House Judiciary Committee Passes Worthless Sex Offender Bill
Recently, the House Judiciary Committee passed a committee substitute for HB 4039, the Governor's sex offender bill. To say this bill is worthless would not be a stretch. While the committee did add a civil commitment law for the most serious sexual predators, the remainder of the bill is an empty shell.
To the credit of the Judiciary Committee, they did propose a civil commitment law for "sexually violent predators," a very small number of the most serious sex offenders who are legally deemed to be near uncontrollable. As in other states, the proposed civil commitment law would allow for the indefinite commitment to a secure mental hospital of the most dangerous threats to our communities until a court orders otherwise. However, this only applies to a handful of cases.
Now, the weakness of this bill. There are no shortage of deficiencies in this bill, as I will enumerate, going through the text of the bill from beginning to end (click here for the full text of the House Judiciary Committee Substitute). The following list is merely the most serious deficiencies in the bill:
- Even though some prison sentences for violations of the Sex Offender Registration Act are increased, none of these sentences would be mandatory--NONE!
- Proposed §15-12-11 would duplicate a provision of Florida's Jessica Lunsford Act that creates a separate crime for a person who helps a fugitive sex offender being sought by the police. In Florida, this crime is a felony; under this bill, iwould beba misdemeanorrr. This crime must be made a felony given the danger to our communities created in such cases.
- Proposed §18A-3-12 would require certain school service personnel and other individuals who would have access to children in schools to undergo a partial background check. Such individuals should be fingerprinted and subjected to a full criminal background check. Additionally §18A-3-10 should be amended to repeal the grandfather clause for fingerprinting and full criminal background checks of teachers and administrators in public schools. Only those who received their initial teaching license after January 1, 2002, are subject to fingerprinting and a background check.
- Going down to Chapter 61, Article 8B, the penalties are only increased for two crimes: first-degree sexual assault and first-degree sexual abuse. Even here, the proposed prison sentences are NOT MANDATORY. While an initial glance might indicate to you that the proposed sentences (i.e., 25-60 years for first-degree sexual assault) are tough, judges can still suspend sentences and place a person on probation under current law if the crime is not punishable by a life sentence. Prison sentences for all sexually violent offenses--and not just first-degree sexual assault or first-degree sexual abuse--must be made mandatory.
- Over a dozen other sex crimes, including forced prostitution and child pornography, are not even addressed in this bill. I cannot even count the number of loopholes this omission will create to bypass what this bill proposes.
- The proposed penalty for sexual abuse--molestation without actual sexual intercourse or intrusion--is only 2-10 years when a victim is less than 12 years old. Under Florida's Jessica's Law, the 25-year mandatory minimum sentence for sex crimes against children under 12 years old applies to both sexual assault and sexual abuse. Many, many cases of child sexual abuse involve only sexual abuse without sexual assault.
- §62-12-2: Even though the probation eligibility statute is included in this bill, there is no change in eligibility for probation nor any provision that would deny probation even in cases of the most serious offenses.
- Most of this bill's deficiencies are those things completely omitted from the bill. The first is eligibility for "good time" credits (WV Code §28-5-27) whereby convicts in prison can reduce their sentences for good behavior. Under current law, a convict is entitled to a mandatory 50% sentence reduction for consistent good behavior while in prison. Under the federal system and most state laws, good time credits can only reduce a sentence by 15%.
- There are no provisions whatsoever for reforming the bail system for sex offenders. Bail is set by magistrates--almost none of whom are lawyers--except when a crime is punishable by life imprisonment. Under current law, a circuit judge sets bail in cases punishable by life imprisonment. These sex offenses are too serious not to be subjected to the more formal bail proceedings of a circuit court and the judgment of a more educated circuit judge. Additionally, the law should changed to require more stringent bail conditions when accused sex offenders do make bail. A person charged with a sexually violent offense should, if he or she even gets bail at all, be subject to a very high bail, electronic monitoring while out on bail, and other conditions that are appropriate given cases like the Groene murders in Idaho a few months ago.
- There are no sex offender parole reforms. Under current parole law, a convict qualifies for parole upon completing the minimum range of an indeterminate (i.e., 15-35 years) sentence or 1/4 of a determinate (fixed term) sentence, and the convict is permanently discharged from further supervision 5 years from initial parole. Coupled with the liberal "good time" credit law, even sex offenders are almost automatically guaranteed release from prison after serving little more than the minimum sentence. While the bill strengthens the sex offender postrelease supervision law, postrelease supervision does not begin until parole is over.
These are just the most glaring deficiencies in the current bill. I have written and submitted to some of the House Republicans for their consideration a 300-page substitute amendment for this bill that closes these and many other loopholes or simple deficiencies in the bill that would truly address the problem of our state's weak sex offender laws.