By James Ridgeway
Many sex offenders are held indefinitely past their sentence on a recidivism assessment that's almost impossible to challenge
Most people would think that once you have served a jail sentence, you are free to go. But that's not always the case.
When it comes to sex offenders, a number of states and the federal government have laws that allow them to keep you in jail, simply because they consider you a potential recidivist. Through a legal procedure called "civil commitment", you can be classed as a sexually violent predator based solely on the subjective opinion of a state-employed psychologist or sex expert.
Once placed under a civil commitment, you are essentially in prison indefinitely. This can quickly become a nightmare, particularly in instances such as an "agreed disposition'' – similar to a plea bargain in a criminal trial – where a person may have been pushed to waive his right to appeal (pdf) during negotiations.
No one knows for sure how many sex offenders there are in the US, but well over 747,000 people are listed on registries. Some are, indeed, pedophiles, but one third of offenders have committed their crime as children. The recidivism rate for sex offenders in general is low, with government statistics showing the rate at around 5%, versus 60% for all criminal activity.
The topic, especially with the Ariel Castro horror in Cleveland fresh in everybody's minds, is charged with emotion. There is little regard for sex offenders in the justice system: defense lawyers are loath to take a case before a jury, fearing instant conviction, and judges often can barely hide their disgust should they render a decision at a bench trial.
So, the Virginia case of a young gay college student named _____ is all the more remarkable. _____ gambled with his future when he decided to take his case before a Virginia jury. Yet, amazingly, he won.
_____ had been a college student in the early 2000s at the University of Indiana, studying to become an opera singer. He was sentenced in a Virginia court in 2004 to 30 years in prison for "aggravated sexual battery" and sex with a minor (aged 13-15), after having been charged initially with soliciting sex over the internet and disseminating indecent materials to minors. _____ claimed the sexual encounters were not forced.
The judge suspended part of the sentence; even so, _____ spent nine years in prison – half of that time in one sort of segregation or another, despite serving his sentence without any infraction.
In 2007, just as he was looking forward to release, Virginia officials unexpectedly informed _____ that they believed he might qualify for civil commitment. In June 2009, Virginia authorities decided this was indeed the case. Without filing any additional charges, they held him in prison for a further 25 months in order to assess his behavior.
One day, a psychologist arrived at the prison, and said he wanted to interview _____ to determine whether he was a sexually violent predator. _____ said he would be glad to answer questions but wanted an attorney present. At that, the psychologist left, never to return.
_____'s two attorneys, Charles Burnham and Eugene Gorokhov of Washington, DC, asked the state to conduct an evaluation with _____ and one of his attorneys present. Virginia refused, and as _____'s subsequent habeas petition claimed, "took the position that the request for counsel constituted a refusal to participate, and indicated that it was contrary to office policy to conduct an evaluation if the respondent first sought advice of counsel". The state court agreed.
Then, on 9 October 2009, Virginia initiated formal proceedings against _____. All along, _____ had sought to introduce testimony from his own expert witness: a Johns Hopkins medical doctor and an acknowledged expert in sex offense matters, who has consulted with the FBI, testified before the US Senate, been a member of the White House conference on sexual disorders, and worked with the Boston archdiocese on pedophilia cases.
Under civil commitment, the state can hold a person for an undetermined length of time until its therapy works to the satisfaction of law enforcement agents. His doctor's report, made available to me by _____ and his attorneys, concluded with an assessment that despite past actions:
"[_____] has no condition which makes him likely to engage in 'sexually violent' acts. Therefore, in my professional opinion, he does not meet the statutory requirements for civil commitment as a 'sexually violent predator'."
At the subsequent trial, the judge refused to allow the expert's evaluation to be entered in _____'s defense, instead relying wholly on the state's own expert's report. This was based on written evaluations made years ago.
In the end, a jury of six women and one man found _____ not likely to be a sexually violent predator. After listening to the state's prosecutor describe what _____ might do if let out of jail, one perplexed juror was reported to have asked: "But what's the crime?"
_____ is thus believed to be the first person in Virginia ever to win such a civil commitment jury trial, and one of the few nationally. He was released on probation, and subject to the state's policy that relies on polygraphs, therapy sessions, and a process called the "containment model".
The therapy is unusual in that _____ believes the therapist functioned as a sort of surrogate cop. As he put it:
"It is absolutely the case that everything I say to my therapist ends up on my probation officer's desk – which means it also ends up on the prosecutor's desk."
_____ sought to re-enter the University of Indiana, but was blocked by the state of Virginia. The school eventually reversed the decision, but _____ then found himself blocked by the state of Indiana.
So, he is stuck in Virginia. He does not drive a car because he fears any cop who runs his plate will notice he is on the sex offender registry and look for a reason to pull him over, if only to harass him. Even a simple traffic ticket leads him to worry whether the encounter could turn into a violation that would land him back in prison.
_____'s parole officer, at least, has been generally supportive of his charge, even moving away from containment model therapy. Still, many would find the terms of _____'s probation over the top. He has been asked by Virginia sex inspectors, who are employed to enforce sex offender treatment, how many times a day he masturbates and what he thinks about when he masturbates, along with the details of actual sexual activities. _____ says, "As part of that program, I was required to disclose this information to them." The state probation officers declined to discuss _____'s case with me.
_____ faces six more years on probation. He had studied to be an opera singer, but like so many sex offenders, he has little chance of obtaining meaningful employment. He has come to see no future for himself in the US. Instead, he might go to Europe, maybe France, to obtain actual freedom and intimate liberty.
His probation conditions may be restrictive and intrusive, but _____ is lucky to have two aggressive attorneys fighting in his corner. Most accused sex offenders are simply told to plea-bargain their way into civil commitment. Once under civil commitment, they may spend the rest of their lives in prison.
While there are, undoubtedly, some irremediable sex offenders who need to be confined for reasons of public safety, the civil commitment protocol denies some of the basic rights afforded other criminal defendants. These include the right to a speedy trial, full right to counsel and, perhaps most importantly, the right to introduce testimony from a defendant's own experts. Without the protection of this last right, some defendants are sent off to prison for an indefinite sentence on the basis of questionable opinions from the state's expert witnesses.
Civil commitment for sex offenders needs to be reformed root-and-branch or abandoned. The policy may be popular in law enforcement circles, fewer than half of US states have such laws. But in those states that have it, _____ is the rare exception; most do not escape this largely invisible American gulag.