Creators: Keeping Sex Offenders Beyond Their Sentence

Matthew T. Mangino
Creators Syndicate
January 22, 2024

Twenty states, the District of Columbia, and the federal government have laws allowing for continued incarceration of some convicted sex offenders after they finish serving their criminal sentences.

The laws, commonly referred to as civil commitment statutes, seem an affront to basic ideals of justice, due process and human dignity.

The admissions processes for civil commitment programs vary from state to state, according to a recent article in Harper's Magazine. In most cases, when a person incarcerated for a sex offense approaches the end of his or her sentence, prosecutors can appoint a psychological evaluator to assess whether he or she should be classified as a sexually violent predator (SVP).

The findings of the evaluation are sent to the court where a determination is made whether the person meets the legal criteria of the respective SVP statutes.

If the offender meets the criteria, he or she may remain in prison indefinitely — for some it could for years after they "paid their debt to society."

According to the Williams Institute of the University of California, Los Angeles, there are more than 6,300 men, and some women, locked up across the country who have served their complete sentence for a crime committed years ago.

There are approximately 322 sex offenders currently being held indefinitely in New York who have completed their criminal sentences. By most estimates, Pennsylvania has a handful, and neighboring Ohio has zero.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently, it has been applied to sex offenders with a diagnosable mental abnormality with a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, nor ex post facto, punishment through a law applied retroactively.

The high court held that a civil commitment statute is lawful if it protects individuals from being detained past the time they are no longer dangerous or no longer have a mental illness.

In 2006, the federal government entered the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of "sexually dangerous persons" already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences or incompetent to stand trial remain in federal custody indefinitely as a result of their "sexually dangerous" status.

In order to secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual "is a sexually dangerous person." If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

There are few advocates for sex offenders, particularly those offenders who have been classified as still dangerous. It's easy and even comforting to take a "throw away the key" position.

In addition, the cost is enormous. New York is spending more than $55 million per year, or $175,000 to confine each person. Minnesota has the highest population of civilly committed offenders per capita in the nation, and the lowest rate of release. Costs have soared as well. According to The New York Times, it costs about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota.

For that kind of money, there should be a more thorough vetting process and a transparent proceeding for committing and keeping an offender who has already served his time.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

To visit Creators CLICK HERE

Minnesota sex offenders involuntarily committed to treatment center go on hunger strike

A dozen men held at a sex offender treatment center in Moose Lake, Minnesota ended a 14-day hunger strike after state officials agreed to meet with the men and discuss their demand for a “clear pathway” for release from the program, which confines sex offenders indefinitely after they have completed their criminal sentences, reported The Dobb's Wire.

A dozen men who had stopped eating called off the hunger strike after Human Services Commissioner Jodi Harpstead offered to hold monthly meetings between the strikers and leaders of the state sex offender program.

The purpose of the meetings will be to discuss the strikers' primary complaint: They have no "clear pathway" for release from the program and its prison-like treatment centers in Moose Lake and St. Peter.

The strike was organized to protest Minnesota's civil commitment system, which confines hundreds of rapists and other sexual offenders long after their prison terms. Some men have been held at the Moose Lake facility for years or even decades, effectively turning civil commitment into what they describe as a life sentence.

The strikers and other detainees maintain that the state program is more focused on warehousing offenders than treating them, and they have demanded that officials increase the program's historically low rate of release.

The protest organizers had been refusing food since Jan. 21. Several of the men said in interviews that they were prepared to be hospitalized or starve to death if the state did not respond to their demands.

By early this week, the strikers reported feeling muscle pains, dizziness, nausea and rapid weight loss from lack of nourishment, according to organizers.

The men finally called off the protest and resumed eating after Harpstead offered to hold the monthly listening sessions, which are expected to begin this month and last through May.

Under the agreement, the Department of Human Services (DHS) will develop a report on the state sex offender program at the end of the discussions and produce recommendations. The agency has not made any commitments to specific changes.

"I am relieved that no one was seriously hurt or died, but this system of indefinite confinement has gone on far too long," said Merry Schoon of Appleton, Minn., whose 33-year-old son, Daniel A. Wilson, is being held at Moose Lake. "These men have families and they deserve a second chance to be productive members of society just like everyone else."

To read more CLICK HERE

Albuquerque civil asset forfeiture unconstitutional

A federal judge has ruled that Albuquerque's civil asset forfeiture program violated residents' due process rights by forcing them to prove their innocence to retrieve their cars, reported Reason. Under civil forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner isn't charged with a crime.

The city of Albuquerque "has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years," U.S. District Judge James O. Browning wrote in an order filed Saturday. "Thus, there is a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain'—the more revenues they raise, the more revenues they can spend."

The Institute for Justice, a libertarian public interest law firm, filed the lawsuit in 2016 on behalf of Arlene Harjo, whose car was seized after her son drove it while drunk.

"It's a scam and a rip-off," Harjo told Reason at the time. "They're taking property from people who just loan a vehicle to someone. It's happened a lot. Everybody I've talked to has had it happen to them or somebody they know, and everybody just pays."

Harjo was one of thousands of Albuquerque residents whose cars were seized under the city's aggressive forfeiture program. While lawsuits have forced cities like Philadelphia to reform their programs, federal judges have for the most part been unwilling to directly address the issue of profit incentive.

In a statement, Institute for Justice attorney Robert Everett Johnson said the Institute "will undoubtedly use this decision to attack civil forfeiture programs nationwide."

To read more CLICK HERE

New York's civil commitment statute for sex offenders under scrutiny

Under New York's decade-old Sex Offender Management and Treatment Act, convicted sex offenders can be kept in secure psychiatric hospitals indefinitely after their prison terms expire, reported the Albany Times-Union. If an offender is found to have a mental abnormality that makes the person likely to commit another sex crime, the state can — after a court hearing — order the offender committed as a patient in a secure psychiatric hospital. (There are currently no women in civil confinement.)

The system has drawn a number of legal challenges in recent years, and some of those who are committed have said they aren't receiving the kind of treatment that was contemplated when the law was passed 10 years ago. They characterize their confinements as little more than extensions of prison terms, albeit in a hospital rather than a correctional facility.

In a series of interviews with the Times Union in recent months, numerous men who are being held at the Central New York Psychiatric Center after having served prison terms for crimes ranging from sexual abuse to rape said they are receiving little meaningful treatment. They said that sexual activity often goes unpunished, that there is access to pornography, and that mental health sessions often devolve into debates about who controls the television.

"These so-called social workers who run these groups are not psychologists," said Enrique Torres, who was first convicted at age 14 when he raped a 4-year-old girl who his mother was babysitting. "Real psychologists are not participating in these programs."

Torres said that he believes his abuse of children stemmed from the fact he was repeatedly sexually abused as a child.

"I thought this was a normal thing," Torres said. "I'm not saying that treatment doesn't work — I'm saying that this place doesn't provide treatment."

Torres' case is unique. After he served a prison term for a second conviction for sexual abuse, he was confined to a mental health facility. A state Supreme Court justice reviewed his case and ruled the state's confinement program was unconstitutional. But the case, State of New York v. Enrique T., was overturned by an appeals court that rejected the argument that the "statute is unconstitutional as applied to him and those sex offenders who may ultimately be approved for civil management under strict and intensive supervision and treatment, a less restrictive alternative to confinement."

But Torres and others being held indefinitely said they are effectively locked up in a prison-like setting. Torres said that he was living in the community following his second release from prison without re-offending and was undergoing voluntary mental health counseling that he said was working.

"I understand nobody wants to be the advocate for the sex offenders," he said. "It's a really disgusting situation we brought upon ourselves. But 17 years ago I committed that offense. I've been in the community. I didn't commit another sex offense."

In general, the process for confining an offender to a mental facility begins with a state-funded psychiatrist or psychologist examining the person for a few hours. If the psychologist determines the person has a mental abnormality that makes them likely to re-offend, the state Attorney General's office files court proceedings to have them confined.

The Justice Department attorney recently interviewed another offender who is confined with Torres at the state's Marcy psychiatric hospital, where multiple patients have filed civil rights lawsuits trying to unravel the confinement program.

"They called me up and we spoke for about two and a half hours," Charlie Gerena said of a conversation he had with the Justice Department official, Julie Abbate, in November.

Gerena said overcrowding in the facility was one of the topics they discussed.

"We have people in side rooms," he said, explaining that offenders are in rooms that used to be reserved as "time-out" spaces where people could get away from others and have some quiet time by themselves.

To read more CLICK HERE

Indefinite commitment of mentally ill without conviction

According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals, reported The New York Times Magazine.

While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

The insanity defense has been part of the American judicial system from its founding, carried over from our English forebears. British law has long reflected the moral sense that society has a duty not to punish people who can’t comprehend or control their crimes. But the insanity defense has always sat uneasily with the public, which tends to regard it as a means to escape justice. In the United States, such sentiments reached fever pitch in 1981, when a 25-year-old named John Hinckley Jr., hoping to win Jodie Foster’s heart, tried to assassinate President Reagan and instead shot James Brady, the White House press secretary. Hinckley was found not guilty by reason of insanity (N.G.R.I., as it is frequently abbreviated) and sent to St. Elizabeths Hospital in Washington. The country was outraged. Dan Quayle, then a senator from Indiana, called the verdict “decadent” and said the insanity defense “pampered criminals.” His Senate colleague Strom Thurmond equated it to a free ride.

In fact, despite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist. A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial. At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals. If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury.

If N.G.R.I. was always difficult to get, it became even harder after Hinckley. With the Insanity Defense Reform Act of 1984, Congress restricted the judicial definition of “insanity” to only the most severe cases. Some states — Idaho, Utah, Kansas and Montana — have eliminated the defense 

altogether. In trials in which it is attempted, doctors may disagree, and jurors are often influenced by emotional considerations. Today, only an estimated one-120th of 1 percent of contested felony cases end in a successful N.G.R.I. defense — that is, the prosecutor disputes the insanity defense, the case goes to trial and the jury finds the defendant not guilty by reason of insanity. In addition, the legal standards for “insanity” vary among states; some define it as a defendant’s inability to know the crime was wrong or the inability to act in accordance with the law, but most define it, post-Hinckley, as only the first of these. At the trial of James Holmes, who killed 12 people and injured 70 in a movie theater in Aurora, Colo., one psychiatrist testified that he was mentally ill but that he knew right from wrong and should be considered “sane.” Another testified that he was mentally ill and incapable of reason (and, by extension, guilt). All four who examined him agreed that he had some form of schizophrenia. Jurors rejected his insanity plea.

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal. N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public. 
To read more CLICK HERE

GateHouse: High Court has chance to set the record straight

Matthew T. Mangino

GateHouse Media

September 16, 2017

How did a statement made 30 years ago, in a magazine article with no supporting documentation, set in motion a series of some of the most draconian laws in U.S. history?

In 1986, Robert Longo, a prison sex offender treatment counselor in Oregon, and Ronald Wall, a therapist who worked with him, wrote in an issue of Psychology Today that “Most untreated sex offenders released from prison go on to commit more offenses ... Indeed, as many as 80 percent do.”

Psychology Today, although a respected publication, isn’t exactly Time Magazine when it comes to mainstream distribution and circulation. Yet, that quote took hold with the criminal justice system and among lawmakers, policymakers and decision makers across the country.

The claim really gained traction in 2002. That year, U.S. Supreme Court Justice Anthony M. Kennedy wrote in a decision that upheld a mandatory prison therapy program for sex offenders, “the rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” a number he called “frightening and high.”

The following year, Kennedy repeated that claim in a case which upheld retroactive application of registration requirements for sex offenders. As of 2015, according to Reason Magazine, Kennedy’s phrase has been reused in more than 100 opinions and briefs filed with the court.

According to Reason, there was never any evidence to support the assertion, and research conducted during the period within which it proliferated indicated that it was not even remotely true. “Nearly every study -- including those by states as diverse as Alaska, Nebraska, Maine, New York and California as well as an extremely broad one by the federal government that followed every offender released in the United States for three years -- has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent.”

What has been the result of broad acceptance of this markedly misinformed data? According to the New York Times, for the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program.” The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of a prison.

But unlike prison, the therapeutic program -- which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years -- has no fixed end date. Rather, program administrators decide which patients are safe enough to release. According to the Times, in the 24 years the program has existed, not a single “patient” has ever been fully released.

Nearly 5,400 people are currently civilly committed in sexually violent predator programs in 20 states and by the federal Bureau of Prisons. According to The Marshall Project, 13 states allow this practice for people who committed their crimes as juveniles. Despite having no adult convictions, these young people are held years into adulthood.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, according to the New York Times, “politicians have become ever more inventive in dreaming up ways to corral and marginalize those convicted of a sex related crime.”

On Sept. 25, the Supreme Court will have a chance to take a step toward setting the record straight. They will decide whether to hear two cases involving offenders who claim new sex offender registration requirements are punishing them a second time for a single offense.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Junk science, sex offenders and the U.S. Supreme Court

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans, reported the New York Times. Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.” The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake. The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release. In the 24 years it has existed, not a single “patient” has ever been fully released. There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness. In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal. They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.

A few years ago, Ira Ellman, a professor of law at the University of California, Berkeley, and Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

That article was written not by a scientist but by a treatment provider who claimed to be able to essentially cure sex offenders though innovative “aversive therapies” including electric shocks and pumping ammonia into offenders’ noses via nasal cannulas. The article offered no backup data, no scientific control group and no real way to fact-check any of the assertions made to promote the author’s program.

Nonetheless, because that 80 percent figure suited the government lawyers’ aim of cracking down on sex offenders, Solicitor General Olson cited it, and Justice Anthony Kennedy, seemingly without fact-checking it, adopted the figure in a 2002 opinion that Justices William Rehnquist, Antonin Scalia and Clarence Thomas joined. (Justice Sandra Day O’Connor concurred.) Their decision blew open the doors to the glut of sex offender restrictions that followed.

But in the 30 years since that Psychology Today article was published, there have been hundreds of evidence-based, scientific studies on the question of the recidivism rate for sex offenders. The results of those studies are astonishingly consistent: Convicted sex offenders have among the lowest rates of same-crime recidivism of any category of offender.

Nearly every study — including those by states as diverse as Alaska, Nebraska, Maine, New York and California — as well as an extremely broad one by the federal government that followed every offender released in the United States for three years, has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent. Needless to say, there is a tremendous difference between claiming that 80 percent of offenders will re-offend and that more than 95 percent of them won’t. And it is in that basic difference that the Supreme Court’s doctrine has done its most lasting damage.

This profound misrepresentation of social science has led to extraordinary real-world harms. For example, while the public almost universally embraces the strict residency restrictions the Supreme Court and lower courts have ratified, study after study has shown that rather than reduce sexual violence, these residency restrictions actually increase recidivism.

The merciless enforcement of the conditions routinely placed on those on the registry has resulted in the constant re-incarceration of offenders — not because they have committed new crimes but for technical violations of the conditions themselves, like failure to maintain a driving log, being late for curfew or failing to pay polygraph fees.

Indeed, a study by the California Department of Corrections concluded that 91 percent of sex offenders returned to California prisons were returned for these technical violations, while only 1.8 percent were returned as a result of having committed a new sex crime. In short, the entire scheme of registration and restriction that the Supreme Court condoned 15 years ago in McKune v. Lile has done enormous violence to a huge number of Americans now branded forever as sex offenders.

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear. The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record. More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study. Simple decency and perhaps more important, intellectual honesty demands better.

To read more CLICK HERE

Miami homeless involuntarily removed from street for protection from hurricane

On what is likely the last clear day in Florida before Hurricane Irma’s monster wind and rain, social workers and police officers are giving Miami’s estimated 1,100 homeless people a stark choice: Come willingly to a storm shelter, or be held against their will for a mental health evaluation.

With the outer edge of the storm approaching Friday, these officials — backed by a psychiatrist and observed by an Associated Press team — rolled through chillingly empty downtown streets as dawn broke over Biscayne Bay, searching for reluctant stragglers sleeping in waterfront parks.

“We’re going out and every single homeless person who is unwilling to come off the street, we are likely going to involuntarily Baker Act them,” Ron Book, chairman of the Miami-Dade Homeless Trust told the Associated Press.

Invoking the “Baker Act” — a law that enables authorities to institutionalize patients who present a danger to themselves or others — is not something law enforcement does lightly, but officers detained at least six people by Friday afternoon. Under the law, they can be held up to 72 hours before the state would have to go to court to prolong their detention.

By then, Irma’s howling winds and terrifying storm surge should be somewhere north of the city.

 “I am not going to sign suicide notes for people who are homeless in my community. I am just not going to do it,” Book added. “That’s why you have a Baker Act. It’s there to protect those who can’t otherwise protect themselves.”

Book’s group was working closely with police, who acknowledged that the effort is unusual: Officials said it is the first time Miami has invoked the law for hurricane preparedness.

About 70 people willingly climbed into white vans and police squad cars Friday, joining others who already arrived at shelters. About 600 others were thought to remain outside somewhere, exposed to the storm, despite mandatory evacuation orders for more than 660,000 people in areas that include downtown Miami and coastal areas throughout the county.

One older man pushing his belongings in an empty wheelchair in Bayfront Park tried to wave them off.

“I don’t want nothing,” he said, insulting a social worker.

Finally, the man was handcuffed without a struggle and taken to Jackson Memorial Hospital for a 72-hour psychiatric evaluation.

“A person who has a history of mental illness and who is staying in harm’s way, and doesn’t have a logical cohesion of what is right or what is wrong at that point, is a harm to himself, and at that point we can Baker Act them for his own protection,” Nisar explained later.

To read more CLICK HERE

GateHouse: The enormous cost of civil commitments

Matthew T. Mangino

GateHouse Media

June 9, 2017

Earlier this year, The U.S. Court of Appeals for the Eighth Circuit upheld a Minnesota law that provided for the indefinite detention of sex offenders after completion of their prison sentences.
U.S. District Court Judge Donovan Frank wrote that the Minnesota Sex Offender Program violated the due process rights of the people it involuntarily detained in prison. The Eighth Circuit disagreed.

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely. Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country.

There are 231 sex offenders currently being held indefinitely in New York, who have also completed their criminal sentences. Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality with likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government entered into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status. In order to secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

In 2010, the U.S. Supreme Court in United States v. Comstock, held that the government has authority, under the Necessary and Proper Clause of the U.S. Constitution, to require the civil commitment of individuals already in federal custody who are deemed dangerous.

There are few advocates for sex offenders, particularly those offenders who have been classified as still dangerous. It’s easy and even comforting to take a “throw away the key” position. Under New York’s law, state mental-health officials evaluate sex offenders to determine if they have a mental abnormality that makes them likely to re-commit sex crimes, reported The Journal News. The state Attorney General’s Office prosecutes the offenders, who are represented by the state Mental Hygiene Legal Service and public defenders.

However, much of what happens is shrouded in mystery because of the the limited public information about who is confined.

In addition the cost is enormous, New York is spending $65 million per year, or $175,000 to confine each person. For that kind of money, there should be a more thorough vetting process and a transparent proceeding for committing and keeping an offender who has already served his time.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

Federal Appeals Court: Minnesota may confine sex offenders indefinitely

The US Court of Appeals for the Eighth Circuit ruled that a Minnesota program that keeps sex offenders confined to secure facilities after they complete their prison sentences is constitutional and necessary to protect citizens from dangerous predators, reported JURIST. The plaintiffs in the lawsuit, more than 700 offenders, argue that the program is essentially a life sentence and that it is almost impossible to progress to a level deemed necessary for release. Only six offenders are currently released from the program after more than 20 years of its enactment. The court stated:

The class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the Minnesota Sex Offenders Program were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard.

The plaintiffs plan to appeal to the US Supreme Court.

In June a judge for the US District Court for the District of Minnesota ruled that Minnesota's sex offender program and civil commitment statutes were unconstitutional. In other countries, controversial laws pertaining to the preventative detention of prisoners deemed a threat to public safety have also come under fire. JURIST reported in May rights groups called for reform of a Kashmir law they allege is being used to detain people despite the absence of sufficient evidence for a trial. Last year the US Court of Appeals for the Fourth Circuit  ruled  unanimously that a federal law allowing for the indefinite detention of mentally ill sex offenders was constitutional.

To read more CLICK HERE

GateHouse: Drawing the line on civil commitments

Mathew T. Mangino

GateHouse Media

December 2, 2106

A popular phrase among zealous law and order advocates is “Do the crime, do the time.” Many law abiding citizens would be surprised to know that there are thousands of people in this country who have done their time and remain behind bars indefinitely.

Civil commitment gained support in state capitols around the country a quarter century ago as cable news channels brought high profile sex offenses into living rooms nationwide. A crime across the country had the same emotional effect on viewers as a crime across the street.

Today, 20 states, along with the federal government, detain some sex offenders for treatment beyond their prison time.

Minnesota has the highest population of civilly committed offenders per capita in the nation, and the lowest rate of release. Costs have soared as well. According to the New York Times, it costs about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota.

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are considered sexually violent predators, as determined by a civil court, and are being detained indefinitely.

Pennsylvania’s neighbor to the west, Ohio, does not have a civil commitment statute for sex offenders.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. The high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.

To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

In 2010, the Supreme Court ruled that the federal government has the authority under the U.S. Constitution to require the civil commitment of individuals already in federal custody. According to the Washington Post, during the argument before the court, Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”

Just how far does the concept of protecting the health and safety of the public reach? The state of Virginia uses risk assessment to determine the duration of sentences. The Pennsylvania Commission on Sentencing has been charged with incorporating risk assessment into the state’s sentencing guidelines. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?

Stephen McCallister, a law professor and Kansas solicitor general does not think it implausible. He told NPR in 2010, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what (might) not. If they lead to danger to others, potentially, they could be covered under such a law.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

To read more CLICK HERE

Florida detains sex offenders based on risk of future behavior

The Florida legislature began a massive overhaul of state sex predator laws this year, prompted in part by the abduction and murder of 8-year-old Cherish Periwinkle from a Jacksonville Wal Mart, and in part by a damning series by the Sun-Sentinel that showed hundreds of new crimes committed by previously convicted sex offenders, reported First Coast News.
Lawmakers said they wanted to make Florida "Scorched Earth" for offenders, and the changes they approved greatly expanded the authority of law enforcement under the state's Jimmy Ryce Act. That law, named for a South Florida boy raped and murdered in 1995, allows the state to permanently detain inmates whom officials believe might re-offend at some time in the future. Because the law anticipates future behavior, rather than past crimes, it is opposed by civil libertarians, but has thus far survived legal challenges.
The expansion of the law this legislative session includes a provision that permits the State Attorney's Office to "red-flag" inmates being held at the Duval County jail, and recommend them for review for possible permanent confinement. Previously, only the state Department of Children and Families could order such a review, and only when an inmate was being released from Department of Corrections custody.
Now, even someone picked up on a misdemeanor charge – like petit theft -- is subject to review.  The State Attorney's Office can decide an offender's history of offenses made him too dangerous to ever release.
Citing "a mental abnormality and/or personality disorder which makes him likely to engage in acts of sexual violence," the office can asked that an offender be evaluated by a team of psychologists. Through the use of  a risk matrix obtained by First Coast News, an offender receives a numerical score that indicates whether the offender is a high risk to reoffend.
Since the new laws went into effect July 1, State Attorney spokesperson Jackelyn Barnard says the office has reviewed 253 jail inmates for possible indefinite commitment. Only one inmate has been detained.
To read more CLICK HERE

Can't try them, can't keep them, can't stop them

Dangerous and mentally ill, a 'blind-spot' in Texas law

Texas law says that a defendant being held for competency restoration can be hospitalized no longer than he would be if convicted and sentenced to the maximum penalty.  Therefore a defendant charged with a second-degree felony and deemed incompetent to stand trial can only be held in a psychiatric hospital for 20 years, the maximum penalty for a second degree felony.

A patient reaching the maximum period of hospitalization could be committed by a civil judge if he is to be held in a state hospital against his wishes.

Civil commitments are performed when people with mental illness are determined to be a serious danger to themselves or others or when their condition has so deteriorated that they can't care for themselves.

A judge decides the continued commitment based on a psychiatric evaluations and recent behavior.  A well behaved, appropriately medicated patient will seldom be civilly committed.

According to the Austin American-Statesman, the recent court-ordered release of potentially violent, mentally ill Brad Reinke, after he spent 20 years in a state mental hospital, has officials scrambling to figure out how to protect his family and the community in a situation prosecutors say points to a blind spot in Texas's mental health laws.

The Court of Criminal Appeals, Texas' highest criminal court, in June ordered a 1990 attempted murder case against Brad Reinke dismissed.  Reinke was accused of attacking his father with a knife at the family's Northwest Austin home while his mother fought her son off with a baseball bat.

Reinke has spent the maximum time allowable based on the charges against him. Few dispute that Reinke belongs confined.  However, the likelihood that he will remain confined is not good.

To read more:  http://www.statesman.com/news/local/mentally-ill-defendant-up-for-release-despite-fears-2411828.html

Supreme Court Upholds Civil Commitment

This week the U.S Supreme Court upheld the indefinite detention of sexually violent federal offenders. The Court had previously upheld civil commitments on a state level in Kansas v. Hendricks, 521 U.S. 346 (1997). In fact there are eight men in prison in Pennsylvania who have completed their sentence. Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country.

This week the U.S. Supreme Court decided a challenge to the federal government’s authority to impose civil commitments through 18 U.S.C. § 4248, which authorizes federal district courts to order the civil commitment of sexually dangerous federal prisoners even after they have served their criminal sentences.

In U.S. v. Comstock, 560 U.S. ___ (2010), the High Court was asked to decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.

Solicitor General Elena Kaganargued the government's case in front of the Supreme Court. Kagan has now been nominated to replace the retiring Justice John Paul Stevens.

Writing for a 7 to 2 majority, Justice Stephen Breyer penned the opinion that upheld the federal civil commitment statute. Chief Justice John G. Roberts joined Breyer's opinion in full. Although disagreeing with some of the language in the majority opinion, Justices Anthony Kennedy and Samuel Alito each wrote a separate opinion agreeing with the result. Only Justices Clarence Thomas and Antonin Scalia dissented.

The Court found, after close scrutiny of five considerations, it was compelled to conclude that Article I’s Necessary and Proper Clause granted Congress authority sufficient to enact 18 U.S.C. § Section 4248.

First, the Court emphasized that Congress has broad powers to create federal crimes to further various enumerated powers. Congress can then ensure enforcement of these crimes, and guarantee the safety of those who may be affected, by imprisoning offenders in federal prisons.

Second, Congress has long enacted prison-related mental health statutes. There are laws that permit the postdetention civil commitment of federal prisoners who are deemed mentally ill and dangerous.

Third, as a custodian of its prisoners, the federal government has a responsibility to protect the public from the dangers created by an individual’s release from federal custody. Congress could have reasonably concluded that some federal inmates suffer from a mental illness that causes them to "have serious difficulty in refraining from sexually violent conduct."

Fourth, Section 4248 does not interfere with or limit state sovereign authority. The Necessary and Proper Clause is not “reserved to the States.”

Finally, Section 4248 is narrow, applying only to a small fraction of prisoners.

Justice Breyer concluded, "Taken together, these considerations lead us to conclude that the statute is a "necessary and proper" means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute."

To read full opinion: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-1224

Supreme Court Upholds Indefinite Confinement of Some Sex Offenders

The U.S. Supreme Court has upheld the federal law authorising the civil commitment of sex offenders.

According to the New York Times, the civil commitment law allowed the federal government to continue to detain prisoners who had engaged in sexually violent conduct, suffered from mental illness and would have difficulty controlling themselves. If the government was able to prove all of this to a judge by “clear and convincing” evidence — a heightened standard, but short of “beyond a reasonable doubt” — the court may hold such prisoners until they are no longer dangerous.

Justice Stephen G. Breyer writing for a 7 to 2 majority held, that the civil commitment law satisfied the standard providing for, “the government’s custodial interest in safeguarding the public from dangers posed by those in federal custody.”

To read more: http://www.nytimes.com/2010/05/18/us/politics/18offenders.html

Four States: A Look at Sex Offender Residency Restrictions

The use of residency restrictions for sex offenders has become controversial. Recent studies have found that not only do such restrictions not work, they may even expose families to greater danger.

Some states with residency restrictions, including Iowa, Florida and Ohio, have conducted studies that have concluded that residency laws are actually counterproductive and often destabilize the offender. A 2009 study by Ohio State University found that residency restrictions may inadvertently exacerbate the factors correlated with recidivism. http://dcj.state.co.us/odvsom/Sex_Offender/SO_Pdfs/Residence%20Restrictions.PP.pdf

Although the evidence regarding residency restrictions seems clear, not all policymakers agree. Recent news reports show that state and local lawmakers are going in many different directions.

Wisconsin lawmakers are contemplating enacting statewide residency restrictions. The proposed bill would supersede the patchwork of local ordinances. Green Bay, for instance, has an ordinance that limits certain offenders from living almost anywhere in the city. The ripple effect of the ordinance has caused neighboring communities to enact restrictions to prevent the migration of sex offenders to the suburbs.

In New Hampshire, the legislature is considering a bill that would prevent communities form establishing residency restrictions for sex offenders. The bill is in response to a court decision regarding the city of Dover's ordinance, which prohibited registered sex offenders from living within 2,500 feet of a school or day care center. The court found the ordinance unconstitutional in last summer after a challenge by the New Hampshire Civil Liberties Union. "It's dangerous to restrict residency for sex offenders because it diminishes law enforcement's ability to track these offenders," said Representative Beth Rodd.


In California, the state paid $126,000 to relocate a sexually violent predator to a lightly populated desert community, according to the USA Today. His relocation last September to this remote area came about after a doctor, and then a judge in 2007 determined that the offender was no longer a danger to others. The judge determined with supervision and treatment he could be released to the community. Prior to that determination he was civilly committed to a state hospital for an indefinite period of time.

A Pittsburgh City Council member, Vince Gastgeb, has an even more draconian idea. The city already has a restrictive sex offender residency ordinance. Gastgeb is proposing that all registered sex offender be continuously monitored by global positioning satellite. Pittsburgh is a city in financial distress. GPS might sound good to Gastgeb constituents, but certainly isn't practical.

Each of these decisions or proposals have generated support or anger in the community and are clear examples of the issues states and local communities face as they pass or refine laws regarding released sex offenders and where and how they can live in the community.

To read more:
http://www.fosters.com/apps/pbcs.dll/article?AID=2010702199881

http://www.wpxi.com/news/22605105/detail.html?taf=burg

http://www.greenbaypressgazette.com/apps/pbcs.dll/article?AID=/201003010407/GPG0101/3010514

Sex Offenders: Ignoring the Lessons of Reactionary Legislation

Maryland's sex offender laws are receiving intense scrutiny this year as state lawmakers respond to the recent murder of 11-year-old Sarah Foxwell, allegedly by a registered child sex offender.

In 2005, Florida legislators were in a similar frenzy. According to the St. Petersburg Times, the brutal killing of 9-year-old Jessica Lunsford, fueled the creation of a boogeyman in Florida politics: the sex offender. But now — after time, a trial and the killer's death have dissolved the zeal that spurred Jessica's Law — a number of lawmakers are rethinking how the state monitors sex offenders and whether current laws are really making children safer.

In Maryland, according to the Baltimore Sun, some lawmakers have seized on sex offender laws as a potential election year rallying point, saying the state, under a Democratic governor who tried to outlaw the death penalty and opposes civil commitment of sex offenders, has failed to crack down on predators.

Legislators are reviewing everything from the length of prison sentences for sex offenders to what information Maryland should share with other states. During a hearing that spanned nearly seven hours, the House Judiciary Committee reviewed just a fraction of the 75-plus sex offense bills that have been filed this year.

In Florida, the experience of over-criminalization and piling-on easy targets like sex offenders has opened the eyes of some legislators. "The emotion and publicity and political science that comes into play after a horrific situation tends to create an overreaction," said state representative Mike Weinstein.

The Times reported that recent studies and state statistics show that the fear that propelled the laws doesn't match reality. "Across the country, studies are not showing that changes in sex crime rates can be attributed to those policies," said Dr. Jill Levenson, a professor at Lynn University who studies sex offenders. "Sex crimes against children are on the downslide — but since the 1990s."

My Take

Maryland is a classic example of the knee-jerk reaction that often follow high-profile crimes. Florida has learned the consequences of reactionary politics. That lesson is there for legislators in Maryland and across the country.

Yet, political expediency will take precedence over the well being of Maryland residents. The GOP see an opportunity to attack a vulnerable Democratic governor on a sensational law and order issue. That is a recipe for disaster. Much of what is being proposed in Maryland is not evidence-based. In fact, much of what passes as tough on sex offenders makes children and families more vulnerable.

Case in point, sex offender residency restrictions have been implemented in some states and communities across the country. The law restricts where sex offenders can reside and have made it virtually impossible for some sex offenders to live anywhere in a given community. The result? Instead of being able to track the whereabouts of sex offenders, homeless offenders have gone underground, avoiding supervision. Families are in greater danger when a child predator disappears into the shadows, as opposed to living in plain view.

Maryland Reconsiders Civil Commitment for Sex Offenders

More than 20 states, including Pennsylvania, have adopted rules allowing sex offenders to be held for life, even after they have completed their sentence and paid their debt to society. Civil commitment statutes have been deemed constitutional by the U.S. Supreme Court.

According to the Washington Post, Maryland went in a different direction, instead of civil commitments policymakers chose to employ a web of supervision laws to surround offenders and stay poised to pounce on any violations and return high-risk sex offenders to prison.

Last December, the killing of 11-year-old Sarah Foxwell, allegedly by one of the state's high-risk registered sex offenders, has shaken public faith in the state's ability to identify and keep its worst offenders from assaulting again.

Maryland's House Judiciary Committee is scheduled to begin hearing the first of at least 52 bills to tighten restrictions on sex offenders. According to the Post, all of the bills were introduced after Sarah's murder. Governor Martin O'Malley is proposing mandatory lifetime supervision for some sex offenders.

According to the Frederick News-Post, Delegate Sue Hecht will introduce legislation to establish civil commitment in Maryland. In a twist on traditional law and order politics,Hecht, a Democrat, faces opposition on civil commitment from a Republican, Delegate Michael Smigiel.

The full Post article can be found at: http://www.washingtonpost.com/wp-dyn/content/article/2010/02/22/AR2010022204723.html

Long arm of the law too long?

Youngstown Vindicator
Sunday, February 7, 2010

Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are sex offenders. They are sexually violent predators, as determined by a civil court, and are being detained indefinitely.

Pennsylvania is one of 20 states that provide for the civil commitment of sexually dangerous offenders. There are more than 3,600 men, and some women, committed or detained across the country. Ohio does not have a civil commitment statute for sex offenders.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.

In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.

Clear evidence

To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

Last month, the U.S. Supreme Court heard arguments on a challenge to the federal government’s authority to impose civil commitments. In U.S. v. Comstock, the high court must decide if the federal government usurped the power of the states through the Adam Walsh Act. Graydon Comstock was sentenced to three years in prison for possession of child pornography. Just days before the end of his sentence he was designated “sexually dangerous,” was civilly committed, and has been kept in a North Carolina institution for the last two years along with 105 other similarly situated men.

There are some striking differences in the Kansas statute and the federal statute. First, in Kansas an offender is entitled to a jury trial, a federal detainee is not. In Kansas, the state must prove the mental abnormality beyond a reasonable doubt. In federal court the burden of proof is a less stringent — clear and convincing evidence.

According to the Washington Post, a majority of the court seemed inclined to side with the government during the Comstock argument. Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”

A greater concern may be how far does the concept of protecting the health and safety of the public reach?

The state of Virginia uses risk assessment to determine the duration of sentences. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?

Stephen McCallister, the Kansas solicitor general does not think it implausible. He told NPR, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law.”