PRISON LEGAL NEWS: Barbara Koeppel, January 8, 2019
Responding to several highly-publicized sex crimes and public fears, legislatures across the country have adopted statutes that allow the continued imprisonment of sex offenders after they have completed their sentences. Veteran investigative reporter Barbara Koeppel has spent the past 12 months reporting on this third rail of the criminal justice system. Here are her findings.
Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.
If the decision is yes, the men are re-incarcerated – not for past crimes but for ones they might yet commit – in prison-like facilities with barbed wire, cells, guards and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.
The practice is known as civil commitment.
The crimes that inspired this legislation were indeed brutal: In Washington state, Earl Shriner, who was imprisoned for sex offenses against children, completed his sentence and later raped and mutilated a young boy. The state then passed the country’s first civil commitment law in 1990. Similarly, in New Jersey, Jesse Timmendequas, who was imprisoned for assaulting two young girls, was released and later raped and murdered a seven-year-old girl, Meghan Kanka. In 1996, New Jersey passed its own law, as did others around the same time.
The new laws sparked legal battles, and in 1997 the U.S. Supreme Court (in Kansas v. Hendricks) ruled that sex offenders who complete their prison terms can be locked away again. No new crime. No trial. No set time limits. Double jeopardy? The Court said no.
Supporters of the process argue it protects the public. Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.” Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public and sex with underage partners, all the way up to rape and murder.
Organizations and professionals familiar with the abuses of civil commitment are its harshest critics. The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.” Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.” But the practice persists at huge cost to individuals and taxpayers.
Kansas Judge Frank J. Yeoman, Jr. describes civil commitment as a life sentence. “Only in the rarest of instances does anyone, once committed, ever achieve release, except upon his demise.”
Data show Judge Yeoman is correct. In Minnesota, of the 720 men committed over 24 years, 62 died in custody and only one was fully released. In Kansas, of 263 men detained after completing their sentences, 36 died and only three were released. In New Jersey, of 755, 58 died and 235 were discharged. Of the 58 who died, one had a brain tumor that herniated and left him blind. Still, staff at the Special Treatment Unit at the facility in Avenel, New Jersey decided he was too dangerous to let go. Ultimately, he was sent to a hospice. And New Jersey is not unique. In all the states, many men who are so old or disabled that they’re in wheelchairs and can’t feed or dress themselves are still locked up.
The Supreme Court stated that the men who are civilly committed can be released when they prove they are cured. Yet most of these prisoners (euphemistically called residents or patients) can’t prove it.
Why not? They are trapped by a series of Catch-22s.
First, no objective criteria exist to determine if the men even have a mental abnormality. “It’s totally subjective,” says Donald Anderson, a lawyer who represents prisoners in the Larned facility. After one of his clients, Tim Burch, did 13 years in prison for “indecent liberties with a minor,” the Kansas Prisoner Review Board approved his release. But the court ordered him held in civil commitment, and he’s been there 17 years. When the Progress Review Board met, in February 2018, it refused to move him further along in the program.
Second, when courts review cases, state witnesses twist logic to ensure that the men stay put. In one hearing, for example, Dr. Austin Deslauriers, a past Larned director and current supervising psychologist, testified that Burch’s mental abnormality hadn’t changed. Anderson asked: “What was it when he was committed?” Deslauriers replied: “We didn’t measure it.” Anderson followed up: “How do you know it hasn’t changed if you didn’t measure it?” According to Anderson, Deslauriers didn’t answer.
A third snag is the mind-set of mental health professionals who make their careers in psychiatric detention facilities. For example, Jeffrey Nowicki, chief of mental health services for the Sex Offender Treatment Program at the Central New York Psychiatric Center, stated in a deposition for the U.S. District Court in 2014: “All offenders are, by their deviant sexual nature, predatory and manipulative.”
According to the lawyers, mental health workers and prisoners I interviewed in nine states, Nowicki’s attitude is typical. Strickler, who was at Larned for three years before she quit, said Deslauriers told the staff that “no one will ever be released.”
How do Deslauriers and other career staff in these facilities ensure that no one leaves? They design multilevel treatment programs and require the prisoners to complete them. If they don’t, there’s no exit. However, in 2017, Judge Yeoman stated that the laws don’t require a man to finish the programs or even participate to be considered for release. He wrote, “Just because he has not met certain procedural steps … I see no reason he should not be allowed an opportunity to put his evidence before the court.”
Further, when prisoners do participate and reach the top level, Anderson says that staff members monitoring their progress routinely drop them back to a lower level for violating a rule. This caused Minnesota District Court Judge Donovan Frank to observe that “the programs are like the children’s board game Chutes and Ladders.” In Minnesota, only four men ever completed the program in 24 years.
Anderson calls the violations that keep the men locked up “ridiculous.” For example, a staff member at Larned found a glass perfume bottle in Burch’s cell (the only glass allowed is the window) and a video with some brief nudity. Burch had bought the video from another prisoner, for whom the staff had approved it. But they said Burch – who’d reached Level 5 (the highest tier) – “should have known better” and dropped him back to Level 4.
Frustrated, he stopped attending meetings, which is another offense, and was then knocked down to Level 2. Keri Applequist, Larned’s assistant director, told the District Court of Wyandotte County, Kansas, “If you don’t do the program, you won’t get out.” (Applequist did not respond to my phone calls.)
Prisoners in Virginia, North Dakota, Minnesota and New Jersey tell stories about similarly irrational rules. For example, in the Avenel facility in New Jersey, prisoners watching television must immediately change the channel if a child appears on the screen. If they don’t, it’s written up as an incident.
“They claim that by watching children on TV, we made them our victims. I didn’t agree with this so I got five extra years. But eventually, I said ‘I did victimize them,’ so they couldn’t use this as an excuse to add on more years,” said David Martin (not his real name), who’s been detained at Avenel for 17 years after completing his prison sentence. Martin, like all but two of the 20 men I interviewed, feared reprisals from the staff and asked for anonymity.
In Kansas, another Larned prisoner, John Blake (not his real name), told me he got a cell phone from his wife, who made their granddaughter’s name the password. On learning this, staff said that Blake had “focused on an underage child.” For the same reason, they confiscated his wall calendars, on which he’d circled the dates of his children’s and grandchildren’s birthdays. Also, they insisted a bulletin he brought from church was “child pornography,” since it had a drawing of kids. Blake, at this time, had reached the program’s reintegration phase – where he lived in a less secure building on the prison grounds, from which the men go to jobs in town. But because of the incidents, he was hauled back to the Larned maximum-security facility.
At the Marcy, New York facility, a few prisoners took part in conference call meetings for sex offenders and their families, held the first Saturday of each month by CURE, a prison reform group. After a short while, the staff said they had to stop. Why? New York’s Office of Mental Health (OMH) said the meetings raised “possible counter-therapeutic, confidentiality, and security concerns.” The calls are also off limits in Minnesota, Illinois and North Dakota.
At the Burkeville, Virginia facility, military veterans in the program started a support group. Richard Williams (not his real name), who is now out on conditional release but was held there seven years, said the staff shut the group down. He says, “We were told we didn’t need these meetings.”
He adds, “You get dropped to lower levels for taking food from the mess hall, staying too long in the gym, or making a complaint. I was on the resident advisory council, and they warned me I’d lose my Phase 3 status if I complained about things.”
Prisoners who ask questions, even through Freedom of Information (FOIA) requests, get few answers. Charles Gerena was in a New York prison 13 years for molesting an underage girl in 1984 and recommitted for contacting an old girlfriend on Facebook and watching pornography on his cell phone. Committed to Marcy four years ago, he filed FOIA requests to learn how many men died there and the number of new prisoners each year. The OMH replied: “The agency … doesn’t track the information.”
Gerena also asked how many men had been released since Marcy opened. OMH replied: “We do not have the legal authority to order releases.” Technically, this is true, because only the courts can release someone. But OMH recommends who should stay or leave.
Anderson says even when judges decide some men can be moved to the phase called transitional living, they’re often returned to the facilities – almost always for technical reasons, not new sex offenses. “I know a civilly committed man from Nebraska who was back with his family. He drove 55 miles to a concert and since his parole officer only allowed 50-mile trips, he was brought back to prison and then civilly committed. He’s been there 20 years.”
Not surprisingly, the men are very angry. And the psychologist, Tapatha Strickler, says, “They should be.” Yet Applequist also told the Wyandotte County Court that “anger” was another reason why Burch wouldn’t be released.
Pervasive Public Anxiety
All the mental health professionals and attorneys I interviewed, as well as the sex offenders, sympathized with the victims and their families. None downplayed the seriousness of the crimes. But they argued that tabloids and mainstream TV programs exacerbate public anxieties, which, in turn, affect the criminal justice system.
As criminologists Jeffrey Sandler, Naomi Freeman and Kelly Socia wrote in 2008 in Psychology, Public Policy and Law (a peer-reviewed journal published by the American Psychological Association), several studies showed that public fears are fanned in part because of the media: The press “reported rapes almost 14 times more than their rate of incidence … inspiring fear significantly more often than it does when reporting a homicide, robbery or assault.”
Besides the news coverage, popular TV dramas that focus on sex crimes – like “To Catch a Predator” and “Law and Order SVU” – are aired and syndicated on network and cable channels and streamed on YouTube and Vimeo, attracting audiences in the tens of millions. Frightened, people lobby their elected representatives for harsh laws and get them. Eric Janus, former president and dean of Mitchell Hamline Law School in St. Louis, explains, “Sex offense is a political hot potato.” Thus, legislators like Carla Stovall, who helped pass the Kansas law in 1994, declared, “We cannot let these animals back into our communities.”
Low Recidivism Rates
Contrary to public beliefs, many lawyers and mental health professionals say released sex offenders do not often commit new sex crimes. According to a 2016 U.S. Bureau of Justice Statistics report titled “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,” only 5.6 percent of prisoners convicted of rape or sexual assault are arrested for a new rape or sexual assault within five years of release from prison. Other studies, from 1998 through 2006, that follow re-offenses over a longer time period, place the rate at 13 to14 percent. And the rate for juvenile sex offenders is even less – at 3 to 4 percent. The only recidivism rate that is lower involves those who were convicted of murder.
Strickler argues that sex offenders can and do change. “If an alcoholic gets drunk, kills someone in a car accident, goes to prison, and stops drinking for years, is this person still an active alcoholic and a threat to himself or others? No. The same is true for sex offenders.” She adds, “The public thinks the men lack control. If this was true, they’d be fighting, yelling, or trying to sexually touch staff or other inmates. But they’re not.”
Still, prosecutors, reluctant to appear soft on crime, tightly hold the line. For example, at another of Burch’s hearings, his lawyer, Michael Nichols, wanted to spotlight the system’s main injustice – that very few of the prisoners ever leave. Thus, he asked Applequist: “How many men ever made it through?” The prosecutor, Derenda Mitchell, immediately objected: “Other people’s experiences are not relevant.”
According to Anderson, the doctors and mental health professionals who testify for the state at his clients’ hearings are also complicit. “They won’t go on record that there’s no mental abnormality, since they’re afraid of letting someone out who might later re-offend,” he explains.
Judges, too, play a key role, and most rubber-stamp recommitment orders. (A New Jersey lawyer calls the hearings “kangaroo courts.”) Even the few seeking to change the system are stymied. In 2015, in Minnesota, Judge Frank said facilities should make better risk assessments, but later, a state appeals court reversed his ruling, and last fall, the U.S. Supreme Court declined to hear the case.
According to the mental health professionals I interviewed, the treatment programs are deeply flawed. Addressing the elephant in the room, Dr. Fred Berlin says, “If they’re good, why aren’t more men released? Let’s have an honest conversation about what good treatment is.”
Dr. Richard Wollert says the multiple levels are “artificial” and that they have “no particular treatment value.” He adds, “But they are coercive. If you don’t do what I want, you get knocked to a lower level.”
Another huge problem is the one-size-fits-all approach. Dr. Vivian Shnaidman, a psychiatrist who worked several years at Avenel, says all prisoners “are lumped together into the same program.” They can be teenagers or men in their eighties who committed crimes 40 years earlier. Some have college degrees, some are professionals, some dropped out of school and some are mentally impaired.
Richard Williams tells how this plays out. “We had to write reports about a ‘thought change,’ but some guys didn’t even know what it meant. Some couldn’t even write. And if you don’t write it, the staff say ‘You’re not involved in the therapy,’ and hold you back.”
Some treatment practices are also profoundly humiliating. Consider the penile plethysmography test used in Florida, Illinois, California, New Jersey, North Dakota and Minnesota (it was first used in Czechoslovakia in the 1950s to weed out gays in the military). A plastic ring is placed on a prisoner’s penis, he’s shown erotic pictures and the device tracks his erections. Career staff say this gives them information they can use to lower the men’s sex drive with arousal reconditioning.
Shnaidman disagrees: “There’s no evidence you can lower the sex drive, or if it has anything to do with sex offenses.” The Reverend Harry Hartigan, the pastor at St. Theresa’s Catholic Apostolic Church in Minneapolis, who visits Minnesota prisoners, says, “It’s crazy. Almost anyone who sees these pictures will respond. Here, they get an erection and it’s used against them.”
Deeply troubled, Judge Marsha Berzon of the U.S. Ninth Circuit Court of Appeals wrote: “One would expect to find it [the test] bracing the pages of a George Orwell novel…. There is a line at which the government must stop. This test crosses it.”
David Martin, who is at Avenel, told me, “It’s so degrading, guys won’t even talk about it. But if you refuse it, the staff won’t recommend your release.”
States also use polygraphs (lie detector tests), though the Supreme Court found them unreliable and not admissible in court.
John Blake says this is another Catch-22. “If therapists get the answer they want, they say the test is valid. If they don’t, they say it’s not reliable. Kansas Judge Mike Keeley told the Larned staff that they “can’t have it both ways.”
All the prisoners I interviewed say truth is a tricky target. Martin adds, “Therapists tell us they use polygraphs to see if we’re admitting our sexual fantasies. But I honestly didn’t have any. Still, they said I was lying, so I made some up.
“Also, one therapist kept telling a man who had oral sex with two teenagers that he was angry when he committed his crime and must deal with this. The guy kept saying ‘I wasn’t angry. I was turned on and the kids were turned on.’ But the therapist said he was lying.”
Shnaidman’s and Strickler’s greatest concern is the unending focus on the crime. Shnaidman says, “The treatment model makes the men go over and over their offenses, wallowing in them, which reinforces them.” Strickler adds, “This only promotes guilt and shame, which doesn’t help anyone heal.” Both say therapy should instead work on things that can help the prisoners, such as how to get a job, use a computer, cook, shop and care for themselves.
Strickler testified to Kansas legislators that the facilities should be closed and replaced by models that have succeeded. She told me, “It could be that 10 of the 250 men I saw at Larned had a neurological deficit, did not have control, and should be housed in a secure state psychiatric hospital.” She added that, of the others, about 50 to 60 percent were old and disabled, and therefore not dangerous. “Two men were confined to wheelchairs, one was diabetic and had a leg amputated, another was on oxygen. Other prisoners had learning problems. “These men couldn’t benefit from the behavioral programs, and it would be best if they were in assisted living or group homes for the learning disabled.”
“Of the remaining 40 percent, some definitely needed and wanted therapy. But they should get it as outpatients,” said Strickler.
Shnaidman says that after the men complete their prison sentences, they should live in halfway houses where they can get therapy and go to work, and from which they’d gradually be released. She also describes a model used in Amsterdam, where men convicted of sexually abusing their children are sent to a live-in facility from which they also go to work but aren’t allowed to see their children. “In both arrangements, families don’t lose their income.”
Canada and Britain began Circles of Support and Accountability groups 15 years ago. In these programs, volunteers, supervised by professionals, help sex offenders released from prison find jobs and housing, and rebuild relationships with families and friends. Recognizing the programs’ success, Vermont began similar groups in 2006 and now has over 50 of them. A 2013 report said the program was effective and inexpensive, and only one ex-prisoner out of 37 committed a new offense.
In Germany, a preventive project, the Kein Täter Werden, which means “Don’t Offend,” was begun in Berlin in 2005, placing ads on television and elsewhere to reach a hidden population of men who were attracted to children. In five years, the network grew to at least 12 cities. During that time over 1,100 men responded, of whom 255 got free therapy. First funded by the Volkswagen Foundation, the project is now financed by the government.
In Sweden, sex offenders get behavior therapy in prison, and some get it afterwards, when they’re on probation. The therapy, which is given to individuals and groups, focuses on “relations, empathy, and how to live in an equal relationship.” Once a man completes his sentence, the Prison and Probation Service works with the Employment Service and municipalities to help him find a job. Unlike in the United States, there are no regulations about where he may live. To evaluate the program, the government studied the numbers and found that only three percent committed another sex offense within three years of their release.
Despite remarkably low recidivism rates for new sex crimes among sex offenders released from prison and not civilly committed, the programs in the 20 states and Washington, D.C. persist at staggering costs. Moreover, the lawyers and mental health professionals I interviewed insist that only two to five percent of those who are civilly committed actually need to be confined. Instead, these professionals say, if the vast majority of those re-incarcerated need more therapy, they should be able to get it as outpatients.
In New York, in 2017, a prisoner cost the state $190 a day ($69,000 a year), while according to the state’s OMH, a civilly committed man cost an average of $894 a day ($326,445 a year), or $117 million for the 359 men in New York’s facilities. In Kansas, the numbers are $30,000 a year (for a regular prisoner) against $100,000 (for a civilly committed prisoner), and in Virginia, $30,000 against $125,000.
Further, critics claim the facilities, which are in semi-urban or rural areas, serve as cash cows for local economies. Minnesota Pastor Hartigan says, “No one will close them because they’re the main employer in these communities.”
The full price tag is actually much higher. States must hire more lawyers to staff the offices of the attorney general and also cover prisoners’ legal fees. And there are more hidden costs – for example, Virginia’s Office of Sexually Violent Predators reports that the state pays experts up to $8,500 to write psychological evaluations for the hearings and another $1,200 if they go to court – plus travel expenses.
Costs are also onerous for the men who are out on conditional release. Williams pays for three polygraph tests a year (at $175 each) and weekly group therapy sessions, at $35 to $60 each, for two years. “If I refuse, they’ll issue an emergency custody order and send me to jail, where I could wait a year for a trial.” Williams’ monthly veterans benefit check is $1,075.
Men Stop Participating
All the prisoners I interviewed said they wanted therapy, but more than half had stopped. “I don’t do bullshit well, and I can’t keep fighting against a stacked deck,” says Martin. “How many times must I describe my crime, after 17 years?” Moreover, he adds, “In prison, you can reduce your sentence with good time, and see a release coming. In civil commitment, we can’t, and it blows the guys’ minds.”
Strickler says, “The program is so bad I had to leave. So, too, did five to eight other therapists each year I was there. They stay about six months before they look for new jobs.”
The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences. Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences – which could be 20 or 25 years – yet were made to start from scratch in the civil commitment facilities.
Today, about 5,400 men are held in civil commitment. Anderson told me, “It’s hard to wrap my head around it. I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears. But I’ve dealt with these guys for years and I’m very fond of some of them. Their look of being utterly beaten, knowing they’ll be here until they die, is very sad. The program is inhumane.”