Appellate court rejects "past as prelude" myth

Federal judge had brushed off evidence of Native man's rehabilitation

In a strongly worded ruling, a federal appellate panel has ordered that a Native American man be freed from civil confinement due to evidence of his rehabilitation while in prison. Both a judge and an expert witness had downplayed this evidence, condemning the man as a future risk based on long-ago transgressions, the Fourth Circuit panel concluded. 

Byron Neil Antone, a 41-year-old member of the Tohono O’odham Nation of Arizona, was intoxicated when he committed a series of sexual assaults during his early adulthood. Over the course of 14 years in prison, he remained sober, worked hard, and took other steps to rehabilitate himself.

In finding that he met criteria for civil commitment as a Sexually Dangerous Person (SDP), a federal judge had glossed over the evidence of Antone's rehabilitation, including positive testimony from two prison counselors. Likewise, a government evaluator testified that she placed little weight on Antone’s good prison conduct in determining whether he lacked “volitional control” over his sexual impulses.

The justices lambasted expert witness Amy Phenix’s reliance on Antone’s early adulthood misconduct as the best evidence of his future risk.

Expert's opinion "will not carry the day"

"Dr. Phenix explained that her decision to focus on pre-incarcerative acts stemmed from her belief that actions taken while in the outside world are more accurate predictors of future behavior upon release. That is, of course, her choice, but as it relates to our review of the evidentiary record, it will not carry the day. The district court should have at the very least explained why it found Dr. Phenix’s unadorned conclusion more persuasive than that of Dr. [Roy] Daum, who specifically critiqued the former’s technique because it did not allow for a respondent’s subsequent growth."

The justices pointed out that when sex offenders engage in negative conduct in prison, such behavior weighs heavily in predicting their future risk. They listed examples from recent federal cases, including one prisoner who collected pornography and another who showed ongoing sexual interest in children.

The justices lauded Antone’s efforts to rehabilitate himself while in prison, and said his accomplishments merited strong consideration in determining whether he will sexually reoffend due to a lack of volitional control if released.

"There is not much more that he could have done to demonstrate that he is in control of his volitional faculties and that such control is likely to persist after his release.... Since upholding the constitutionality of the [Adam] Walsh Act in 2010, we have disposed of more than a handful of [Sexually Dangerous Person] appeals involving the volitional impairment prong, but none of them involved a respondent who had demonstrated such positive behavior during the extended period of his incarceration.”

A federal magistrate who presided over Antone’s three-day evidentiary hearing had ordered the prisoner freed, but a judge subsequently overturned that verdict, prompting the appeal.

"Paraphilia Not Otherwise Specified" not present

Despite differing on Antone’s volitional control, both the magistrate and the judge agreed that Antone did not suffer from the sexual abnormality of “Paraphilia Not Otherwise Specified” that was diagnosed by Dr. Phenix and Butner prison psychologist Manuel Gutierrez.

Antone’s main problem, both agreed, was his substance abuse. The judge, but not the magistrate, also believed he suffered from Antisocial Personality Disorder.

The Fourth Circuit justices pointed out that large proportions of all prisoners have problems with substance abuse and antisociality. Thus, they held, “the Government has failed to distinguish Antone’s alleged volitional impairment from that of a ‘dangerous but typical recidivist’ ” as required under the U.S. Supreme Court's 2002 ruling in Kansas v. Crane upholding the civil commitment of especially dangerous sex offenders.

Treatment paradox acknowledged

The appellate justices also expressed sympathy with Antone’s dilemma in regard to sex offender treatment. Although early in his incarceration he had sought out treatment, he declined to engage in treatment while his civil commitment petition was in process, citing the fact that any incriminating information he revealed would be used as ammunition against him.

“The district court made reference to the fact that Antone had not attended sex offender treatment. Antone had, however, repeatedly sought this treatment at the beginning of his incarceration to no avail. It is true that he was eventually offered sex offender treatment ... but this choice was effectively no choice at all.”

The Court cited Jeslyn A. Miller’s 2010 article, “Sex Offender Civil Commitment: The Treatment Paradox,” which explains that “[e]verything that an offender confesses during these multiple stages of treatment -- including sexual fantasies, uncharged offenses, and gruesome details regarding sexual offenses" may be turned over to prosecutors. 

“Antone is currently attending sex offender therapy,” the justices noted. “One can only be encouraged by Antone’s commitment to self-improvement, rehabilitation, and recidivism prevention.”

The elephant in the courtroom, from my perspective, is the cluster of Native Americans being detained as Sexually Dangerous Persons at the federal detention facility in Butner, North Carolina because their crimes took place on Indian reservations.So, as I’ve mentioned here previously, we have the curious situation in which a cluster of Native Americans who committed rapes while intoxicated are locked up alongside preferential pedophiles and child pornography distributors.

Which raises the question of whether the stereotype of the drunken Indian -- powerless to stop drinking and incapable of holding his liquor -- may play into government evaluators' refusal to acknowledge the possibility of change in Native American prisoners like Antone who committed sexual offenses in their youths.

* * * * *

The ruling in United States v. Byron Neil Antone is HERE.

My blog post on the pop psychology myth of "past behavior as the best predictor future behavior" is HERE.

(c) Copyright Karen Franklin 2014 - All rights reserved

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:

• Men convicted of possessing or distributing online child pornography, criminalized in 2003, and

• 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:

• Civil commitment petition against Butner, NC prisoner dismissed (Jan. 5, 2012)
• Federal judge tosses hebephilia as basis for civil detention (Jan. 20, 2012)

*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.