We Need to be Smart on Crime, but Jessica’s Law Isn’t the Answer

by Cynthia Stone Creem

Being the only “no” vote on a crime bill named in memory of a little girl is a tough spot to be in for an elected official, but that is my situation after the Senate overwhelmingly passed “Jessica’s Law.”

For 10 years I have been deeply involved in reforming the state’s sex offender laws, and we have made Massachusetts safer for children.

Unfortunately, and in spite of its popularity, Jessica’s Law has serious flaws and will do little to protect children.

Jessica’s Law originated in Florida in response to the rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender. Since then, more than 30 states have adopted some form of the law. It continues the long, unfortunate trend of exploiting the memory of dead children to advance the get-tough-on-crime agenda.

Our version was largely developed by the district attorneys and the Attorney General’s Office and focuses on creating three new “aggravated” levels of existing sex crimes, which would now carry mandatory-minimum prison sentences ranging from 10 to 20 years.

I am a longtime critic of mandatory-minimum sentencing as a failed experiment of the “get-tough” 1980s. Nearly 30 years of experience shows that mandatory sentencing does little to deter crime, unnecessarily ties the hands of judges and pointlessly fills prisons when less expensive - and more effective - sentencing alternatives exist.

In a world where our prisons are dangerously over capacity, and when a year at MCI Cedar Junction ($43,000) costs far more than a year at MIT ($34,750), we have an obligation to apply smarter methods to control sex offenders.

Fortunately, these methods already exist. In 1999, I successfully argued that convicted sexual predators should have lifetime parole supervision. A few years later, I helped create and fund a statewide intensive parole program. To date, that program has a recidivism rate of zero.

If we truly want to prevent sex crimes, more sex offenders should be on parole for the rest of their lives, with intensive supervision. The program can - and should - be expanded. Unfortunately, too few sexual predators are punished with lifetime parole.

Many states are now moving away from mandatory sentencing regimes, including Michigan, New York and Louisiana, yet we keep putting these laws on the books. In fact, the day we voted on Jessica’s Law, one leading “tough-on-crime” advocate was pushing for a version of Jessica’s Law in Vermont.

In stark contrast, however, legislators, victims’ advocates and even some prosecutors there expressed doubts about such laws. The director of one victims’ rights group said, “Long mandatory sentences make us feel good, but they do very little to keep people safe from sex offenders.”

Attack on privacy rights

Tucked away in the bill were two sections that the bill’s advocates misleadingly touted as simply statutory updates for the Internet era. The change, however, gives prosecutors sweeping new powers to demand subscriber information from both telephone companies and Internet Service Providers (ISPs). These expanded administrative subpoenas allow investigators to avoid the need for judicial or grand jury approval and, ultimately, to circumvent everyone’s Fourth Amendment protections.

The Internet provides anonymity to criminals, but contrary to what Jessica’s Law advocates claimed, this bill did not simply add ISPs to the existing administrative subpoena statute. It took the dramatic step of lowering the standard for obtaining information on all phone users and applying that lower standard to computer users as well.

In the past, prosecutors needed a reasonable belief that a phone was being “used for an unlawful purpose.” Now prosecutors need to merely assert that the information being sought is “relevant and material to an ongoing criminal investigation.”

This opens the door to all sorts of prosecutorial fishing expeditions that current law would prevent. There will be no oversight, no notice, and an untold number of computer users - without “probable cause” or even a “reasonable belief” of criminal activity - will never even know their records are in the hands of prosecutors.

This unwarranted invasion of privacy will be even more dangerous when you consider that Internet records are inherently different from phone records. Internet providers keep and store far more personal information than telephone companies.

Will Internet providers protect our privacy and limit the data they turn over to prosecutors? Not when broad administrative subpoenas admonish recipients not to disclose the existence of the request. Not when Jessica’s Law contains blanket civil and criminal immunity for providers and their employees in turning over records.

Far from targeting sexual predators, these administrative subpoenas will apply to any criminal investigation.

I cannot support this attack on privacy rights.

‘Ultimately, too broad’

Finally, Jessica’s Law creates broad new mandatory sentences for mandated reporters. There is no question that people who abuse a position of trust to sexually assault a child are particularly abhorrent. Still, this bill was not carefully drafted and is, ultimately, too broad.

“Mandated reporters” engage in occupations or hold positions that have functions of trust such as physicians, teachers, child-care workers, certain courts employees and religious leaders. If they have a “professional relationship” with a child they believe is the victim of abuse, they have a legal obligation to notify authorities.

For example, if a dentist treats a child with a black eye and bruises, she has an obligation to report what she saw, but would not have that same obligation were she to pass the child on the street.

Jessica’s Law ignores the need for a professional relationship when imposing new penalties. As I read the bill, any defendant who happens to be in a mandated-reporter occupation would face enhanced penalties - even if he had no professional relationship with the victim.

People who abuse a position of trust should face stiffer penalties, but this law seeks to create a new category of criminal based solely on occupation. The result is a nonsensical distinction between two complete strangers who abuse a child - one a teacher who could face a mandatory-minimum sentence, and the other a banker who would not. If there was no trusting relationship, and the crime was the same, shouldn’t the punishment be the same?

It’s never easy to stand alone, especially when the question is the safety of our children. Yet I stand by my vote, because Jessica’s Law is riddled with flaws and based on outmoded thoughts on criminal sentencing.

I have argued for years that we need to be smart on crime, especially with offenders as insidious as sexual predators. Increased parole, thoughtful sentences, allowing judges to do their job and forcing prosecutors to respect civil liberties are all, properly, part of that effort. Unfortunately, Jessica’s Law is not. {EXA}

Attorney Cynthia Stone Creem is a member of the Massachusetts State Senate.