THE MARSHALL PROJECT: By GEORGE STEPTOE and ANTOINE GOLDET; JAN. 27, 2016
Jhon Sanchez already served his time for a series of sex offenses he committed when he was 13. But he’s not free yet. Inside the world of civil commitment.
On the afternoon of Jhon Sanchez’s 18th birthday, three parole officers showed up at his home in West New York, N.J. Sanchez was in his slippers and shorts, and when his mother asked if she could grab her son something else to wear, an officer assured her that Sanchez would be gone only for a little while.
That was five years ago.
Sanchez is behind bars, but he is not in a regular prison. He is considered a resident, one who is detained involuntarily and indefinitely at the Special Treatment Unit for sexually violent predators, commonly known as Avenel. He is among 428 people who have been “civilly committed” at the facility, all of them living in limbo.
Although they have already served prison sentences for their crimes, these inmates have been classified by state psychologists as unfit to return to society.
The civil commitment of “sexually violent predators” is intended to protect the public: In theory, offenders are offered extensive therapy to help them learn to control sexual impulses. But an analysis by The Marshall Project shows most people who enter civil commitment programs nationwide are detained for years and, in most cases, have a slim chance of being released. About 15 percent of the 579 people who have been committed at Avenel since the program’s inception in 1999 have been discharged to the community after treatment.
The state estimates there are 15 patients at Avenel who were never convicted as an adult but were sent to Avenel, indefinitely, once they complete their sentences. Public defenders and attorneys for the residents put the number at 30.
Critics cite such statistics to argue that civil commitment has become a gray, arbitrary area of the law. “We’re effectively handing out life sentences to juveniles under the auspices of civil commitment,” said David Prescott, former president of the Association for the Treatment of Sex Abusers.
In recent months, federal judges in two states have ruled the application of civil commitment laws unconstitutional. In June, a judge said Minnesota’s “punitive system” lacks the “safeguards of the criminal justice system.” Then in September, a Missouri judge banned the lifetime detention of individuals who have served their sentences and “who no longer pose a danger to the public, no matter how heinous their past conduct.” In October, two British high court judges blocked the extradition of Roger Alan Giese, wanted in California for charges of sexually abusing a young man; the possibility that Giese would be civilly committed posed a “flagrant denial” of his rights under the European Convention of Human Rights.
Nearly 5,400 people are currently civilly committed in sexually violent predator programs in 20 states and by the federal Bureau of Prisons. Thirteen states allow this practice for people who committed their crimes as juveniles, like Sanchez. Despite having no adult convictions, they are being held years into adulthood, which, according to some psychologists, does more harm than good to the development of their minds.
After five years, Sanchez is on the second treatment phase of five. Psychologists hired by the state assess him every six months to determine whether he is fit to leave. According to a recent treatment review report, Sanchez remains “highly likely to sexually reoffend if not confined to a secure facility.”
When Sanchez was 6 years old, he said his father moved out of their home and eventually disappeared from his life altogether. “The first time I spoke to him in eight years was on this exact same phone last week,” Sanchez said recently from a payphone in the east wing of the Avenel housing units.
Sanchez’s mother worked two or three shifts a day cleaning banks and houses to support him and his older sister. The family moved around several neighboring towns in New Jersey – North Bergen, Guttenberg, Union City, West New York – sometimes staying a year or more when the income was steady, other times just a few months. “The streets raised me,” said Sanchez. “Anger is all I could remember.”
In the places Sanchez grew up, the only way to win respect was by fighting, he said. “That’s what I’d been doing my whole life. Using violence to solve my problems.” Sanchez shoplifted out of boredom, and his mother would collect him from police departments when he got caught: he picked up a six-month curfew for stealing less than $20 worth of goods in 2006, according to court records. He smoked marijuana daily, discovered his father’s pornography collection at age 6, and by 12, he was sexually active.
When Sanchez was 13, a police officer appeared at his home. A woman had reported that a Hispanic male wearing a Che Guevara T-shirt and a black jacket had attempted to force her into an alleyway while she was walking to her home in Guttenberg in November 2006. Sanchez later admitted that he had fondled the woman’s breasts, hitting her head against a wall until she fell to the ground, at which point Sanchez fled.
While in custody, Sanchez confessed to three other assaults, all committed when he was 13, within a span of four months. In August 2006, he forced his way into the home of a 45-year-old woman and tried to make her perform oral sex. Two months later, he approached another victim with his penis exposed, pulled down her pants, and grabbed her breasts. A third victim reported that Sanchez grabbed her and tried to kiss her in the hallway of her apartment building. Every time, Sanchez ran away after his victims screamed or fought back.
“I handled my emotion in a bad way at that age,” Sanchez said. “I hurt somebody, and I hurt not just that person but their loved ones and my loved ones.”
When Sanchez’s sister, Karina Sanchez, learned of the attacks, she was angry: “That’s not how his mother and I raised him,” she said. “Do I approve of what he did? Absolutely not. I sympathize with the victims. I’ll never understand it.”
Sanchez was convicted of two counts of criminal sexual contact, aggravated assault, and attempted sexual assault. At 14, he was ordered to complete an 18-month inpatient program at a residential community home for juvenile sex offenders called Pinelands. He stayed for a year and a week at the 18-bed treatment facility before escaping through a window. He returned that same day because he was cold.
After that violation, Sanchez was sentenced to 30 months at the New Jersey Training School for Boys, commonly known as Jamesburg, which has a resident population more than 10 times the size of Pinelands.
Within the New Jersey Juvenile Justice Commission, treatment teams comprised of social workers, psychologists, and therapists, monitor the progress of approximately 50-75 juvenile sex offenders, said Rob Montalbo, the commission’s deputy executive director of programs.
Months before a resident completes his sentence, a committee produces a pre-release evaluation of his progress and a release plan, which might recommend that a resident go home unconditionally, attend outpatient therapy, or receive services from other state agencies. If a resident is considered to be at high risk of sexually reoffending, his case is referred to the attorney general’s office for review, and civil commitment proceedings can begin.
The commission’s deputy executive director of operations, Felix Mickens, said the referral rate to the attorney general’s office is very low: typically between one and three out of a pool of 20 to 30 juvenile sex offenders who are eligible for release in a given year. The Attorney General’s office declined to comment. Lisa Albano, a former deputy attorney general who has prosecuted more than 50 commitment hearings, including Sanchez’s, said the office has stringent requirements for identifying the most sexually dangerous individuals before pursuing a case.
After Sanchez’s pre-release evaluations, a “psychiatrist told me I had been red-flagged,” he said, “and that I might end up here.” Under New Jersey law, Sanchez was too young to be committed when he was released from Jamesburg. He would become eligible, however, two days later, when he turned 18. A judge signed a temporary order for civil commitment that morning.
At Avenel, treatment progress reports show that Sanchez had to wait nine months in the facility for his initial commitment hearing. Once a temporary commitment order is issued, “in no event shall the person be released from confinement prior to the final hearing,” according to the statutes. In other words, Sanchez was being held involuntarily without being charged with a new crime and without the option of bail.
The commitment hearings are vastly different from traditional criminal proceedings. In New Jersey, unlike in some other states with civil commitment laws, hearings do not have juries. The judge has sole discretion and decides whether clear and convincing evidence has been presented, rather than whether the state has made its case beyond reasonable doubt.
“That puts the judge in a very awkward position,” said Patrick Madden, a veteran public defender who represents about 70 clients inside Avenel. Many judges fear being perceived as lenient, and “it’s a lot easier to explain why you kept a guy in than why you let a guy out,” Madden said. Since the program’s inception, 87 percent of the hearings have resulted in commitment at Avenel, according to data compiled by attorneys for the residents.
The rules of evidence are loose. Dropped charges, hearsay, self-reports of unidentified victims, and conversations that the defendant has with therapists (which are traditionally confidential) can all be used to build a case for placing and keeping someone in Avenel.
Transcripts from Sanchez’s hearing show that lawyers on both sides focused on his age. Peter Latimer, Sanchez’s public defender, tried to convince the judge that Sanchez’s criminal sexual past was characteristic of an impulsive child who sought attention. “That’s not the person we’re dealing with today.”
Albano argued that the only way Sanchez had changed was that he had become more physically imposing. “He’s bigger and stronger now as an adult male than as a 12-year-old,” she said of the 5-foot-11-inch Sanchez.
Nicole Paolillo, one of the state’s psychiatrists, testified that the “adult-like nature” of Sanchez’s sexual offenses was clearly evident. Paolillo acknowledged that few juveniles grow up and commit new sex crimes as adults, but “if I were to go and omit Mr. Sanchez’s birth date,” she told the judge, “this person looks like an adult.”
During his time at Jamesburg, Paolillo told the court that Sanchez informed a therapist that he had been thinking about trying to isolate one of the female guards he was physically attracted to. “It’s very good that he told someone before he acted on it,” Paolillo said. “But it also shows the strength of the arousal.”
As in nearly all hearings, Paolillo used a risk assessment tool as part of her evaluation. The test, the Juvenile Sex Offender Assessment Protocol II, or JSOAP-II for short, is a 30-part checklist developed in Philadelphia in 1994 to help an evaluator determine the likelihood that a juvenile sex offender will reoffend.
Factors such as whether an offender was a victim of sexual or physical abuse himself, has victimized multiple people, has a long offense history, or has shown a greater degree of planning or aggression in an attack, all contribute to higher scores. Admissions of nonsexual delinquency also result in higher scores. For example, an offender would score a point for telling an evaluator that he had once vandalized a bus stop, driven recklessly, and been in a fight; or for confessing to a pattern of angry outbursts at his parents.
Critics, including experts funded by the U.S. Justice Department, say that tests like the JSOAP-II have no proven ability to accurately predict a juvenile’s likelihood to sexually reoffend. At the hearing, Paolillo acknowledged the JSOAP-II’s “experimental nature” (and maintained she would have formed the same conclusions without it), but ran the test anyway. Sanchez scored in the “high-risk” category.
Christopher Lorah, a psychologist who was called on Sanchez’s behalf, testified during the hearing that Sanchez was a young man who had demonstrated some “problematic sexual behavior, and there’s no arguing that.” But, he said, “Avenel is a place for the most troubled, mentally ill in a sexual realm. I just don’t see Mr. Sanchez as that.” Lorah said that it would be more appropriate if Sanchez was back at home wearing an electronic ankle bracelet for six months.
In New Jersey’s civil commitment hearings, however, there is no middle ground: “It’s all or nothing here,” Justice James Mulvihill said during the hearing. Mulvihill acknowledged the “significance” of Sanchez’s case, saying, “Usually, I form my opinions pretty quickly.” For Sanchez, Mulvihill would need to “take a hard look at this one.”
While Sanchez waited for a verdict, he was sent back to Avenel, where he had been given a residents’ guide. “We understand that most residents find it upsetting, traumatic, or at least annoying to be here,” the introduction reads, “but still have to deal with the situation the best they can.” A month after the hearing, Sanchez said he discovered he had been committed from a group counselor. He stormed out of the treatment room, pacing the corridor to try and calm himself.
“Sexually Violent Predator” laws date to the 1990s, when a series of rapes and murders by former inmates prompted state legislators across the country to pass laws that keep dangerous sex offenders from being released after serving their time.
In 1997, the U.S. Supreme Court upheld the constitutionality of Kansas’ program and found that civil confinement for involuntary treatment does not violate double jeopardy laws. The decision paved the way for other states to follow suit. “Let’s enact a similar law here,” then-Gov. Christine Whitman told the New Jersey state legislature in her 1998 State of the State address. “We should make it easier to keep still-dangerous sex offenders away from our children, even after they’ve served their criminal sentences…. Let’s make it easier to keep sex offenders locked up and harder for them to prey on our children and families again.”
Peter Barnes, Jr., a former assemblyman, said that state psychiatrists are best placed to identify high-risk offenders. “When civil commitment happens, it’s pretty damn sure they’re making the right decision,” said Barnes. Barnes was the chairman of the New Jersey Parole Board and oversaw the state’s sex offender supervision from 2007 to 2009. “Some of these crimes are absolutely horrendous. How does a person suddenly stop being a predator?”
Critics of civil commitment say that a handful of cases have disproportionately shaped policy. “The tolerance for recidivism is zero,” said Howard Zonana, chair of the American Psychiatric Association’s Task Force report on the sexually dangerous. “Lawmakers have passed these very Draconian laws, and the public seems willing to tolerate them.”
In 2013, the U.S. Justice Department sponsored the 2013 National Research Council report, “Reforming Juvenile Justice: A Developmental Approach,” which looked closely at how the adolescent brain works and helped upend misconceptions that have historically driven juvenile justice policies. The report showed that adolescents lack self-regulation, because the parts of the brain responsible for seeking pleasure develop more rapidly than the brain system that supports self-control.
“You can think of [adolescents] as not having fully developed impulse control, but still having very strong impulses,” said Edward Mulvey, a committee member on the research council that authored the report. The report also confirmed previous research that showed that adolescents’ brains remain malleable until they reach their mid-20s. In short, their sense of responsibility increases as their impulse control system stabilizes with age.
Until then, adolescents in emotionally charged situations are much more likely to make impulsive decisions. Reckless behavior during teenage years is a “lousy prediction” of future criminal behavior, Mulvey said.
There’s no single authoritative statistic for how often juvenile sex offenders go on to repeat their crimes (studies put the rates anywhere from 2 percent to more than 15 percent). In October, at a conference for the Association for the Treatment of Sex Abusers in Montreal, Michael Caldwell presented findings from the most comprehensive survey of juvenile sexual recidivism rates to date. Caldwell, an expert on juvenile delinquency and a professor of psychology at the University of Wisconsin, looked at studies dating back to 1943 and found that 4.6 percent of about 30,000 juveniles committed another sex offense within five years.
Compare that to the average recidivism rate for all crimes, according to the Bureau of Justice Statistics: 68 percent over three years.
Many of the routines at Avenel are similar to the East Jersey State Prison that overshadows it to the North. The treatment unit originally functioned as the prison’s solitary confinement wing and is surrounded by a 15-foot chain-link fence lined with razor wire. Residents are locked in their rooms (all have their own) for count twice a day. They are subject to the same visitation hours and served the same food as East Jersey inmates, and the guards come from the same correctional department.
Residents, however, have “significantly fewer restrictions than inmates,” said Matthew Schuman, a spokesperson for the Department of Corrections. They can wear their own clothes and are allowed to receive calls on payphones. They also earn the right to take minimum-wage jobs in the facility. Sanchez works five hours a week washing clothes. When he’s not in therapy, he’s usually playing Xbox (that he bought from another resident for $80) in his room.
In 2014, after three years in the facility, Sanchez admitted to exposing himself to a female correctional officer. By that point, Sanchez said he had stopped caring: “I was being purposefully disrespectful.” He later allegedly assaulted a male corrections officer and spent seven months in solitary confinement at Middlesex county jail awaiting a criminal trial. The charges were eventually dropped.
The experience was a wake-up call. After what is described in his progress reports as an initial “significant difficulty with authority figures,” Sanchez said that he is fully cooperating. He is participating in group therapy and writing the personal reflective essays in the hopes of earning an earlier release. At his most recent hearing in October, however, he failed to advance to the next treatment phase.
At Avenel, the treatment program is “like college,” according to the residents’ guide. During 16-week modules, treatment staff lead classes and group therapy sessions on topics like relapse prevention, victim empathy, or arousal reconditioning. Residents are expected to work independently outside classes, which are supplemented with smaller sessions. In a recent treatment review report, Sanchez was encouraged to “discuss and develop his understanding of the origins of his deviant sexual arousal.”
There is an emphasis on confession, and Avenel, as with most programs, requires a compulsory admission that you are a sex offender. Failure to do so can result in “Treatment Refusal” status and a transfer to a housing unit with stricter living conditions.
Terry Newby has completed all of the modules. Some twice. He says he recently scored a perfect 100 on a pre-module test. The treatment is “for people who have serious mental illnesses, who can’t grasp the concept of right or wrong,” Newby said. “A caveman could do this stuff.”
But according to his most recent progress report, Newby hasn’t sufficiently mitigated his risk of reoffending to be released back into society. He is on the third of five phases of treatment after 11 years at Avenel. He was 17 when he committed his sex offense. He is now 37 years old.
Newby was tried as an adult, convicted of sexual assault and two counts of burglary, and sentenced to 10 years, the bulk of which he spent bouncing between penitentiaries. Two days before his sentence was about to be up, he was brought to the special treatment unit. “I didn’t know anything about civil commitment,” he said.
In treatment review reports, Newby is described as “a charismatic, intelligent, and outgoing individual who tends to dominate group [therapy sessions] with his witty stories and outlook on life.” But psychiatrists say he “attempts to manipulate feedback [from his treatment providers] to his advantage.”
“Whenever your freedom is hinged on another person’s opinion of you, you’re in for a rough ride,” said Newby. “I’ve made some mistakes in my past, I accept that. But I’ve done my time and now me being here is an insult. Instead of the quick road, they’re trying to give me the scenic route.”
In 2002, Avenel resident Raymond Alves filed a lawsuit alleging poor conditions and a low release rate. The lawsuit grew to a class-action case that claimed that poor quality treatment was in part due to a “failure to hire and retain sufficient qualified mental health professionals with training in sex offender specific treatment.”
The 2012 settlement guaranteed, among other things, a minimum of 20 hours of therapeutic programming a week and the hiring of additional psychologists to better balance the ratio of patients to treatment staff. A court-appointed independent monitor periodically inspects Avenel to see whether the treatment unit is keeping to the terms of the settlement. Their reports are confidential and sealed to the public.
A Department of Human Services spokesperson declined multiple interview requests with Avenel treatment staff, but in a sworn statement in support of the 2012 settlement, Merrill Main, Ph.D., Avenel’s clinical director, said that any therapeutic exchange carries the “potential for personal discovery.”
“This treatment philosophy involves the belief that treatment effect not only results from structured group therapy sessions but evolves from continual interaction between residents and the staff and among the residents themselves,” Main said in his statement.
Rehabilitating young sex offenders in adult facilities, however, poses a delicate and unique problem (at Avenel, the youngest resident is 18 and the oldest is 80). “If you put a child who is on the borderline of being anti-social or dysfunctional, and you put them with a whole bunch of anti-social and dysfunctional people, all you get is a rotten child,” said Carl Bell, the director of the Institute for Juvenile Research at the University of Illinois.
“There were certainly incidents of the younger offenders being preyed upon by the older offenders,” said Vivian Shnaidman, a clinical psychiatrist who provided primary psychiatric evaluations and treatment at Avenel between 2004 and 2007.
Sanchez, now 23, said he thinks about his crimes “all the time.” “What if it happened to a women I love, like my mother?” he said. The victims are “probably scared of things that you do every day, scared of life.”
“What I think most people don’t realize until they actually work in a civil commitment program is just what happens when you take away someone’s release date and they believe they may never get out,” said David Prescott, a former treatment assessment director at the Wisconsin civil commitment program, where he saw young sex offenders “irreparably harmed” by the experience. “You’re hopeless.”
But Sanchez still has hope. “Everybody has goals,” he said. “I’m not trying to see myself here next year…I can’t see myself as [a sex offender], because if I thought of myself as that, I wouldn’t be able to move forward. I would just be stuck.”