for sex offenders
One way to make sex offenders serve longer prison sentences is to "enhance" penalties. The Penal Code provides for enhanced penalties for repeat and habitual felony offenders.[5] For example, if someone who commits a third-degree felony had a prior felony conviction, that person is sentenced for a second-degree felony. A second-degree felony plus a prior felony is punished as a first-degree felony.

The "three-strikes provision" calls for the sentencing of a defendant to life imprisonment upon a third felony conviction. The 1997 Legislature eliminated the need for a third felony conviction in certain assault cases including sexual assault. This is commonly called the "two strikes" provision.

Most sex offenders abuse many victims before they are caught.[6] Once caught, sex offenders often are able to plead down to misdemeanor offenses.[7] This enables them to escape the "two-strikes" provision despite a long history of sexual abuse of children.

Most sex crimes, particularly those against children, are now felonies and therefore count toward penalty enhancement. Indecent exposure, however, is a Class B misdemeanor.[8]

Sex offenders who remain in the community
Not all sex offenders go to prison. They may remain in the community if they are placed on community supervision (probation).

The Code of Criminal Procedure allows a judge or jury to suspend the prison sentence of someone who is convicted of a crime and to place the offender on community supervision instead. A judge also may place someone on community supervision without a conviction. After receiving a plea of guilty or of nolo contendere (no contest), a judge may defer further proceedings without entering an adjudication of guilt and place the defendant on community supervision.[9] This is known as deferred adjudication.

A judge may impose the same conditions on a person granted deferred adjudication as on someone who is convicted and placed on community supervision. These include reporting to the supervision officer, obeying rules and regulations of the community supervision and corrections department, participating in community service and substance abuse treatment, submitting to electronic monitoring, paying for psychological counseling for the victim, and reimbursing the state for crime victims' compensation payments.[10] Under deferred adjudication, however, once the community supervision period expires, the case is dismissed, and the offender is not subject to the "disqualifications or disabilities imposed by law for conviction of an offense," such as the loss of the right to vote.[11] Also, while deferred adjudication may be considered in sentencing for a subsequent conviction, it does not count for penalty enhancement except in the case of repeat sex offenders.

In view of the public attitude that sex crimes are especially repugnant when committed against children, one might suppose that offenders who sexually abuse children are less likely to be granted deferred adjudication than those who commit sex crimes against adults. In fact, the opposite is true.

A CJPC study of offenders convicted in 1991 in Harris, Dallas, Tarrant, Bexar, Travis, El Paso, and Nueces counties found that those convicted of sex offenses against children were granted deferred adjudication more often than those convicted of sex offenses against adults.[12] Offenders were granted deferred adjudication in 40 percent of cases of sexual assault against a child and in 33 percent of cases of indecency with a child. Offenders convicted of sex offenses against adults received deferred adjudication in 20 percent of aggravated sexual assault and 27 percent of sexual assault cases. Office of Court Administration data for 1997 indicate that sex offenders were granted deferred adjudication in 29 percent of cases in which an adult was the victim and in 38 percent of cases in which a child was victimized.[13]

Although state law prohibits placing sex offenders on community supervision if they are convicted of indecency with a child, sexual assault, or aggravated sexual assault, the law does not rule out placing such offenders on community supervision as a result of deferred adjudication. However, a judge may grant deferred adjudication for these offenses only if he or she finds in open court that this disposition is in the best interest of the victim.[14] In fiscal 1997, 1,344 sex offenders were granted deferred adjudication for indecency with or sexual assault of a child, while 277 were granted deferred adjudication for sexual assault of an adult.

A judge may not grant deferred adjudication for indecency with a child, sexual assault, aggravated assault, incest, indecent exposure, possession or promotion of child pornography, or sexual performance by a child if the defendant has previously been placed on community supervision for any of these sex crimes.[15]

For incest, indecent exposure, possession or promotion of child pornography, or sexual performance by a child, an offender may be placed on community supervision either upon conviction or through deferred adjudication. For any of these sex crimes, however, an offender may be placed on community supervision only once, whether through deferred adjudication or upon conviction.

In granting deferred adjudication for sex offenders, a judge may impose any reasonable condition, including strict monitoring and treatment, but these conditions are not mandatory.[16]

Treating sex offenders
Studies have found that traditional therapy does not work well with sex offenders. According to the Texas Department of Criminal Justice (TDCJ), "traditional methods require patients who are committed to treatment, able to process information in the abstract, and able to express feelings verbally. These are characteristics few sex offenders possess."[17]

TDCJ notes, however, that some cognitive-behavioral treatment programs have shown promise for reducing recidivism rates among child molesters. Cognitive-behavioral programs, which vary in length and setting, are designed to break through the offender's denial and then use individual and group techniques to challenge beliefs and perceptions the offender uses to support his deviant behavior.[18]

According to the research cited by TDCJ, "it appears that even serious, high-risk sexual offenders can be successfully treated and supervised in the community, if their overall program is highly structured and intensively supervised."[19]

The Hunt County Community Supervision and Corrections Department's Sex Offender Accountability Program is based on the cognitive-behavioral model and has a highly structured and intensely supervised monitoring component. It requires offenders to attend weekly counseling with a registered provider of sex-offender treatment. Offenders initially attend individual sessions and then proceed to group sessions. They are also monitored and assessed by means of the clinical polygraph, the plethysmograph, and the Abel screen.[20]

Hunt County uses the clinical polygraph to develop and verify an offender's sexual history. Use of the polygraph follows guidelines approved by Texas' Joint Polygraph Committee on Offender Testing, which other states are now adopting.[21]

The plethysmograph, a diagnostic test used to measure arousal by sexual material, provides information on the offender's progress during treatment.

The Abel screen, a computer-driven test, provides a measure of deviant sexual interests and extensive details about the offender's history, degree of control, and other information. It can be used to determine clients most likely to repeat a sex crime and to identify the most dangerous and least dangerous clients.[22]

According to Hunt County staff, these monitoring tools help deter future sex offenses. If sex offenders are to be allowed to remain in the community, a system is needed that does not require the community supervision officer to rely on the sex offender's own verbal reports.[23]

Monitoring and sex offender treatment in other counties
In 1997, Hunt County surveyed adult supervision directors in other Texas counties to gather information on caseload size and use of treatment tools. Of 120 questionnaires mailed, the survey received 89 responses representing 95 counties.[24]

According to the survey, 48 counties reported having a specialized sex-offender treatment program.[25] It appears, however, that some responding counties counted a specialized sex-offender caseload as a sex-offender treatment program. Requiring sex offenders to report to community supervision officers who have special training and a caseload limited to sex offenders may be beneficial, but should not be confused with a treatment program.

In terms of monitoring and treatment tools, 54 percent of the responding counties used the clinical polygraph, 48 percent used electronic monitoring, 29 percent used the Abel screen, and 24 percent used the plethysmograph. When asked what was the biggest hindrance to the use of these tools, 46 percent of the responding counties said lack of money and 38 percent said lack of resources--meaning, for example, access to licensed clinical polygraph examiners.

TDCJ plans to spend $2.2 million in fiscal 1999 to treat 800 to 900 sex offenders, at an average of between $2,400 and $2,800 per offender. This is in addition to the $14,600 per year spent on incarceration. The high cost of incarcerating and treating sex offenders in prison warrants requiring intensive supervision of offenders who have not yet been sent to prison.

Recommendations
A. The Penal Code should be amended to enhance penalties for felony sex offenders who initially committed misdemeanor sex offenses and for offenders who repeatedly commit misdemeanor sex offenses.

If someone convicted of a felony sex offense has been previously convicted of a misdemeanor sex offense, the offender should be punished for the next higher degree of felony. For example, an offender convicted of indecency with a child by exposure (a third-degree felony) who has a prior conviction for indecent exposure (a misdemeanor) should be punished for a second-degree felony. Conviction for a third misdemeanor sex offense should be punished as a state jail felony.

B. The Code of Criminal Procedure should be amended to require treatment and monitoring as part of any deferred adjudication for sex offenders.

The Code of Criminal Procedure requires a person convicted of driving while intoxicated to attend and successfully complete a rehabilitation program. The requirements for sex offenders granted deferred adjudication should be similar to those for persons convicted of driving while intoxicated. The treatment should take place in a secured or law enforcement setting that does not put the public at risk.

The Community Justice Assistance Division of the Texas Department of Criminal Justice and the Council on Sex Offender Treatment should jointly approve monitoring and treatment programs for sex offenders allowed to remain in the community.

Fiscal Impact
Enhanced penalties for sex offenders would not create a significant fiscal impact on the state. Offenders who committed their offenses before the statutory change would not be affected. Although no state-level data exist on the number of cases with three or more convictions of indecent exposure, the number of cases is probably not large. Enhancing the penalty for this offense from a Class B misdemeanor to a state jail felony would not have a significant fiscal impact.

The number of felony sex offenders with prior convictions for indecent exposure also is not expected to be large. Any increase in the number of these felons in prison would not occur until eight years or more after the passage of this provision, and then the increase would be gradual.

Required treatment and monitoring of sex offenders who receive deferred adjudication would have no fiscal implication for the state and no significant fiscal impact on local government. Some local probation departments already require treatment and monitoring of such offenders. Although mandatory treatment and monitoring could result in a cost to some other probation departments, current law allows judges to require sex offenders to pay for their own treatment.[26] Most sex offenders now pay for their own treatment, which usually costs $25-$30 per group for group therapy and $45-$50 for an individual session.

Long-term savings in incarceration costs could result from early effective intervention, but the amount of savings cannot be determined.


Endnotes

[1] Texas Department of Criminal Justice, Programs and Services Division, "Sex Offenders Incarcerated in TDCJ-ID as of March 5, 1998," Huntsville, Texas, April 20, 1998.

[2] Criminal Justice Policy Council, "Average Sentence of Offenders Admitted to TDCJ-ID, 1993-1997" (Austin, Texas, June 11, 1998). (Facsimile.)

[3] Criminal Justice Policy Council, The Impact of Tougher Incarceration Policies for Sex Offenders (Austin, Texas, December 1996), p. 3.

[4] The Impact of Tougher Incarceration Policies for Sex Offenders, p. 6.

[5] V.T.C.A., Penal Code SS12.42.

[6] Criminal Justice Policy Council, Convicted Sex Offenders in Texas: An Overview of Sentencing Dynamics and the Impact of Altering Sentencing Policy (Austin, Texas, February 13, 1995), p. 6.

[7] Telephone interview with Grace Davis, executive director, Council on Sex Offender Treatment, Austin, Texas, May 11, 1998. Also, Convicted Sex Offenders in Texas, p. 18.

[8] V.T.C.A., Penal Code, SS21.08.

[9] Vernon's Ann. C.C.P. art. 42.12 SS5(a).

[10] Vernon's Ann. C.C.P. art. 42.12 SS11(a).

[11] Vernon's Ann. C.C.P. art. 42.12 SS5(c).

[12] Criminal Justice Policy Council, Convicted Sex Offenders in Texas, p. ii.

[13] Office of Court Administration, Annual Report: Fiscal Year 1997 (Austin, Texas, December 1997), p. 184.

[14] Vernon's Ann. C.C.P. art. 42.12 SS5(a).

[15] Vernon's Ann. C.C.P. art. 42.12 SS5(d).

[16] Vernon's Ann. C.C.P. art. 42.12 SS5(a).

[17] Texas Department of Criminal Justice, Community Justice Assistance Division, "TDCJ-CJAD Agency Brief" (Austin, Texas, December 1997), p. 1.

[18] Texas Department of Criminal Justice, Community Justice Assistance Division, Program Monograph: Sex Offender Treatment (Austin, Texas, January 1995), p. 5.

[19] Gordon C. Nagayama Hall and William C. Proctor, "Criminological Predictors of Recidivism in a Sexual Offender Population," Journal of Consulting and Criminal Psychology, Vol. 55 (1987), pp. 111-112.

[20] Telephone interview with Margaret Griffin, specialized caseload/victim liaison, Hunt County Community Supervision and Corrections Department, Greenville, Texas, June 11, 1998.

[21] Telephone interview with Margaret Griffin, July 7, 1998.

[22] Hunt County Community Service Corrections Department, Sex Offender Caseloads Across Texas: A Glimpse at Current Caseloads and the Treatment Tools Being Utilized by Community Supervision (Greenville, Texas, January 1996), p. 7.

[23] Telephone interview with Margaret Griffin, July 7, 1998.

[24] Hunt County Community Service Corrections Department, 1997 Sex Offender Caseload Survey (Greenville, Texas, 1997), p. 1.

[25] 1997 Sex Offender Caseload Survey, p. 3.

[26] Vernon's Ann. C.C.P. art. 42.12 SS19.