Sex Offender Should Have Been Behind Bars

Donald James Smith is accused of killing eight year old Cherish Perrywinkle after befriending her family and leading her from a Jacksonville Wal-Mart.

Smith was convicted of a sex crime in 1992 and as he was about to leave prison in 1999, the state flagged Smith as likely to re-offend and be dangerous in the future.

Psychiatrists who evaluated him agreed.

Just one percent of all sex offenders and predators get such a recommendation.

"In the statue says that we're supposed to be looking for that small, extremely dangerous number of predators," said Daniel Monfaldi.

Smith was sent to a civil commitment facility near Tampa.

Keeping a violent sexual predator in confined treatment after their sentence has run out requires the approval of an unanimous jury, right now there are about 650 people undergoing that treatment.

For some reason a jury never heard about the state’s or psychiatrist's fears.

“He did do some treatment but the court let him out in 2002. There is no notation, there is just the petition was dismissed," said Monfaldi.

Smith was arrested again in 2009 for making obscene calls to a ten year old.

The charges were dropped to misdemeanors, and because there was no felony, Smith didn't meet the criteria to be reevaluated.

That's an evaluation that almost certainly would have found Smith a danger to re-offend, and would have kept him in prison indefinitely instead of allowing him to be in a Wal-Mart where he kidnapped 8 year old Cherish Perrywinkle.

Smith was only out of jail 21 days from the 2009 conviction before being arrested for the murder on Saturday.