WBEZ Chicago: by Max Green; March 7, 2019
In 1982, Terry Allen was charged with sexual assault, but prosecutors offered him what seemed like a way out. No time in prison. No criminal conviction. So Allen went along with it.
“At the time, I thought, well that’s a good deal, and I’ll get right on out,” Allen said. “I didn’t know what I was getting myself into.”
Allen never faced criminal trial on the sexual assault charges. He was never convicted or sentenced for the alleged crime, but has nonetheless spent almost four decades behind bars. He had agreed to participate in something called a “civil commitment,” which under Illinois law allowed for his indefinite incarceration.
Allen has challenged the constitutionality of that law. His case made it to the U.S. Supreme Court, where arguments at times sounded Orwellian. Allen has spent decades in prison, where he has met scores of men similarly imprisoned under the civil commitment law without criminal trials or convictions. Many of those men were locked up by the same prosecutor from a small county in central Illinois.
In a decision he’d regret for the rest of his life, Allen took prosecutors up on their offer, and helped the state make a case against him.
Not claiming innocence, but not admitting guilt
The allegations against Allen stem from the night of Oct. 11, 1982. He started chatting up a young woman who worked at a McDonald’s in Peoria, Ill. When she finished her shift, they sat in a booth together and talked. At some point in the conversation, she mentioned to him what kind of car she drove and gestured to where it was parked.
What we know of that night comes from court records that document some of the testimony the woman later gave. WBEZ is not identifying her because she is the alleged victim of sexual assault. WBEZ spent months reaching out to her by phone, by mail, and through social media. Shortly before publication, someone claiming to be a family member of the woman sent a message on Facebook and said the experience “is something in her past that she does not like to relive.”
In the court documents, she said after she finished talking to Allen she went to the restroom and then to her car, where Allen was hiding in the back seat.
She said he demanded in a threatening tone that she drive to a “romantic place … or else.” She drove to a secluded spot, where she said Allen demanded she perform oral sex on him. The woman said she complied after Allen pushed her head down. She said she was scared of what he might do if she didn’t go along with it.
When asked about the events of that night, Allen hesitated and chose his words carefully. He wouldn’t go into too many details. He said he may have pressured the woman, and coerced her more than he realized in the moment. Allen acknowledged the encounter happened, and he does not claim he is innocent, but he does not admit guilt either.
“Better than facing criminal charges”
Allen said his attorney told him if he underwent the civil commitment, it would likely only last six months to a year. That attorney did not want to comment for this story.
In an effort to have Allen civilly committed, prosecutors hired two psychiatrists to see if he met the criteria of being a “sexually dangerous person.” Eventually, prosecutors relied on what Allen told those doctors to move toward civil commitment instead of a criminal trial.
The psychiatrists who evaluated Allen were looking for a handful of things that would help the state argue Allen needed treatment, including that he had a “mental disorder” and would commit sex crimes in the future if he didn’t get help. But Allen has since said he lied to them.
“I incriminated myself,” Allen said. “I made incriminating statements that were never true about me. I didn’t feel that I was a sexually dangerous person.”
Allen told the psychiatrists that he’d forced several women to perform sex acts on him. He now maintains that was not true, and the records do not reflect any attempt by law enforcement or the courts to verify those claims.
One psychiatrist wrote in his report that he thought Allen was lying and just telling them what they wanted to hear.
That psychiatrist has since died, but in his report he wrote, “[Allen] wanted to be found sexually dangerous” because he felt it was better than facing criminal charges. Both psychiatrists described Allen as unstable — and noted symptoms of psychosis or schizophrenia — and testified in his civil commitment hearing that he was fit for the “sexually dangerous person” label.
According to court documents, Allen didn’t present any defense at a hearing in which he was considered for civil commitment.
“I think it was about two hours and the judge declared me to be a sexually dangerous person,” Allen said. “And afterwards, I was told that I was going to be going to a hospital.”
Allen never made it to a hospital. Instead, he was taken to an Illinois prison. That’s when he said he first learned his civil commitment could last much longer than he thought.
“I talked to a psychologist there, she briefed me and told me that sexually dangerous people had been locked up like 20 and 30 years,” Allen said.
If Allen had been tried, it’s possible he would have been found not guilty. But even if he had been convicted, he would have likely done only a few years in prison, and then been released.
Allen was meeting other “sexually dangerous persons” — or SDPs — who’d participated in the therapy available in the prison for decades, and still weren’t being released. The treatment mostly consists of group therapy sessions, but some of those groups meet as little as one hour per week. SDPs get homework, things like workbook assignments and questionnaires. There’s a lot of downtime in the program, during which they’re instructed to do therapeutic work on their own and discuss their progress with other inmates.
SDPs, who today are all detained at Big Muddy River Correctional Center in central Illinois, live like criminally convicted inmates. They have their own wing, but intermingle with the general population during meals, on the yard, and in other parts of the prison. Despite technically serving civil commitments and not criminal sentences, SDPs sleep in cells, wear the same outfits and badges as other inmates, and receive citations and punishments like criminally convicted felons, according to a spokesperson for the Illinois Department of Corrections.
A number of reports on SDP treatment at Big Muddy River suggest the therapy program is under-resourced and understaffed, without the necessary tools to help the men held there get out in a reasonable amount of time.
Shortly after arriving in prison, Allen started to think he would’ve been better off trying his luck in a criminal trial, he said.
“At that time, I constantly stayed in the law library so I could figure out what else I could do, what else I could file,” he said. “I wanted to do everything that I could to defend myself so that I wouldn’t die there.”
Allen filed an appeal, and the case moved through various courts, until the only option left for him was the United States Supreme Court. That was a long shot given how few cases the court takes, but on April 30, 1986, the high court heard his case.
“The briefest time in confinement”
A photo taken on the steps of the Supreme Court the day that Allen’s case was argued shows his attorney Verlin Meinz smiling in Aviator glasses, a dark suit, and a striped red tie.
In a recording of the arguments that day, Meinz laid out his client’s case to the Supreme Court justices.
“As I speak to the court this morning, the petitioner, Terry Allen is incarcerated in a maximum security penal institution in the state of Illinois,” Meinz said. “The petitioner, though, has not faced trial for a crime.”
Meinz argued that Allen’s incarceration was unconstitutional because he was being punished without ever being proved guilty. He said Allen was not being treated effectively.
“I had toured that institution, I had been inside of cells,” Meinz said in a recent phone interview. “I knew precisely what a day in the life of a sexually dangerous person looked like compared to a day in the life of another sex offender who had been processed in a criminal case — they’re treated precisely the same.”
Mark Rotert, a then-assistant attorney general for Illinois, argued on behalf of the state.
“I got up and I probably said about two syllables when Justice Thurgood Marshall took me to task a little bit,” Rotert said. “It was on a point that is in the case itself a very essential point: Is the functional treatment being given to Mr. Allen demonstrating that this should be looked at as essentially a criminal proceeding?”
Rotert and Marshall argued about whether or not Allen was in a treatment facility.
Rotert didn’t sway Marshall, but he did convince five of the other justices. Allen lost the case 5-4. The majority decided that Illinois had demonstrated the Sexually Dangerous Persons Act was different enough from a criminal process, that the way Allen was being detained for therapy was constitutional.
Despite the loss, Allen found a glimmer of hope in the decision. The justices referred to a part of the Illinois law saying people may be released after the briefest time in confinement, as soon as they’re better.
“After hearing that, I told myself this is good news,” Allen said. “That was like a relief to hear that.”
The decision meant he would still have to prove he was cured before getting out, which is often a long and difficult process for many SDPs in Illinois.
To be successful in therapy, SDPs like Allen have to express remorse for what they did, apologize, and show empathy for their victims. They also have to talk about how they can avoid committing crimes in the future.
The treatment program consists of four phases, but moving through them doesn’t mean a prisoner is released. And getting in trouble — for anything from having an untucked shirt, to arguing with staff — can prevent SDPs from moving into the next phase of therapy.
An analysis of prison records by WBEZ shows about 10 people in the SDP program at Big Muddy River have died since 2012. In that same time, 10 were granted conditional releases. Two were fully discharged from the program. The average length of stay for SDPs currently incarcerated in the program is about 17 years.
“A high degree of certainty”
Many of the people locked up under the SDP Act in Illinois are there because of a retired prosecutor named Sheryl Essenburg. Today, she spends her days teaching at the University of Illinois campus in Springfield.
When asked about the number of people she’d put behind bars using the SDP Act without getting criminal convictions, she laughed.
“There was a story for a long time that there was the ‘Sheryl Essenburg Wing’ down at Big Muddy, to house, you know, the inmates I had sent there,” Essenburg said.
Today, about 25 percent of the people detained under the law in Illinois are from the relatively small Sangamon County in central Illinois where Essenburg was an assistant state’s attorney for more than 30 years.
Essenburg said she first came across the civil commitment statute in the early 1990s. She was working on a sex abuse case where a boy had allegedly been repeatedly abused by a close family friend. Essenberg didn’t want to have to put the victim on the witness stand, and then a colleague mentioned the possibility of seeking a civil commitment, a process in which they could try to incarcerate the man without the need for a criminal trial and the boy’s testimony.
“It didn’t seem like the traditional way of prosecuting would probably work in this case, so I thought, well, here’s an alternative.” Essenburg said.
Essenburg became an expert on the law, and started training other prosecutors across the state in how they could use it in cases where a normal conviction might be difficult. In 2011, she wrote a manual, A Prosecutor’s Guide to the Illinois Sexually Dangerous Persons Act, which educates prosecutors on this type of civil commitment, instructs them on how to lock people up using the law, and how to keep them behind bars.
“If there is a legal way that I can prevent a person who is in my mind pretty clearly going to commit that next offense — if I can intervene before he commits that next offense with a high degree of certainty — then I’m gonna do that,” she said.
Despite Essenburg’s confidence in the law, and its necessity, it’s questionable whether the state program set up to treat sexually dangerous persons is equipped to do so effectively. State records show the prison where SDPs are indefinitely incarcerated employed just one or two staff psychiatrists for the entire population. There are 171 SDPs currently locked up in Illinois.
In a statement in response to this story, a spokesperson for the Illinois Department of Corrections said the agency is actively recruiting and hiring licensed sex offender treatment providers.
The John Howard Association, a nonpartisan prison watchdog group, has also raised the concern that many people in the program are low-IQ and diagnosed with intellectual or learning disabilities, which could make it harder for them to convincingly argue that they’re better and they should be released from prison.
A recent intelligence test puts Allen on the borderline between low and extremely low IQ.
Mark Heyrman, a law professor at the University of Chicago, said he doesn’t know why the state is housing these people in prison and why it’s been doing it for decades.
“What sense does it make to have the department of corrections do this? Why aren’t they in the custody of the department of human services that runs our seven state psychiatric hospitals?” Heyrman said.
Heyrman said once the state has people in the program locked up, it’s essentially impossible to say with certainty they’re “recovered,” and there’s little incentive to ever release them.
“If I say ‘no you can’t get out,’ no one will ever complain,” Heyrman said. “If I say ‘yes,’ it’s almost certain that I will make a mistake.”
In 1988, Heyrman led a governor-appointed commission of two dozen legislators, experts, and law enforcement officials tasked with reviewing criminal and mental health law, including the SDP Act.
The commission worked for a year, and then made a series of recommendations based on what they found.
“Among the recommendations is a recommendation about the Sexually Dangerous Persons Act,” he said. “The commission recommended that it be abolished.”
Heyrman said that recommendation didn’t gain support for a number of reasons, including optics.
“The problem isn’t just sort of thinking about what’s the smartest thing to do, there are appearances, and those appearances are sometimes contradictory to what’s the smartest thing to do,” Heyrman said.
Free, but imprisoned
Allen has filed a number of petitions over the years, asking to be released. He’s had at least a dozen hearings to make a case that he should be let go. In 2015, after 30 years in prison, he was granted conditional release after he asked that his petition be heard by a jury, something SDPs can request.
During the hearing, the state’s psychiatrist pointed to Allen’s nearly 250 rule violations during his time in the SDP program as one possible reason Allen hadn’t won release in the past. In his testimony the state psychiatrist said, “according to the DOC, the average offender has one or two or one to three institutional violations a year.”
But at the hearing, a psychologist hired by Allen’s team challenged the state’s expert.
According to Allen’s attorneys, the independent evaluator recruited by Allen’s team said the state’s findings that Allen wasn’t ready for release after more then three decades were biased, intentionally deceptive, and a “hatchet job.”
The jury at that hearing found Allen was fit to be released. But, like many things in the criminal justice system, it wasn’t quite so straight forward. When SDPs in Illinois are granted conditional release, even without a conviction, they are listed as sex offenders. That means they need a place to live that conforms to the very strict rules of the sex offender registry. It means Allen can’t live near parks, schools, or halfway houses, among numerous other restrictions.
“The state says that an SDP is to be responsible for his own placement, I don’t see how that could be,” Allen said. “If an SDP is locked up for 20 or 30 years he’s out of contact with the free world out there. He doesn’t have any relatives or funds out there to get his own place.”
Allen, still having never faced a criminal trial for his alleged crime, remains in prison today, struggling to find a solution to get out.
Five states in all have laws like Illinois’ Sexually Dangerous Persons Act, that make it possible to civilly commit based on the prospect of them being dangerous.
Three states — Illinois, Massachusetts and North Dakota — and the federal government have it written into their statutes that those people may be held by state departments of corrections, meaning they get their treatment in prison. Across the country, that amounts to hundreds of people like Allen doing hard time without convictions or criminal trials.