Thursday, February 28, 2013

New York Man Committed Under Federal Sexual Predator Law


3-15-2012 Massachusetts:

BOSTON - After a seven day bench trial in federal court, on March 8, 2012, John Charles Volungus was civilly committed to the custody of the Federal Bureau of Prisons as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act.

Volungus, 45, of Rexford, New York, is the fifth inmate to be committed under the Adam Walsh Act in Massachusetts.

In 2006, the Adam Walsh Act was enacted in an effort to combat sexual violence and to protect children. The legislation created, for the first time, a federal civil commitment program for sexually dangerous persons. Once a sexually dangerous person is committed, the Act provides for an annual determination by the Court as to whether the person has progressed in treatment to the point that he could be safely released upon a prescribed regimen of care.

Evidence presented during the trial, before Judge George A. O’Toole, Jr., revealed over a decade of behaviors by Volungus demonstrating a sexual attraction to children and that Volungus lacked the ability to control his behavior, even while incarcerated. He was first incarcerated in 1998 for possession of child pornography and for use of the Internet to entice an undercover law enforcement officer posing as a 14-year-old girl to engage in sexual acts. While incarcerated for those offenses, Volungus continued to act on his sexual interest in children by creating and keeping hand-drawn images of child pornography in prison.

Upon release from federal prison in 2003, and while attending court ordered sex offender treatment, Volungus continued to download and collect child pornography. He also corresponded with a convicted sex offender, stating that he intended to travel outside the United States for the purpose of engaging in sexual acts with children.

Based on this evidence, Judge O’Toole found that Volungus lacked the ability to control his behavior and is a sexually dangerous person. Volungus’s case will be reviewed annually to determine whether he has progressed to the point that he could be safely released.

The case was handled by Assistant U.S. Attorneys Mark Grady, Jennifer Serafyn, and former Assistant U.S. Attorney Rachael Rollins. ..Source.. by Press Release US Attorneys Office Massachusetts

Patrick Michaels & Darius Damascus Briggs–Violation of Civil Commitment as a sexually violent predator


Civil Commitment Rule violations result in criminal charges. Hard to believe but it is true. See statues HERE and HERE
2-28-2013 Texas:

Jurors on 2 separate juries in the 435th District Court of Montgomery County, Texas, found Patrick Michaels, 53, and Darius Damascus Briggs, 48, each guilty of the felony offense of Violation of Civil Commitment on Tuesday. Michaels received a maximum 20 year sentence in the Texas Department of Criminal Justice (TDCJ) and Briggs received a Life sentence in TDCJ.

Visiting Judge P.K. Reiter, sitting for the 435th District Court, received the jury’s guilty verdict in Michael’s case and assessed the 20 year sentence after hearing evidence presented by Assistant District Attorney Shanna Redwine. Redwine presented evidence from Michaels’ Program Specialist and Treatment Provider showing Michaels committed numerous rule violations and was eventually terminated from treatment. Michaels’ criminal history includes four convictions in Bexar County for Indecency with a Child by Contact. In 2002, Michaels was civilly committed as a sexually violent predator. Testimony showed that Michaels admitted to having numerous other victims. Michael’s 20 year sentence means he must serve at least 5 years in TDCJ before he is eligible for parole. Per state law, he may be eligible for parole earlier than the 5 years if prison authorities award him any good conduct credit.

Judge Michael T. Seiler of the 435th District Court heard the Briggs’ trial. Assistant District Attorney Jim Prewitt presented testimony from Brigg’s sex offender treatment provider showing Briggs was discharged twice from a sex offender treatment program in El Paso for his failure to participate in the program. Brigg’s criminal history included a 1981 conviction for Burglary of a Habitation with Intent to Commit Rape, a 1989 conviction for Attempted Burglary with Intent to Commit Rape and a 2005 conviction for Sexual Assault. All of the convictions were in Ector County, Texas. In 2001, an Ector County jury convicted Briggs of a separate Sexual Assault and sentenced Briggs to Life, but the sentence was reversed on appeal and Briggs was later found not guilty upon retrial. In 2010, Briggs was civilly committed as a sexually violent predator by a 435th District Court jury. Tuesday’s jury saw Brigg rise from his chair to yell expletives in open court at a prosecution witness before Judge Seiler removed the jury and baliffs restored order. Brigg’s Life sentence means he must serve at least 15 years in TDCJ before he is eligible for parole. Per state law, he may be eligible for parole earlier than the 15 years if prison authorities award him any good conduct time credit.

Tuesday’s verdicts represent the fourth and fifth Violation of Civil Commitment jury trial prosecuted by the Montgomery County District Attorney’s Office in the last calendar year. In February of 2012, Richard Goodwin received a maximum 20 year sentence for numerous violations at a Travis County halfway house. In September of 2012, Laray Malone, Jr., received a Life sentence for his refusal to return to a halfway house upon release from a Huntsville prison. Last week, Michael Wayne Bohannan received a Life sentence for GPS monitoring violations, for his refusal to sign civil commitment documents and for a disturbance at a Ft. Worth halfway house which resulted in Bohannan’s arrest and removal from the halfway house. A special venue statute allows the cases to be heard in Montgomery County despite the fact the violations often occur in halfway houses in other counties. The 435th District Court of Montgomery County, Texas, Judge Seiler presiding, remains the sole State of Texas District Court to hear civil commitment of sexually violent predator cases.

“These defendants are the scariest and most dangerous criminals in the system,” stated District Attorney Brett Ligon. “We will continue to serve the citizens of the State of Texas and Montgomery County by pursuing maximum sentences on these predators.” ..Source.. by Scott Engle

Wednesday, February 27, 2013

State pays high rent for sex offenders


2-27-2013 Wisconsin:

MANITOWOC - Dozens of sex offenders on supervised release from the state are being put up in state-paid rental properties, and some of those rents are way above the going rate.

The Wisconsin Department of Health Services oversees the sex offenders on supervised release from the state's Sand Ridge Treatment Facility in Mauston. Currently, there are 28 sex offenders in the supervised release program.

One of those offenders is put up in a 480-square-foot home in Manitowoc. And while neighbors in larger homes report paying $400 to $600 a month in rent, the state is paying $1,600 a month in rent to house the sex offender on supervised release.

The sex offender, who were not identifying, was placed in the Manitowoc home in November of 2010, and since then has cost the state - meaning taxpayers - over $40,000 in rent alone.That's more than home sold for three month before the tenant moved in.

Neighbors aren't happy about a sex offender in their neighborhood - or the fact it's costing them money every month.

"We thought it was outrageous at $1,500 and then it went to $1,600, and it's putting it mildly that it's outrageous," said Richard Kunz, who lives down the street.

And this isn't the only rental property commanding huge payments, according to DHS records. A Sand Ridge official indicates landlords are able to charge a premium based in part on the difficulty the state has in securing rental properties for sex offenders in the supervised release program.

FOX 11 brought the cost figures to State Sen. Michael Ellis (R-Neenah), who was shocked at the expense.

"Well I know it sounds ridiculous, it does, but we're going to look into it and I know we can save money," said Ellis, president of the state Senate. ..Source.. by Mark Leland

Is Civil Commitment Legislation Based on False Premise?


2-27-2013 National:

“Sex offenders are more likely than almost any other type of criminal to repeat an offense, [Bacon] said….”
This appears to be the premise on which Sen. Kevin Bacon has built his bill, a bill that would allow the state of Ohio to civilly commit persons beyond the serving of their court-ordered sentence.

Repeating an offense—recidivism--is measured in many ways, and one must be extremely careful in reading the studies provided on sex offense recidivism. A well-done study and well-crafted report will show graphs and charts as well as textual information. It will break the studied population down into sub-groups and show results for all.  It will make clear the definition of “recidivism” being applied to each set of numbers.

General recidivism is a return to prison for any offense, most often parole violations. These can be high for registered sex offenders as the parole restrictions are many and often onerous. True sexual recidivism is often defined as an arrest for another sexual offense. A more accurate definition, one that honors the constitutionally protected assumption of innocence until guilt is proved, is a conviction for another sexual offense, and a thorough study and report will show both.

Regardless of how it is measured, regardless of how it is defined, regardless of how it is reported, there is one thing that sex offense recidivism is not, and that is higher than for "almost any other" offense.

In fact, the opposite of those words are more often found in a discussion of sex offense recidivism.

From a Missouri Supreme Court Judge in a January 2010 ruling:
[R]ather than assuming that the [recidivism rates of sex offenders] are high, one should look at the data. Of the five categories of felony offenders in Missouri’s correctional population – drugs, non-violent felonies, violent felonies, DWI (driving while intoxicated), felonies, and sex and child abuse – sex offenders have the lowest rates of recidivism. Their rate of recidivism after two years is 5.3 percent…(F.R. v. St. Charles County Sheriff’s Department, 301 S.W.3d 56; Missouri Sup. Ct. 2010).
According to the Office of Justice Programs (OJP) of the United States Department of Justice, "In New York State the recidivism rate for sex offenders has been shown to be lower than any other crime except murder."

The most recent study available for Ohio, a study of offenders released in 1989, shows recidivism rates for actual repeat of a sexual offense at the five year and the ten year follow-up periods between 5% and 8%; this is consistent with almost all other state reports, which fall between 2% and 10%. These states all fell at 4% or below: CA (2010); CN (2012); IN (2008); MN (2007): NM (2012); NY (2007) TX (2001); WA (2005).

An article in the Journal of Sexual Offender Civil Commitment: Science and the Law, 1, 141-149. (2006), “The Vilification of Sex Offenders: Do Laws Targeting Sex Offenders Increase Recidivism and Sexual Violence?” presents compelling evidence that civil commitment programs may actually increase the risk of sexual violence in the community.
Ultimately it will be both society at large and future victims of sexual violence who suffer because the expense of SVP programs is wildly out of proportion to their benefit. As more and more resources pour into SVP programs, the distortion in policy and resource allocation will become more and more severe. Society will suffer because of the resource drain, and victims will suffer because these SVP programs will draw more and more resources away from programs that address the great bulk of sexual violence in the community.
All communities have a responsibility to address issues of violence and harm to the public. Will not responsible communities with responsible leaders gather all of the evidence, both pro and con to a pre-held opinion, and craft legislation, laws, and policies based on facts, truth, and evidence-based research? In an issue as important as sexual violence, is not this responsibility both imperative and absolute? ..Source.. by RSOL

 RSOL promotes the elimination of sexual abuse and the preservation of civil rights for all individuals through the use of effective legislation based on empirical research. We envision sexual offense laws based on equal justice and respect for the dignity of all people, protection from retroactively applied punishment, and the establishment of fact-based laws and policies that protect our communities.

Tuesday, February 26, 2013

On Special Assignment: Additional costs


2-27-2013 Wisconsin:

Sex offenders on supervised release rack up bills

Wisconsin's Department of Health Services pays top dollar on several homes around the state in rent. But rent isn't the only cost to taxpayers.

In most cases DHS reports its rental properties are each housing one sex offender on supervised release from the Sand Ridge Treatment facility in Mauston.

We're talking about $1,600 for one rental house in Manitowoc when larger homes nearby rent for as low as $400.

Or a house in Green Bay being rented by the state with your taxpayer dollars for $2,500, also four to five times above the going rate.

Some taxpayers we talked to are outraged.

"It's a lot of money, that's a lot of money," said one neighbor.

"That's crazy, I got a two bedroom apartment for $410," said another about the Green Bay property.

Taxpayers pick up the rent cost because these sex offenders are still the responsibility of Sand Ridge and the Department of Health Services. If the sex offender has money he is required to contribute to the cost. But out of the 28 currently on supervised release, only one according to program officials is paying his way.

That is what frustrates taxpayers.

"All of them have to be provided yes, and that's why they say it's costing us then to do that in that way. Is that the way we should be doing it? And at such cost?" asked Richard Kunz, a neighbor of the home being rented in Manitowoc.

And the $550,000 in rental costs a year is just the start of it. Sand Ridge officials confirmed to me by email that taxpayers also pay for a lot more. But before they could provide specific costs on camera, Sand Ridge officials backed out of an interview--declining further comment. But I obtained a document sent by a Sand Ridge official from last year detailing the annual costs then.

It shows nearly $13,000 for phone service--needed to contact the clients and for electronic monitoring, and $30,000 for utilities--covering gas, heat and electricity.

Lawn care and snow removal racked up $19,000 in costs since leaving the house is restricted. Taxpayers paid for $9,000 for food.

That's in addition to sex offender treatment in the community of $339,000 and $956,000 for a hired company to monitor the sex offenders and chaperone them to where they need to go in their communities.

With other miscellaneous costs and the rent added in the total cost for those on supervised release comes to $1.9 million. The amount the sex offenders are contributing to their costs of care--$69,000.

"This is an open ended story and we're only in the middle of the book," said State Senator Michael Ellis, president of the Senate.

Ellis was shocked when we showed him what taxpayers were paying to rent homes for those on supervised release.

Ellis figured the state could save millions over ten years simply by buying rental properties. But he says there's another option to consider.

"Option two would be to eliminate the release program. The supervised release program, just get rid of it, and expand Sand Ridge," said Ellis.

Ellis acknowledges there are legal issues and state statutes that need to be reviewed in addition to the costs of the program, but he's sure taxpayer money can be saved. ..Source.. by Mark Leland

Restrictions on a registered sexually violent predator may be lifted


WARNING: The purpose of posting this article has nothing to do with the restrictions mentioned, instead, TAKE NOTE, this man was not civilly committed after any of his past sex offenses (in other states), but was after a "petty theft" conviction [A NON SEX OFFENSE] in the state he MOVED TO. This case needs to be viewed as a WARNING to all former sex offenders, that, if you are in a state w/civil commitment -OR- move to a state w/civil commitment, you CAN be civilly committed after a non sex offense!
2-26-2013 California:

Restrictions on a registered sexually violent predator living in Brawley may be lifted if a petition filed earlier this month by his public defender is granted.

If granted, Richard Horn will no longer have to submit to polygraph tests or undergo treatment. Supervision will be lifted.

“The outpatient provider, Liberty Healthcare, made the recommendation for unconditional release,” said Fresno Public Defender Richard Oberto.

The Imperial County District Attorney’s office opposes Horn’s unconditional release, and on Friday filed paperwork in opposition.

“The best predictor of future behavior is to look at past conduct,” said Imperial County Assistant District Attorney Deborah Owen.

Horn was convicted of attempted sexual assault in 1979, and rape, kidnapping and sexual assault in 1980. Both events occurred in Arizona. He was again convicted of rape in San Diego County in 1984. Following his release in 1993, Horn was arrested in Fresno for petty theft.

Horn was evaluated as a sexually violent predator while serving time for petty theft
, and officials recommended that he be involuntarily committed as a sexually violent predator.


He was granted a supervised release and relocated to Imperial County — his county of domicile, despite opposition from the community.

The petition filed in favor of Horn’s release cites reports from a clinical social worker and mental health experts that state he no longer suffers from fantasies associated with coercive sexual behavior, and that testing that measures response to given stimulus confirms these assessments. It also cites a letter written by his fiancĂ©e that states that Horn’s sexual attitudes and behavior toward her are those of a healthy male.

Fresno County was the prosecuting agency in Horn’s conviction for petty theft as well as his being committed as a sexually violent predator, Owen said.

The paperwork submitted by Fresno County’s deputy district attorney states that Horn’s impulsive purchases and spending indicate a lack of self control. Furthermore, it states that Horn does follow his current terms and conditions, citing an incident in which he allegedly disrobed down to his underwear while volunteering at cemetery. Additionally, it states that his activities with Alcoholics Anonymous have waned.

It is not known when the judge will decide the matter.

“We will be working closely with Fresno County and try to get him to remain on supervised conditional release. We do not want the petition granted,” Owen said. “If the judge grants the petition, there will be a new trial.” ..Source.. by ANTOINE ABOU-DIWAN

Monday, February 25, 2013

Sex Offender Civil Commitment Programs Network ---SOCCPN---


This organization is doing wonderful work esp. in gathering statistics.
Welcome
SOCCPN is a professional network for individuals working in sex offender civil commitment programs. We provide a forum for research, discussion and sharing of information related to the effective management, assessment, and treatment of individuals held under civil commitment laws addressing sexual violence and/or sexual dangerousness.

2013 Annual Conference Call For Papers

Our Mission
To provide a forum to discuss and share information related to the effective management, assessment and treatment of individuals held under civil commitment laws addressing sexual violence and/or sexual dangerousness.
..Source..



Click on pic for full report - takes 10 seconds or so to load

Earlier Reports are within SOCCPN website

Sunday, February 24, 2013

Roster of Missouri's sexual predators grows, and so does the bill


2-24-2013 Missouri:

FULTON, Mo. • The number of people held in Missouri as sexually violent predators is shooting up, leading mental health officials to seek millions of additional dollars for their care.

In the upcoming year alone, Gov. Jay Nixon recommends more than $2.6 million for nearly 60 additional positions within the Sex Offender Rehabilitation and Treatment Services program at the Southeast Missouri Mental Health Center in Farmington and at the Fulton State Hospital.

It's not the first time officials have sought and received funding for additional staff.

"Pretty much like clockwork we get about 20 people a year," committed to the sex offender program, Mental Health Department Director Keith Schafer said.

A Missouri law that took effect in 1999 permits certain sex offenders to be civilly committed as a "sexually violent predator" after completing their criminal sentences. It requires a mental abnormality and a "more likely than not" probability that the person would commit sexual violence if released.

Security is high, and the facilities are surrounded by razor wire. In 2008, the number of people committed or detained while awaiting a civil commitment decision was 152. That grew to 212 people four years later, which included 34 detained in jails while the civil commitment process was pending.

Officials project that the count will rise to 234 people, with 31 people detained in jails, during the current 2013 fiscal year. In 2015, it is estimated to be 274 people, with 31 people detained in jails.

Missouri's current operating budget includes partial-year funding for a third 25-person unit at the Fulton State Hospital. Nixon's budget proposal for next year would fully fund the expansion ward at Fulton and would provide 10 months of funding to open 25 new beds in Farmington.

"This simply gives the Department of Mental Health the ability to initiate treatment," Schafer said.

Treatment consists of group therapy, classes and individual therapy. It is designed to help patients with accepting responsibility for sexual offenses and their consequences, gaining control of deviant sexual urges and behavior, coping with negative emotions that can create risk for re-offending and developing plans for functional use of leisure time.

The process for deciding who enters the sex offender program starts with prison or mental health officials alerting the attorney general's office and a seven-member multidisciplinary team that someone nearing release could qualify as a "sexually violent predator." The attorney general's office receives an assessment from the multidisciplinary team, and a five-member prosecutor's committee also completes a review.

When it appears someone could be a "sexually violent predator" and the prosecutor's committee agrees by majority vote the person meets the definition, the attorney general can file a petition in court. A trial then is held.

Among those who have been committed, nine transferred back to prison and seven have died. Two people have been granted conditional release without discharge, which allows the resident to leave the facility for scheduled activities and appointments with an escort and electronic monitoring.

The growth in the sex offender program has become part of mental health officials' pitch for building a new high-security facility at the Fulton State Hospital.

The hospital, about 30 miles northeast of the state Capitol, admitted its first patients in 1851 and is the oldest public mental health facility west of the Mississippi River. Officials want to replace antiquated space at the hospital with a new $211 million facility that has a better treatment environment and is safer for patients and employees.

Lawmakers and Nixon this year have been working on a proposal to issue several hundred million dollars in bonds for improvements and construction at college campuses, state facilities and state parks. The Mental Health Department hopes the new 300-bed facility will be part of the bonding strategy and could ease the need for a new $70 million facility to house sex offenders. At the current growth rate, the department estimates it would run out of high-security space around 2018.

The new facility would house patients who currently live in the maximum security Biggs Forensic Center and the intermediate security Guhleman Forensic Center. Biggs would be razed, and 91 beds would be opened in Guhleman for the sex offender program. ..Source.. by St Louis Post-Dispatch

Saturday, February 23, 2013

Sex offenders still held indefinitely

2-23-2013 Minnesota:

State program under pressure

The people at Minnesota’s facility for sex offenders in Moose Lake live on a 29-acre “campus” surrounded by two barbed-wire-topped fences.

Under constant supervision, most of the offenders agreed late last year to start wearing location tracking devices around their ankles.

“It gives at least some amount of freedom to move about in the facility without having to be constantly escorted by staff,” said Anne Barry, deputy commissioner of the state Department of Human Services (DHS), which oversees the 18-year-old Minnesota Sex Offender Program.

Barry said the $1.2 million tracking bracelet system was designed to maintain a therapeutic environment for an expanding population. Every year, the program makes room for about 50 new offenders committed by county courts. Until last year, it released none of them.

Civil liberties advocates and others have long criticized Minnesota for indefinitely holding in secure facilities sex offenders who have served their time in prison, but whom county prosecutors and judges think may commit crimes again.

Last year, state officials acknowledged the Minnesota Sex Offender Program needs to find a way to release offenders once they have been rehabilitated. They formed a task force that has had hearings to determine how to alter the program.

But a DHS report to the Legislature shows that local officials continue to funnel sex offenders into the program, prompting the state to spend millions to expand the facilities needed to house them.

After offenders in the program filed a class action lawsuit, a federal judge in August ordered the state of Minnesota to show the treatment it was providing could lead to rehabilitation and release.

Meanwhile, according to a new legislative report, county prosecutors and judges committed 41 people to the sex offender program in 2012. Most of the 678 offenders opted to participate in treatment, but the clinical professionals assigned to help them kept leaving.

When independent consultants hired by the state visited Moose Lake, they found that 18 of 65 clinical positions were vacant. Just one offender graduated to the last phase of treatment, where 10 people are now preparing for release.

“I think there are people who could advance an argument that if you had greater continuity, more staff, that we might be able to move people even quicker through phases of treatment,” Barry said.

But she said it’s very difficult for offenders to produce the changes necessary to prove they’re no longer a risk to the public.

Eric Janus, dean of the William Mitchell College of Law, said officials must find a way to move sex offenders through treatment and out of the facility if they want to satisfy the federal courts.

Department of Human Services Commissioner Lucinda Jesson named Janus to a task force to recommend ways to commit fewer offenders, release more people, and set up cheaper secure options for those released.

“There’s certainly been some changes, but when you look at the fundamentals, it’s kind of business as usual,” Janus said.

The department recently completed a $47.5 million expansion at Moose Lake. A $7 million expansion at the program’s other facility in St. Peter is scheduled to be completed next year. Gov. Mark Dayton has asked the Legislature for another $7.8 million for renovations. But the governor has warned that if the Minnesota Sex Offender Program doesn’t change, it could be forcibly changed by the courts.

If things are to change for the program this year, legislation to overhaul it must be introduced within the few weeks, said state Sen. Kathy Sheran, DFL-Mankato.

Sex offenders cost $328 a day

- While prison inmates cost taxpayers $63 a day, sex offenders in civil commitment cost $328 a day, the Pioneer Press reported in 2010.

- That means treating each of the approximately 550 patients costs taxpayers $119,720 a year — roughly equal to then-Gov. Tim Pawlenty’s annual salary.

- As the program grew, its operating budget peaked at $75 million in 2008. To save money, the program has shed more than 200 positions and its annual budget was down to $65 million in 2010, which approximates the 2009 payroll of the Minnesota Twins.

- Dennis Benson, who runs the Minnesota Sex Offender Program, has heard the criticism. He projected that with an expansion, efficiencies would bring the cost of treating an offender down to about $250 a day. .....Source.. by Rupa Shenoy

Predicting Sexual Crime: Are the Experts Biased?


2-23-2013 General CC News:

Leroy Hendricks had a long history of sexually molesting children, including his own stepdaughter and stepson. When he was 21, he was convicted of exposing himself to two girls, and he continued to prey on kids until he was sent to prison at age 50 for molesting two 13-year-old boys. He served ten years of his five- to 20-year term, with time off for good behavior, and then was set free.

Except that the state of Kansas did not want him to be free. Under its Sexual Violent Predator Act, and based on expert mental health evaluation, the state decided that Hendricks remained a public menace and a threat to public safety. Authorities moved to confine him to a mental hospital, where he would remain indefinitely. Hendricks appealed his detention, and his case went all the way to the U.S. Supreme Court, which ruled against him in a narrow 5-4 decision.

The case of Kansas v. Hendricks exemplifies the difficulty in balancing individual liberty rights and the public's right to protection from sexual predators. But it is only the most famous case of many that frequently come before the nation's courts. Twenty states now have Sexual Violent Predator (or SVP) laws, which allow civil commitment of offenders who, even though they have paid their dues, are considered likely to continue as sexual predators.

These proceedings routinely rely on the judgments of forensic psychologists and psychiatrists, who use standardized tools to assess future risk. But how reliable are these tools? And how reliable are the forensic mental health experts making the judgments of risk? The fact is this important issue has never been rigorously investigated -- until now. University of Virginia psychological scientist Daniel Murrie and his colleagues suspected that forensic experts are far from objective, indeed that they are influenced by the same powerful cognitive biases that shape all human decisions. Murrie set out to do the first empirical test of this possibility.

He wanted to test for what he calls "adversarial allegiance." That is, he wanted to see if supposedly objective experts hired by the prosecution tend to make judgments favoring prosecution, and the same for the defense. It's really impossible to study forensic experts' biases in actual courts cases because the proceedings are adversarial. That is, prosecutors and defense attorneys deliberately seek out psychologists and psychiatrists who they have reason to believe will support their side of the case. To get around this real-life "selection effect," Murrie created an elaborate deception to test forensic experts' objectivity in a simulated legal proceeding.

He recruited more than 100 experienced, practicing forensic experts. He attracted them by offering free training (and continuing education credit) on the two most commonly used instruments used for sex offender risk assessments. Most of those who responded to the offer were psychologists (PhDs or PsyDs), and most had some experience conducting risk assessments on sexual offenders, often with these popular instruments.

Murrie did in fact train the experts for two days -- which is comparable to what forensic experts in the field get in the way of training. The quid pro quo was that they would return in a few weeks to score actual offender files. The experts were led to believe that they were taking part in a formal, large-scale forensic consultation, but in reality they were all assessing the same four cases. Some believed they were working for the public defender's office, while others believed they were working for a special prosecution unit focusing on SVP evaluations. To elaborate on the deception, all met with the prosecutor or defense attorney beforehand -- though in all cases it was really an actor playing an attorney. These fake attorneys made slightly biased, but realistic, statements. For example, a defense attorney might say: "We try to help the court understand that the data show not every sex offender really poses a high risk of reoffending." The experts were paid $400 for their participation, and the attorneys also hinted that there might be possible future opportunities for paid consultation.

The experts made their assessments based on authentic files, including court, criminal and correctional records, which included arrest documents; victim and witness statements; plea, judgment and sentencing documents; prison disciplinary records, and so forth. They also included actual previous psychological evaluations, plus a fabricated transcript of an interview using one of the training instruments, based on the offenders' records. Three of the four cases involved child victims, and the remaining one involved adult victims.

Based on these genuine case records, all the experts completed the two risk assessments on each of the four SVP cases. As reported in an article to be published in the journal Psychological Science, the study revealed a clear pattern of adversarial allegiance--that is, biased decision making in favor of the "side" they were working for. Experts who believed they were working for the prosecution viewed the offenders as a greater threat to public safety, and those who believed they were working for the defense saw the identical offenders as much less dangerous. The effect of this allegiance bias was dramatic and, what's more, it was much more exaggerated on the more subjective of the two assessment tools.

This is disturbing, but it's consistent with recent and broader concerns about the validity of forensic evidence. Other research has called into question the objectivity of techniques such as DNA analysis and fingerprinting, and in 2009, the National Research Council warned that many popular forensic science techniques may not be as accurate or reliable as believed. The NRC urged further study of the biases that may skew forensic findings. Murrie's findings suggest that the NRC's concerns might be broadened to include forensic psychology. ..Source.. by Wray Herbert

Sex Offender Program continues to grow, as state faces court order to change


2-23-2013 Minnesota:
This facility in Moose Lake, Minn., houses the state's sex offender treatment program. Minnesota keeps more than 675 people behind bars even though they've served their time because of the possibility they will commit another sex offense. That raises questions over constitutional rights that led to the appointment of two committees charged with recommending reforms to the Minnesota Sex Offender Program.
ST. PAUL, Minn. — The people held at the Minnesota's facility for sex offenders in Moose Lake live on a 29-acre "campus" surrounded by two barbed-wire-topped fences.

Under constant supervision, most of the offenders agreed late last year to start wearing location tracking devices around their ankles.

"It gives at least some amount of freedom to move about in the facility without having to be constantly escorted by staff,"
said Anne Barry, deputy commissioner of the state Department of Human Services, which oversees the 18-year-old Minnesota Sex Offender Program.

Barry said the $1.2 million dollar tracking bracelet system was designed to maintain a therapeutic environment for an expanding population. Every year, the program makes room for about 50 new offenders committed by county courts. Until last year, it released none of them.

Civil liberties advocates and others have long criticized Minnesota for indefinitely holding in secure facilities sex offenders who have served their time in prison, but whom county prosecutors and judges think may commit crimes again. Last year state officials acknowledged the Minnesota Sex Offender Program needs to find a way to release offenders once they have been rehabilitated. They formed a task force that has held hearings to determine how to change the program.

But a DHS report to the legislature shows that local officials continue to funnel sex offenders into the program, prompting the state to spend millions to expand the facilities needed to house them.

After offenders in the program filed a class action lawsuit, a federal judge in August ordered the state of Minnesota to show the treatment it was providing could lead to rehabilitation and release.

Meanwhile, according to a new legislative report, county prosecutors and judges committed 41 people to the sex offender program in 2012. Most of the 678 offenders inside opted to participate in treatment, but the clinical professionals assigned to help them kept leaving. When independent consultants hired by the state visited Moose Lake, they found that 18 of 65 clinical positions were vacant. Just one offender graduated to the last phase of treatment, where 10 people are now preparing for release.

"I think there are people who could advance an argument that if you had greater continuity, more staff, that we might be able to move people even quicker through phases of treatment," Barry acknowledged.

But she said it's very difficult for offenders to produce the character changes necessary to prove they're no longer a risk to the public, and that also could be slowing their progress through treatment.

The department is making an effort to retain personnel, but Barry said there is one big factor they can't change: the job is in Moose Lake, which she said is why many employees leave.

Eric Janus, dean of the William Mitchell College of Law, said state officials must find a way to move sex offenders through treatment and out of the facility if they want to satisfy the federal courts.

Department of Human Services Commissioner Lucinda Jesson named Janus to a task force to recommend ways to commit fewer offenders, release more people, and set up cheaper secure community options for those released.

"There's certainly been some changes, but when you look at the fundamentals, it's kind of business as usual," Janus said.

And the usual business is to plan for growth. The department recently completed a $47.5 million dollar expansion at Moose Lake. A $7 million dollar expansion at the program's other facility in St Peter is scheduled to be completed next year. Gov. Mark Dayton has asked the legislature for another $7.8 million for renovations. But the governor has warned that if the Minnesota Sex Offender Program doesn't change, it could be forcibly changed by the courts.

If things are to change for the Minnesota Sex Offender Program this year, legislation to overhaul it must be introduced within the few weeks, said state Sen. Kathy Sheran, DFL-Mankato.

Sheran, chair of the Senate Health, Human Services, and Housing Policy Committee, said the Senate has an unofficial March 15 deadline for substantial policy changes. She wants to make the deadline, but is waiting to receive the task force's recommendations.

"The court is asking for us to show progress," she said. "The legislature needs to be responsive to that. It can't just ignore that." ..Source.. by Rupa Shenoy

Wednesday, February 20, 2013

Civil commitment trial continues Wednesday


2-20-2013 Wisconsin:

RACINE — Several mental health experts testified Tuesday about whether a former Sturtevant man should remain locked away indefinitely as a sexually violent person.

They differed greatly on whether he is a pedophile, and may molest again. John W. Sweeney, 49, is accused of sexually assaulting three younger female relatives. He’s on trial this week in Racine County as the state’s top prosecutors — through this civil proceeding — seek to have Sweeney declared a sexually violent person so he can be involuntarily committed to Wisconsin’s secure sex offender treatment center: Sand Ridge Secure Treatment Center, in Mauston.

Sheila Fields, a licensed psychologist who conducts these types of sex offender evaluations for the Wisconsin Department of Health Services, said she diagnosed Sweeney as having two mental disorders. Those are anti-social personality disorder and a provisional finding of pedophilia.

“I had some concerns about that diagnosis so I used ‘provisional,’ ” she testified Tuesday. “He’s had sexual relationships with adult females also,” not just incest with youngsters.

He also was accused of sexually assaulting a 27-year-old female relative, she testified.

It becomes a question of whether Sweeney sexually assaulted those children because they were crimes of opportunity rather than a sexual attraction to children, Fields said.

State law allows for a person to be confined in a prison-like setting for treatment, after completing his or her prison sentence, based on three factors. He must have been convicted of a sexually violent offense, have a diagnosed mental disorder, and have been deemed dangerous to others because that mental disorder makes it “more likely than not” that he will commit further acts of sexual violence.

“He’s been committing sexual crimes since at least the age of 16,” Fields said.

But she predicted in 10 years of his release, he may only have a 24 percent chance of being arrested or convicted for a new sexually violent offense.

“I do not believe he approaches the 50 percent standard, which he would need to meet for the ‘more likely than not,’ ” Fields testified.

Assistant Attorney General Rebecca Weise pointed out that Sweeney is accused of sexually assaulting one child “hundreds of times” when she was about 8 to 10 years old. She said he also is accused of molesting a second child approximately 24 times in one year, when that girl was about 6 or 7 years old.

“If that is accurate, then I would say he is a pedophile — with that age range,” Fields admitted during Weise’s cross-examination.

Court records show he was sentenced Dec. 5, 1995, to 10 years in prison for two counts of third-degree sexual assault.

“I’m not really sure if the diagnosis of pedophilia is present. Currently, I don’t believe he has a mental disorder,” testified Luis Rosell, a clinical and forensic psychologist who conducts such sex offender evaluations through his private practice in Iowa. “I think he’s not ‘more likely than not’ to reoffend.

“He was able to control himself, or chose not to (reoffend),” Rosell testified Tuesday, including when he began visiting a nudist camp, where children were naked. “This statute is about committing a sexually violent offense while he was out.”

Cynthia Marsh, a licensed forensic psychologist with the Wisconsin Department of Corrections, testified she couldn’t pin down a percentage for his risk of sexually assaulting someone if released into the community. But he does fall into a group of sex offenders who reoffend at a higher rate, she said.

Sweeney’s trial is scheduled to continue Wednesday with closing arguments. ..Source.. by KRISTEN ZAMBO

-------------------------------------------------------------------------------

Sturtevant man declared sexually violent, ordered committed

2-21-2013:

Jurors spent about two hours deliberating on Wednesday before deciding a former Sturtevant man is too sexually violent to be released from prison, back into Racine County.

John W. Sweeney, 49, a convicted sex offender, is accused of sexually assaulting three younger female relatives. A Racine County jury spent three days in a civil commitment trial for Sweeney after Wisconsin Department of Justice prosecutors sought to block his release from prison, contending he is a sexually violent person and should be involuntarily committed to a state treatment center for convicted sex offenders.

During closing arguments Wednesday, Assistant Attorney General Rebecca Weise told jurors “Sweeney is sexually aroused by prepubescent children.” She said a “good predictor of what will happen in the future” is to look at what Sweeney did in the past.

“He has to satisfy his own sexual urges by assaulting young girls,” Weise said.

After the verdict, Racine County Circuit Judge Allan “Pat” Torhorst signed an order sending Sweeney to Sand Ridge Secure Treatment Center in Mauston.

State law allows for a person to be confined in a prison-like treatment center after completing his prison term because of three factors. He must have been convicted of a sexually violent offense, have a diagnosed mental disorder, and have been deemed dangerous to others because that mental disorder makes it “more likely than not” he will commit future acts of sexual violence.

Several psychologists testified this week, but differed on their diagnoses for Sweeney and whether he has pedophilia, “provisional” pedophilia and anti-social personality disorder. Also disputed was his level of psychopathy and what percentage chance could be pinned to the likelihood he’d sexually assault someone else if released from prison.

According to state law, such involuntary civil commitments continue for an unspecified period of time, until that person no longer is considered sexually violent.

Sweeney’s sister, Cindy Kemen, of Racine, said she cried upon learning the jury’s verdict via a relative’s Facebook posting.

“He’s my little brother,” she said. “I think he’s been punished enough.”

However, “I’m glad that my family members feel justification. They did what they had to do,” said Kemen, who has supported her brother in his bid for freedom. “I feel bad for the family. I’m glad it’s done. I’m hoping everybody can move on with their life.”

He was sentenced Dec. 5, 1995, to 10 years in prison. That was for two counts of third-degree sexual assault, court records show.

Sweeney was scheduled to be released from prison in November 2007. But he’s remained behind bars as this case worked through the court system.

“This is a scary law,” defense attorney Richard Hart said during his closing argument. “There was a Tom Cruise movie where they were arresting people who thought about committing a crime. This is a law that commits someone” based on the potential he will commit a sexually violent act in the future.

Of his three alleged victims, two children were molested when Sweeney was a teen. He also was accused of sexually assaulting a 27-year-old female relative, witnesses testified this week.

Sweeney was accused of sexually assaulting one child “hundreds of times” when she was about 8 to 10 years old. He allegedly molested a second child, approximately 24 times in one year, when that girl was about 6 or 7 years old and Sweeney was 17 or 18 years old.

“You’re not judging what he did at 16 years old or in his 20s. You’re not here to reconvict him of his criminal acts. You’re here for where he’s at now,” Hart said. “You heard Dr. Rosell testify he had contact with minors years later and did nothing.”

Luis Rosell, a clinical and forensic psychologist in Iowa, testified Tuesday that when Sweeney was out of prison previously, he visited a nudist camp, where children were naked. Yet he didn’t sexually assault them, Rosell said. ..Source.. by KRISTEN ZAMBO

Tuesday, February 19, 2013

Sex Offenders must register even while in civil commitment


5-25-2010 Minnesota:

Minnesota -v- LeMasters (Court of Appeals) ( Appellant challenges his convictions and subsequent concurrent sentences for five counts of failure to register as a predatory offender, alleging that he is being punished multiple times for the same offense, which would violate constitutional and statutory protections against double jeopardy. Because appellant's failure to register was a continuous offense, and each of the five verification forms sent to him by the state over the course of 15 months was a distinct event triggering a separate duty to register, his failure to respond to each verification form was a separate offense for the purposes of double jeopardy. We affirm.

Appellant James Clifford LeMasters was indeterminately committed in May 1999 as a sexually dangerous person and sexual psychopathic personality pursuant to Minn. Stat. § 253B.185 (1998). While at the Minnesota Sex Offender Program (MSOP) facility in St. Peter, appellant did not respond to five verification forms that he received from the bureau of criminal apprehension (BCA) on April 18, 2005; July 18, 2005; January 16, 2006; April 17, 2006; and July 17, 2006. The BCA is required to provide committed sex offenders with at least four verification forms per year. Minn. Stat. § 243.166, subd. 4(e) (2008).[ 1 ] The verification forms require a person registered as a predatory offender to provide, among other things, his current and last address. Id., subd. 4(e)(2). Verification forms must be returned within ten days of receipt. Id. Failure to register as a predatory offender is a felony. Id., subd. 5(a) (2008).

Appellant deliberately did not complete and return the verification forms. He tore the form sent to him in April 2005 into small pieces and placed it in an envelope, on the back of which he wrote, "I refuse to fill these out, tell the police to come get me for refusing to register, by law," and "I am turning you people in for sexual abuse." In response to the July 2005 verification form, appellant did not complete the form, but wrote "I WILL NOT REGISTER — ARREST ME!!" on the outside of the return envelope. He did not complete or return the remaining forms. Appellant ultimately sought to introduce evidence at his trial that sexual abuse was widespread and that he was personally threatened, abused, and mistreated at the MSOP facility, but the district court ruled that this evidence was inadmissible because appellant lacked a viable necessity defense as a matter of law.[ 2 ]

Following a bench trial, the district court convicted appellant of each count of felony failure to register as a predatory offender. It imposed concurrent sentences of one year and one day in prison for each of the five counts. Appellant now challenges his convictions and multiple sentences, arguing that they violate his constitutional and statutory double-jeopardy rights. He concedes that he did not raise a double-jeopardy claim below, but asks this court to consider the double-jeopardy implications of his convictions and concurrent sentences in the interests of justice.

Monday, February 18, 2013

Treated sex offenders seldom re-offend


6-15-2008 Arizona:

Her nightmare started just after 5 p.m. Nov. 10, 1980.

She was taking a welding class at Pima Community College's downtown campus and had just pulled into the parking lot when Aaron Dean Davis ran up to her car.

"Lady, I just killed a man, get me out of here," he yelled at her as he pulled out a knife.

Davis forced her back into the car. They drove for miles. When they got close to the college's West Side campus, he forced her to stop in a nearby wash.

There, Davis beat and raped her. When it was over, he had her drop him off near Congress and Granada.

Davis was caught, convicted and sent to prison in August 1982.

With his sentence now up, Davis wants his freedom. The Pima County Attorney's Office is trying to make sure that doesn't happen.

For the past 10 years, Arizona prosecutors have had the power to have convicted sex offenders committed to the state hospital past the end of their prison terms if they believe the person remains a threat.

Once that happens, the only way out is to convince a judge he is no longer a danger.

There are indicators that a program that puts former inmates into the Arizona Community Protection and Treatment Center is having the desired effect on these most threatening of sex offenders.

Of the 104 men who have been through the program and released, two have been re-arrested. That compares to a 15 percent rate of repeat violations for sex offenders overall, according to Sergio Martinez, a forensic psychologist who evaluates convicts to see if they should be placed in the program.

But the security of keeping those sexually violent predators off street has a price. The Arizona Department of Corrections spends $61.74 a day for each prisoner. The cost to treat a sexually violent person in the state's Arizona Community Protection and Treatment Center is $325.71.

Since the first convict was committed under a new law in 1998, 110 such predators, all men, have been sent to the state hospital for treatment after the end of their sentences. Another 65 nearing their release dates are being evaluated for commitment.

The 104 who have been released spent an average of three to four extra years in state custody — the longest six years.

The process of having sex offenders committed starts at the state prison. When they are within 180 days of being released, prison officials send those they believe may require civil commitment to either Martinez or Dr. Barry Morenz, a forensic psychiatrist, for evaluation.

If they believe the defendant has a mental disorder that makes it "highly probable" he'll commit another sexually violent act, they notify the county attorney.

A hearing before a judge is held, at which the defendant's attorney can submit evidence from other doctors who believe his client isn't sexually violent. If the judge believes there is "probable cause" the defendant is a threat, the individual is transferred to the Arizona State Hospital for an evaluation by another doctor.

If that doctor agrees with the first, a jury trial is held. If a jury determines a defendant is sexually violent, he becomes a resident at the treatment center.

Martinez said being found sexually violent requires not just a conviction. In addition, the individual must be diagnosed with certain types of mental disorders and lack the ability to control his behavior, and the judge and a doctor must agree it is "highly probable" he will commit another sex crime.

Of the more than 600 prisoners he has evaluated in eight years, only about 5 percent qualify, Martinez said.

In Davis' case, Pima County Superior Court Judge Nanette Warner ruled Davis is a sexually violent person. But his attorney, Assistant Pima County Public Defender Donald Klein, is contesting her decision. A hearing is scheduled for June 23.

Once someone is committed, individual and group counseling sessions designed to help the "resident" understand what arouses him, how to manage his deviant thoughts and how to avoid those situations are mandatory, said Dan Montaldi, a psychologist and chief evaluator at the treatment center.

Gradually, "residents" earn more access to the community, although they may be kept under surveillance or required to wear GPS monitors — sometimes living in group homes, taking jobs or attending school.

While sexually violent people cannot be cured, the intensity of their deviant thoughts and their urge to act upon them can be lessened, Montaldi said, making them less likely to re-offend than those who receive no treatment at all.

"Treatment is one of the factors that can reduce the recidivism rate, but it depends on the quality of the program," Martinez said.

Everyone committed to the treatment center has the right to be evaluated annually under Arizona law, Montaldi said.

During those evaluations, prosecutors and doctors have to prove "beyond a reasonable doubt" that a resident's mental disorder hasn't changed. If they can't prove it, a judge must release that person.

Five times in the program's 10 years, doctors and prosecutors felt a resident was still dangerous and were overruled by judges, Montaldi said. Two of the five have been re-arrested, although neither for a violent sexual crime, Montaldi said. None of the five were Pima County cases.

On the flip side, Montaldi said there are residents who never ask to be discharged.

"There are a few who are well-behaved here, but they themselves feel they are a danger to the public and want to protect society," Montaldi said.

Deputy Pima County Attorney Kathleen Mayer, who once headed the office's sex-crimes unit, believes the program keeps high-risk offenders off our streets.

Mayer recalls one convicted sex offender who bragged in prison about committing thousands of kidnappings and rapes, including the pitchfork death of a 14-year-old girl. When it came time for him to be released, and he was going through the evaluation process to be committed, his DNA matched a San Francisco cold case involving a 14-year-old rape and murder victim, Mayer said. He was eventually convicted and sentenced to prison in that case.

Defense attorney Brick Storts said that when the state started committing sexually violent people, the program was "draconian," but it has improved a great deal since then. No longer is it run like a prison, Storts said.

In addition, prosecutors have become much more discriminating about whom they try to commit, Storts said.

Part of the change stems from Arizona and U.S. Supreme Court rulings limiting the number of people eligible for the program, such as a state ruling it must be "highly probable" the person will re-offend, not just "possible" or "probable."

In addition, more and more sex offenders are being sent to prison, but also being placed on lifetime probation, Mayer said.

If a sex offender made a plea deal agreeing to lifetime probation following prison, it would be ethically improper to seek a civil commitment, Mayer said. The offender is going to be monitored just as closely and required to seek treatment as a term of probation anyway.

Also, some prisoners are admitting they are sexually violent as part of a plea deal that guarantees them a shot at a less-restrictive program, such as being considered for placement in a group home, Montaldi said.

One of Assistant Pima County Public Defender John O'Brien's clients did exactly that, was eventually discharged from the program and has had no subsequent run-ins with the law.

"From his point of view, it works," O'Brien said. "He gradually earned greater freedoms, got to go on day trips and even got a job."

John Cooper, chief executive officer for the Arizona State Hospital, said Arizona is far more advanced than many other states in terms of treatment, assessment and integration of sex offenders.

Many other states are simply building more prisons, Cooper said. ..Source.. by Kim Smith Arizona Daily Star

Saturday, February 16, 2013

Sexually violent predator sentence to life in prison


2-16-2013 Texas:

Jurors in the 435th District Court of Montgomery County, Texas, found Michael Wayne Bohannan, 56, guilty of the felony offense of violation of civil commitment as a sexually violent predator, and sentenced him to life in prison on Thursday, Feb. 13.

Sitting for the 435th Court, 221st District Court Judge Lisa Michalk heard the case. Trial testimony showed that Bohannan was found to be a sexually violent predator by a Montgomery County jury, Judge Michael T. Seiler presiding, in January 2009, and was civilly committed to a halfway house in Ft. Worth, Texas.

While there, Bohannan violated multiple requirements of his civil commitment involving GPS monitoring and was eventually arrested by the Ft. Worth Police Department and released from the halfway house for facility violations.

Bohannan also refused to abide by the civil commitment requirements on two occasions.

During the punishment phase of trial, jurors saw court records showing Bohannan was twice convicted of aggravated rape with a knife in Tarrant County, Texas, in 1982. He received two 25-year sentences that ran concurrent, meaning the sentences were served at the same time.

The court records showed he admitted to, but was not charged with, a third aggravated rape with a knife. In 1991, the Texas Board of Pardons and Parole released Bohannan from prison.

In 1992, he was arrested and eventually convicted of attempted kidnapping as a result of an incident at a Pasadena Kmart when Bohannan accused a female child of shoplifting, and tried to lift up her dress and get her to leave with him. His parole was revoked for that conviction.

Upon being released again in 2000, Bohannan was given parole board permission to move to South Carolina to live with his mother. Within two months of his arrival, he was arrested and eventually convicted by a South Carolina jury of indecent exposure in 2002 and sentenced to three years in the South Carolina DOC.

After being extradited back to Texas for a parole violation based on that conviction, Bohannan was released again by the Texas parole board in 2004. He went back to prison again in 2005 for another parole violation involving an incident when he was caught viewing pornography at a Ft. Worth library.

Bohannan then remained in prison until he was civilly committed by a Montgomery County jury in January 2009. Bohannan’s life sentence means he must serve at least 15 years in the Texas Department of Criminal Justice (TDCJ) before he is eligible for parole. He may be eligible for parole earlier than the 15 years if prison authorities award him any good conduct time credit.

Thursday’s verdict represents the third violation of civil commitment jury trial prosecuted by the Montgomery County District Attorney’s Office in the last calendar year. In February of 2012, Richard Goodwin received a maximum 20 year sentence for numerous violations at a Travis County halfway house. In September of 2012, Laray Malone, Jr., received a maximum life sentence for his refusal to return to a halfway house upon release from a Huntsville prison.

A special venue statute allows the cases to be heard in Montgomery County despite the fact the violations often occur in halfway houses in other counties. The 435th District Court of Montgomery County, Texas, Judge Michael T. Seiler presiding, remains the sole State of Texas District Court to hear civil commitment of sexually violent predator cases.

“The legislature has tasked Montgomery County with the management of sexually violent predators,” stated District Attorney Brett Ligon. “We take this burden very seriously, and refuse to settle these cases for anything but maximum sentences. Montgomery County juries have thus far chosen to sentence each of these violent predators to the maximum, ensuring that the citizens of our county and the state are protected from these worst or the worst defendants.” ..Source.. by BOHANNAN

Friday, February 15, 2013

Lawsuit over sex offender commitment can proceed, 2nd Circuit rules


2-15-2013 New York:

NEW YORK, Feb 14 (Reuters) - Sex offenders involuntarily committed to psychiatric institutions following their criminal sentences can move forward with a 2008 civil rights lawsuit against New York officials, the 2nd U.S. Circuit Court of Appeals ruled Thursday.

It held that former New York governor George Pataki and state mental health officials and corrections officers were not entitled to qualified immunity from the lawsuit.

A reasonable official "would have known that the process by which the plaintiffs were being committed did not satisfy basic constitutional requirements," U.S. Circuit Judge Robert Sack wrote.

The decision affirmed a 2010 ruling from U.S. District Judge Jed Rakoff in Manhattan.

A spokeswoman for the New York attorney general's office declined to comment.
Court Opinion:

This appeal requires us to decide whether the civil commitment of the plaintiffs following the expiration of their sentences for sexually based criminal offenses constituted violations of their procedural due process rights redressable under 42 U.S.C. § 1983, and, if so, whether the defendants are nonetheless entitled on the record before the district court to summary judgment dismissing the procedural due process claims on the grounds of qualified immunity.

The plaintiffs' commitments were effected not through the state's normal civil commitment procedures, but by means of an executive-branch effort aimed at preventing the release of some "sexually violent predators" ("SVPs"). The Governor of New York State at the time, Governor George E. Pataki, directed the State's Office of Mental Health ("OMH") and Department of Correctional Services ("DOCS") to develop a plan whereby he could take executive action to implement an initiative (the "SVP Initiative" or the "Initiative") that would result in the involuntary commitment of selected SVPs to state psychiatric facilities after the expiration of their criminal sentences. The plaintiffs, who were committed pursuant to this initiative, assert a variety of claims against Governor Pataki and officials of OMH and DOCS.

In this appeal, the defendants assert that the district court erred when it denied their motion for summary judgment on the plaintiffs' procedural due process claims, concluding that the defendants are not entitled to qualified immunity. The plaintiffs' claims for denial of procedural due process are premised on the allegation that they were committed pursuant to the SVP Initiative without the benefit of notice or an opportunity for a hearing prior to their commitment.

We agree with the district court that there is sufficient evidence in the record to support the plaintiffs' procedural due process claims and therefore defeat the motion for summary judgment. We also conclude that at the time of the Initiative, the constitutional principle that, absent some emergency or other exigent circumstance, an individual cannot be involuntarily committed to a psychiatric institution without notice and a predeprivation hearing was firmly established. Because the law pertaining to the involuntary civil commitment of prisoners was firmly established, the district court properly determined that the defendants should not enjoy qualified immunity. ..To read the rest of the opinion: CLICK...
The lawsuit was filed in 2008 by a group of sex offenders who claimed they had been committed to psychiatric institutions without notice or a hearing after they had served their criminal sentences.

In addition to Pataki, the defendants were officials from the state Office of Mental Health and the Department of Correctional Services.

The commitments stemmed from the Sexually Violent Predator Initiative launched by Pataki in 2005. It called for sexually violent predators to be evaluated for involuntary civil commitment before being released from prison, the ruling said.

The lawsuit alleged that confinement without a hearing or notice violated plaintiffs' rights to procedural due process.

The defendants moved for summary judgment, arguing there was no legal prohibition against brief periods of prehearing confinement, provided that an opportunity for a hearing was offered in a timely manner. According to the ruling, they also claimed qualified immunity.

On that basis, in 2010, Rakoff denied the motion on the procedural due-process claim. He also concluded that the plaintiffs' civil confinement "did not remotely comport with constitutional requirements."

The defendants appealed, and the 2nd Circuit on Thursday affirmed the district court.

"(A) prisoner - even one convicted of an atrocious crime - maintains a liberty interest in the conditions relating to the essential nature of his confinement," Sack wrote.

Sack was joined by Judges Joseph McLaughlin and Peter Hall.

A lawyer for the plaintiffs, Ameer Benno, said he was gratified by the 2nd Circuit's ruling on qualified immunity.

The case is Bailey v. Pataki, 2nd U.S. Circuit Court of Appeals, No. 10-2563.

For the plaintiffs: Ameer Benno, Richard Sullivan and Jeffrey Rothman of Benno & Associates.

For the defendants: Cecilia Chang, Barbara Underwood and Benjamin Gutman of the New York attorney general's office. ..Source.. by Jessica Dye

How Federal Government Seeks to Commit Sex Offenders Under Adam Walsh Law


1-9-2013 National:

The New Yorker explores federal imprisonment of sex offenders past their release dates under the 2006 Adam Walsh Child Protection and Safety Act, which allows the federal Bureau of Prisons to keep inmates in prison if it appears that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” By 2007, roughly forty-five hundred sex offenders had been civilly committed nationwide, and just over ten per cent had been released.

The government has lost about half of the more than sixty Adam Walsh cases that have gone to trial so far. Confirming the facts of sexual abuse, the most intimate sort of crime, has always been difficult, with many victims keeping quiet about their abuse or not having their stories believed. For offenders, too, the heightened emotional stakes may complicate attempts to get at the truth. The New Yorker focuses on one case in detail to explore the question, "Is it right to imprison people for heinous crimes they have not yet committed?" ..Source.. by Crime and Justice news

Ruling finds DA's right-hand man committed misconduct


Talk about misconduct, this one takes the cake..
1-9-2013 California:

SAN JOSE -- In a scathing opinion published Thursday, a state appellate court reversed a judgment against a felon accused of being a sexually violent predator, saying the prosecutor handling the case -- now District Attorney Jeff Rosen's right-hand man -- engaged in a "pervasive pattern'' of misconduct.

The misconduct finding against Chief Assistant District Attorney Jay Boyarsky is the first black mark against Rosen's administration since he took office two years ago on an ethics platform and appointed Boyarsky as his top assistant.

Rosen handled the situation Thursday with the same aplomb he demonstrated as a homicide prosecutor to defuse potential courtroom crises. Boyarsky, who is also Rosen's best friend, tried the case when he was a line prosecutor before Rosen came into office.
Court Opinion:

Defendant Dariel Shazier appeals an involuntary civil commitment order adjudging him a sexually violent predator (SVP) under the Sexually Violent Predators Act (Act). (Welf. & Inst. Code, § 6600 et seq.) An SVP must have "a diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he ... will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1), italics added.)

All of the experts who testified in this trial agreed that defendant's diagnosis of hebephilia, an attraction to pubescent young men, is not included in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), and "doesn't exist" as a mental disorder diagnosis. Moreover, all agreed that defendant did not demonstrate arousal by the use of force or violence in his sexual acts.

From the outset, securing a civil commitment of defendant as an SVP, following his 1994 conviction, has been difficult for the prosecutor. Indeed, defendant's first trial resulted in a hung jury. We reversed the judgment in defendant's second trial, finding the prosecutor committed prejudicial misconduct during the trial. (People v. Shazier* (Cal.App.)1.)

During the third trial in this case, the prosecutor told the jury in his closing argument that their finding for defendant would subject them to ignominy within their community, and that it was likely that defendant, who he described as a "prolific child molester," had other victims who had not reported his crimes. However, there was no evidence presented at trial that defendant had committed additional uncharged crimes against unknown victims.

Defense counsel objected to the prosecutor's improper arguments and statements throughout trial; however, the court overruled all of these objections. We find the prosecutor committed misconduct in this case that prejudiced the defendant. The judgment must be reversed.

... ... ...

In reviewing the record and considering the extent of the prosecutor's improper questions and arguments, we conclude that the prosecutor's improper conduct "`"so infected the trial with unfairness as to make the resulting conviction a denial of due process."'" (People v. Riggs, supra, 44 Cal.4th at p. 298.) Moreover, the aggregate prejudicial effect of the prosecutor's misconduct therefore requires reversal.

DISPOSITION

The judgment is reversed.4 ..To reader the rest of the court opinion: CLICK...
"We respect the court's decision," Rosen said. "Any prosecutor in my office may err, and when we do, we learn from it and improve."

The ruling, written by Conrad Rushing, the presiding judge of the 6th District Court of Appeal, stems from a civil court hearing in Santa Clara County in which Dariel Shazier was involuntarily committed to a state mental hospital on the grounds that he was a sexually violent predator.

Boyarsky erred by asking improper questions of the witnesses that elicited inflammatory answers and by making improper arguments to the jury, Rushing wrote. For instance, Boyarsky implied without offering any evidence that Shazier had molested other boys. The prosecutor also essentially asked jurors what their friends and family would think of them if they found Shazier wasn't a predator.

"This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct," Rushing wrote. "Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comment and argument throughout the entire trial."

Boyarsky said he accepts the court's ruling about his conduct, though he made his arguments in "good faith."

"Based on the court's opinion, if I had it to do over again," he said, "I would make my arguments differently."

Although the ruling reverses the involuntary civil commitment order, Shazier will remain at Coalinga State Hospital while the case is pending. Rosen noted Shazier has a "serious history of sexually preying on young teenagers," and said his office will try him again if doctors conclude he is a predator. Under another scenario, the state Attorney General's Office could appeal the ruling to the state Supreme Court, which could strike down the appellate decision, allowing the involuntary commitment to a mental ...continued.. by Tracey Kaplan

Appeals Court Upholds Release of Sexual Predator to SB County


2-7-2013 California:

The California State Court of Appeals has upheld a decision that would allow the release of a Sexually Violent Predator (SVP) into Santa Barbara County.

It's shaping up to be a landmark case that now appears headed for California's highest court.

Tibor Karsai was twice convicted of forcible rape of young women dating back to 1974 when he was 22 years old.

Now nearly 60, a judge in Northern California has ruled Karsai is eligible for prison release as a transient to supervised residential treatment in Santa Barbara County.

County District Attorney Joyce Dudley challenged the judge's decision to release Karsai and was granted a stay of the release while it was considered by the State Court of Appeal.
Court Opinion:

The Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)1 provides that, under certain circumstances, a person who has been committed as a sexually violent predator (SVP) can be conditionally released into the community under a program of outpatient supervision and treatment. (See § 6608-6609.3.) In October 2010, the Placer Superior Court determined that the real party in interest in this proceeding, Tibor Karsai, who has been committed as an SVP since 1998, should be conditionally released. A year and one-half later, after an exhaustive but ultimately unsuccessful search for an acceptable residence for Karsai, the superior court ordered that Karsai was to be conditionally released into Santa Barbara County without a fixed residence, i.e., as a transient.

In this mandamus proceeding, the District Attorney for Santa Barbara County (Santa Barbara) seeks a writ of mandate to prevent Karsai's release without a fixed residence, contending "there is no provision [of law] whatsoever that allows an SVP to be released as a transient." Santa Barbara also contends the superior court erred in determining that Santa Barbara County was Karsai's county of domicile immediately before the incarceration that preceded his commitment as an SVP, and Santa Barbara argues that the superior court failed to comply with statutory notice requirements before ordering Karsai's release.

In the published portion of our opinion, we conclude there is nothing in the SVPA that precludes a court from ordering the conditional release of a person committed as an SVP even though no fixed residence has been located for the person before his release. We do not decide whether it was an abuse of discretion to release Karsai under the facts of this case because that question is not before us. Instead, we decide only what we are called upon to decide by Santa Barbara's writ petition, namely, that conditional release as a transient is not prohibited by the SVPA.

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Santa Barbara is not complaining here that the court failed to give notice to that official in this case. Instead, Santa Barbara complains that "[t]he lower court did not provide any notice to County of Santa Barbara officials that he was considering releasing [Karsai] as a `transient.' "Absent any statutory requirement that the court give such notice, however, this argument provides no basis for us to issue the writ Santa Barbara seeks.

DISPOSITION

The petition for a writ of mandate is denied. The stay of the March 19 and March 29 orders is dissolved. ..To reader the rest of the court opinion: CLICK...
The Appellate Court has, for the second time, upheld the judge's decision ruling there's nothing in the law to prevent the release of a Sexually Violent Predator as a transient to any county for supervised treatment.

Dudley plans to petition the matter to the California State Supreme Court.

"It violates public safety to release a Sexually Violent Predator in Santa Barbara County, not only the safety of the members of our county but also the safety of the sexually violent predator", Dudley tells Central Coast News, "it doesn't give the predator what the predator needs in order to be successful which is supervision, a home and a program, it just says they can release him as a transient."

Santa Barbara County had previously argued Karsai should be released to San Luis Obispo County because Morro Bay was his last known legal address before he went away to prison for the second time.

Santa Barbara County now has 40 days to file the petition blocking Karsai's release to the State Supreme Court and expects to do so shortly.

Santa Barbara County District Attorney Joyce Dudley plans to seek another stay of Karsai's release pending the State Supreme Court's decision, if it decides to hear the case.

In the meantime, Karsai remains locked up in prison. ..Source.. by Keith Carls

Thursday, February 14, 2013

NY court denies officials immunity in prison case


2-15-2013 New York:

NEW YORK (AP) — A federal appeals court refused to grant immunity to former Gov. George Pataki and others Thursday from a lawsuit claiming officials acted unconstitutionally by ordering prisoners transferred to psychiatric facilities without hearings.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan said a reasonable official would have known that the process by which men were committed did not satisfy basic constitutional requirements.

It said Pataki took action after a recently-paroled sex offender killed a woman in June 2005 in the parking lot of the Galleria Mall in White Plains. He announced in an October 2005 press release that every sexually violent predator in state custody would be evaluated for involuntary civil commitment once that person was released from prison.

The program was discontinued after a state court in November 2006 ruled that the state was wrongly confining convicted sex offenders in psychiatric facilities.

"We think there can be no serious doubt that the liberty interests implicated here are of a high order," the 2nd Circuit Court said. "Not only were the plaintiffs' physical freedoms curtailed, but they were also subject to specialized mental health treatment."

The ruling came in a case brought on behalf of six men transferred to institutions after the expiration of sentences for sexually-based criminal offenses. The civil case now returns to the lower court for trial.

Jeffrey Rothman, who represents the men, said more than 100 former inmates were affected by the program before it was changed. He said he had not yet read the decision and was not prepared to comment on it.

A spokeswoman for the state attorney general's office declined to comment.

As part of the program, three separate medical professionals evaluated each person before they were involuntarily committed, with fewer than 20 percent of those evaluated being ultimately committed, the court said.

Those treatments sometimes included the use of a "penile plethysmograph" that gauged the responses of each person's genitals to sexually explicit pictures displayed to determine his sexual arousal patterns, the court said.

"One can imagine that to be something less than a dignity inspiring experience," the appeals panel wrote.

"Although it may be dangerous to overstate the importance of the fact that the initiative was quickly put into place in a politically charged environment, it is difficult to ignore," Circuit Judge Robert Sack wrote for the panel. "Because of the infancy of the initiative and the lack of training or formal procedures, coupled with significant political pressure, the risk of error seems to us to have been enhanced." ..Source.. by LARRY NEUMEISTER

Civil Commitment referrals of New York sex offenders fall


11-28-2012 New York:

New York’s civil commitment program, designed to house and treat mentally unbalanced sex offenders, is taking in a smaller percentage of criminals than in past years, records show.

The percentage of sex offenders being routed into the psychiatric civil commitment program has steadily decreased since the program started in 2007, according to state data.

That drop is helping the state temporarily avoid the excessive costs of creating new space for civil commitment. However, the state continues to bump up against its capacity at its psychiatric facilities for civilly confined sex offenders, records show.

Program supporters contend the decline in the numbers of confined sex offenders is proof of the rigors of the psychological evaluations for civil commitment.

Opponents question whether a harsh reality — the likelihood that the costly program will need new space for offenders in coming years — may be driving the decrease.

“I think they’re facing the cold fiscal reality of the statute,” said Al O’Connor, a staff lawyer and civil commitment expert with the New York State Defenders Association.

One expert said the fewer number of people routed into civil commitment shows that New York is not using the program to warehouse sex offenders. Instead, said Dr. John Bradford, New York is likely sending the true sexual predators into confinement where they can be treated.

“I think New York is probably doing it right,” said Bradford, a forensics psychiatrist from Canada with whom New York officials consulted when starting ...continued... by Gary Craig