ACLU: Florida Sex Offender Reform Should be "Based on Facts, Not Fear"

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9-30-2013 Florida:

For legislators - especially the ones looking to earn tough-on-crime points - it's open season on sex offenders. Following a Sun Sentinel investigation that found a high number of re-offenders among the worst of the worst, Tallahassee has elbowed everything else to the side, clamoring to find new ways to cool down the frayed nerves of a frightened public.

But as new ideas for handling sex offenders keeping popping up, it's time we look at where the line between safety-at-all cost and constitutional rights come into play.

Take No Porn for Pervs. Last week, we wrote about how Sen. Kelli Stargel and Rep. Katie Edwards were pushing off legislation that would make it illegal for sex offenders on probation to view, access, own or posses "obscene, pornographic, or sexually stimulating visual or auditory material."

First off, the whole idea behind the bill is the light-on-stats assumption that porn viewing correlates with sex offenses. But really, the prospect of the government wagging a definitive finger over what material someone can and can't view - that seems like a dangerously slippery slope.

The Florida American Civil Liberties Union has actually been looking into the situation. Last week, they gave New Times the following statement:

The intention that the bill authors state they had in filing the legislation - the reduction of recidivism for former offenders - is an important one. But there hasn't been any evidence presented to suggest that this change to Florida law would support that important goal. Also, by expanding the universe of banned materials to any material that could be 'sexually stimulating,' the bill would make the law vague and subject to inconsistent and abusive application. Reducing recidivism and ensuring public safety requires looking at genuine policy solutions based on facts, not fear.

But really, No Porn for Pervs is just the beginning. Since the Sun Sentinel's initial report, there's been a steady torrent of updates, each piece jacking up the political pressure for the state TO DO SOMETHING. Last week, legislators held hearings to air out new ideas. Although some of the responses seem like concrete steps toward improving the system, others are a little troubling.

For example, we can probably all agree that it would be a good idea to increase the supervision on all sex predators released from custody, or to expand who is evaluated under the state's Jimmy Ryce law, the provision that aims to identify the greatest public threats for civil commitment.

But the same panel also kicked around the idea of expanding the definition of sex offenders, but provided no specifics.

A 50 year minimum sentence is also on the table - sounds appealing, but can the criminal system handle it?

And most disturbing, there's the idea that prosecutors should be allowed to pursue civil commitment even when state psychologists don't think it's appropriate. That means giving the law-and-order arm of the state an override option when they don't agree with what medical professionals have to say.

At this point, these are all just ideas that haven't yet been workshopped into specific legislation. But as No Porn for Pervs shows, lawmakers are pulling the trigger quick on this stuff. We're in a heightened atmosphere of panic right now over sex offender issues, the exact hothouse conditions for cultivating some extremism-in-defense-is-no-vice policy which we might regret in cooler times. ..Source.. by Kyle Swenson

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Update in nursing home assault case: Cubbage to be confined as sexually violent predator

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9-30-2013 Iowa:

Sex offender William Cubbage allegedly told a state investigator that he had sexual contact with an elderly nursing home resident before the August incident that led to a criminal investigation.

The evidence of other sexual assaults surfaced during a court hearing Monday in Rockwell City. The Iowa attorney general’s office argued that Cubbage, 83, poses a threat to others and must be confined, at least for now, in a locked unit, rather than in a nursing home. After the 15-minute hearing, Judge Gary McMinimee ruled that the state had met its burden in showing probable cause to believe Cubbage is a sexually violent predator. McMinimee agreed to the state’s request that Cubbage be confined to the Newton Correctional Facility pending a trial on whether he should be re-committed to the state-sun Civil Commitment Unit for Sex Offenders in Cherokee.

Cubbage lived in that unit from 2002 and 2010, then was released to the Pomeroy Care Center in November 2010. On Aug. 21, an 8-year-old girl who was visiting the nursing home told authorities she saw a man in the room of an elderly woman with his hands between the woman’s legs. The woman was allegedly calling out, “No, no, no!”

According to the state inspectors who subsequently fined the home $10,000, the child’s allegation was supported by physical injuries sustained by the woman and by statements from workers at the home. The alleged victim told authorities, “That man keeps coming into my room and doing things.”

Calhoun County Attorney Cynthia Voorde has said she plans to file charges in the case very soon.

Cubbage was attentive and jocular during Monday’s court proceedings. When asked by an assistant attorney general whether he’d rather be sent to the Newton facility or to the civil commitment unit pending the trial, he chuckled and said, “It doesn’t make any difference. I’ve been to both of ’em. I’ll go to Newton.”

Cubbage did not testify during the hearing and declined to speak to a reporter.

During the hearing, the attorney general’s office presented the judge with a report from the state’s Medicaid Fraud Control Unit. The report summarized investigator Troy Wolff’s Aug. 29 interview with Cubbage at the Pomeroy Care, eight days after the alleged assault.

Wolff wrote that during the interview, Cubbage “made numerous attempts to avoid questions and acted like he didn’t know what I was talking about.” To gauge Cubbage’s awareness, Wolff asked Cubbage about his past. Although Cubbage claimed to have no recollection of his four past convictions for sex crimes, he did recall having lived in Muscatine and having worked as a truck driver.

Wolff concluded Cubbage had the ability to recall past events accurately when he chose to do so.

When asked about the Aug. 21 incident, Cubbage reportedly told Wolff that he and the alleged victim “were just in there talking.” When questioned further, however, Cubbage allegedly admitted touching the woman. When asked if he did anything else to her, Cubbage allegedly replied, “No, sexual, no. I just felt it, that’s all.”

Asked if the woman had consented, Cubbage allegedly replied, “She didn’t reject anything.” And when asked if he had been in the woman’s room before Aug. 21, he allegedly said, “I’ve been there before,” adding, “I just touch it.”

Cubbage’s attorney, Mike Adams, participated in the hearing via telephone and objected to the state’s effort to have Wolff’s report admitted as evidence. Adams noted that Cubbage has been diagnosed with dementia, making anything he said during the interview “inherently” unreliable.

“My contention is that he is not a competent witness to give accurate information,” Adams said.

Judge McMinimee admitted the interview summary as evidence, but later indicated that he assigned the document “minimal weight” in determining there was probable cause to believe Cubbage is a sexual predator. The trial to determine whether Cubbage should be committed to the sex-offender unit on a long-term basis is scheduled for Jan. 4, 2012.

Several workers at the Pomeroy Care Center have told state inspectors it was obvious to them when Cubbage entered the facility that he posed a risk to other residents and to the children that a local school sent to the facility to visit with seniors and participate in a day-care program. The workers described incidents in which Cubbage and another sex offender who lives in the home, John Steinkamp, accosted other residents or chased after children in the facility.

After the Aug. 21 incident, the home placed an alarm on the door to the room Cubbage shared with Steinkamp. On Friday, Cubbage was taken from the home and transported to the civil commitment unit in Cherokee pending Monday’s hearing. ..Source.. by Clark Kauffman

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Treatment Disclosures in Sex Offender Civil Commitment Evaluations

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September 2012:

Statements Made During Treatment-Related Activities May Not Be Privileged for Purposes of Sex Offender Civil Commitment Evaluations

In the case of In the Interest of Maedche, 788 N.W.2d 331 (N.D. 2010), the district court involuntarily committed Thomas Maedche as a sexually dangerous individual. On appeal, the North Dakota Supreme Court decided whether North Dakota's sexual offender civil commitment statute should be voided because of vagueness and whether treatment-related disclosures should be precluded from sex offender commitment proceedings on the basis of the self-incrimination and due process protections of the U.S. Constitution.
Facts of the Case

Thomas Maedche pled guilty and was convicted of indecent exposure for exposing himself and masturbating in front of a nine-year-old girl during a sleepover at a hotel. He submitted to a sex offender risk assessment and psychological evaluation as part of the presentence investigation report. The risk assessment, which included administration of the Static-99 and Minnesota Sex Offender Screening Tool, Revised (MnSOST-R), indicated a high risk of reoffense. During the psychological evaluation, He denied being sexually attracted to children or engaging in atypical sexual behavior in adulthood, including exposing himself and masturbating in front of the girl in the hotel room.

He reported, in a vague manner, having had an inappropriate sexual incident with young girls when he was 12 years old. Records indicated that he had engaged in at least two separate incidents with young girls during his preteen years. Neither of the two psychologists who evaluated him and reviewed his records recommended that he be assessed for civil commitment. Instead, it was recommended that he participate in outpatient treatment, closely supervised probation, and long-term monitoring or community aftercare and that he undergo a polygraph examination, to clarify his denial of the index offense.

Mr. Maedche reported to his probation officer one day after being released from the detention center. During the meeting, Mr. Maedche admitted to having exposed himself to the girl in the hotel. He also stated he has always been attracted to young girls. As part of his terms of probation, he attended outpatient sex offender therapy and submitted to a prepolygraph interview and examination. During the prepolygraph interview, he disclosed previously unknown sexual contact with minors that occurred when he was an adult. These incidents included indecent exposure, molestation of young children, theft and purchase of girls' and women's underwear for sexual gratification, and Internet searches for non-nude pornography, in which children were in suggestive poses. When asked if he would take sexual advantage of someone in his care or custody if he knew no one would find out, he stated, “… [Y]es, I would. I have no doubt in my mind right now that I would. Right now I'm hoping the treatment changes that.” The polygraph examination was scored as inconclusive—neither conclusively deceptive nor truthful.

Shortly after the interview and polygraph examination, the district court found probable cause and ordered Mr. Maedche to undergo a sex offender civil commitment evaluation. He was evaluated by two psychologists. Each psychologist completed a report and testified before the district court. The psychologists disagreed about whether he met the statutory definition of a sexually dangerous individual. The evaluator who concluded that he did not meet statutory criteria based her opinion on the belief that he did not meet the statutory definition of a sexually dangerous individual, that there was no evidence that he had serious difficulty controlling his behavior, and that he was not likely to engage in further acts of sexually predatory conduct. The district court held that he was a sexually dangerous person and civilly committed him.

Mr. Maedche appealed his commitment by arguing that North Dakota's sex offender civil commitment statute, North Dakota Century Code, Chapter 25-03.3 (2001) (hereinafter, § 25-03.3) is unconstitutional, because it is unduly vague and subject to employment in an arbitrary or discriminatory manner, and that self-incrimination and due process guarantees preclude the use of a sex offender's treatment-related disclosures in a civil commitment proceeding.

Ruling and Reasoning

The North Dakota Supreme Court held that § 25-03.3 is not unconstitutionally vague, because it creates minimum guidelines, gives a clear definition of what constitutes a sexually dangerous individual, defines terms used (e.g. sexual act, sexual contact, and sexually predatory contact), and provides a reasonable person with adequate and fair warning of when a civil commitment evaluation may occur. The court agreed with Mr. Maedche's contention that indecent exposure is neither a sexual act nor sexual contact as defined by § 25-03.3. However, it held that the index offense does not have to be the source of the civil commitment petition. He admitted molesting young girls as an adult. Although these incidents were not reported or prosecuted, they constituted sexually predatory conduct that was permissible for the district court to consider for purposes of civil commitment.

Regarding his disclosures during the prepolygraph interview and examination, the court held that admission of these incriminating statements did not violate his due process rights and privilege against self-incrimination. In Allen v. Illinois, 478 U.S. 364 (1986), the U.S. Supreme Court held that sex offender civil commitment proceedings were not criminal within the meaning of the Fifth Amendment, and due process does not require the privilege against self-incrimination to apply. In Interest of M.D., 598 N.W.2d 799 (N.D. 1999), the North Dakota Supreme Court held that § 25-03.3 is not criminal, because it focuses on treatment and predicting future behavior. Mr. Maedche argued that while treatment may be the stated purpose of § 25-03.3, the procedures used and consequences imposed in his case make the statute punitive.

In its opinion, the court stated that he did not offer “the clearest proof” that § 25-03.3 is “so punitive,” either in purpose or effect as to negate the state's intention that the statute is civil as opposed to criminal. The court identified elements of sex offender civil commitment in North Dakota that further indicate that § 25-03.3 is not criminal. For instance, sexually dangerous individuals are committed to the care, custody, and control of the executive director of the North Dakota Department of Human Services. The director then places the committed individual in the least restrictive treatment facility or program available. Each year, the committed individual may request discharge, and the state must show by clear and convincing evidence that the individual remains sexually dangerous.

Dissent

One justice provided a dissenting opinion and argued that Mr. Maedche was committed in violation of his Fifth Amendment right against self-incrimination. The dissent went beyond the civil nature of the statute and focused primarily on the “context” in which he made his incriminating statements. The dissenting justice argued that Mr. Maedche was compelled, as a condition of his probation, which was part of his criminal sentence, to take a prepolygraph interview and examination. The polygraph was not administered by a therapist, but rather by a Bureau of Criminal Investigations (BCI) agent.

If Mr. Maedche had failed to respond to the polygraph questions, he would have violated conditions of probation. Such a violation could have led him to lose his liberty for the time to which he could have originally been sentenced. Instead, by complying with the conditions of his probation, he lost his liberty for an indefinite period. In addition, by submitting to the polygraph, he disclosed the only act he engaged in as an adult that qualified as “sexually predatory conduct” for purposes of civil commitment. This act was previously unknown to law enforcement, and the sexual history that was known was insufficient to commit him. Furthermore, he had submitted to the polygraph without the presence of counsel.

Discussion

Each of the court's main findings surrounding In the Interest of Maedche has implications for forensic practice. The court held that North Dakota's sex offender civil commitment statute was not unduly vague, in part because it gives a “clear” definition of a sexually dangerous individual and defines the terms used. Section 25-03.3 defines a qualifying diagnosis as “a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct” (Maedche, p 335). By classifying this definition as “clear,” without addressing the inherent vagueness of the word “other,” the court did not address the difficulty that forensic evaluators have faced in determining what constitutes a qualifying diagnosis for purposes of sex offender civil commitment (see Sex Abuse 19:425–48, 2007).

Regarding treatment-related disclosures, the admissibility of Mr. Maedche's statements during the prepolygraph interview and polygraph examination turned on the question of whether the statements were made in a civil or criminal context. If statements are made in a civil context, the privilege against self-incrimination does not apply; if statements are made in a criminal context, it does. In its decision, the North Dakota Supreme Court broadly construed what constitutes “treatment” for purposes of sex offender civil commitment. While this ruling applies only in North Dakota, clinicians in other jurisdictions should take note of how such a broad interpretation may affect clients whom they treat, and they should adjust their warnings as to the limits of confidentiality accordingly. ..Source.. by Derek T. Hess, JD, PhD -and- Ira K. Packer, PhD

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Buffalo sex offender must remain in mental institution, court says

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9-28-2013 New York:

A Buffalo man, who was committed to a mental institution last year under the state’s civil confinement law for sex offenders, lost his appeal Friday.

The Appellate Division of State Supreme Court ruled unanimously that the state Attorney General’s Office showed by “clear and convincing evidence” that Michael W. Matter “is a dangerous sex offender requiring confinement.”

Matter, 48, was convicted in 1997 in Erie and Niagara counties of felonies involving the sexual abuse of two sisters. He served almost 11 years in prison and 21 months in a mental institution before State Supreme Court Justice Richard C. Kloch Sr. ordered him released.

After Matter lived on his own for a year and a half without incident, Kloch placed him on Strict and Intensive Supervision and Treatment, a tough parole regimen with 82 rules. Within a month, he had been accused of violating some rules.

Kloch accused the state’s parole and mental health bureaucracies of undermining his order for supervised release, but after a hearing, he sent Matter to be institutionalized in April 2012. ..Source.. by The Buffalo News

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In Re Girard

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1-11-2013 Kansas:

If expert opinion testimony based on scientific methods or procedures is offered as evidence in Kansas state courts, the offering party must satisfy the Frye test. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923). That test requires a "showing that the basis of a scientific opinion is generally accepted as reliable within the expert's particular scientific field." State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010).

In these proceedings to declare Douglas Girard and Eugene Mallard sexually violent predators, they ask us to instead apply the Daubert test to the actuarial risk assessments used by the State's expert witnesses in helping to predict the odds of their reoffending. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert test essentially makes Frye's test of "general acceptance" simply one factor to be considered in the admissibility calculus. 509 U.S. at 594, 113 S.Ct. 2786.

In both their cases, the district court essentially ruled that Frye applied to the actuarial risk assessments. It admitted the scientific opinion testimony which was partially based on these statistical calculations of risk. The Court of Appeals affirmed, with a majority holding that neither Frye nor Daubert applied because the actuarial assessments were not scientific. In re Girard, 45 Kan. App.2d 1109, 1111, 257 P.3d 1256 (2011). We granted the defendants' consolidated petitions for review and have jurisdiction under K.S.A. 20-3018(b).

We hold Frye applies and the actuarial risk assessments survive Frye's scrutiny. The district court therefore is affirmed. ..continued.. by Supreme Court of Kansas.

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SEX OFFENDER MANAGEMENT, TREATMENT, AND CIVIL COMMITMENT: AN EVIDENCE BASED ANALYSIS AIMED AT REDUCING SEXUAL VIOLENCE

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9-25-2013:

Executive Summary:

This study was designed to provide a comprehensive exploratory examination of the program management, treatment, and recidivism of sexual offenders in New Jersey. There were four main objectives of the research: 1) To provide normative data on a large sample of New Jersey sex offenders; 2) To determine which sex offenders get selected for treatment and what criteria are used to make that decision; 3) To examine the effect of treatment on recidivism; and 4) To compare those offenders selected for commitment as a Sexually Violent Predator (SVP) with those offenders not selected for commitment.

Data were gathered from the archival records of 3,168 male sex offenders who were housed at either a prison-based sex offender treatment facility (treatment group) or any of the New Jersey State prisons (no treatment group) and released from custody between the years 1996 and 2007. Additionally, archival data were gathered from all detained or committed SVPs. Federal and state recidivism data were obtained for all released offenders.

Ultimately, three general outcome categories were the focus of the analyses: selection for treatment (determined by whether the offender was housed at the prison-based sex offender treatment facility), recidivism (determined by whether an offender was convicted of an additional offense—sexual or non-sexual—following release), and SVP commitment (determined by whether the offender was released or civilly committed upon completion of the index sentence).

After coding the archival file data for offender characteristics, offense characteristics, risk assessment outcomes, and recidivism (and what type of recidivism, if applicable), comparisons were made via chi-square analysis and independent samples t-test across these three outcomes; that is, we compared treated and non-treated offenders, recidivists and non-recidivists, and committed and not-committed offenders on these factors.

Additionally, a series of classification tree analyses and logistic regressions were conducted to gather insight into what factors were most strongly indicative of selection for treatment, SVP commitment, and recidivism. ..Source.. by Cynthia Calkins Mercado, PI -and- Elizabeth Jeglic, PI -and- Keith Markus, Co-PI -and- R. Karl Hanson, Consultant -and- Jill Levenson, Consultant

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Civil Detainee's "Duck Soup" Newsletter Declared Contraband: now in district court

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9-24-2013 Florida:

Appellant James Pesci, a civil detainee at the Florida Civil Commitment Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq., the “Involuntary Civil Commitment of Sexually Violent Predators Act,” commonly referred to as the “Jimmy Ryce Act.” The Act provides for involuntary civil commitment of a sex offender who is determined to be a sexually violent predator for the purposes of safeguarding the general public and rehabilitating the detainee. Pesci and some 600 other residents of the FCCC are not prisoners; rather they are civil detainees who have already served their terms of incarceration.

For some years, Pesci has published a newsletter called “Duck Soup” at the FCCC that is highly critical of the center, its policies, and its personnel. In April 2009, Timothy Budz, the facility director at the center, promulgated a policy barring all residents from copying Duck Soup in order to limit its circulation, on the rationale that Duck Soup had disrupted order and discipline at the FCCC as well as had a powerful adverse effect on the facility’s capacity to rehabilitate its civil detainees.

Pro se, Pesci filed a § 1983 civil rights action against Budz in the United States District Court for the Middle District of Florida. He claimed the policy violated his expressive freedoms under the First and Fourteenth Amendments and therefore sought both monetary and injunctive relief. In November 2010, after the litigation had begun but notably before the district court entered summary judgment for Budz, the facility director adopted a new, different, and stricter policy treating the newsletter as “contraband” and banning outright its possession or distribution.

In February 2012, the district court granted final summary judgment in favor of the facility director, but only considered Pesci’s First Amendment claim as to the April 2009 policy, offering no view about the replacement policy banning Duck Soup. Pesci timely appealed, initially pro se, but now with the assistance of appointed counsel.

After thorough review, we vacate and remand for further proceedings consistent with this opinion. In view of the peculiar posture of this case, we believe the wiser course would be for the district court to consider the constitutionality of the November 2010 policy banning Duck Soup along with the April 2009 policy.

The district court never had occasion to review the constitutionality of this more restrictive policy -- a policy that mooted out any possibility of injunctive relief based on the April 2009 policy. Moreover, the record is limited and the plaintiff was uncounseled throughout the proceedings in the district court.

Accordingly, we remand the entire matter back to the district court to engage in the necessarily fact-intensive review of the facility director’s policies in the first instance. This course will avoid piecemeal adjudication of the constitutionality of the two policies. ..continued.. by Pesci v Budz, 11th Circuit Court of Appeals (Case: No. 12-11144)

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See also: Civil Detainee's Free Speech Case Revived by JACK BOUBOUSHIAN, Courthouse News

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Florida Legislature could crack down on sexually violent predators

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The article fails to mention the 594 is over 14 years, or 42 each year. And Florida does not provide them therapy while in prison.

see: They Shoot Sex Offenders, Don't They? for further explanation by Jill Levenson

9-23-2013 Florida:

The Legislature is poised to strengthen the Jimmy Ryce Act — named for a Miami-Dade County boy who was raped and murdered in 1995 — after the high-profile killing of a Jacksonville girl this summer and a newspaper series showing the state isn’t doing enough to prevent sexually violent predators from striking again.

The Jimmy Ryce Act requires the state Department of Children and Families to evaluate sex offenders before their release from prison, confining the most dangerous at the 720-bed Florida Civil Commitment Center in Arcadia.

But according to an investigation published last month by the South Florida Sun Sentinel, DCF has been recommending fewer and fewer sex offenders for confinement, with the number falling from a high of 228 in 2000 — two years after the law went into effect — to a low of 19 in 2012.

At least 594 offenders reviewed and released under the law have been convicted of new sex offenses in Florida, the Sun Sentinel reported, and their crimes included molesting more than 460 children, raping 121 women and killing 14.

On Monday, DCF released a series of recommendations intended to lessen the number of sexually violent predators who fall through the cracks. Two Senate committees will meet jointly Tuesday to consider a legislative response.

“I think that the entire Legislature is on board,” said Sen. Eleanor Sobel, a Hollywood Democrat and chairwoman of the Senate Children, Families and Elder Affairs Committee, which will meet with the Senate Judiciary Committee to examine the state’s Sexually Violent Predator Program.

“When I read the articles about these sexual predators, I get sick to my stomach and want to puke,” Sobel said. “Talking to my colleagues, I know they feel the same way.”

The Jimmy Ryce Act targets sexually violent predators who cannot stop themselves from further violence. Identifying them is a three-step process, requiring a DCF screening, a psychological evaluation and a trial. When committed to the Florida Civil Commitment Center, they must remain until a judge finds that they are no longer dangers to society.

The Sun Sentinel found that of the 594 offenders who were released under the Jimmy Ryce law and reoffended, 96 had been referred for a psychological review. Of these, 32 had been sent to court to be committed to the Florida Civil Commitment Center, five were confined there and all five were subsequently released.

The newspaper’s investigation was already underway when Donald Smith, 56, was released from jail on a sex offense in May and, according to prosecutors, abducted, raped and strangled 8-year-old Cherish Perrywinkle of Jacksonville within three weeks. Smith, a registered sex offender, had an extensive criminal history, including repeated attempts to kidnap young girls.

After DCF Interim Secretary Esther Jacobo was tapped to lead the agency in mid-July, she ordered a review of the Florida Sexually Violent Predator program. Her recommendations, released Monday, included, “In addition to automatically sending cases that include kidnapping and murder convictions for evaluation, cases that include ‘attempted’ kidnapping and ‘attempted’ murder should automatically be sent for evaluation.”

Had that recommendation been in place in May, Smith likely wouldn’t have been eligible for release, and Perrywinkle might still be alive.

Other recommendations include:

■ The policies and procedures for the evaluation process should be reviewed and evaluated by a team of expert stakeholders before being finalized and implemented.

■ Screeners will be trained to understand they are not solely responsible for screening out offenders who do not meet civil commitment criteria. They must refer cases for face-to-face evaluation when there is any doubt or ambiguity as to whether an offender will meet criteria.

■ When two evaluators believe an offender meets commitment criteria, the multidisciplinary team should be required to recommend a commitment petition be filed. Implementation of this recommendation will require rulemaking.

■ Contracts with forensic evaluators should be limited to one year with the option of renewal instead of the current three-year policy.

■ A system for evaluating the evaluators and providing them with feedback about the clarity of their reasoning should be implemented as a standard practice.

Approximately 200 to 400 files are referred to the Sexually Violent Predator Program each month. More than 40,000 have been reviewed so far. ..Source.. by Margie Menzel

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Western Australia prison authorities stop anti libidinal medication for sex offenders due to side effects

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9-20-2013 Western Australia:

The Supreme Court has been told WA's prison authorities have stopped giving anti libidinal medication to sex offenders because of dangerous side effects.

The issue arose during a hearing involving notorious paedophile Michael McGarry who was due for an annual review to determine if he can be released.

The court was told earlier this year McGarry stopped taking his anti libidinal medication because he was suffering side effects including osteoporosis and cardiac problems.

However, when he decided he wanted to take the medication again, he was told prison doctors were no longer providing it because of the health risks.

McGarry's lawyer said his client was now booked to see a hormone specialist outside the prison system to determine if he can again take the medication. ..Source..

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Head of Florida's sex predator program resigns

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9-20-2013 Florida:

The state administrator in charge of identifying sex predators who are too dangerous for society resigned Thursday, a day after the Sun Sentinel raised questions about his views and record.

Under Dan Montaldi's leadership, the number of potential predators identified by the state dropped by more than half, the Sun Sentinel found. In writings obtained by the newspaper, Montaldi advocated a narrow definition of a predator and defended the rights of sex offenders — a philosophy that one lawmaker said made his "skin crawl.''

"Dan Montaldi no longer works for the department,'' said Alexis Lambert, spokeswoman for Florida's Department of Children & Families.

Lambert said she could not elaborate. Montaldi, 59, did not respond to a request for comment.

As director of Florida's Sexually Violent Predator Program, Montaldi was responsible for administering a law that allows the state to keep predators locked up after their prison sentences end. Staff evaluate sex offenders before they're released and recommend those likely to reoffend for continued confinement at a Central Florida treatment center.

The sex predator program has been under scrutiny since June, when 8-year-old Cherish Perrywinkle was abducted from a Jacksonville Walmart, raped and murdered. Her accused killer, a registered sex offender, had been evaluated twice under the law and let go.

Last month, a Sun Sentinel investigation found nearly 1,400 sex offenders were arrested again on sex charges after being reviewed under the law.

In response to the series, Montaldi wrote an email to an association of mental health professionals, pointing out that more than 31,000 sex offenders had been screened since the law took effect 14 years ago and as a group they are "statistically unlikely to reoffend.''

"The real ethical concern,'' he wrote, "is the dilemma of competing moral values in a free society.''

"Public safety is a very important value because, among other reasons, it is necessary in order for liberty to be enjoyed,'' said the Aug. 20 email, posted to a mailing list of the Association for the Treatment of Sexual Abusers. "However, the value of liberty in a free society must also extend even to society's most feared and despised members. ... The civil rights of even sex offenders is still an important moral value.''

Montaldi urged his peers to support those rights. "It is our obligation, I believe, to stand up for even unpopular values, especially at a time when their unpopularity is at an extreme,'' the email said.

Montaldi's comments riled Florida legislators who are working to strengthen the state's sex offender laws in response to the Sun Sentinel series.

"That makes my skin crawl,'' said Rep. Matt Gaetz, a Fort Walton Beach Republican and chairman of the House Criminal Justice Subcommittee. "You're juxtaposing the rights of monsters among us to the safety of the most vulnerable among us, and it's an absurd comparison.''

Senate Majority Leader Lizbeth Benacquisto, a Fort Myers Republican, said Montaldi's views are inconsistent with the state's mission of public safety. ..Source.. by Sally Kestin and Dana Williams, Sun Sentinel

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Child rapist asks to be locked up again

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9-18-2013 Washington:

I feel like I’m a danger to the community’

A King County child rapist released after eight years at a state center most adjudicated sexual predators never escape has an unusual request – he wants back in.

“I confess that I feel like I’m a danger to the community and need sexual predator treatment,” Zachary T. Goldschmidt said in a letter asking to return to the Special Commitment Center. “I am notifying the courts of this problem, because the community will be safe without (me).”

King County prosecutors are trying to oblige Goldschmidt, who successfully fought to be released from the McNeil Island center in 2011. Goldschmidt, now 30, was sent to the Department of Social and Health Services-run secure facility a decade ago.

Washington’s civil commitment law allows the DSHS to indefinitely detain sex offenders found likely to sexually assault strangers because of a mental illness. Goldschmidt was previously judged to be such an offender – a “violent sexual predator,” technically – but was released in 2011 after a San Juan County jury ruled in his favor.

Following his release in April 2011, Goldschmidt moved to King County under state Department of Corrections supervision. While free, he struck up a relationship with a woman he met on a telephone chat line; despite court orders to the contrary, Goldschmidt hid his history from the woman and spent time with her children. The woman ultimately obtained a protection order against Goldschmidt, which he is alleged to have violated at least nine times.

Goldschmidt was subsequently jailed for violating the conditions of his release. A state psychologist has since diagnosed Goldschmidt as a pedophile and opined that he is likely to again sexually abuse children.

Prosecutors earlier in September filed a lawsuit aimed at seeing Goldschmidt again confined at the Special Commitment Center. The facility is home to about 300 men being held indefinitely as violent sexual predators. While several offenders have "graduated" from the program and more than a dozen others are living off the island, most remain at the facility. They make up about 1 percent of the sex offenders convicted in Washington courts.

Under Washington law, county prosecutors or the state Attorney General’s Office can file such civil lawsuits against convicted sex offenders. To prevail, prosecutors must show that an offender is likely to sexually assault again, and that the offender has a mental abnormality making him so.

If a jury or judge agrees with prosecutors, an offender can be sent to the Special Commitment Center. Only offenders who are deemed likely rape or molest strangers are eligible for detention there.

Committed to the center at age 20, Goldschmidt spent eight years in the program before a San Juan County jury ordered he be released in April 2011.

In March 2012, Goldschmidt filed a letter with the court with an unusual request. Free for less than a year, Goldschmidt wanted to go back to McNeil because he me believed he will hurt others again.

“If I can’t keep myself from being around minors, I am a threat to society,” he told a state psychologist in October, according to prosecutors.

A foster child since age 3, Goldschmidt struggled in school, failed to obtain a high school degree and has never held a job. According to court records, his intelligence is well below normal.

At 14, Goldschmidt sexually assaulted an 11-year-old boy at a Friday Harbor church, and later in a van. The boy told his foster mother Goldschmidt threatened to beat him if he didn’t comply.

Goldschmidt served a year in juvenile detention, and was arrested again four years later after sexually assaulting a 14-year-old boy. Again, Goldschmidt, then 17, threatened to beat the boy if he didn’t comply.

Sentenced to a year in jail with work release, Goldschmidt failed to abide by court orders that he stay away from children. He later admitted to touching a 3-year-old girl, and was ultimately sent to the Special Commitment Center in 2003.

Writing the court, Senior Deputy Prosecutor Rod Scarr said Goldschmidt has admitted to sexually assaulting about 10 other adults and children, including a young woman he claims to have raped.

While at the Special Commitment Center, Goldschmidt carried on a sexual relationship with another detainee. He also said he fantasizes about his past victims, and was kicked out of treatment.

Goldschmidt is expected to be transferred to the Special Commitment Center as the case against him proceeds. He is currently being held without bail in King County Jail at Seattle. ..Source.. by Levi Pulkkinen

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Violent predator trial set for sex offender who attacked young girls

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9-18-2013 Washington:

ATTORNEY GENERAL NEWS RELEASE -- Benton County Superior Court Judge Carrie Runge set an October 2014 trial to determine whether convicted sex offender Stephen Robinson is a sexually violent predator.

Robinson, 56, was convicted of sexually violent offenses against young girls in Benton County in 1984 and again in Denver County, Colo. in 1999. He was scheduled for release from the Walla Walla Penitentiary on July 26, 2013, but was transported to the state’s Special Commitment Center pending today’s hearing.

The Attorney General’s Office SVP Unit alleges Robinson suffers from specific mental abnormalities and/or personality disorders that cause him to have serious difficulty in controlling his dangerous behavior and make him like to engage in predatory acts of sexual violence unless confined to a secure facility, namely the state’s Special Commitment Center on McNeil Island.

Robinson acknowledged to the state's evaluator having many additional victims and indicated to the evaluator he would continue to offend if released.

“The expert attorneys in my sexually violent predator unit work hard to protect children and communities from dangerous sexual predators using the state’s civil commitment laws,” said Attorney General Bob Ferguson.

Robinson will now be detained at the state’s Special Commitment Center until his October 2014 trial. At trial, either a judge or jury will decide whether or not he meets the SVP criteria. If the judge or jury determines he is a sexually violent predator, Robinson will be confined indefinitely at the Special Commitment Center.

In 1990, Washington became the first state in the nation to pass a law permitting the involuntary civil commitment of sex offenders after they have served their criminal sentences. The Attorney General’s SVP Unit was established shortly thereafter.

The law allows the state to civilly commit to a secure facility sexually violent predators who, because of a mental abnormality and/or personality disorder, are proven likely to commit predatory acts of sexual violence if not confined.

The AGO SVP unit is responsible for prosecuting sex predator cases for 38 of Washington’s 39 counties (King County being the exception). In Fiscal Year 2013, the unit tried 19 cases, won 16 civil commitments and secured one recommitment. One trial ended in a hung jury and one offender was found by a jury not to meet criteria to be committed as a sexually violent predator.

As of September 2013, approximately 293 sexually violent predators are civilly committed in Washington state. ..Source.. by KEPRTV.com Staff

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The Civil Commitment of Sexually Dangerous Predators: Civil or Criminal?

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October 2012 Iowa:

The civil commitment of sexually dangerous predators is a practice that is widespread across the United States, both on a federal level and on a state level. In United States v. Comstock, the Supreme Court found that the civil commitment of sexually dangerous predators was constitutional under the Necessary and Proper Clause.

The federal version of this statute, popularly titled the Adam Walsh Act, states that an individual may be civilly committed if they “engaged or attempted to engage in sexually violent conduct or child molestation . . . suffers from a serious mental illness, abnormality, or disorder [and] . . . as a result of that . . . [is] sexually dangerous to others. The individual also must “have serious difficulty in refraining from sexually violent conduct or child molestation if released.” -

Though the Supreme Court found that the federal version of this program is constitutional, the federal appeals court felt differently about Minnesota’s version. In 1992, Minnesota passed the Psychopathic Personality Commitment Act. This act required that the prisoner must have an “utter inability” to control his impulses. Dennis Linehan, a sexually dangerous predator who was not committable under the current act, committed multiple horrific crimes.

The court, in In re Linehan, found that he could not be committed because he had a “stable, intact and fairly controlled personality”, but that he would surely reoffend. In response to Dennis Linehan’s release, the Minnesota legislature passed The Minnesota Commitment and Treatment Act in 1994, which allowed for commitment of those with “sexually dangerous psychopathic personalities”, and did not have to have an “utter inability” to control their actions.

Another grisly murder occurred in Minnesota in 2003. In response Governor Pawlenty cracked down on this program, changing the policy so that all level-three sex offenders could not be released from criminal commitment without a court order. After this occurred, 253 sex offenders were referred to attorneys for potential civil commitment under this program, almost the same amount that had been referred in the last nine years of the program. Currently the population is approaching 700, and since this program was implemented in 1994, not a single one of the offenders that have been committed have been let out. Minnesota currently has the highest number of sex offenders committed in the entire United States. The program is slated to run out of room next year.

On August 17, 2012, a federal judge ordered Minnesota to reform the civil commitment system. This was a result of a class action lawsuit that challenged the confinement of over 650 sex offenders in the treatment program. On October 11, 2012, Minnesota’s “Sex Offender Civil Commitment Advisory Task Force” held its first meeting, and at this point believes they will need to ask for more time in order to come up with positive reforms, which based on the reports is badly needed.

While this practice is considered constitutional on the federal level, in light of the situation in Minnesota, I find myself asking, is it only constitutional if you are letting these sexually dangerous predators out? In United States v. Comstock, in his concurrence, Justice Kennedy made it very clear that civil commitment should be rehabilitative, and that if it crosses into retributive territory, it becomes unconstitutional as it is a criminal commitment. If we are locking up sexually dangerous predators, trying to treat them, and it isn’t working so they are staying confined for life, how is that rehabilitative?

At some point it seems the line is crossed, and according to a federal appeals court judge, Minnesota crossed it. How can it be right that we lock people up for life, without a criminal trial where they are sentenced to this fate? These are questions the Minnesota task force is trying to answer, and it will be interesting to see if they are able to come up with a program that works. ..Source.. by Journal Student Writer Genevieve Craggs

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Some senators seek review of review process

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9-15-2013 Nebraska:

Several state senators, in the wake of questions about why Nikko Jenkins was released from prison despite his pleas for treatment (See his story at bottom of this post), say prisoners with violent compulsions should get the same sort of rigorous review given to prisoners with sexual compulsions.

Under existing law, about a dozen sexual offenders every year are committed after release from prison.

Violent offenders such as Jenkins are so rarely sent to state mental institutions that no agency could provide a number.

That, legislators say, needs to change.

“When you find somebody with significant mental health issues ... there needs to be a process in place where those people can be examined and processed before they're released,” said State Sen. Brad Ashford of Omaha, who heads the Judiciary Committee. “You can't just say 'Well, there's nothing wrong with him.' ”

Since 2006, Nebraska has had a detailed plan for dealing with sex offenders who are about to be released from prison.

Each has to undergo a psychiatric evaluation by prison doctors. That evaluation then goes to county attorneys, along with a department recommendation about whether the person should go before a county board of mental health for commitment.

The law doesn't require that sex offenders have a mental illness to be committed. Coupled with an inability to control behavior, a “personality disorder” — a far lower bar — is enough.

County attorneys decide whether to pursue the matter before the board of mental health.

The process was adopted as part of legislative reforms proposed in 2006 by Gov. Dave Heineman, Attorney General Jon Bruning and then-State Sen. Pat Bourne of Omaha.

The reforms were prompted by concerns that more sex offenders were moving to Nebraska after Iowa restricted where they could live. Support was fueled by cases involving gaps in the system exposed by the sexual assault of a Lincoln kindergartner and the assault of a 17-year-old in Weston, Neb., by a diagnosed pedophile.

It's a prescriptive system that has quietly changed the role of some regional treatment centers, said Scot Adams, director of behavioral health for the Nebraska Department of Health and Human Services.

The Norfolk Regional Center used to treat all kinds of mental patients but has evolved to where it now treats only sex offenders. Most are treated for three or four years before being released.

The evaluation system has increased the ranks of sex offenders in the regional centers, from 106 before the law passed to 158 at the end of 2012. Most were being treated after serving prison sentences.

No similar law mandates evaluations for nonsexual violent offenders such as Jenkins.

Corrections officials occasionally recommend committing dangerous criminals using the same process that applies to all citizens, but that is rare.

Data wasn't available last week from state corrections or HHS on how many dangerous non-sex offenders are recommended for commitment after prison.

But one thing's for sure: It's not a big number.

“It happens so rarely, there's not going to be a file,” said Marshall Lux, state ombudsman.

Douglas County prosecutors recalled two female non-sex offenders who were committed after leaving the women's prison at York. Both were committed under the rules that apply to all citizens, which require that they be both mentally ill and dangerous to themselves or others.

Sarpy County prosecutors said they commit about one sex offender every year, while only one non-sex offender has been committed after release in the past few years.

Several lawmakers called this a hole in the system and said it would be a focus in the coming legislative sessions.

“If there's any good that comes out of these murders, it's that the Legislature is going to address this,” said Sen. Les Seiler of Hastings. Jenkins “was begging for it and didn't get the necessary help. We need to take a look at that. How did we miss on this guy?”

Any solution probably won't be as simple as replicating the sex offender process for violent criminals.

The state's regional treatment centers have adapted over the past decade to care for sex offenders who aren't mentally ill. But throwing violent criminals into the mix would require more resources at the facilities, HHS officials said.

Adams said the sex-offender approach wouldn't be a perfect fit because while sex offenses are well-defined, violent offenses can be murkier.

“It's not an exact parallel. It's apples and potatoes,” he said. “Perhaps there is some parallel notion that is not quite the same. This is a topic that deserves a lot of careful thought and consideration rather than a rush to a solution.”

Ideas about how to fix the system are all speculation, because legislators haven't had any formal discussions about the matter.

That's in part because corrections officials haven't briefed legislators, said Sen. Burke Harr of Omaha.

They don't know how Jenkins was treated, if at all, or what counseling he received before his release, several lawmakers said.

Records show that at least one prison evaluator thought Jenkins was faking a mental illness. Harr said he didn't know how such an evaluation had been reached.

“Is someone just knocking on their cell door, making sure they're not insane?” he said. “I don't have the facts.”

Sen. Colby Coash of Lincoln said the Judiciary Committee should explore a model for violent offenders similar to the one used for sex offenders.

“We should look at whether that process is appropriate for the Nikkos of the world,” he said. “We have a framework for keeping dangerous sex offenders out of the community. We ought to see if there's a similar framework for dangerous violent people.”

The Legislature also could consider requiring parole for violent offenders with mental problems, which would ensure that they seek treatment, he said.

Any solution will have to balance protecting a prisoner and the public with respecting prisoners' rights, he said.

“We can't keep a guy past his sentence,” Coash said. “We can't keep people in jail just to give them treatment.”

Dr. Sidney Kauzlarich, a psychiatrist at the Douglas County Health Center, said the American Psychiatric Association undoubtedly would oppose any plan to extend the civil commitment process to offenders who don't suffer from full-blown mental illness.

The fear is that the hospital would just become an alternative prison.

Commitment doesn't make sense if a person can't be treated, he said.

“We don't have a whole lot of data that we can make a substantial difference with those patients,” he said. ..Source.. by Matt Wynn

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Nikko Jenkins: 'I need mental health treatment'

OMAHA, Neb. —The man the FBI now says fits the profile of a serial killer repeatedly asked a court for mental health treatment.

Court transcripts obtained by KETV NewsWatch 7 from July 11, 2011, show the man now charged with four counts of first-degree murder asked a judge for help.

"The only thing that I want to ask of the court is to you to -- to somehow order me to get some form of mental health treatment before I'm released," Jenkins said at his plea and sentencing appearance. "I don't have that much time left on my prison sentence ... I'm not just trying to just be thrown out into society without any kind of mental health treatment."

Douglas County District Court judge Gary Randall interrupted Jenkins, agreeing with him, but telling the convicted felon it was out of his hands.

"Once I sentence you to the Nebraska Department of Correctional Services, I lose jurisdiction in terms of deciding where you go," the judge said to Jenkins' request of placement in a mental health facility.

Moments later, the judge agreed to put a recommendation for mental health treatment in the sentencing order.

"But that doesn't mean (the Department of Corrections) has to do it," Randall said.

At the hearing, Jenkins' public defender noted the convicted felon had not been taking his medication while in the Douglas County jail.

It was at that very same hearing where Judge Randall gave Jenkins credit for 513 days served in Douglas County Corrections -- effectively reducing the sentence for assaulting a prison officer.

Prosecutors fought the credit.

On December 17, 2009, Jenkins punched a prison guard in the face at his grandmother's funeral in Omaha. He also promised a "bloodbath" from "friends carrying guns" if guards didn't let him free.

Jenkins had been in prison since he was 16, after getting convicted of armed robbery charges. In 2005, he was involved in a prison fight. The fight led to several more years in prison. The judge in that case, James Gleason, gave Jenkins no credit for time spent in corrections.

While the number of felonies Jenkins racked up while in prison would have qualified him for an additional habitual criminal charge (which prosecutors filed on April 14, 2011), Douglas County Attorney Don Kleine says because Jenkins never left prison, the habitual criminal charge would have been invalid.

"He had never been out of a penitentiary," Kleine said.

A habitual criminal charge would have added at least 10 years to Jenkins' prison time.

It's unclear whether Jenkins was on medication or getting treatment immediately prior to his release in July 2013. KETV NewsWatch 7 called the Department of Corrections for comment, and spokeswoman Dawn-Renee Smith said inmate records are protected under state laws.

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Sex offender treatment programs are under scrutiny

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9-1-2013 Kansas:

After Robert L. Watkins tried to rape a 6-year-old Johnson County girl, the criminal justice system sent him to prison for five years.

But after he did his time, he didn’t go free. Instead, a judge ordered him into the Kansas Sexual Predator Treatment Program, where, nine years later, he remains with no guarantee that he will ever be released.

In the program’s nearly 20-year history, it’s been more likely that a resident will leave in a hearse than walk out to rejoin society. So far, only three have earned their freedom. Twenty-two have died.

What’s happening in Kansas is unfolding in Missouri and 18 other states that have similar civil commitment laws aimed at protecting the public while giving program residents a chance to change their lurid behavior.

Nationwide studies estimate that more than 5,000 sex offenders are confined in such programs at an annual cost of more than $500 million — much more expensive than prison, sometimes three times as much.

“It is not sustainable,” said Maia Christopher, executive director of the Association for the Treatment of Sexual Abusers.

There also is a growing concern that programs are drifting away from their original goal of treatment into a legally gray area that could bump up against the U.S. Constitution.

Kansas’ program has been facing increased scrutiny at home lately too. Gov. Sam Brownback’s administration created a task force late last year to look at ways of improving the program. The panel’s recommendations are expected to be released later this month.

More than 200 sexual offenders are confined in the program at Larned State Hospital in central Kansas. It costs the state about $75,000 a year to hold each one — about two and a half times the cost to incarcerate them in a state prison.

The population is growing by about 18 admissions each year, and the costs are escalating proportionately. The state is fast running out of space to house the men.

The program will cost taxpayers about $17 million this fiscal year, about 14 times more than in 2001. The cost is likely to balloon with the population projected to more than double within 20 years.

The program puts lawmakers in a pinch: How much money should be devoted to such a small but risky population that seems to gain little against pressing needs such as education, social services and highways?

It leaves some lawmakers like Rep. Marvin Kleeb of Overland Park thinking that more needs to be done to toughen criminal sentencing.

“If they’re still a threat to society, maybe we shouldn’t have this totally separate sexual predator rehabilitation and treatment program,” Kleeb said. “They need to be part of the regular prison population.”

State officials said their emphasis is on protecting the public from a population where more than three-quarters of the residents are pedophiles.

Although officials want people to leave the program, they say treating sexual offenders is a long, arduous process that doesn’t guarantee results.

“I can guarantee you the treatment is occurring,” said Jerry Rea, superintendent at Parsons State Hospital and a co-chairman of the state task force. “It is one of the most difficult behaviors in the field of mental health to treat.”

Prosecutors think the expense is vital to protect the public from the most heinous sexual offenders.

“I’d bet a lot of money if you took members of the public and told them what those individuals did … the public would be willing to pay to keep the community safe,” said Johnson County District Attorney Steve Howe.

Howe said he believes criminal sentences already have been toughened in the last 10 years to ensure that sex offenders go to prison.

He believes that many of the Larned residents were sent there before the Kansas Legislature passed more severe penalties on sexual offenders.

The program, he said, was a way to protect the public from sex offenders before lawmakers crafted new laws. Howe expects the confinements to tail off as sex offenders increasingly are sentenced under tougher laws.

A national issue

The sexual predator issues aren’t confined to Kansas. Consider:

• A federal court battle is brewing over Minnesota’s sexual treatment program. Only one of about 700 people confined there since the program started in 1995 has been released. A lawsuit alleges that the residents are not given adequate treatment to get out. Last year, a judge ordered the state to reform the program, but lawmakers didn’t act. A court hearing is set for November.

• In Missouri, only four people have been conditionally released from a program started in 1999. Ten have died in confinement. The program costs taxpayers $24 million a year, or $125,000 a person.

• In Iowa, which also launched its program in 1999, three people have been discharged after meeting release criteria. Thirteen have been released for various legal reasons. Seven died in confinement. About 120 are expected to be housed there this fiscal year at an annual cost of $11 million.

The idea of civilly confining ex-offenders was controversial from the beginning, with critics saying it was unconstitutional to put people away after they already had served prison sentences for their crimes. They contended that mental health professionals would be reluctant to ever OK offenders for release.

But proponents argued that the programs employed the same type of legal mechanism used to involuntarily commit mentally ill people for treatment. They said it was a way to protect the public from the “worst of the worst” sex offenders.

The first legal challenge to the program’s constitutionality came through a case brought by Leroy Hendricks, who had a 40-year history of molesting children and was the first man committed under the Kansas law.

The U.S. Supreme Court ruled 5-4 in favor of the state in 1997. However, Justice Anthony Kennedy, who voted with the majority, warned that if treatment was a “sham or mere pretext,” then the law could not pass constitutional muster.

“If the civil system is used simply to impose punishment after the state makes an improvident plea bargain on the criminal side, then it is not performing its proper function,” Kennedy wrote.

Kennedy also foresaw that few people would be released once committed.

“Notwithstanding its civil attributes, the practical effect of the Kansas law may be to impose confinement for life,” the justice said.

With so few people getting out, questions persist about whether the treatment programs have in effect become very pricey prisons instead.

“They are not working the way the courts were promised they would work,” said Eric Janus, an expert on civil commitments and dean of the William Mitchell College of Law in St. Paul, Minn.

“They were promised to be real civil commitment programs, but they’re not. If they’re not really civil commitment, then they’re really punishment, and that’s unconstitutional because these guys were already punished.”

At stake in Kansas

Kansas officials believe their program is constitutionally sound. They believe that it takes years to treat a sexual offender, assuming those offenders are willingly participating in the program.

The Kansas law targets people diagnosed with a mental abnormality or personality disorder that predisposes them to commit sex crimes.

The law affords them the right to a jury trial and provides them yearly reviews to determine if their condition has changed to an extent that they are no longer at risk to reoffend.

An audit released last week said Kansas has set a “very high” standard for release from the program, since the Legislature’s stated goal was to ensure that sex offenders will not commit new sex crimes.

Residents can be discharged from detention if they complete a seven-step program, after which they are conditionally released under court supervision for at least five years. More than half the people in the program have completed up to three treatment steps. Seven are in the final two phases.

“There’s no requirement that they be cured. We have to have good treatment, which we do have,” said Kimberly Lynch, a lawyer for the Department for Aging and Disability Services, which oversees the program.

“It is a motivational issue,” she said. “People have to want to go to treatment and actively participate in it.”

Jerry P. Inman, 64, a former Olathe resident, was the first man released from the Kansas predator program in 2002. He was committed to the program in 1996 after serving about two years in prison for taking indecent liberties with a child.

Michael Crane, the second man released from the program, also in 2002, was later convicted of raping a woman in Kansas City and is now serving a life sentence.

Inman compared the program to college, but with no clear goal of what needed to be done to get out of the program.

“They don’t have anything set up that you can reach,” said Inman, who now lives in Missouri. “You feel like there’s no end.” ..Source.. by BRAD COOPER and TONY RIZZO The Kansas City Star

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St Louis play brings sex offender debate to new stage

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9-14-2013 Missouri, National:

ST. LOUIS • While sex offender laws continue to be debated throughout Missouri — at the state Capitol, in lawsuits and media — now comes “Lonesome Hollow,” a play about a town in the near future where sexual predators are held indefinitely.

The performance is billed as an exploration of how far society is willing to go to keep children safe.

Lee Blessing, who wrote the play, describes the message as “sinister and disturbing, but really not that far from reality.”

Indeed, the federal government and 20 states, including Missouri, have laws on sexually violent predators that hold some offenders indefinitely in mental health facilities after they have finished prison sentences because they are deemed too likely to commit future crimes.

In the play, as in real life, there aren’t easy answers. Uncomfortable, thought-provoking questions are raised about constitutional rights and offenders who have committed heinous crimes.

But Blessing, 63, of Los Angeles, said he takes the issues further than reality in an attempt to get audiences to “think about where certain societal tendencies could lead.”

For example, nobody seems to care that medical professionals at Lonesome Hollow conduct psychological experiments on throwaway residents.

The play also questions the line between what’s considered pornography and art, and who decides.

“You have both sides of the argument,” said Robert Ashton, director of the local performance. “It’s a good drama.”

The play will be the West End Players Guild première of its 103rd season.

If the first full rehearsal was any indication Wednesday night, audiences won’t know what to think when it’s over. Each character is flawed and goes too far, including a sexual predator who will clearly reoffend if freed from the fictitious town.

Beth Graveman, one of five actors in the play, assured that “nothing like this has been done in St. Louis.”

But she doesn’t expect her family to attend this one. There is adult content, and it’s a challenging topic.

“It’s obviously not light entertainment, but it is thought-provoking,” said actor Mark Abels. ..Source.. by Jesse Bogan

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Post audit: Sex predator program continues to grow

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9-12-2013 Kansas:

A state-run program charged with treating sexual predators will likely “exceed its physical capacity” in four to five years, according to a legislative audit report released today.

“We don’t have a lot of individuals coming out on the back end of the program, and 18, on average, are coming in on the front end,” each year, said Dan Bryan, an auditor with the Legislative Division of Post Audit. “So the program is going to grow.”

Bryan said it was reasonable to assume that the state’s Sexual Predator Treatment Program, which is housed on the campus of Larned State Hospital, would be full by either 2017 or 2018.

Since the treatment program’s inception in 1994, only three of its 251 residents have graduated and been released. Twenty-two have died while still in it.

Most of the treatment program’s residents are at least 40 years old and have been at the facility for at least five years. Roughly 80 percent have been diagnosed as pedophiles. Other diagnoses include schizophrenia, bipolar disorder, and depression, according to the auditors.

Appearing before the joint Legislative Post Audit Committee, Bryan said that while the treatment program appeared to be safe and secure, it also was significantly understaffed.

In April, he said, 30 percent of the program’s 178 direct-care positions were vacant. At times, Bryan said, the program failed to meet minimal staffing levels.

Because so many positions are unfilled, the workers often are required to work overtime, he said. In 2012, treatment program employees logged more than 38,000 hours of overtime, almost a six-fold increase over the 6,700 hours logged in 2010.

Bryan attributed the vacancies to the fact that many people do not want to work with sexual predators or live in a “rural location,” or don't want to put in “a significant amount of overtime.”

Wages were another factor, he said. The hospital’s entry-level workers are paid $12.04 an hour. Their counterparts at the nearby prison and juvenile detention facility start at $13.65 an hour.

Twenty-two percent of the treatment program’s employees who responded to a Legislative Post Audit survey said they did not feel safe “while working.”

Larned State Hospital officials did not dispute most of the findings.

“Overtime is a significant issue at our facility,” hospital Supt. Tom Kinlen told KHI News Service. “We make no bones about that. That’s why we’re working so hard to reduce it.”

Kinlen told committee members that hospital officials recently had launched several initiatives aimed at boosting employee morale.

He also said he had enacted policies meant to prevent cell phones from being smuggled into the facility. Cell phones can be used by the program's residents to download and share pornography.

“We take all the post audit’s recommendations seriously,” said Lea Stueve, policy director at the Kansas Department for Aging and Disability Services, which administers both the state hospital and the treatment program.

Stueve said the hospital’s overtime troubles had declined in recent months.

“It’s still a serious issue, but the trend is going down,” she said.

The audit did not address concerns raised by mental health advocates that the treatment program is being run like a prison and that the services are both punitive and ineffective.

Bryan said those concerns would be addressed in a KDADS task force report due for release in two to three weeks.

“The message I took away from today was, ‘Hey, folks, we got a problem. We got 18 people coming in every year, and nobody’s leaving,’” said Rick Cagan, executive director of the National Alliance on Mental Illness-Kansas. “We really didn’t get into the bigger issues that come with either coming up with a way that allows people to move through the program or having to spend millions on additional dollars on expanding the place.”

Eldon Dillingham, whose son has been in the treatment program for about five years, attended the hearing.

“I’m disappointed,” he said. “I really thought some attention was going to paid to why nobody leaves the program, why nobody gets out. It’s not a treatment program, it’s a prison. It’s run like a warehouse.”

Dillingham said he and other residents’ family members were organizing.

“We’re coming together,” he said. “We’ll work with the hospital and we’ll work with our elected officials. But if things don’t change, we’re prepared to take other actions as well.”

Those “actions,” he said, may include taking legal action against the treatment program.

Rep. Marvin Kleeb, a Republican from Overland Park, and a member of the post-audit committee, said legislators should consider moving the treatment program to an urban area and a larger pool of potential employees.

“If they’re having so much trouble getting people to work there, why is that we keep insisting on the program being located in a town of 4,000 people?” Kleeb said. “It’s almost like this is some kind of economic development thing” for Larned.

“I also found myself wondering why no one ever leaves the program even though they’ve paid their debt to society. That seems like a conflict,” he said. “I’m all for protecting society, but I don’t know that that means no one there can ever be rehabilitated.”

Stueve and Kinlen said KDADS was not considering moving the treatment program. ..Source.. by Dave Ranney

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Some Minnesota sex offenders could go to less secure setting

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9-12-2013 Minnesota:

Officials with the state's sex offender program say six low-functioning offenders could be moved to a less restrictive setting if a court approves their transfers.

Officials with the state's sex offender program say six low-functioning offenders could be moved to a less restrictive setting if a court approves their transfers.

The announcement comes as state Human Services Commissioner Lucinda Jesson faces legal pressure to reform the two-decade-old sex offender program.

In a letter to lawmakers Thursday, Jesson says officials have identified six intellectually disabled sex offenders who could be moved to a less restrictive, but secure, site in Cambridge. The move could happen next year with court approval.

Jesson says officials are also determining whether some sex offenders with medical issues could be transferred.

Jesson tells the Star Tribune the proposed move represents "steps to reform the program." Several residents in the program are suing the state, claiming it violates their constitutional rights. ..Source.. by Grand Forks Herald.com

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Security, OT issues plague Larned's sex predator unit

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9-11-2012 Kansas:

State officials working to resolve management shortcomings raised in audit (Full report here)

Analysis of the sexual predator treatment unit at Larned State Hospital indicated Wednesday persistent overall security and staff overtime problems ought to be addressed as the facility rapidly approached maximum capacity.

The Legislative Post Audit, an extension of the Legislature, documented for a joint Senate-House committee that prevalence of unlocked doors and open access to keys should be resolved at Larned buildings housing civilly committed sexual offenders.

Problems related to screening packages and searching staff members for contraband were outlined. Prohibited items reaching residents include pornography, alcohol, computer flash drives and cellular telephones.

About 40 percent of Larned employees responding to a survey reported safety and security wasn’t a high priority for management.

“Security controls to prevent and detect prohibited items were inadequate,” said auditor Dan Bryan. “The sexual predator treatment program did not have adequate policies or controls to ensure keys and doors were secure.”

All people placed in the Larned program completed prison sentences, but were held at Larned following a court proceeding resulting in a declaration the person was likely to reoffend. Eighty percent of people in the sexual predator program were diagnosed as pedophiles. Other common ailments include schizophrenia, bipolar disorder and depression.

At Larned, auditors said, security officers adequately searched guests but didn’t conduct property assessments on the staff. Employees weren’t required to pass through metal detectors, which had sat unused because of irritating false positives. Until April, the audit said, worker belongings were searched only if there was probable cause. The facility enacted a random search policy in April, but performed only 35 searches between April and July due to insufficient staff.

Mailed packages sent to residents at Larned were opened in front of staff members but few packages were scanned through an X-ray machine. In July, a machine was purchased to scan incoming mail to residents.

The number of vacant direct-care positions was identified by auditors as a significant issue at Larned’s sexual predator unit. Heavy reliance on overtime — 38,000 hours in 2012 — was red-flagged by auditors who Larned's program “consistently failed to meet its internal minimum staffing levels needed to provide safety, security and treatment.”

Officials of the Kansas Department for Aging and Disability Services indicated they were working to resolve shortcomings at facilities designed to provide treatment for residents and shield the public from predators.

“We are pleased with it,” KDADS policy director Lea Stueve said of the audit. “It was not information we were unaware of.”

For example, the agency reported the vacancy rate in direct-line staff in the sexual-predator unit was 23 percent in August. In April, that vacancy rate was 30 percent. The trend in nursing overtime had been reduced from January to July.

Shawn Sullivan, secretary of the agency, said he disagreed with the audit’s conclusion minimum staff levels established by state officials at Larned weren’t being met. Documents on staffing reflect the static number of employees at the start of a shift, Sullivan said, but weren’t adjusted to account for fluctuating conditions in the unit altering that minimum standard.

The staffing shortfall should be viewed as a security risk for state employees and people at the hospital, said Senate Minority Leader Anthony Hensley, D-Topeka.

“This is a disaster waiting to happen,” said Hensley, a member of the House-Senate audit committee.

Responsibility for the sexual predator program was moved to the aging and disability agency in July 2012.

The audit showed an average of 18 people determined by a district court to be a violent sexual offender and in need of involuntary inpatient treatment were placed in the facility each year. There are 219 residents of the program at Larned and seven at Osawatomie State Hospital. Capacity at Larned stands at 293, which is expected to be reached in 2018. Auditors anticipate 500 people to be held in the sexual predator treatment program within 20 years.

The sex predators in the program statistically have a better chance of dying in the facility than being released. Three people have been released from the program since the first offender arrived in October 1994, but 22 individuals have passed away while held at Larned.

While state law allows for involuntary commitment to the sexual predator facility, participation in the treatment program is voluntary. Residents can opt out of treatment, but those who make that choice remain confined to the facility indefinitely.

In September, a man in the state treatment program was sentenced to 10 years in prison after pleading guilty to an Internet sex crime that occurred at Larned. He used a contraband cellphone smuggled into the hospital during 2011 to talk with a 14-year-old boy about pornographic images. ..Source.. by Tim Carpenter

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Man convicted of 1990s sex assaults to be committed to state hospital

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9-11-2013 California:

A Sacramento County jury today determined that a man convicted of sexually assaulting two Sacramento-area women in the 1990s is a sexually violent predator and should not be released into the community.

Sacramento Superior Court Judge Gerrit Wood subsequently ordered Laurence Harris committed to the custody of the California Department of State Hospitals for an indeterminate period of time in confinement and treatment, according to a District Attorney's Office news release.

In 1972 in Los Angeles County, Harris sexually assaulted and viciously attacked a woman in her apartment with an ice pick. As a result, he was convicted of residential burglary and personally inflicting great bodily injury. He served five years in a state hospital and was released in 1978.

In the 1990s, Harris was living in Sacramento and was employed as a psychiatric nurse for the Sacramento Mental Health Center where he met and befriended a woman who was a patient, authorities said. After the patient was discharged from the hospital, she agreed to go on a date with Harris, and he sexually assaulted her.

About 10 days later, Harris sexually assaulted another patient in her room while she was in a heavily medicated state, authorities said. He was convicted of sexually assaulting both women and sentenced to 14 years in prison.

After serving his prison sentence and before he was released into the community, the Sacramento County District Attorney's Office filed a petition to have Harris declared a sexually violent predator under California law. The law is intended to protect society from and provide treatment for sexually violent predators who have diagnosable mental disorders and who are determined to be unsafe if released into the community, officials said. ..Source.. by Cathy Locke

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