April 26, 2011

Judge upholds indefinite detention of California sex offenders

In a long-awaited ruling, a San Diego judge has ruled that indefinite detention of Sexually Violent Predators (SVP’s) is constitutional, even though other forensic patients are entitled to periodic reviews.

The ruling in the legal challenge by sex offender Richard McKee came after a 6-week hearing featuring experts from around the United States. The California Supreme Court had ordered the hearing, saying prosecutors must justify the differential treatment of SVP’s by proving that they are categorically different from two other types of forensic patients. The other two classes of   people who are civilly committed based on criminal behavior are Mentally Disordered Offenders (MDO’s), who are hospitalized when they come up for parole due to the immediacy of their threat of violence to the public, and persons found not guilty by reason of insanity (NGI). Jessica’s Law, enacted by voters in 2006, eliminated the right of committed sex offenders to a recommitment trial every two years.

In his 35-page ruling, Judge Michael Wellington said prosecutors had met their burden of proving that SVP’s are a distinct class that is harder to treat and more likely to commit additional sexual offenses.

After hearing from all of the experts, the judge acknowledged the significant controversies regarding the reliability of the paraphilia diagnoses, the accuracy of actuarial risk prediction instruments such as the Static-99, and the base rates of recidivism.

If anything is clear from the evidence presented in this case, it is that key factual matters are controversial. It is also apparent that the evidence of the relative danger the classes represent is analytically nuanced and deeply rooted in developing medical and psychological science.

Psychiatric diagnoses unreliable

Interestingly, the testimony of state hospital representatives lent some support to McKee’s legal challenge.

For example, Dr. Alan Abrams, Chief Psychiatrist at the California Medical Facility at Vacaville, testified that sex offender diagnoses (pedophilia and other paraphilias) are imprecise, and he has little confidence in their accuracy.

Two professionals from Coalinga, the state hospital built to house SVP’s, also testified that they favor having an external review every two years. Dr. Robert Withrow, the hospital’s acting medical director, said indeterminate terms reduce hope in both patients and staff, and discourage patients from signing up for treatment. Dr. Kasdorf, also from Coalinga, agreed. He said patients work harder in treatment and have more trust in the system when they know they will get a hearing.

This contradicted testimony by David Thornton of Wisconsin's Sand Ridge civil detention center, who argued that periodic recommitment hearings are disruptive to treatment.

Actuarials controversial

Among the most controversial issues emerging from the trial was the value of actuarial instruments -- and the much ballyhooed Static-99 in particular -- to assess sex offenders' risk of recidivism.

Mark Boccaccini, who teaches psychometrics and psychology and law at Sam Houston State University in Texas, testified about his research showing that "the Static-99 has only marginal to moderate predictive reliability, little greater than chance." Boccaccini also testified that use of a single good actuarial tool is a better predictor than the use of multiple tools. Many government evaluators in California report data from other actuarial tools in addition to the Static-99, such as the MnSOST-R and the RRASOR.

California need not be enlightened

McKee's attorneys, from the San Diego Public Defender's Office, were allowed to present evidence of two alternate models: Texas's outpatient halfway house model, and Canada's Circles of Support and Accountability, which provides support to ex-convicts returning to the community. But ultimately the judge ruled that testimony irrelevant:

The [Canadian] representative who testified presented an impressive picture of a successful community-based program. While this evidence was offered to show that less restrictive alternatives exist to SVP treatment, it fails to gain traction in an equal protection context…. California is not obligated to follow Texas or Canada's examples however much more enlightened they may seem.

Bottom line, ruled the judge, is that we must make do despite the controversies and uncertainties:

It is this court's conclusion that the evidence presented satisfies the People's burden of establishing, by a preponderance of the evidence, that the different treatment given to SVP's under Proposition 83 [Jessica's Law] is "based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's bear in the eyes of California's electorate." (McKee, supra, at 1210.) The fact that the evidence supporting this may be subject to controversy does not detract from its reasonableness or from the validity of the legislative distinctions based on it.

As someone who evaluates all three categories of offenders here in California --SVP’s, MDO’s and NGI’s -- I was astonished by the argument that the harm caused by SVP’s is categorically greater than that inflicted by members of the other two categories. Violence need not be sexual to inflict severe trauma. Some of the most disturbing cases I have been involved in were MDO and NGI cases in which psychotic individuals inflicted horrific brutality, torture and even death upon women and children. In contrast, I know of one young man who is currently committed to Coalinga as an SVP whose only offenses since age 18 were two consensual affairs with late teenage girls, one of whom even testified on his behalf at trial (saying she initiated the relationship and was a willing participant). Triggering his civil detention was not any sexual recidivism, but rather a parole violation for smoking marijuana.

That's the problem with separating criminals into artificial groups and then pretending they are all the same.

The art on this page is by Ricky Romain, an internationally acclaimed human rights artist in the UK whose work focuses on themes of justice, alienation and sanctuary. Mr. Romain has kindly given permission to showcase his art here. I encourage you to check out his extensive online gallery (HERE).


ACH said...

From Justice Thomas' opinion in Hendricks:

Hendricks focuses on his confinement's potentially indefinite duration as evidence of the State's punitive intent. That focus, however, is misplaced. Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. Cf. Jones, 463 U. S., at 368 (noting with approval that "because it is impossible to predict how long it will take for any given individual to recover [from insanity]--or indeed whether he will ever recover--Congress has chosen . . . to leave the length of commitment indeterminate, subject to periodic review of the patients's suitability for release"). If, at any time, the confined person is adjudged "safe to be at large," he is statutorily entitled to immediate release. Kan. Stat. Ann. §59-29a07 (1994).
The fact that there was periodic review was a major part of the Court's "reasoning" that this isn't punitive. I guess we can take this as just one more piece of evidence for the obvious fact that only 4 of 9 justices in Hendricks had the decency to acknowledge: This is punishment.

wolverine4abolishment said...
This comment has been removed by the author.
wolverine4abolishment said...

Some of the Southern states have chemical castration laws as an alternative to long term incarceration. Will such legal parameters be more humane than such indefinite long term incarceration? Some sexual offenders have an illness...no matter how much therapies these guys undergo they are not going to save themselves from temptation and harm. Even though chemical castration is deemed inhumane as well maybe or perhaps there is some justification and at least these people can be allowed freedom of their lives back. Food for thought.

Karen Franklin, Ph.D. said...

Here in California, taking anti-androgen drugs such as Depo-Provera (what you are calling 'chemical castration') does not guarantee release. There are men in the state hospitals who are taking these libido-reducing drugs and still cannot get out. Meanwhile, the unwanted effects such as loss of bone density are severe and can be life threatening.

Zot said...

This provision of Prop 83 is likely to come back and haunt the taxpayers of California in ways they never imagined.

Most of the inmates (I refuse to call them patients) at Coalinga are in their 60s and 70s and the cost of tending to their medical requirements (even in as substandard a fashion as CSH currently does) is rising dramatically. Since the majority of the inmates refuse to participate in the phase program they won't be getting out and they won't be getting any younger.

Quite a few of the men there have made the rational calculation that as odioud as the situation is, it beats being homeless and broke on the outside so they have no incentive to leave - 'clogging the pipes' so the prison can't handle new intakes. This will force the state to either spend another $388 Million to build another facility or suffer a deluge of lawsuits from the men rotting in jails waiting to get in (equal protection and all that).
I wait for the day when the name Coalinga State Hospital takes its rightful place beside Manzanar and Treblinka and Andersonville, but until then I hope it bleeds the state dry.