Critics say supposed ‘treatment’ program is punitive
Houston Chronicle: Anita Hassan and Mike Ward, January 3, 2015
Just a note: As you read this article from 2015, please think of how this compares to the current situation in Littlefield at the TCCC. If you have loved ones there, I encourage you to post replies here about your thought concerning this article and the present state of affairs at the TCCC. What’s the old saying? “You can put lipstick on a pig, but it is still a pig. PLEASE REPLY WITH YOUR THOUGHTS!!!
Six minutes. That’s how late Gary Edward Vines was returning to the east Houston halfway house where he was sent for supervision as a violent sex offender following his release from prison.
He had been stuck standing in line at a local clinic, waiting to get prescriptions for his heart and blood pressure medications refilled.
The Office of Violent Sex Offender Management, the state agency that supervises sex offenders in Texas’ civil commitment program, saw it differently. Officials there said Vines was late because he ignored instructions to wait to fill the prescriptions. For that, he was arrested, charged with a third-degree felony and, after a criminal trial, sent back to prison for life.
Vines is among more than 180 sex offenders who have completed their sentences, been placed in civil commitment and then sent back to prison for violating rules in a program that is supposed to be providing them with treatment.
Now, attorneys and legislators are calling for sweeping reforms that could redefine the entire program, including the removal of the program’s chief enforcer, State District Judge Michael Seiler.
No one denies these men once committed heinous crimes. But some mental health and legal experts contend that the state’s civil commitment program is unconstitutional — set up to keep sex offenders perpetually in confinement rather than to give them the outpatient treatment the state says they need.
“They are just stacking the deck against these men and criminalizing behavior that wouldn’t be considered criminal in any other circumstance,” said Nicolas Hughes, an attorney with the Harris County public defender’s office who has tried several civil commitment criminal violation cases. “It’s a perversion of the purpose of this law.”
Kept off the streets
Created by the Legislature in 1999, Texas’ civil commitment program became part of a national trend that began more than two decades ago as a way to keep those violent sex offenders — deemed to have a “behavioral abnormality” that made them likely to re-offend — off the streets after they serve their prison terms. An offender must have been convicted of two sexually violent crimes to be placed in civil commitment.
Texas is among 20 states, plus the District of Columbia, with civil commitment programs.
The U.S. Supreme Court has upheld civil commitments for sex offenders on grounds that the involuntary confinement is being used to administer treatment, not punishment.
However, the mental health and legal experts said Texas’ program does not operate under the nonpunitive premise on which civil commitment laws have been upheld. They question whether the state’s program could withstand constitutional challenges as it currently operates.
No one in the program’s nearly 15 years of operation has ever successfully completed its treatment requirements and been freed.
Of the nearly 360 men who have been ordered into the program since 2001, more than half have been charged with rules violations and sent back to prison, an investigation by the Houston Chronicle has revealed.
Among them were mentally disabled men who could not understand the rules they violated, some who did not take their medications and others who charged their ankle monitors incorrectly. Still others were charged with violating rules for yelling, missing group therapy or failing to keep a daily “thought” journal.
One man was cited for not writing out his treatment assignments, even though he had only one arm and had trouble writing.
None of the violations was for a new sex crime.
Punitive, not therapeutic
At least six men have been sent back to prison for life, sentences longer than those they received for the sex crimes that landed them in the program in the first place.
Out of the 20 states with civil commitment programs for sex offenders, Texas is the only one that deems any breach of administrative or treatment rules a criminal offense. Critics and legal scholars said Texas’ policy of charging participants with crimes for seemingly minor rules violations shows how the program is punitive, not therapeutic, and, as such, constitutes double jeopardy and violates their due process rights.
Marsha McLane, executive director of the Office of Violent Sex Offender Management, acknowledged that enforcement of violations has been a problem. She took over in May after most top officials resigned, the agency in disarray.
The resignations came after the Chronicle reported in April that the agency had moved 29 men confined in civil commitment to an unlicensed Houston boarding home with building code violations without notifying neighbors.
In recent weeks, McLane initiated a review of how those in civil commitment often are sent back to prison for violating program rules. She also has stopped allowing caseworkers to automatically send violators to jail after learning about cases such as Vines’.
Originally, Texas’ program was designed to provide outpatient care, the only one in the United States to have that designation. Under a 2005 change in the law, however, all the committed offenders must live in jails, halfway houses and supervised apartments under contract with, or approved by, McLane’s agency.
That same year, the Texas Supreme Court handed down a ruling in the case of Michael Fisher, a diagnosed paranoid schizophrenic, upholding the constitutionality of the state’s civil commitment statute for sexually violent offenders, as well as its criminal penalties for those who violate program rules.
That decision was based on the program’s original outpatient designation, not on amendments that have been made since that require supervised confinement.
Eric Janus, president and dean of the William Mitchell College of Law in St. Paul, Minnesota, who has studied the constitutionality of civil commitment for sex offenders for nearly 20 years, said the high courts have not examined specifically how Texas and other states are implementing their civil commitment programs.
Given how many of those in Texas’ program have been sent back to prison for program violations, he said, “perhaps the courts might come to a different conclusion about whether this is really a legitimate civil commitment law or a criminal law masquerading as a civil commitment law.”
Sentences handed down for rules violations have ranged from two years to life in prison. Many offenders have spent more time back in prison or county jails than in the treatment program.
After serving a nearly 20-year sentence for aggravated sexual assault of a 9-year-old child, Vines had been in the program for a little more than a year when he was charged in December 2013 with a felony for being six minutes late, violating other program rules and being discharged from treatment.
While those infractions were mentioned during his trial in October, prosecutors repeatedly emphasized to jurors that Vines, 60, had been deemed a sexually violent predator, even bringing in one of his past victims to testify during the punishment phase of his trial.
It took a little more than an hour and a half for the jury to find Vines guilty and about the same time to give him a life sentence.
“He wasn’t just being tried on those violations,” said Vines’ attorney, Heather Hall. “They were trying him on his past, one that he’s already been convicted of and paid his debt to society for.”
Men placed in civil commitment are required to sign a series of contracts agreeing to follow more than 100 rules, many of which critics assert are vague, contradictory and left to the interpretation of program administrators.
Court records show that rules violations can include failing to keep up entries in one’s “thought journal,” having “unapproved” sex fantasies, yelling in what is deemed an “aggressive manner,” making inappropriate jokes or comments, not taking medication or failing to charge their ankle monitors for two consecutive hours twice a day.
“The whole idea that this is a treatment program is a facade,” said Al Wilson, a former parole officer who, starting in 2009, worked for 18 months as a case manager in the program. “It is just a way to hold them and restrict their movement and, eventually, send them back to prison.”
Another aspect of the criminal violation policy some critics call troubling is that it allows therapists to provide treatment and “police” their patients at the same time. Mental health experts say that makes it impossible to maintain the traditional therapeutic relationship built on trust when a client can be prosecuted for admissions he makes in therapy.
‘The results they want’
Until 2007, a request for criminal charges for an offender’s rule violations would be taken to the district attorney of the county where the alleged offense occurred, as is the law in criminal cases. That year, however, Texas’ sexually violent predator statute was amended to allow civil commitment violation cases to be tried in the jurisdiction where the offense occurred or in Montgomery County.
That is where a specially designated court hears all cases involving sex offenders placed in civil commitment after completing their criminal sentences.
Critics say that has allowed the state to seek charges from one county district attorney after another has refused.
Such was the case for Patrick Michaels, who entered civil commitment in 2011. In July 2012, Michaels was accused of numerous rules violations, including missing doses of medication and telling a sex-related joke.
According to court records, the Harris County district attorney’s office declined to press charges. About two weeks later, however, Montgomery County filed criminal charges against him.
Michaels was found guilty in February 2013 and sentenced to 20 years in prison.