Globe Editorial

Let juries determine sex offenders’ fate

November 1, 2009

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MIDDLESEX DISTRICT Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences. It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend. Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital. Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters. Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life. But juries are not acting reflexively, either. In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future. Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases. It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially. That’s how it works already when convicted sex offenders get to appeal their commitment after one year - either the offender or the prosecutor can demand a jury trial.

Prosecutors aren’t going overboard to confine sex offenders who have served out their sentences. And judges still play a central role in probable cause hearings to determine whether a case can move forward. Since 2004, for example, district attorneys have sought commitment petitions for just 515 of the 8,700 sex criminals who completed their sentences, according to the Massachusetts District Attorneys Association. Of that number, only 253 went to trial. It’s not a witch hunt. It’s an attempt to deal with the worst of convicted sex offenders.

The cases are often awash in conflicting medical testimony and legal fine points. Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen. Twice prosecutors had tried to convince judges to commit Flavell. Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment. Would a jury have seen it the same way? It’s not certain. But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter. Community acceptance of verdicts is a pillar of the legal system, as any judge would attest. And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

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