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
criminala 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. POLY. & 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, 3133 (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, 45758 (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. & POLY 177, 20103 (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 lawfirst 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 LOUISIANAS 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 SOAP14a
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.

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