Sex offender fallout hitting unrelated laws

Flawed idea would penalize indigent mentally ill

The U.S. state of Delaware marks the letter "Y" on the driver's licenses of sex offenders. Louisiana emblazons the words "SEX OFFENDER." Here in California, a politician running for state attorney general is trying to bootstrap a victory in next week's primary election with a copycat proposal.

Imagine the shame and humiliation when the young store clerk asks for your ID to verify your credit card signature. It's just one more brick in the wall of internal banishment, which -- as law professor Corey Rayburn Yung has pointed out -- is radically changing the face of American culture.

Of course, shaming and banishment are nothing compared with the murders driven by this hysterical and counterproductive scapegoating. Take the unfortunate Florida man who was beaten to death with a baseball bat in his own home by two men who thought he was a convicted sex offender. As it turns out, the elderly gentleman had no criminal record whatsoever; he just happened to share the same name as a sex offender.

Some may dismiss that murder as the rash act of a couple of drunken hooligans. But, as I blogged about back in 2007, such vigilanteism is not uncommon. It is fueled by the rhetoric of our presumably rational leaders -- politicians, policy makers, even mental health experts. In my primary election voter's guide, almost every candidate down to the dogcatcher is promising to make the world safer from sex criminals like Phillip Garrido.

The current freneticism is linked to the case of John Gardner, who raped and murdered teens Chelsea King and Amber Dubois in San Diego. As I noted in my April 3 post on that case, politicians would rather point fingers than accept the limitations of the science of prediction. In a plea bargain that saved his life, Gardner has been sentenced to life in prison without the possibility of parole. His fate is sealed, but the forensic repercussions are just beginning. First up, politicians have approved a $250,000 probe aimed at uncovering flaws in the state Department of Mental Health's practices of screening paroling prisoners to detect sexually violent predators.

Dangerous expansion proposed for MDO law

An especially troublesome piece of forensic fallout from the Gardner case is a proposal by the Sex Offender Management Board (SOMB), created by California's legislature in 2006 to systematize oversight of the state's sex offenders. The Board has issued a report, at the governor's request, that contains a shocking claim and recommendation:

"Changes to the Mentally Disordered Offender (MDO) Commitment Law Might Have Permitted Gardner to Be Committed to a Mental Hospital And Prevented Further Crimes"

Wow! What does the MDO law have to do with sex offenders?! For readers who are not familiar with it, California's Mentally Disordered Offender (MDO) law was enacted in 1986 to protect the public from prisoners who upon release would pose a substantial danger of physical harm to others due to a severe mental disorder. In this case, "severe mental disorder" means just what it sounds like -- a genuine psychiatric disorder (most typically of psychotic proportions) that significantly impairs functioning.

Apparently, Gardner was flagged as a possible candidate for MDO commitment because he received some mental health treatment while in prison. But he was found not to meet the criteria for involuntary hospitalization under that law. As the forensic expert who evaluated him before his trial in 2000 had noted, he had no psychotic disorder; he was "simply a bad guy who is inordinately interested in young girls."

Snippet from forensic report on Gardner, courtesy San Diego Union-Tribune

News accounts have stated that the two MDO evaluators (one from the Department of Corrections and the other from the Department of Mental Health) differed as to whether Gardner had a severe mental disorder. In such cases, a prisoner is not hospitalized unless two independent evaluators from the Board of Prison Terms agree that he meets the criteria, and in Gardner's case this second pair of evaluators also reportedly split.

Based on its skimpy information (they admitted that they had not verified the news reports about Gardner's MDO evaluations), the Board is recommending two radical changes to existing law:

• Amend the MDO law (and remember, this law does NOT target sex offenders!) so that a prisoner is involuntarily hospitalized when a second set of evaluators comes back with a split opinion.

• Eliminate the current right of people committed under the MDO law to an annual review by the courts; "the MDO commitment system should mirror the system which now commits sexually violent predators (SVP's) for an indeterminate term."

Double Wow! Talk about increasing the "false positive" problem exponentially!

Remember, the MDO law was not designed for sex offenders. It is meant to civilly incapacitate paroling prisoners with bona fide psychiatric disorders that make them violent. Yet these folks in the sex offender arena want to fiddle with this law in order to remove the meager procedural safeguards that protect the mentally ill from indefinite detention.

Given its timing, this proposal may not be as illogical as it might superficially appear. It comes just in time for an upcoming court hearing on whether the state can continue to handle civilly committed sex offenders differently than other civilly committed ex-prisoners.

On Jan. 28, in response to a challenge by a civilly detained sex offender named Richard McKee, the California Supreme Court ruled that the state "has not yet carried its burden of showing why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment" [my emphasis]. The state's top court sent the case back to the original trial court to give the government "the opportunity to justify the differential treatment in accord with established equal protection principles." That hearing, coincidentally enough, is pending in San Diego Superior Court.

Wouldn't it be convenient if the state changed the procedure for other civilly committed ex-felons to treat them similarly to sex offenders, just in time for the McKee hearing? Voila -- problem solved!

Is the current Mentally Disorder Law too lenient?

Consider this scenario:

"Josiah" has a chronic psychosis. He hears voices and is religiously preoccupied. Although normally peaceable, he had one bad day back in the 1990s, during which he raved at passing cars and even hurled a few small rocks. Fortunately, no one was injured. Josiah passively obeyed the commands of passersby to lie on the ground and wait for police.

Josiah was arrested. He pleaded guilty to a felony charge and went to prison. After some time, he paroled from prison. Despite continuing homelessness and mental illness, he did not engage in any further violence. However, he was briefly returned to prison for a minor, nonviolent parole violation. Upon his re-release, he had the misfortune of being evaluated by MDO Evaluator X, who has a higher-than-average rate of "positive" opinions. Dr. X opined that Josiah posed a substantial risk of physical harm to others by reason of his chronic psychosis.

Dr. X's counterpart at the Department of Mental Health, Dr. Y, disagreed. He did not believe Josiah was dangerous, because he lacked any pattern of violent conduct. No matter. On the basis of only one psychologist's opinion, Josiah was whisked off to the state hospital. (Contrary to the impression left by the SOMB report that two additional tie-breakers are required when the initial two evaluators disagree, a second pair of evaluations is only required when evaluators differ on certain of the six criteria.)

Although he was well behaved and never assaultive, in the hospital Josiah remained religiously preoccupied, carrying his Bible everywhere and reading from it incessantly. Based on his religiosity and his rejection of psychotropic medications, hospital clinicians believed he remained dangerous, and opposed his discharge. So, he languished in the hospital for seven years. Finally, an attorney effectively challenged the state's claim of dangerousness, and a judge ordered Josiah released. He was 57 years old.

Under the current MDO law, people like Josiah can get trapped in the state hospital system. Josiah is not a sex offender, and -- unlike Gardner -- most sex offenders in prison are not even eligible to be screened under the current Mentally Disordered Offender law. Yet now, because of an isolated but highly publicized crime, along comes a proposal that would penalize mentally ill prisoners, most of whom -- like Josiah -- are poor people without the financial resources to stand up for their rights.

Time and time again, here's the way the story goes:

1. An exceedingly rare but highly troublesome event occurs.
2. A knee-jerk scramble ensues to find the cause and affix blame.
3. Existing laws are impulsively altered.
4. Unintended consequences ensue, most of them harmful.

I'm sure the SOMB felt under the gun to come up with something, since the governor was asking. But the MDO law is working just fine to do what it is supposed to do -- protect the public from severely mentally ill offenders who are dangerous. If anything, the system could use more safeguards against false positives, not fewer protections for mentally ill people like Josiah. If the law is twisted into some kind of an SVP-Lite, it will encourage misuse of diagnosis and treatment in the service of pretextual goals. And that will be sad.

It's too bad the SOMB members don't just stand up to the governor and legislature, and admit that the emperor has no clothes: Screenings are not magic. They will never be capable of predicting the future with 100 percent certainty, and eliminating all potential risk.

The false positives dilemma

When something goes wrong, politicians look for an easy fix, no matter how impractical, meaningless, or even harmful it may ultimately prove to be. As an Associated Press report noted in reference to the driver's license idea, "It's unclear how the measure might have helped Gardner's victims."

So true. Similarly, critics who claim the parole screening process was faulty are denying the unfortunate reality that even the most rigorous screening would not have saved Gardner's victims, because Gardner had no red flags. Paroled in 2005 from a six-year prison term for two counts of lewd and lascivious acts with a 13-year-old acquaintance, he looked like a garden-variety sex offender, one of many tens of thousands in California alone. He didn't come close to meeting the criteria for involuntary commitment as a sexually violent predator.
Gardner was a "false negative," someone who looked low risk but was not. Unfortunately, to eliminate all false negatives (called "Type II errors" by statisticians), one would have to vastly increase the rate of "false positives," or Type I errors, in which people are identified as at high risk when they really are not. In other words, if you reduce the risk of one type of error, you increase the risk of the other. And since the overwhelming majority of convicted sex offenders are never apprehended for another sex crime, any imperfect system geared toward identifying the small minority who will reoffend will wrongly flag many more who will not. (Most sex offenses are committed by men who have never before been apprehended, so they are not affected one way or the other by such identification efforts.)

Preventively detaining literally hundreds of thousands of aggregately low-risk men based on what a few of them might (or might not) do in the future would be unconstitutional. And on a practical level, it would be fiscally impossible. Ironically, Kansas -- the state whose pioneering sexually violent predator law withstood a constitutional challenge that paved the way for similar laws in other states -- recently suspended its SVP screenings because the process had become too costly. Strapped for cash, Kansas Department of Corrections officials decided to save $22,500 a month by stopping all psychological evaluations of paroling sex offenders. (They also closed four prisons and two boot camps and curtailed programs for offenders.)

I've said it before, but it merits repeating: Random danger is an unavoidable part of life. Sometimes, despite all of our efforts at public protection, bad stuff will still happen.

The San Diego Union-Tribune has numerous source documents on the Gardner case available online.

Graphics credits: (1) "Bogeyman" by faedrake (Creative Commons license);
(2) Type I and II errors is courtesy Tim Wilson ("Gilligan on Data" blog);
(3) "Behind the Bars" from Squibs of California, public domain (courtesy of Indiamos)