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Thursday, November 29, 2012

New York: A Far Better Model

Here is the very latest from New York, Hot Off The Press:

New York's Program, while far from perfect, offers a far more rational, empirical based approach than the madness of the Witch Hunt. I hope Task Force members study the AZ, NY, TX & WI Models. New York's disciplined, professional approach is one Minnesota could learn a lot from.

Here are a few additional resources re the NY SVP Program/Scheme. I will post more as time allows.

Here is how a progressive ruled in a thorny case:

More Support for Sex Offender if Risk Level Reduced, Judge Says

New York Law Journal


A judge in Manhattan has reduced a violent sex offender's risk level designation after concluding that the offender and community would be better served if he is allowed to live with his family, despite the proximity to a school, and receive appropriate treatment and services.

Acting Supreme Court Justice Juan Merchan (See Profile) said that if he classified Steven Vasquez as a high risk offender, as recommended by a state board and requested by the Manhattan district attorney, the offender would almost certainly wind up in a homeless shelter.

"Lack of adequate supervision and stability, along with the inevitable isolation from his family and poor living conditions in a shelter home, may greatly increase Defendant's likelihood to reoffend," Merchan wrote in People v. Steven Vasquez, 3487/2007. "At home and under the supervision of a family member, however, Defendant will be provided with a stable and supportive environment as well as strong encouragement to comply with treatment and parole conditions."

The case involves a now 20-year-old man who, when he was 15, bound and repeatedly raped a woman while armed with a BB gun. Vasquez pleaded guilty to four counts of first-degree rape, second-degree burglary and second-degree robbery. He was sentenced to a 2 1/2-to-7 year prison term and was released to community supervision in August.

Vasquez is required to register as a sexually violent offender because of his convictions.

The Board of Examiners of Sex Offenders recommended a Level 3, or high risk, classification after a risk evaluation assessed Vasquez points for being armed with a dangerous instrument, because he suffers from a mental disability, because the victim was a stranger and other factors. Vasquez sought a downward departure in his risk classification, which was opposed by the Manhattan District Attorney's Office.

At the outset, Merchan said Vasquez was improperly assessed points for being armed with a dangerous instrument. The judge said that while a BB gun can qualify as a dangerous instrument, in this case there was no evidence that Vasquez threatened to shoot the victim. However, Merchan indicated he would have reduced Vasquez designation from high to moderate risk regardless of the BB gun issue.

The court noted that Vasquez has moderate brain damage due to lead poisoning, an IQ of 68 and a history of "mental health and behavioral, social and intellectual deficits." If designated a Level III offender, Merchan noted, Vasquez would not be permitted to stay with his family because they live within 1,000 feet of a school. According to the decision, Vasquez was recently informed by the state that his only housing option is the Bellevue Men's Shelter.

Merchan said Vasquez needs assistance with such tasks as remembering appointments and navigating the social service system and would not receive that help at Bellevue. Additionally, the court said that in a homeless shelter Vasquez would be "rendered particularly vulnerable to other residents, exposed to crime and most likely subjected to homelessness, thereby increasing his risk of recidivism. Accordingly, a Level III sex offender designation would be counterproductive and serve no societal benefit."

As a Level II sexually violent offender, Vasquez must register for life and verify his address annually. His name and photograph will be posted on a public website maintained by the state Division of Criminal Justice Services. However, he will not be subject to a residency restriction that bars Level III offenders under parole supervision from living within 1,000 feet of a school.

"The Level II classification provides greater assurance that Defendant will engage in treatment and services," Merchan wrote. "It also allows for a comprehensive support system, and the possibility that Defendant will reside with his family, thereby enhancing the likelihood of successful rehabilitation and reintegration into the community."

Vasquez currently is living in a homeless shelter because the state parole board barred him, as a condition of release, from living with his family and near a school regardless of his risk level assignment, according to Lauren Stephens-Davidowitz of the Office of the Appellate Defender, which represents Vasquez. He will be subject to community supervision until January 2015.

"Statutorily, he can live with his mom, but we need to get the parole board to remove the restriction," Stephens-Davidowitz said. She said the board often imposes a residency restriction as a release condition even when the statute does not limit where an offender may live.

Richard Greenberg, attorney-in-charge of the Office of the Appellate Defender, said his office will ask the parole board to administratively withdraw the condition that stands in the way of implementing Merchan's decision.

"If they don't, we will have to go to court," Greenberg said. "I think we have a very good argument that what the parole board is doing is not only counterproductive and insane but going against what this judge has ruled. It just flies in the face of the decision."

In addition to Stephens-Davidowitz, Vasquez is represented by Avi Springer, also of the Office of the Appellate Defender.

Manhattan Assistant District Attorney Michelle Bayer argued for the prosecution.

Peter Cutler, spokesman for the parole board, said the decision is under review.

Another Wisconsin SVP Discharge/Release

This latest discharge places the Wisconsin release count at around 70 to Minnesota's 1:

A Mental Health Crisis in MN

There is a mental health crisis in the State of Minnesota.

The crisis involves the frequency and severity level of violence (physical and sexual) that is perpetrated upon women and children in this State by Domestic Offenders--Spouses, Fiances, Boyfriends, etc. There are more women murdered in this State in one year at the hands of a Domestic Offender (D.O.) than in 30 years or more by Sex Offenders, and yet no calls for Civil Commitment.

Until now. I am publicly calling for the use of civil commitment of Domestic Offenders to protect vulnerable women and children in the State of Minnesota. Just tonight on the news talk of budget cuts for the City of Minneapolis' Domestic Abuse Team. The necessary funding could be found by fully discharging just one HosPrisoner of hundreds who never commitment criteria in the first place.

I spoke with another Forensic Examiner who was on the AG's list for SDP/SPP, and he/she confirmed for me that the reach was overbroad, and that he/she now believes abandoning the use of civil commitment for sex offenders entirely is the right approach for the State. I'm building a coalition one credentialed person at a time who is understanding this is the only rational course.

There were 23 women murdered in this State last year as a result of Domestic Offenders, and there have been on average 20 domestic homicides a year for decades. 500 sex offenders were committed in response to one avoidable, tragic homicide committed by a mentally ill sex offender, yet ZERO commitments of Domestic Offenders despite the predictable body count and preventable human toll. This is an outrageous record that the State of Minnesota needs to remedy this Session.

Another crisis: Lack of Psychiatric/Mental Health Beds with 700 non-mentally ill sex offenders in them.

Remember the case of Larry Dame? I was inside of MCF-Lino Lakes in 2000 when the story broke about this avoidable, preventable tragedy. Years later, when the State/DOC was cooking my case by stashing me in MCF-OPH to make me appear dangerous, I looked out of the tiny window in my cage and saw Larry Dame pacing out on the Flag at Oak Park Heights. Here is a link to this sad story:

Dame is in Muderpedia after slaughtering his sister's entire family because Minnesota did not have any "Room at the Inn"--as the mental health beds at St. Peter and Moose Lake are filled with hundreds of non-mentally ill (Politically Ill) sex offenders. Peter Erlinder wrote in 1993 that these men were not mentally ill and in need of commitment, but that they were expendable political pawns.

The people in real need of psychiatric intervention are oftentimes unable to get any and they suffer as well as their loved ones and victims due to this failed MSOP "Program".

Our jails and prisons are dumping grounds for the mentally ill in Minnesota. Our State has a moral obligation to the mentally ill (who often have no family that will advocate for them) and our State has failed that obligation to date. Donna Mimbach, her husband, their 12 year old, their nine year old, and their 22 month old deserved better.

I'm making a Public Call for supporters of my Proposal re Civil Commitment of D.O.'s to join me!

Rich Stenek courageously wrote a Commentary recently about this aspect of the crisis:

11/29/12 Meeting: Progress

The day began with meeting my Dad at White Castle for the drive into St Paul together to attend the Task Force meeting. A meter was actually NOT covered at the Capital near the State Office Building so the day began with great promise. I introduced my Dad to Judge Kathleen Gearin on the way in.

I thought Judge Gearin set the tone once the meeting began. She stated plainly that men will be coming out of MSOP, and then discussion was had at length about Less Restrictive Alternatives (LRA). Some members of the Task Force indicated that the work done to date had been focused solely on LRA, to the exclusion of the larger, and more pressing issues of the process in general.

The most important thing I heard said today involved a TF member stating what I have Recommended here in my blog: To dispense with MSOP treatment completion as being a requirement to advance for consideration of PD and replacing that ridiculous Model with a Risk-Based model, with MSOP treatment status just one of many factors considered in determining current risk. Just then someone really bothered by having his power in this abused area of law diminished and possibly removed entirely by legislators momentarily distracted me, and it caused me to miss the rest of this exchange.

Here is a draft of the Task Force Recommendations relating to LRA:

I am hopeful that Don Jaworski, Task Force Liaison is making progress with making the audio available for the public. When I discussed this with Don today, he mentioned that the DHS would have to transcribe the CD's to be able to post them onlone or the CD's could be sold. I'm fine either way. I am requesting all audio be made available one way or another please ASAP. I would think DHS would want to transcribe these original audios from these important, historic meetings for authentication/accuracy.

It is imperative that outstate experts are selected who are neutral, and not just State hacks from another SVP state. I think it advisable to consider adding an outstate retired judge who has experience with these cases also. Just tweak the portion of the non-introduced draft bill from 2011, with an understanding that the panel as suggested is not acceptable because these very MN "stakeholders" have been the problem for 20 years. You must have outside supervision of any state psychologists who are doing these cases for the AG's office and or County Attorneys because of the obvious bias that pressure creates. These doctors are selected to say yes to commitment no matter what.

The two Judges on the TF--the two Chairs, have been advocating for this limited piece (Charge #2 of 3 in the Karsjens Order) to go forward by December 3, with the understanding that the whole mess would be looked at next year, while others advocated for a broader scope. The TF Chair indicated that time constraints were requiring the narrower focus for now.

Ultimately, Rep Abeler & Liebling's proposal of two meetings in January and one in February to discuss the bigger picture was settled on as a proper course of action. I am in agreement with this plan/strategy, and very strongly believe that much more work needs to happen over the next few months before heading into Session. I think the Chair and Vice-Chair, and TF did a commendable job today pulling all of this together.

My main criticism would be offered constructively in that I thought that there would be a Cloud-type workspace location for Group access for Task Force members, as well as qualified individuals. I'm encouraged by the recent list serve that DHS/TF has set-up. I'm hoping this idea comes to fruition.

Senator Lourey stated that the legislators on the TF are ready for some bold action this session and I applaud him. I urge the legislature to consider all of my Recommendations in this blog, and strongly suggest that without plainly telling the federal court that Minnesota is seriously considering repealing their sexual civil commitment laws and joining the other 30 states, that the Federal Court may do it for them. At a minimum, "bold" legislation would have to include a statewide moratorium on SDP/SPP commitments in Minnesota while the TF works to study the depths of the problem. I thought the Chair showed some naivite' in suggesting that there was a "fix" to these problems.

The Chair will discover as he learns more about these issues that there is no fix. The Chair may have meant improve, but his term caught my attention. There is no way to have constitutional flow from unconstitutional law. MSOP has never been about treatment or reintegration. Just read what ex-MSOP staff member Andrew Babcock testified to years ago about what the MSOP really is:

Until the State admits this and moves on to a different system of Preventive Detention, the State will always have expensive litigation to deal with. There are 65 civil suits on hold right now because of the class-action certification. That is another reason why the legislature must repeal the SDP Act this upcoming session. That is Step 1 to getting a handle on this Constitutional Crisis.

Anyone alleged to be so dangerous as to require civil commitment can be committed under SPP (if that statute survives this legislative session) or the MID statute, as many MID patients have sex offense histories. The State will never build enough beds or spend enough money to solve MSOP's problems.

The problems are extremely complex, but they stem from the U.S. Supreme Court's unwillingness to provide clear direction re civil vs. criminal schemes, the vagueness with regard to the nature and severity of the requisite mental abnormality and/or illness in the [SVP] arena, the use of civil commitment after completing the criminal sentence, and then, never discharging the clients/patients.

An amendment to the German Preventive Detention scheme mirroring MN was held unconstitutional in the European Courts in 2011. Our CC scheme is viewed as a Human Rights Violation in Europe.

One paper that would assist the Task Force in understanding better why this Draft is not adequate, and why repealing the SDP/SPP laws are the only logical, rational way to proceed as a State:

It has taken 20 years to get here. Do we want a 20 year legal battle over MSOP? Can we afford it? Is it necessary? No. There are other options if Preventive Detention is the solution the State wants for Sex Offenders, then at least be honest about it and impose this collateral sanction at sentencing, like the German Scheme I blogged about in another post. Now, that would be a Bold piece of legislation.

I enjoyed meeting and chatting briefly with DOC Commissioner Tom Roy, Victim Advocate Donna Dunn, Gerald Kaplan from Alpha Services, Rep's Abeling and Liebling, Ombudsman Roberta Opheim & Defense Attorney Ryan Magnus. I met a lady from Wisconsin's SVP Program (Ch. 980) and spoke briefly with Jeff Olson, who had some poignant public comments. HosPrisoner family members showed and spoke, and I was very happy to meet a few more HosPrisoner loved ones. I met Tammy Annen today in person for the first time, although we have communicated via email/phone for years now. Her son, Ryan Johnson, is a young kid whose grave offense (which was the tipping point for civil commitment in this insane system wherein they are totally incompetent in assessing risk) was smoking a joint. That is what triggered the State Targeting of her son. My Dad and I know what they are going through with their child in the MSOP "Treatment" Program:

Yeah, Treatment/Therapy...MSOP Style:

I decided at the last minute to make the public two minute remarks, so I dropped back like Tommy Kramer, and went into my 2-Minute Drill:

1) Repeal the SDP Act;
2) Outstate Panel to Supervise DOC Referrals/County Attorneys Petition Decisions;
3) Burden of Proof at Hold Hearing from Preponderance to Clear & Convincing;
4) Use CC at Sentencing, if at all;
5) Amend DOC Policy for referrals to High Risk only vs Moderate Risk and Low Risk w/Idiosyncrasy; and,
6) Use MCF-Lino Lakes for the MSOP Program while the State/Courts resolve the many issues of MSOP.

The Chair and Vice Chair were gracious and allowed me to make my comments. I am appreciative.

Wednesday, November 28, 2012

Excellent News From DHS/Task Force

I received an email today from the Task Force liaison indicating that a list serve has been established, and that as an interested person, I would be included but unable to reply/respond.

I view this as excellent news and I congratulate DHS and the decision-makers within the Task Force on their decision to have an inclusive List Serve. I am having the usual difficulties establishing mine.

Tuesday, November 27, 2012

Juvys: A Roper Analysis Needed

Please read this excellent article by Paul Demko about the men in the MSOP armed, barbed-wired camps/compounds who were in the juvenile system and "aged out" and into the Black Hole (as Peter Erlinder called MSOP to my Dad several years ago) that is the MSOP:

I am in direct communication with Timothy Coon's (Pictured here) family. Nice folks. Their son and grandson deserves better treatment than this Preventive Detention.

These men should be immediately transferred to Less Restrictive Alternatives (LRA) in my opinion.

Here is a link to a similar story:

Juvenile Sex Offenders: Locked Up for Life?

Written by: Scott Michels on Oct 1, 2012

Medical experts raise questions about indefinite civil commitment for troubled youths

At 21, Thomas Simmons has spent nearly half his life in confinement.

Description: Description: he was 13, Simmons was sent to a juvenile detention center for raping and sexually abusing a younger relative over a period of years. When he was 17, Simmons became the youngest person indefinitely committed to South Carolina’s adult violent sex offender treatment program, according to court testimony.

The government initially placed Simmons in a restricted wing and assigned a staff member to stay with him to protect him from the other residents, many of them middle-aged child molesters, a program psychologist testified earlier this year.

Four years after his civil commitment, Simmons is asking the South Carolina Supreme Court to order his release. Though experts for the state Attorney General’s Office say Simmons is still dangerous, a psychologist at the sex offender commitment center testified at a court hearing earlier this year that Simmons has not shown signs of sexually violent behavior since before he was 13, and should be released.

“Thomas was at best 11 years old when he committed his crime; he was a child,” said Brana Williams, Simmons’s attorney.

“And now he may be locked up for the rest of his life. This is why they say you should not get life without parole when you’re that young. You’re not who you’re going to be.”

At least 10 states allow some form of juvenile sex offender civil commitment, according to research compiled by the Defender Association of Philadelphia. In four of those states, at least 52 adults—not including Simmons—are currently indefinitely committed as sex offenders as a result of crimes they committed when they were juveniles, state departments of corrections and mental health said in response to inquiries from JJIE.

The six other states either do not track such commitments or did not respond to requests for information in time for publication.

Worst of the Worst’

The juvenile offenders are described by prosecutors as the “worst of the worst”—those likely to commit another sex crime and therefore too dangerous to release.

But some mental health experts who specialize in the treatment and risk assessment of juvenile sex offenders say civil commitments raise troubling questions. In many cases, these experts say they cannot reliably predict whether a young person who has committed a sex crime will grow up to become a dangerous sex offender.

“If someone says I want to protect the public from the very small number of individuals who are highly dangerous, but I don’t want to put children in institutions for things they might have done, the reality is you cannot have it both ways,” said Mark Chaffin, a director at the Center for Child Abuse and Neglect at the University of Oklahoma Health Sciences Center.

“A very small number of kids are really likely to do horrible things,” Chaffin added in an interview with JJIE. “If you want to protect the public, the price you pay is that you will harm probably a larger number of children who are not going to commit crimes.

“That’s what no one really wants to face.”

In a series of cases over the last eight years, the Supreme Court has signaled a shift in how the law treats underage criminals.

In 2005, the Court banned mandatory death penalty for juveniles in Roper v Simmons[s1] . Five years later, in Graham v. Florida[s2] , the Court barred mandatory life without parole sentences for juveniles who were not convicted of murder; and in June this year[s3] it ruled that all mandatory life without parole sentences for juveniles violated Constitutional protections against “cruel and unusual punishment.”

The justices’ decisions were based in part on briefs from medical experts arguing that juveniles’ underdeveloped brains, immaturity and impulsiveness made them less culpable for their actions. Because of that immaturity, the Court wrote in 2005, “juvenile offenders cannot with reliability be classified among the worst offenders.”

Mandatory Registration

At the same time, many states have moved in the opposite direction when it comes to young sex offenders: they have applied to juveniles many punishments once reserved for adult sex offenders, including mandatory registration on public registries and, in rare cases, potentially permanent civil commitment.

Though the commitment process varies from state to state, a young person who commits a sex offense is often sent to a residential treatment center for juveniles. As with adults finishing a prison term, when a juvenile is nearing release from confinement, usually because he or she is too old for the juvenile system, the government can ask a court to issue a civil commitment order to a center for sexually violent predators.

Prosecutors, looking at the sex crime and the offender’s subsequent behavior, typically must show that an offender committed certain types of violent sex crimes and has a mental illness or abnormality that makes it likely they will do so again. Though commitment decisions typically are reviewed every year, release from sex offender centers is rare.

The Supreme Court has said that adult sex offender civil commitment is constitutional, in part because it is not considered a criminal punishment. The fact that sex offender commitments are a civil process subject to periodic review makes it difficult to challenge juvenile commitments on constitutional grounds, according to Nicole Pittman, a Soros Senior Justice Advocacy Fellow with Human Rights Watch.

However, Pittman noted that the Ohio Supreme Court, relying on the Simmons and Graham cases, recently found that mandatory lifetime registration for juvenile sex offenders violates the constitutional ban on cruel and unusual punishment.

Nearly 10,000 juveniles were arrested in 2010 for rape and other sex offenses, according to the FBI, mostly for crimes against other minors.

Numerous studies have shown that about 10 percent of them will be rearrested for another sex crime—a lower recidivism rate than for most other juvenile crimes and for adult sex offenders.

Civil commitment cases present challenging problems for prosecutors and mental health experts, who must try to separate the truly dangerous young criminals from the much larger number who will probably never commit another sex crime.

Unlike adult sex offenders, juveniles tend to be impulsive, experimental and prone to risk-taking, said Robert Prentky, a professor at Farleigh Dickinson University who specializes in risk assessment of juvenile offenders.

Risk of Re-Offending?

Since juveniles’ brains are still developing, their risk of re-offending can change quickly as they age, Prentky said.

Chaffin, of the Health Sciences Center in Oklahoma, said that in some cases it will be obvious to anyone that a young person is dangerous. But he said that many juveniles, because of their age, do not have a significant pattern of deviant sexual behavior and often have not had time to develop a stable sexual proclivity, making it difficult to say who will reoffend.

“Evaluating risk in juveniles is extraordinarily complex and difficult, much more so than risk assessment of adult offenders,” said Prentky, who developed one of the commonly used juvenile sex offender assessment tools. “It’s a whole different ball game entirely.”

He continued: “The very fact that you’re dealing with 15 or 16-year-olds, or even younger (juveniles), means that all aspects of their development are in flux.”

Though researchers have identified known recidivism risk factors, many experts say the prediction models used on adult sex offenders don’t accurately forecast which children will go on to become repeat sex offenders and which will grow out of it.

“The tests that we have to predict recidivism for juveniles just really don’t work at the level they need to work,” said Richard Wollert, a psychologist in Vancouver, Canada who specializes in sex offender assessments. “I think it is impossible to answer the question that the court poses in these cases unless there is some extraordinary evidence of mental abnormality.”

Finding Treatment

Those differences with adults mean that many of the policies designed for adult sex offenders may not be rightDescription: Description: for juveniles, said Maia Christopher, the director of the Association for the Treatment of Sexual Abusers.

Compared to adults, juveniles are both more amenable to treatment and less likely to persist in deviant behavior, she said.

And some practitioners question whether civil commitment is ever appropriate for someone who committed a crime when they were underage.

“There are interventions that should never be used on juveniles and civil commitment is one of them,” said Elizabeth Letourneau a professor at the School of Public Health at Johns Hopkins University.

“Something that you do as a child of eleven, twelve, or thirteen rarely predicts what you’re going to do as someone age 21,” she said.

Letourneau, who was also an expert witness for Thomas Simmons at a recent court hearing, said home-based treatment is effective in treating most juvenile offenders.

Other experts contacted agree that once someone is committed, it becomes difficult to know when to release them.

“When you have someone in the system since they’re 12, and then they’re civilly committed, there are not many people who will say that that person is going to get out,” said Pittman. “We have institutionalized children so badly that they can’t go somewhere else.”

Others see no better alternative and say they are able to identify the few juveniles who are too high risk to release.

“The number one tenet in sex offender treatment is ‘no more victims’,” said Vito DonGiovanni, the former director of Pennsylvania’s sex offender treatment center.

A small number of juvenile sex offenders are referred for potential commitment, and an even smaller number have been committed.

The Case of Pennsylvania

In Pennsylvania, the only state with a civil commitment program solely for sex offenders aging out of the juvenile justice system, more than 180 commitment assessments have been completed since 2004, said Meghan Dade, director of the state’s Sexual Offenders Assessment Board.

Of those, the state committed 39 people; one has been released because he no longer met the criteria for commitment, Dade said.

In Washington, 31 juveniles were recommended for commitment between 1990 and 2003, about one percent of juvenile sex offenders placed on parole, according to the Washington State Institute for Public Policy. Of those, six were initially committed; another four were later committed after their initial release.

“There are some juveniles who have committed crimes that foretell of a spectacular risk of future predatory behaviors,” said Paul Stern, a prosecutor in Everett, Wash., who has handled several juvenile civil commitment cases. “If we are skilled at identifying those individuals, then sexual predator laws that apply to that very, very small population are appropriate.”

Added Stern: “The risk or the dangerousness is not unique to adults and foreign to those under 18. A 17 year old can be just as dangerous as a 21 year old.”

DonGiovanni, the former director of Pennsylvania’s sex offender treatment center, said that researchers were only now “on the cusp” of understanding how to best deal with dangerous young offenders. But, he said, commitment was the best option for those in Pennsylvania’s program.

“Some of these guys, it gives you chills. I’m happy for society that they’re getting the treatment they need and not out offending against some little kid,” he said.

In the Thomas Simmons case, according to court briefs, Simmons raped a younger male relative and forced him to have oral sex at least five times over a period of three years, when his relative was between six and nine years old. At one point, Simmons choked the relative until he was unconscious, according to the briefs.

Simmons was sent to a juvenile sex offender facility when he was 13. At the time, according to Don Stewart, a retired professor who has mentored Simmons, he was manipulative and aggressive and did not acknowledge that he had done something wrong.

‘Sexual Sadism’

When Simmons was 17, a court-appointed psychologist diagnosed him with “sexual sadism,” but said that he should not be committed to the adult violent sex offender program, according to court testimony. The state Attorney General’s Office argued that he belonged in program, and a jury agreed.

The Attorney General’s office and the state Department of Mental Health declined to comment on the case. But, according to court filings, while in a juvenile facility, Simmons had 30 disciplinary infractions, including fashioning a weapon, and allegedly became angry when he was told he would have to pay restitution to his victim.

At the time of his commitment, Simmons had fantasies about rape and other sexual violence, the brief says.

Since 2010, Simmons has had three hearings to determine whether he should remain committed. A jury voted against release once and twice deadlocked, according to court papers.

Dr. William Mulbry, a forensic psychiatrist, testified for the Attorney General’s Office earlier this year that Simmons had not been adequately treated for sexual sadism and remained a threat to the public. He said Simmons lacked empathy and insight into his mental problems.

But other psychologists have questioned Simmons’ diagnosis as a sexual sadist and said he does not belong in the commitment program.

Thomas Victor Martin, the former chief psychiatrist at the South Carolina sexually violent predator program, testified earlier this year that giving a juvenile a diagnosis like sexual sadism was “rather reckless.” He said Simmons should be released.

Since 2010, psychologists at the sexually violent predator program also have recommended releasing Simmons, saying he is unlikely to commit more violent sex crimes, according to court testimony. The program’s acting clinical director testified that exposing Simmons to sexually deviant fantasies as part of continued treatment could be harmful.

Simmons is now asking the South Carolina Supreme Court to order his release, arguing that his confinement violates his constitutional rights.

Both the Attorney General’s Office and the Department of Mental Health say that a judge or jury should resolve the dispute between the two agencies.

Simmons’s mother, along with mentor Don Stewart, maintain that the youth wants to go to college or join the military if he’s released. Stewart said Simmons asked for forgiveness for his crime and wanted to move on with his life.

“That was him when he was 10 or 12 years old,” Stewart said. “People change over time. He has grown up so much. He has served his time.”

Scott Michels is a New York City-based lawyer and a freelance writer for The Crime Report. This story was jointly commissioned by The Crime Report and the Juvenile Justice Information Exchange. Michels welcomes comments from readers.

Monday, November 26, 2012

DOC Referrals Pre & Post Dru: A Human Rights Indictment

Now let's look at the State's response to the Dru Sjodin abduction/murder.

Lets begin our review with the "busy graph" at Page 7 Mr. Donnay included in his presentation to the SOCCTF on November 1, 2012:

Let's examine how this shocking and damning piece of evidence indicts William Donnay and others.

  • Between 1994 and December 2003 (A 10-Year Period) Donnay's Risk Assessment Unit Forwarded 265 men to County Attorneys for potential sex offender civil commitment; 
  • Nearly 96% of these DOC Referrals resulted in committment: 258 of the 265 were committed;
  • In December 2003, Donnay's Unit Forwarded 236 men to County Attorneys for potential sex offender civil commitment;
  • Thirty percent of the Dec. 2004 Referrals (70 men ) were committed in this State-Sponsored Rampage in the wake of the high profile, preventable Dru Sjodin abduction/murder; 
  • In 2004, 52% of the 170 men referred by Donnay's Unit were committed. 88 men in 2004 were committed under SDP/SPP during the Peak of the Witch Hunt;
  • Since 2004, DOC referrals have averaged 135 per month as opposed to 25 per year Pre-Dru;
  • Since 2004, commitments have averaged 49 per year as opposed to less than 13 per year from 1991 to 2004.
  • In 2011, two men were committed, according to Donnay's graph. From overkill to too few?
This graph speaks for itself, and it corroborates and supports the allegations Michael Benson and Guy Greene made to KSTP-TV Ch. 5 Eyewitness News Investigative Reporter Mark Albert as I see it.

Here is how Dr. John Matthew Fabian described the State Response several years ago:

I hope Dr. Fabian or some other researcher with access to data will assess:

1) The recidivism rate of all men referred by Donnay's Unit for civil commitment from Dec. 1, 2003-December 31, 2011 and,
    A) Not Petitioned, and
    B) Petitioned, but not committed

I bet the recidivism rate is less than 8% across those populations with 8 year follow ups.

Thursday, November 22, 2012

Failure To Protect: A Must Read

Dean Eric Janus' Book Failure To Protect is a must-read for legislators, and other interested parties. I had this book sent in to me while I was in MCF-Stillwater battling an illicit attempt to commit me:

Vol. 17 No. 4 (April, 2007) pp.326-333

FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE, by Eric S. Janus. Ithaca & London: Cornell University Press, 2006. 208pp. Cloth. $35.00. ISBN: 9780801443787.

Reviewed by Thomas L. Hafemeister and Amy Woolard, School of Law, University of Virginia.

Eric Janus begins FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS AND THE RISE OF THE PREVENTIVE STATE much in the same way that sexual predator laws typically begin, namely, with a victim’s story, but he reaches a very different conclusion. Dru Sjodin’s picture was a recurrent feature of many national newscasts in the months following her disappearance in late 2003. A young, attractive co-ed finishing her studies at the University of North Dakota, Sjodin was kidnapped as she walked in the early evening to her car parked at a North Dakota shopping mall. Although Alfonso Rodriguez, Jr. was ultimately convicted and given a death sentence for Sjodin’s abduction, sexual assault, and murder, it was widely noted that seven months earlier Rodriguez had been released from prison where he had been held for twenty-three years as a repeat sex offender.

Janus describes the resulting political backlash as understandable but misguided. There was a general outcry that Sjodin’s fate, and others like hers, could and should have been prevented. Rodriguez was labeled a “sexual predator” and calls were renewed to use modified civil commitment laws to place such individuals in secure facilities – for the rest of their lives if possible – to fill a perceived gap in the criminal justice system. These increasingly popular sexually violent predator (SVP) civil commitment laws, now approved in twenty states, typically authorize the civil commitment of persons who, due to a “mental abnormality” or “personality disorder,” are likely to engage in “predatory acts of sexual violence.” These laws are primarily designed to place inmates completing their prison sentences for a sexual offense in a secure facility long after their sentence has ended.

Janus decries the use of this mechanism for three primary reasons. First, these laws distort society’s understanding of the real nature and scope of sexual violence, which he characterizes as a public health crisis, and divert attention from a more rational response to it. Second, they facilitate a dehumanizing portrayal of these offenders as the worst of the worst that justifies society’s failure to implement alternative efforts that can better prevent such crimes by diminishing the level of sexual violence in our culture. Third, they “introduce dangerous principles into the sensitive balance between liberty and security” (p. 24), which undercut and bypass normal constitutional constraints on the government’s ability to confine individuals because of possible future dangerous acts.

Distortion of the Nature and Scope of Sexual Violence


Willing to travel unpopular ground, Janus argues that the headline-grabbing stories of victims like those of Dru Sjodin, Megan Kanka (the inspiration for the sex offender community registration and notification measures known as “Megan’s laws” now found in all fifty states), Jessica Lunsford, and Sarah Lunde, among others, distort the public’s perspective of the nature of sexual violence in the United States. While these crimes are undeniably heinous, Janus documents that these events are far rarer than media accounts represent and that these accounts fail to address the greater societal problem of sexual violence in general.

Janus asserts that these accounts create an inaccurate image of the archetypal sex offender, namely, a career criminal previously unknown to the victim who is driven by uncontrollable urges. As he points out, however, the data indicate that (1) sexual homicides are extremely rare; (2) sexual violence is predominantly committed by relatives or acquaintances, not strangers; (3) sexual violence is ubiquitous with many sexual reports never reported (although a sex offense by a stranger is far more likely to be reported); (4) sexual violence is not random but is mainly directed at the young and at people the offender knows; (5) most sex crimes are committed by people who have never been convicted of a violent offense, and most released convicted sex offenders are not arrested for a new sex crime; and (6) a lack of self-control is characteristic of most criminals with most crimes being impulsive actions, as well as of large portions of society in general, where people have serious difficulty controlling their smoking, alcohol or drug use, gambling, eating, and the like, and thus provides little rationale for the “ritual exiles” of this population.

Failure to Implement Alternative Efforts That Can Better Prevent Such Crimes

Janus further contends that these SVP civil commitment laws shift public focus and public funds to the “stranger” rapist-murderer, which has become society’s “bogeyman” but which represents a relatively small and virtually impossible to prevent aspect of the greater sexual violence problem. Janus argues that this attention and these funds would be better spent on the far more widespread but less media appealing issues of domestic partner sexual abuse, intra-familial child sexual abuse, date-rape, and other less sensational but highly injurious crimes that may, with the right approach, actually be preventable. Janus also suggests that focusing on confining the sexual predator gives the public a false sense of security from sexual violence and erodes efforts to recognize and combat how societal attitudes facilitate more pervasive forms of sexual abuse.

Furthermore, Janus provides a cost-benefit analysis that strongly suggests that the extraordinary funding of these commitments flies in the face of common sense. He reports that the average annual cost to house and treat one SVP is $75,000. He adds that estimates for the total national cost for the then sixteen existing SVP commitment laws ranged up to $320 million, which did not include the one-time litigation costs for new [*328] commitments (estimated at up to $100,000 per case) and the capital costs of constructing confinement facilities (with one state’s estimate being $69 million). A 2007 survey by the NEW YORK TIMES found that the total SVP civil commitment budget for the eighteen states for which data were available was $446.8 million (Goodnough and Davey 2007). Janus projects that within the next decade the annual national expenditure on SVP commitments will be $750 million to $1 billion. These expenditures, however, only pay for the incarceration of about three thousand offenders. Further, SVP civil commitment confines only 3-12% of sexual recidivists and can be expected to confine only 0.4-1.7% of the individuals who would otherwise be convicted of sex offenses each year.

In contrast, Janus notes a lack of correctional treatment programs for sex offenders, cut-backs in parole services for released sex offender inmates, and a failure to appropriate adequate funding for programs that will reduce the level of sexual violence in general and provide a needed continuum of interventions. Janus asserts that the limited public funding available would be far better spent on more effective preventative measures that address the wider problem of sexual violence.

Subverting the Balance Between Liberty and Security

Civil commitment laws, argues Janus, cement the idea of the sex crime as stranger violence and the sex offender as a mentally ill deviant who cannot control his own behavior. The result is that society is willing to relax its protections of liberty and override criminal justice safeguards if it means certain “monsters” are locked away for good. Further, Janus contends that cordoning off the “stranger-danger” sex crimes results in a failure to identify and address the causes of sexual violent and prevent sexual violence before it happens.

Janus worries that SVP civil commitment laws, which hinge upon ably identifying potential dangerousness, are a harbinger of an increasingly “preventive state.” Janus draws apt comparisons to the detainment of suspected terrorists in the post-9/11 United States. Both groups are confined for their perceived risk of future dangerousness, rather than for their past criminal actions. He argues that those who would celebrate the distance United States law has traveled from decisions like BUCK v. BELL (1927), which upheld mandatory sterilization of individuals with a mental disorder, and KOREMATSU v. UNITED STATES (1944), upholding the internment of citizens of Japanese ancestry during World War II, need only look to the USA Patriot Act, passed in 2001, to understand that this country is not yet beyond providing a reduced-rights status to certain disfavored groups, or what Janus refers to as the “degraded other.”

Janus also notes that many additional types of legislation have historically been enacted to identify “dangerous” people and restrain their liberty before they can do harm. Among the examples he sites are racially discriminatory laws, including the “separate but equal” laws targeting blacks, broad-sweeping [*329] vagrancy and anti-loitering laws, and criminal sanctions for being an alcoholic or a drug addict. Janus asserts that “the idea that our laws may pick out a disfavored group of others for specially disfavored treatment in the law has been all but eliminated” (p.97) but argues that these limits were hard won and are potentially fragile.

Legislatures and courts that have sanctioned the commitment of sex offenders must do so in the name of “treatment” rather than punishment to pass constitutional muster. However, organizations such as the American Psychiatric Association and the National Association of State Mental Health Program Directors have categorized these laws as a “misuse” of civil commitment, noting that often no meaningful treatment exists or is provided for many of those who are detained. Janus adds that (1) the range of mental disorders that justifies SVP commitment has generally been broadened to encompass personality disorders, even though this is not typically a sufficient basis for civil commitment in general; (2) the treatment services provided in conjunction with SVP civil commitment are of questionable efficacy, and it is far more difficult to achieve release back into the community following SVP civil commitment; and (3) current dangerousness, a requirement of civil commitment in general, can be based on an inmate’s prior conviction of a sexual offense, even when a relatively long period of time has elapsed since the crime, or a questionable prediction of future dangerousness. Although the United States Supreme Court in KANSAS v. HENDRICKS (1997) upheld the constitutionality of the prototypical Kansas Sexually Violent Predator Act, it is worth noting that Justice Kennedy’s pivotal concurring opinion warned that if the object of such a law is to provide treatment but the treatment provided is a sham or mere pretext, the law would violate constitutional protections.

Registration and Community Notification and Other Legislative Actions

Janus also describes with concern a related step taken in response to the perceived threat posed by violent sexual predators. For example, he notes that although all states have some form of a sex offender registry and community notification (i.e., a Megan’s law), the routine underfunding of these mechanisms impairs delivery of their clearest benefit, namely, the provision of useful information so people can take meaningful measures to protect themselves. One national study concluded that states on average were unable to account for 24% of offenders supposed to be in these databases. With 603,245 registered sex offenders in the United States at the end of 2006 (National Center, 2007), this study suggests that accurate information on the location of nearly 145,000 registered offenders is unavailable.

Janus also comments that the value of this mechanism is challenged by research indicating that (1) six out of seven sexual assaults are committed by people who are not previously convicted sex offenders and thus are not subject to [*330] community registration and notification, (2) roughly half the states do not perform an individualized assessment of each sex offender’s future risk, as a result including individuals on the list who may pose little if any risk to others, (3) many of these schemes do not provide any practical advice to citizens about how best to protect themselves, and (4) this approach is overbroad as the vast majority of victims of sexual assault are related to or are already acquainted with the person who assaults them. Furthermore, inclusion on these lists can make it extremely difficult for listed individuals to obtain a job or a place to live, which are vital steps for a reintegration into the community, and few treatment or support programs are provided to facilitate this reentry, which ironically may place the community at greater risk.

Janus also notes that many states and locales now have provisions banning registered sex offenders from living within a specified distance of schools, parks, daycare centers, and other places where potential victims may congregate. He cautions, however, that the dedication of extensive but scarce police resources are needed to enforce such provisions at even the most basic level but which are then not available to respond to other societal needs such as preventing sexual violence in general. Plus, offenders may find themselves unable to find housing in any acceptable area, leading many to go “off the grid” when they fail to re-register or disappear to neighboring states, thereby further diminishing the value of such registries.


Although comprehensive in its scope, there are some limitations to Janus’ treatise. First, although he should be credited for providing an extensive review of relevant research on sex offenders and sexual violence, as a law professor it is perhaps to be expected that his focus is the legal and public policy ramifications of SVP commitment laws and related enactments. His review of the literature on sex offender treatment, however, is relatively cursory. For a more extensive review of available treatment modalities within the context of a discussion of the laws in this country designed to monitor and control sex offenders, see Shajnfeld & Krueger (2006). Similarly, Janus’ review of risk assessment and related instruments and their reliability when applied to this population is relatively brief. For an analysis of the use of the increasingly popular construct of psychopathy and associated measures to assess future risk, see Kolbe (2007). For a review of violence risk assessment in general, see Monahan (2006).

In addition, Janus could have noted that civil commitment in general has historically been used to confine and control unpopular or disfavored groups (Appelbaum, 1994). Furthermore, mental illness per se tends to engender stigma and potential discrimination. As a result, certain procedural protections are employed to ensure that the civil commitment of individuals with a mental illness is limited to individuals truly in need of care and treatment. In much the same way that calls for increased SVP civil commitment have been driven by well-publicized tragic [*331] events, similar events where an individual with a mental illness has attacked others, typically after a loved one unsuccessfully sought mental health services for the individual, have stimulated calls to expand the availability and reach of civil commitment in general as well (Zdanowicz, 2006). Although Janus’ analogizing SVP civil commitment to the detainment of suspected terrorists is valuable, it would have been of interest to learn whether he, an expert in this field, finds efforts designed to pressure individuals perceived to be in need of mental health treatment to accept this treatment – including expanding the criteria for civil commitment in general, enhancing the availability of out-patient commitment, increasing the use of psychiatric advance directives, and establishing mental health courts – also reflect efforts to control a disfavored and what may be perceived to be a threatening group within an increasingly “preventive state.”

Finally, Janus vigorously argues that efforts to enact SVP commitment laws reflect a conservative agenda to undercut feminist assertions about the prevalence and causes of sexual violence, including their position that sexual violence is used to maintain the oppression of women. According to Janus, “[t]he predator laws arrived just in time to provide conservatives with a Trojan horse, a stealth vehicle for pushing back against the ‘tidal wave’ of change wrought by the women’s movement” (p.87). Janus asserts that the predator laws (1) resurrect the archetypal sexual offense as stranger violence, (2) reemphasize the model of a sexual offender as a person with a mental disorder who lacks the ability to control his sexual impulses, and (3) diminishes the need to address the contribution of traditional community values and attitudes to the occurrence of sexual violence. While a provocative and intriguing thesis, this argument has the unfortunate potential of engulfing his other important assertions within the cultural wars that have polarized and immobilized efforts to resolve other important societal issues, ranging from abortion to end-of-life decision making. As Janus acknowledges, calls to enact SVP commitment laws are typically bipartisan once a tragic event has unfolded. Furthermore, conservatives in this country have for some time sought to advance a law-and-order agenda, as reflected for example by the explosion of the prison population and the wide enactment of “three-strikes” laws. As Janus notes, calls for SVP civil commitment readily fall within this agenda as well. Janus has more than sufficient bases for his critique of SVP commitment laws without framing them within an ideological argument that may ultimately undercut his ability to promote his goal.


Janus warns that when people mistakenly come to believe that sexual violence is limited to sexually violent predators who can be readily identified and controlled, legislators feel obliged to answer by introducing SVP civil commitment and related bills. The implicit message associated with these bills is that once they are in place, the public will be adequately protected. [*332] SVP civil commitment laws seek to legislate away the public’s fear of sexually violent crime by embracing an “out of sight, out of mind” approach. When these enactments follow a particularly monstrous crime, as they usually do, the legislative response is often swift, leaving little room for reflection, discussion, or research. Megan’s law was enacted in New Jersey less than three months after the death of Megan Kanka. Florida’s Jessica Lunsford Act, which increased minimum sentences for sexual offenses against children and requires offenders to be closely tracked upon release, was enacted in thirty-two days. After all, as Janus notes, no one wants to be the state representative who votes “for” violent rapists and pedophiles over the safety of children.

Janus does see some value in sexual predator laws in that they “give loud expression to our collective disapproval of sexual violence” and “empower victims and other innocent members of society [to give] voice to their hurt and their fears” (p.145). However, he contends that these laws fail to address the systemic conditions that foster sexual violence in our culture, with the result that these crimes will continue to occur relatively unabated. Ultimately, Janus advocates for a policy that casts sexual violence as a public health crisis that demands a more effective community response. By redirecting the exorbitant sums that support the few violent sex offenders being housed in state-funded SVP civil commitment facilities, Janus suggests that more appropriate options can be explored and implemented. Further, by broadening our focus and presenting the public with more realistic accounts of the problems that exist, he effectively asserts we can better redress the plight of the thousands of nameless victims who will suffer through crimes that do not even make the local police blotter, much less the evening news.


Appelbaum, Paul S. 1994. ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE. New York: Oxford University Press.

Goodnough, Abby, and Davey, Monica. 2007. “A Record Of Failure At Center For Sex Offenders.” THE NEW YORK TIMES, (Mar. 5, 2007). Available at

Kolbe, Vanessa L. 2007. “A Cloudy Crystal Ball: Concerns Regarding The Use Of Juvenile Psychopathy Scores In Judicial Waiver Hearings.” 26 DEVELOPMENTS IN MENTAL HEALTH LAW 1-25.

Monahan, John. 2006. “A Jurisprudence Of Risk Assessment: Forecasting Harm Among Prisoners, Predators, And Patients.” 92 VIRGINIA LAW REVIEW 391-435.

National Center for Missing and Exploited Children (visited on Mar. 9, 2007). “Registered Sex Offenders In The United States.” Available at [*333]

Shajnfeld, Adam, and Krueger, Richard B. 2006. “Reforming (Purportedly) Non-Punitive Responses To Sexual Offending.” 25 DEVELOPMENTS IN MENTAL HEALTH LAW 81-99.

Zdanowicz, Mary T. 2006. “Dealing With The Dangerously Ill: Maryland And Virginia Offer Little Defense.” WASHINGTON POST, p. B08, (May 21, 2006). Available at


BUCK v. BELL, 274 U.S. 200 (1927).

KANSAS v. HENDRICKS, 521 U.S. 346 (1997).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).


© Copyright 2007 by the authors, Thomas L. Hafemeister and Amy Woolard.