Move over, Guantanamo - here comes Wisconsin

Lifetime detention for misconduct at age 14?

When he was 14 years old, Daniel Arends made a big mistake. He sexually assaulted an autistic boy. He was adjudicated as a delinquent.

Then, he made some other mistakes. His juvenile detention was extended several times for sexual contact with other boys.

When he turned 17, he learned just how much trouble he was in. He became the first juvenile that the state of Wisconsin sought to detain indefinitely under its "Sexually Violent Person" civil commitment law. He was committed to the Sand Ridge Secure Treatment Center in 2005, and he has remained there ever since. He is now 22.

Technically, there is a way for Daniel to get out of this potentially lifelong incarceration. All he must do is show that he has changed so that he no longer meets the legal criteria of being "more likely than not to commit a future act of sexual violence."

The Catch-22 is, how can one prove something like that from behind bars?

One potential method is through expert evidence. A psychologist, Dr. Sheila J. Fields, evaluated him, administered a series of tests, and wrote a favorable report stating that in her opinion he had indeed changed. He had successfully progressed in the treatment program and his score on the Psychopathy Checklist (PCL-R) was now lower. She noted that his last incident of criminal sexual activity occurred when he was 14, and there had been no reports of inappropriate sexual behavior since October 2003.

In her report, Dr. Fields also discussed some of the problems I have been blogging about lately, such as the difficulty of accurately predicting adult sexual recidivism from juvenile misconduct, and reliability problems with Daniel's diagnosis, Antisocial Personality Disorder.

Based on this favorable report, Daniel petitioned the court for a hearing on whether he still meets the civil commitment criteria. The government of Wisconsin, however, opposed the hearing, arguing Daniel was not entitled to it unless he could actually "prove" in his petition that his condition "had changed."

The local court agreed, and denied Daniel the right to even be heard in court. Shades of Guantanamo, right?

Daniel appealed, and the Wisconsin Appellate Court agreed with him. The standard for getting a hearing, the appellate court ruled, is whether the person has presented facts in his petition from which a judge or a jury “may” conclude that he has changed. In other words, he is not required to prove that he actually has changed just to get an evidentiary hearing.

The case will go back to the lower court for an evidentiary hearing. That does not mean Daniel will be released, though. For that, we'll have to stay tuned.

The Nov. 19 appellate ruling in State v. Arends (2008AP52) is online here. News coverage in the Journal Sentinel of Milwaukee is here.

Hat tip: Steve Erickson