The Judge, Judged
Corpus Christi's Manuel Bañales says sex offenders must put warning signs in their yards, but is the law on his side?
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“I didn’t want the attention,” said state district judge J. Manuel Bañales one afternoon last month, referring to the media spotlight that has been trained on his courtroom since the middle of May. That’s when he ordered fifteen sex offenders on probation in Corpus Christi to place warning signs in their yards reading “Danger, Registered Sex Offender Lives Here.” Then, when reporters discovered that one month earlier Bañales had ordered Robert Torres, a nineteen-year-old on probation for sexual assault of a child (once known as statutory rape), to abstain from sexual activity until he gets married, the light turned klieglike. The judge appeared on Nightline and Today, in London tabloids, and on the German and Japanese news wires. “I don’t enjoy the attention. I dread the attention,” he told me. “When I go to the store now, everyone knows me, and that didn’t use to happen. I hate the invasion of my privacy.” It was a curious comment, coming as it did at the tail end of a two-and-a-half-hour interview in which the judge had been supremely forthcoming about his decisions—so much so, in fact, that the last 45 minutes of our talk continued while the parties to a pending divorce and their various attorneys, meters steadily running, waited in the courtroom for a one-fifteen hearing. Meanwhile, I found myself staring at a freshly framed front-page article from the Corpus Christi Caller-Times that waited to be hung on the wall by his desk. Beneath a headline that read “The Mind Behind the Sex Sign Controversy” was a long story about the limelight-averse judge. “I know I did the right thing, with the signs and with Torres,” said Bañales. “It’s within the law, and I am comfortable with that. But I did not truly imagine that what I did would have such an impact.”
The now-famous signs were intended to ratchet up community awareness of the sex offenders’ presence. Generally, sex offenders on parole (after being in prison) or probation (instead of going to prison) have to register with local law enforcement officials who include them in public Internet databases and notify everyone within a three-block radius of the offender’s residence. Because the vast majority of sex crimes are committed by someone the victim knows, these measures have been considered by many to be sufficient. But a recent pair of particularly heinous repeat offenses in the Corpus area, one committed by a man on probation, who continually abused a girl from the time she was eight until she was fifteen, inspired Judge Bañales to look for a more certain way of getting notice to neighborhoods. He decided that in appropriate cases he would require a warning sign to be displayed in the probationer’s yard, as well as a matching bumper sticker on his car and a replica of the yard sign in the windshield when he rides with friends.
Reaction was immediate and strong in both directions. Gerald Rogen, the 41-year-old president of the Coastal Bend Criminal Defense Lawyers Association, was at the courthouse on other business the morning Bañales gave out the signs. “I went in there and watched that circus,” he told me, “and I couldn’t believe what I saw. Boys would go up there, one by one and without attorneys, and he’d just tell them how it was. I walked up to a TV crew outside and said, ‘Can you believe this shit?’ And this little white newsgirl looked at me like I’d just stuck a turd under her nose.”
Judging by the letters to the editor in the Caller-Times, much of Corpus Christi shared the reporter’s favorable response to Bañales’ move. Rogen refused to fall in line. He took three of the probationers’ cases on a pay-if-you-can basis that afternoon, added the Torres case later, and immediately started a soundbite battle with the judge over cruel and unusual punishment, scarlet letters, the threat of vigilantism, and the sacred rite (or was it inalienable right?) of “teenagers kissing and grabbing boobs in the back seats of cars.”
But Bañales didn’t budge. He denied Rogen’s motions to reconsider the sign orders and invited him to appeal the cases. Rogen’s chances look bad: A 1999 addition to Texas law expressly states that a probationer shall give notice of his offense in “any manner required by the judge.” According to Robert Dawson, a criminal law professor at the University of Texas law school, that language specifically anticipates humiliation-as-deterrent measures. Nor is Bañales likely to be reversed on constitutional grounds. Yard signs don’t rise to the torture, draw-and-quarter level usually required to dust off the Eighth Amendment’s prohibition against cruel and unusual punishments.
Bañales conceded that his authority is not unlimited. “I can’t remember if it was Ted Koppel,” said Bañales, “or maybe Bryant Gumbel who asked me, when we talked about the signs, ‘Well, would you require a defendant to wear a sign around his neck saying he was a sex offender?’ Before he could finish his sentence, I said, ‘That might be a stretch.'”
“Is what he’s doing legal?” asked Dawson. “Unless you can find a constitutional problem—and I don’t think you can—it is. Now, is it a stupid idea? Of course. But that’s something else all together.”
But what’s so stupid about erring on the side of protecting the public from crimes so universally abhorred that in prison, sex offenders are detested by other inmates? Part of the problem with the yard signs is there is no typical sex offender; so the notion that everyone who commits a sex offense is a danger to the community is debatable. Sex offenses run from rape to flashing to consensual sex between underage teens, and the mind-sets that inspire them range from sexual sadism to puppy love. The sadists and the predatory pedophiles are so likely to repeat their crimes that they are generally considered beyond rehabilitation. If such a person ends up on probation or parole, a yard sign is one way to keep him in check. But it seems an awfully stiff penalty for someone like the 34-year old Corpus Christi man who is on probation for indecency with a child. One night two years ago, he got drunk and made out with a friend’s 15-year-old daughter. Teaching such a person how to drink responsibly, or not at all, would seem sufficient to manage his risk to the community. Bañales gave him a sign.
To learn more about the psychology and rehabilitation of sex offenders, Bañales consulted Dr. Marshall Voris. Dr. Voris is not a medical doctor; the title at the end of his name is not M.D. but L.Ac., for licensed acupuncturist. Voris has two doctorates, in religious anthropology and counseling psychology. He treats several of Bañales’ sex offenders at the Delos Mind-Body Institute, a Corpus Christi non-profit he runs with his wife. The institute, according to Voris, combines Western and Eastern healing arts with Christian ministry and “the cutting edge technology of neuromeditation, developed entirely at Delos.”
Voris is registered as a treatment provider with the state Council on Sex Offender Treatment, and he has relied on studies used by the council to conclude that the state needs a new way to deal with sex offenders. To him, the signs are a good idea but not for the reason put forth by Bañales. Voris talks about them as if they were an experiment. “I’ve got two patients with signs. One is a pedophile, and for him the sign was a wake-up call from God. He’s busting his butt in therapy, doing anything he can think of to get rid of it. For the other, it’s been the exact opposite. He got thrown out of his apartment; he’s living in a flophouse; he’s suicidal. And his reaction could have easily been predicted.” Voris said the second patient was no great threat to his neighbors and that the sign was not only unnecessary but detrimental. But Voris has made a trade-off in his own mind: He supports the yard sign program because it “may prove useful”; the uproar the signs have created has started a debate on more sensible, case-specific treatment of sex offenders.
Bañales says he weighed the possible negative effects of the yard signs against the good of the community and sided with the community. But how well does he understand the stigma of the sex offender label? The first probationer he faced at the hearing had six weeks remaining on a ten-year term when Bañales ordered him to write letters to his neighbors informing them of his sex crime, even though the supervising officer said the offender had been successfully rehabilitated. “I wanted him to serve as a role model to the community,” said Bañales, “to show that this notion of ‘once a sex offender always a sex offender’—it’s just not so.”
The judge’s measure of the community’s needs has some play in it too: The signs do more than provide neighbors with notice; they also affect property values. “Dead meat” is how Berney Seal, an area real estate agent since 1963, describes property with a good view of the warning signs. But as long as the signs stay in neighborhoods that Seal describes as “slum” and “in the Cut—as in, go down there and you’re going to get cut,” concerns about declining property values will be buried in the middle paragraphs of Bañales’ clippings.
With the law squarely on his side, however, these kinds of policy concerns would affect Bañales only when, like all state judges, he runs for reelection. And the publicity he gets with his unusual sentencing methods outweighs the complaints from sex offenders or their neighbors about the signs. Nobody ever defeated a sitting judge by getting out the sex offender vote.
The Torres case could be different. Irate when he learned that Torres had fathered at least one child while on probation for having sex with a thirteen-year-old, Bañales ordered him to stop having sex until he gets married. While the yard signs have inspired wide and serious debate, the “no sex” ruling has resulted in media mockery of the judge who issued it. “It really is bizarre,” said Dawson, “and virtually impossible to enforce. You can detect drug use by making someone pee in a bottle. You can’t have someone pee in a bottle and determine whether or not he’s had sex.”
And it’s on shaky legal grounds. To be a valid condition of probation, it must be reasonably designed to restore or protect the community or the victim, or to punish or rehab the offender. “His order prohibits all sexual conduct,” said Dawson. “That’s precariously broad.” Or as Gerald Rogen put it, “What’s ‘sexual conduct?’ Is he going to put the boy in prison for masturbating?”
“My concern with Torres is that he’s not supporting those children,” Bañales said. “I was making no moral judgment about it, although it’s certainly not acceptable to me or most reasonable people. What I told him was we can’t have kids having kids.” Without question Torres could stand to hear that message a few more times, but his mandatory probationary counseling sessions are a more sensible place to make that point.
“I guess it’s my upbringing,” said Bañales. “In my parents’ household, you just didn’t do it. You waited until you got married. I went to my kids’ high school in early May, and I talked to groups of kids about the three things they want to talk about: drinking, drugs, and sex. I told them, ‘I didn’t drink in high school. I didn’t do drugs. I didn’t have sex. And I had a great time in high school, and you can too.'” Unfortunately, modern life is not always so simple.