Sex Offender Assessment Panels: A Failed Attempt to Protect the Public from Louisiana?s Most Violent Predators

• Author: Brock Skelley
• Position: J.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 287-324

Sex Offender Assessment Panels: A Failed Attempt to

Protect the Public From Louisiana’s Most Violent

Predators

I. INTRODUCTION

Society views the sex offender as an especially heinous type of

criminal—a modern day monster of sorts.1 Over the past 20 years,

states have developed unique criminal and regulatory laws designed

to punish and restrict sex offenders.2 States continue to expand this

type of legislation in response to increased public fear and outrage—

feelings often provoked by extensive national media coverage that

seems to feature only the most sensational sex crimes.3

In addition to requiring sex offenders to register,4 many states

have enacted laws that allow especially dangerous offenders,

commonly referred to as “sexually violent predators,” to be civilly

committed to mental institutions after being released from prison.5

States institutionalize sexual predators not as a form of punishment

but rather because these individuals lack control over their behavior

and are often unable to abstain from committing further sex crimes.6

In 2009, the State of Louisiana enacted its own sexual predator

law (SOAP), whereby a “Sex Offender Assessment Panel” must

evaluate each sex offender currently incarcerated in Louisiana and

determine whether he is a “sexually violent predator.”7 Instead of

Copyright 2011, by BROCK SKELLEY.

1. See generally Jonathan Simon, Managing the Monstrous: Sex Offenders

and the New Penology, 4 PSYCHOL. PUB. POL’Y. & L. 452 (1998).

2. Lucy Berliner, Sex Offenders: Policy and Practice, 92 NW. U. L. REV.

1203 (1998).

3. Catherine Carpenter, Legislative Epidemics: A Cautionary Tale of

Criminal Laws that Have Swept the Country, 58 BUFF. L. REV. 1, 31–33 (2010).

4. “Typica lly, registration laws require a sex offender to provide local law

enforcement officers with his name, local address, nature of offense,

photograph, fingerprints, and dates of incarceration.” Carol L. Kunz, Note,

Toward Dispassionate, Effective Control of Sexual Offenders, 47 AM. U. L. REV

453, 457–58 (1997).

5. See discussion infra Part IV.C.

6. Dawn Post, Note, Preventing Victimization: Assessing Future

Dangerousness in Sexual Predators for Purposes of Indeterminate Civil

Commitment, 21 HAMLINE J. PUB. L. & POL’Y 177, 201–03 (1999).

7. LA. REV. STAT. ANN. § 15:560.2 (2009). The “sexually violent predator”

is defined as “an offender who has been convicted of a sex offense as defined in

R.S. 15:541 and who has a mental abnormality or antisocial personality disorder

that makes the offender likely to engage in predatory sexually violent

offenses . . . .” LA. REV. STAT. ANN. § 15:560.1 (2009).

288 LOUISIANA LAW REVIEW [Vol. 72

resorting to civil commitment, however, the State will place those it

deems predators on standard probation and electronic monitoring.8

Standard probation and monitoring are questionable methods

of dealing with Louisiana’s most violent sex offenders. Like other

states, Louisiana should confine these individuals and treat them

for their underlying mental conditions. Moreover, unlike civil

commitment, probation is a form of criminal punishment.9 Because

SOAP operates retroactively, its subjection of sexual predators to

punitive probation is a clear violation of the Constitution’s

prohibition against ex post facto legislation (i.e., retroactive

criminal laws).10 Although the Louisiana Supreme Court recently

held that SOAP does violate the Due Process Clause, it has yet to

address the ex post facto issue. 11

This Comment criticizes SOAP on two separate grounds and

proposes a solution. Part II of this Comment details the substance

of SOAP. Part III then criticizes the law from a public policy and

public safety standpoint. Next, Part IV attacks SOAP as an ex post

facto law—first providing a historical background of the ex post

facto prohibition and its jurisprudential treatment with regard to

the “sexually violent predator” commitment statute (SVPA).

Finally, Part V proposes a method by which the State of Louisiana

can effectively confine and rehabilitate the sexual predator.

Changing the way Louisiana approaches this complex problem is

imperative with regard to both public safety and the protection of

constitutional rights.

II. SOAP: IDENTIFYING AND PUNISHING LOUISIANA’S PREDATORS

In 2009, Louisiana Governor Bobby Jindal signed into law nine

pieces of legislation intended to “crack down on sexual predators

and help make Louisiana’s children safer.”12 Governor Jindal

emphasized the need for the additional laws, saying “[c]riminals

work quickly to get around the law—and we have to be just as

8. LA. REV. STAT. ANN. § 15:560.3 (2009).

9. See Kansas v. Hendricks, 521 U.S. 346 (1997) (finding that the civil

commitment of a “sexually violent predator” was non-punitive). Hendricks is

discussed infra Part IV. For a discussion of the punitive nature of probation see

infra Part IV.G.3.

10. “No state shall . . . pass any . . . ex post facto Law . . . .” U.S. CONST.

art. I, §10, cl. 1. See discussion infra Part IV.

11. Louisiana v. Golston, No. 2010-KA-2804, 2011 WL 2586848 (La. July

1, 2011). See infra Part IV.F.

12. Gov. Jindal Signs Package of Bills to Crack Down on Sexual Predators,

Protect Louisiana’s Children, OFFICE OF THE GOVERNOR (June 30, 2009), http://

gov.louisiana.gov/index.cfm?md=newsroom&tmp=detail&catID=2&articleID=13

68&printer=1.

2011] COMMENT 289

swift to modify our existing laws and pass new laws to ensure that

our children are kept safe from these monsters.”13 Among the nine

bills was House Bill 366, which amended and reenacted Louisiana

Revised Statutes section 15:560 and created SOAP14—a

mechanism that now enables courts to place sexual predators on

indefinite probation and electronic monitoring.15

A. SOAP’s Purpose

The purpose of SOAP is “to facilitate the identification of those

offenders who are sexually violent predators and child sexual

predators and to require that those offenders register as sex

offenders for life . . . .”16 SOAP defines a “sexually violent

predator” as “an offender who has been convicted of a sex offense

. . . and who has a mental abnormality or antisocial personality

disorder that makes the offender likely to engage in predatory

sexually violent offenses . . . .”17 SOAP defines a “mental

abnormality” as “a congenital or acquired condition of a person

13. Id. Although Governor Jindal’s rhetoric is inspiring and the idea of

cracking down on “monsters” is noble, many of the enactments seem

unnecessary. House Bill 476, for instance, prevents a convicted sex offender

from residing within 1,000 feet of a freestanding video arcade. Such a restriction

may have been valuable 15 years ago, but today it may be difficult to find, much

less reside within 1,000 feet of, a freestanding video arcade.

14. The amendment did not create the SOAP panel, but rather created the

current procedures, including the requirement that the predator be placed on

probation for the remainder of his life.

15. Jindal praised the bill, stating that SOAP panels will now be required to

make recommendations for every sex offender and child predator required to

register in Louisiana. He also emphasized the judiciary’s new role in the

process. Every offender deemed to be a predator by the panel will now be

referred back to his sentencing court, which will review the panel’s finding and

make a final determination regarding the offender’s status. Gov. Jindal Signs

Package of Bills to Crack Down on Sexual Predators, Protect Louisiana’s

Children, supra note 12.

16. LA. REV. STAT. ANN. § 15:560 (2009).

17. LA. REV. STAT. ANN. § 15:560.1 (2009). SOAP defines a “child sexual

predator” as:

a person who has been convicted of a sex offense as defined in R.S.

15:541 and who is likely to engage in additional sex offenses against

children, because he has a mental abnormality or condition which can

be verified by a physician or psychologist, or because he has a history

of committing crimes, wrongs, or acts involving sexually assaultive

behavior or acts which indicate a lustful disposition toward children, as

determined by the court upon receipt and review of relevant

information including the recommendation by the sex offender

assessment panel as provided for by this Chapter.

Id.