Sunday, March 25, 2012

USA Today probe: Federal SVP program crumbling

Constitutionality of lengthy sex offender detentions questioned

In the six years since the U.S. government authorized civil detention for dangerous sex offenders, it has sought to commit 136 men. Out of those, it has won civil commitments of only 15, or 11 percent.

In contrast, it has either lost, or been forced to dismiss, 61 cases, or 45 percent. (Actually, make that 62.*)

The remaining 59 men (43 percent) are languishing in prison, locked in legal limbo while their cases await resolution. (A 136th man has died.)

An investigative report by USA Today paints a picture of federal prosecutors and their prison "experts" as flailing in their efforts to establish that they qualify as "sexually dangerous persons." The legal criteria for this designation include a history of sexually violent conduct or child molestation and a mental illness that would cause the person difficulty in refraining from such behavior if released.

I put the word "expert" in quotes because many of the prison psychologists drafted to conduct these evaluations and testify in court had no prior experience and little or no training when the law went into effect. As the former psychologist in charge told USA Today, "It was rushed, and initially, I believe, quality probably suffered."

The government's cases "have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend," the USA Today reports. Due to the low levels of recidivism among convicted sex offenders, "even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous."


Brad Heath and Amanda Muscavage reviewed thousands of pages of legal filings and interviewed dozens of attorneys, psychologists and former detainees for their report. Their interactive website includes links to 290 documents that they have made available online.


USA Today reporter Brad Heath
In one amazing quote, the psychologist who formerly ran the civil commitment program at Butner, the prison in North Carolina where the detainees are being held, all but admits that clinicians certified men as sexually dangerous even knowing that they did not meet the legal criteria.

"If we thought someone was really dangerous but there wasn't a strong legal case, we might very well still push it for the public interest," Anthony Jimenez said. "Hopefully justice is served in the end."

This is the "consequentialist" approach advocated by some in the sex offender industry, who claim that sexually violent predator cases represent an exception to general forensic practice, in which the end (protecting the public) justifies the means. If anything, however, the high stakes involved when people are threatened with a loss of liberty for something that they might do in the future would seem to demand the opposite approach, of even greater caution and transparency in diagnosis and risk assessment.

As Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital, told the reporters: "We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime. If it's going to be done, it has to be done in a just and fair manner."

One reason for the government’s quagmire is that the federal cases are decided by a judge, rather than a jury. The seasoned judges hearing these cases are less likely to let their emotional reactions to past crimes, some of them pretty upsetting, distract them from the government's legal burden of proof.

For example, in the recent trial of Markis Revland (which I blogged about HERE), the offender had admitted to 149 child molestations. However, the judge found that the government had failed to prove that any of these incidents actually happened, or that Revland had a genuine mental illness.

Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention.

Unfortunately, because they only had access to records that have been made public, the USA Today team didn't have the 411 on some of the most egregious attempts to civilly detain low-risk prisoners. In one case I am familiar with, the government spent four years pursuing civil commitment against a man who was quite clearly not mentally ill, not a rapist, not a pedophile, and not dangerous, only to dismiss the case on the eve of trial.

This case points to an aspect that I wished the USA Today team had delved into: The unusual nature of the federal sex offender population. Although those eligible for civil commitment are supposed to be the worst of the worst, in reality Butner's population is heavily weighted toward an unlikely admixture of:
  • Native Americans.
The second group was the surprise to me. Unlike routine sex offenses that are prosecuted in state courts, crimes committed on Indian reservations are federal offenses.

Up until now, neither the U.S. Justice Department nor any watchdog agency has expressed public concern with whether the the federal civil commitment scheme, with its haphazard and capricious implementation, passes Constitutional muster.

Hopefully, this USA Today report will bring some much-needed attention to just what is going on down there in North Carolina.

Prior blog posts about the federal civil commitment prosecutions:
*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.

14 comments:

  1. Why don't you investigate what is happening in Florida with Civil Commitment? Men are being deemed eligible for civil commitment trials after serving their time in prison even if the crime they were in for is not sex related but they have a sex offense in their past (some up to 30 yrs prior). Some are sent to trial even though they served their prison time with good behavior (no writeups), got their GEDs, and cleaned up their life. Florida uses the mental health issue and POSSIBLE future offending as an excuse for holding SO's longer. There is NO second chance. The evaluators are paid BY the state and never reccomend for release. They use the Static-99 which is skewed toward past offenses and not the offenders present state of mind.These guys don't even have to have a mental illness diagnosis as long as they fall into the Static-99 criteria because under the Jimmy Ryce Act the state assumes if you were unable to control yourself in the past you will POSSIBLY lose control again in the future. Once you are sent to the FCCC you have to wait for atrial which is usually with a judge. If you have a public defender they are little help. They generally reccomend you go ahead and self-commit so the trial doesn't lag on forever. There is a class you can do while waiting for trial so your treatment doesn't take decades. However, there have been successful treatment programs in some prisons (not Florida) for SO's while incarcerated in prison that take a few short months. FCCC's program takes 5-7 yrs when they have adequate staff. Some offenders are able to get out after a couple of years and finish their treatment with an outside doctor under a "contract". If they break it they go back. However some county judges in Florida refuse to allow contracts. There is little incentive to do better as many know they will never be free or it may take years to be free even when they try to improve. Even though Florida tries to get around the expost facto law by making commitment civil it is still a blatant loophole being used to punish offenders longer than their original sentencing period or forever. Even though a man self-commits, abides by all rules, and successfully completes his treatment their is no guarantee he will be released since it is all up to the judge regardless of a clean mental health
    evaluation which is still done by a state paid employee. I know someone who was evaluated by a female psychologist with a degree in SO
    treatment. After her evaluation she said she as a female and a doctor felt he was not a threat to women (his charge was not with children)but she could not give her honest opinion to a judge because of his score on the Static-99 which is skewed. Some questions are the same but worded differently in order to catch you up. There was also a study done by a law professor at a Florida college which showed the Jimmy Ryce Act is indeed punitive and violates the rights of several by assuming future crimes will "possibly" occur. The feds may pussyfoot around with civil commitment but Florida pursues it with a vengeance.

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  2. The Florida Civil Commitment Center is run by GEO Group, a notorious for-profit private prison company, located in Boca Raton, Florida. GEO has given generously to just about every politician, and one of its employees sits on Obama's staff. GEO also runs Guantanamo Bay prison.

    Responding to, and in agreement with Kben51's comment, even if you're wearing a golden halo over your head, Florida judges will not give the nod for your release from FCCC. Many of our own Veterans, who've placed themselves in danger to serve our country, and who pose no threat whatsoever to society, are presently being held at FCCC on flimsy charges. Yes, there are a few mental cases there, but the majority of detainees are just normal men and should not be held there at all. Some of the detainees are well into their senior years. One detainee is 94 years old.

    According to the Jimmy Ryce Act, the men held at this facility are entitled to an annual evaluation and review. This consists of nothing more than a less-than-five-minute telephone call from a judge, who knows almost nothing of the detainee. During the phone call, the detainee is not allowed to speak; but their public defender, who is also on the line answers for him. "Has he changed?" the judge asks. It doesn't matter if you've completed courses from Harvard, became a born-again Christian, faithfully attended AA sessions or had your own personal trainer on ethics and morality....you will not be released from this place. The reason - the beds at this facility must be kept full, so that GEO can make a profit.

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    1. Thank you for your confirmation, Taxpayer and you are correct in your observations. GEO is one of the groups pushing for privatization of state prisons for the sole purpose of making a bundle off the miseries of people who have made mistakes or aren't guilty of anything. (Yes, Virginia, there ARE innocent people in prison. DNA testing is beginning to uncover the sins of unscrupulous DA's and judges. However not every case can use DNA to prove innocence.) Once GEO makes a contract with the state there is a clause that the facility has to stay at a 90% census. GEO makes sure this happens at FCCC in one way by understaffing so their staff keeps a heavy caseload and can't run the programs timely.
      In light of the recent events in Pa. where 2 judges were found to be sentencing juveniles for money it makes one think something is also "rotten in Denmark"/Florida. Some Brevard County prosecutors and judges in the past have shown their disregard for "justice" in order to further their careers and who knows if they might also have done it for profit? They used a doghandler named John Preston in cases a full year after they knew he was found to have fake credentials in a nother state. Geraldo Rivera did an expose on the man and one judge finally proved his testimony false regarding the "miracles" performed by his dogs. Some cases were reversed when DNA proved the convicted innocent. There are still others languishing.

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    2. Readers,

      The Pennsylvania juvenile court case kben51 refers to was in Luzerne County; my blog post on that case is here: http://forensicpsychologist.blogspot.com/2011/08/kids-for-cash-judge-gets-28-year-prison.html.

      To kben51 and Taxpayer: You might want to consider letting New York Times columnist Paul Krugman (http://nyti.ms/H7voFk) know about this GEO angle on sex offender civil commitment. He might be interested. He just did an excellent column on the corporate interests behind the Stand Your Ground law and other legislation, referencing privatization of prisons for profit: http://www.nytimes.com/2012/03/26/opinion/krugman-lobbyists-guns-and-money.html?emc=eta1

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  3. kben5 and Taxpayer,

    Thanks very much for your comments. I was not aware that the detention site is run by a for-profit company, much less the same one that runs Guantanamo! Thanks for posting that info.

    I did recently post on a study comparing the population at the Florida civil commitment site with a similar sex offender population up in Canada. The researchers question whether such lengthy treatment is needed, given the low rates of recidivism of both groups. Of the 31 sex offenders released in Florida, only one (or 3 percent) sexually reoffended. My post on the Florida study is here:

    http://forensicpsychologist.blogspot.com/2012/02/treatment-and-risk-among-most-dangerous.html

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    1. Dr. Franklin,
      Thank you for your work. Almost every reporter or politician who writes or speaks about sex offender laws or cases states that sex offenders have a HIGH rate of recidivism which is just NOT true. Very few low level offenders repeat their crimes and many who are RSO's are Romeo and Juliet cases. Why should low level offenders or those who did their time and want to start over be punished along with their families? There are laws being drafted re: offenders and parks or public places to keep them away. They are pretty much unenforceable and children of any offender are unable to go places with their parent. Some places a parent is even forbidden on school property.
      The public need not fear EVERY RSO like politicians and John Walsh try to make us believe. They should be looking closer to home at relatives and family friends. Many cases are never reported or spoken of out of fear or shame.

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  4. Eventually, when every American has a family or close friend being publicly tracked on some type of registry or another (sex offenders, domestic violence perpetrators, drug users, and so on), people will realize we've gone too far in creating a modern police state. By then, it will be too late to reverse course.

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    1. My 20 year old was found to have child pornography on his computer. He was sentenced to 6.5 years federal prison, 10 years GPS supervised probation and lifetime registration. First offense, no distribution charges, no child touched ever. Counselor said he was emotionally immature. Judge requested counseling while incarcerated. Raped in jail the first night. Never given counseling but hey they gave him a class on organic gardening and how to speak Italian. His life is ruined. We call ourselves the new untouchables. Like the lepers of old we the offender and all who know and love them are considered untouchable, dirty, sick. The label of sex offender, no matter what your crime, is the death of your ability to lead any kind of meaningful life.

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  5. Karen,

    I am not sure whether you realized this, but the links in the paragraph excerpted below do not work. All I get is "Not Found - error 404" on all three, yet other links in the article do work. Just thought I'd let you know.

    "Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention."


    As for the Consequentialist perspective, I am not surprised; I noticed this a while ago. What I find amusing is the contradictory behavior prevalent in the law enforcement and legal systems regarding this: Both institutions strive to uphold the law by prosecuting those who break it, yet they disregard legal criteria in order to do it. Is this practice legal? Apparently it is acceptable.

    Public anxiety seems to hold more weight than rationalism and technical determination. Can this bring about true justice? (yes, this is a philosophical question, but it is a good one nonetheless). This seems to be one reason why so many innocent people are civilly committed and required to register as sex offenders.

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  6. Researcherone, Thanks for pointing out the broken link. I've fixed it. I'm not sure I would go so far as to say that many "innocent people" are being civilly committed; these guys have all been convicted and served prison time for sex crimes. But in my experience, there's a lot of randomness and bias in who gets committed and who doesn't.

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  7. Karen,

    My apologies on the use of "innocent people". I realize that the term is vague or misleading at best. The word 'innocent' was suggestive of those who are/were guilty of a sex crime but do not warrant civil commitment or the requirement to register as a sex offender, such as those young men caught urinating in public or arrested and convicted for having consensual sex with their girlfriends, and those who don't have a background or meet the criteria for a diagnosis but are committed anyway. Apparently, the bias does not adhere to those who require it, even by legal standards.


    Thanks for pointing that out to me. I didn't mean to generate confusion.

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  8. "*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.'

    Karen, I just noticed this. Do you by chance know where I can find more information on this? Or will you be posting on this soon? I am interested to look into it further.

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  9. Hi researcherone,
    No, these trials are flying by fast and furious these days. I don't have time to provide in-depth coverage and I don't know what information is out there and publicly available on this case. Keep an eye on the USA Today, as their reporter Brad Heath is following them pretty closely.

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