Whether we are addressing the war on drugs, violence, gun violence, child sex abuse, or civil commitment, our lawmakers don’t want to fix these problems.
It is understandable and necessary to protect children and the vulnerable, but the data show that our lawmakers, our justice system is failing badly but still moving at lightning speed to permanently punish and lock up anyone whose sexual interest is determined to be abnormal. For many in law enforcement, the intention was to protect children, but our ignorance of sexuality and the serious study of it led to the disaster we have now.
“Ma’am, when your mommy is chasing you around with a butcher knife, that is something you can never forget”- Death Row inmate, a day before his death
In a very telling presentation, Dr. James Gilligan, a psychiatrist and former director of mental health services for the Massachusetts prison system, did an experiment on violent offenders. He, with the help of volunteer faculty, gave 300 prisoners a college education. They received bachelor’s degrees. When the former violent offenders left prison, they tracked these men for 30 years. After 25 years, what was the recidivism rate? Keep in mind that the current recidivism rate in prisons is about 70 %. Keep in mind that 90% of all people will get out.
After 25 years, no one, not one person, went back to prison. After 30 years about 3%. Dr. Gilligan shared this great and promising news with the then Governor. The Governor’s first response was to shudder the program. The Governor said that if we give criminals an education then people will kill people in order to get a free education. Gilligan commented that maybe everyone should have a free education. Gilligan’s recommendation was based on evidence over 30 years. The Governor’s response was based on scare tactics with no evidence, one that is punitive and lacks a basic understanding of the prison population: many cannot even read.
What we should learn from Gilligan’s 30 years of hard work is that providing tools and hope to people that have few tools and little hope makes them better citizens. These individuals had violent offenses. Gilligan estimates that 50% of the violent inmates in prison can be treated and live non-violent and productive lives.
Lock’em up, Lock’em up, Lock’em up!
If our criminal justice system stops locking up non-violent people, offers them restorative justice and treatment, and treats the 50% of violent inmates, we could reduce our prison population by nearly 75%. This would save states hundreds of billions of dollars. This means that approximately 1,725,000 people could return home better off than when they went in while still being held accountable for the harm they did to others. This would mean getting our criminal justice system out of its emotional and medieval mindset: some people are inherently evil and must face a life of punishment and harassment.
What does this mean? Offering real support and resources may be the most effective treatment. Such reform, however, does not fit on a sign. As Christopher Cross, a court-appointed legal guarding in Missouri writes, “Unfortunately, the very sad reality is, no matter how many times you prove the night is different from day, people believe what they want. As Mark Twain is reported to have said, ‘it’s easier to fool people than to convince them that they have been fooled.’” For some lawmakers in the U.S., fooling is a way of life and of survival.
Though civil commitment currently makes up about 7,000 total inmates or “patents,” states like Virginia and California and many others are anxious to expand these outrageously expensive facilities. St. Martin (first noted in Part I), claims that California alone has spent approximately 7 billion dollars on Coalinga State Hospital over a twenty-year period. It costs $240,000 per patient annually, and the success rate of 7 people in 20 years. The facility houses 1,200.
That means the hospital fails to treat nearly 100% of its patients. But as noted in Part II, treatment for high-risk offenders has little to no effect, and those statistics come from the Association for the Treatment of Sexual Abusers (ATSA). The states are well aware of this, but as St. Martin and Cross confirm, the courts, including the Supreme Court, say that state facilities are required to offer treatment, but that does not mean the treatment has to be effective. If these men are seriously violent, then there is no reason to house them in a hospital, unless lawmakers want to keep people incarcerated after they served their time.
Would you send your child to a “hospital” for treatment that has such a failure rate, to a school, or even to a restaurant? Why would our lawmakers knowingly put billions of taxpayer dollars into worthless programs and facilities?
“And That’s a 10 Supreme Court” for Rhetorical Gymnastics
Instead of the Supreme Court looking at facts, research and the context, it seems to focus on a single word, “civil” and its relationship to the word “punishment.” In Hendricks, the Supreme Court ruled that civil commitment did not violate the Fifth Amendment because such was not punitive according to lawyer Rosemary Deck. Here is an examination of some cases.
According to Deck, in Roper v. Simmons, Justice Kennedy argued that the use of empirical evidence is important in determining a decision on the case. Justice Kennedy wrote, “juveniles have less control, or less experience with control, over their own environment.” The Court decided that the death penalty should not apply to juveniles. In Graham v. Florida, the court ruled that giving juveniles life in prison without parole in cases not involving murder was unconstitutional. The Court also protected vulnerable populations from state abuse, a necessary and important judicial function.
On the surface, these are reasonable rulings, and I commend Justice Kennedy for considering empirical data and analysis (or good critical thinking) in cases involving juvenile sex offenders; however, Justice Kennedy and the Supreme Court should have applied this concern to adults as well because if these individuals have “mental abnormalities” (whatever that means since there is no such diagnosis in the Diagnostic and Statistical Manual of Disorders) or illnesses, then why is such not considered? As Cross argues, if these individuals were competent to stand trial, why are they civilly committed for mental abnormalities after they served their sentences?
Here is Kennedy’s statement on lifelong civil commitment on adults in the Hendricks case, again noted by Deck, “if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified,’ the Court’s precedent would not support it.”
To unravel the Court’s semantic toilet paper, the Supreme Court’s final ruling was that states have the right to serve their own interests. Such leaves the door open for human and civil rights violations because the Supreme Court did not address those with disabilities and mental health issues. As Cross argues, the lower courts’ as well as his state Missouri’s (and other states) decision do violate the Americans with Disabilities Act and makes patients very vulnerable. Deck further writes,
The Court did not address any claims of equal protection, substantive due process, or procedural due process, leaving those claims available on remand.
In the meantime, the lower courts and politicians have taken advantage of this enormous brush and have widened the definitions of SVPs and of child pornography or child sexually exploitative material (CSEM). In Virginia alone, there are almost 30 categories that can qualify someone as being a violent sexual predator, and these include those that are not violent. In sum, the Supreme Court, at present, uses empirical data for one group and not the other and essentially makes adults with sexual offenses and mental health problems illegal or, at the very least, without protection.
More specifically, the Court allows the states, not expert organizations like the ATSA, to decide what mental abnormality would make people possibly commit a future crime against the overwhelming evidence that recidivism rates for sex offenses don’t justify civil commitment in the first place.
This is not a decision that should be made over the meaning of “civil” and “punitive” because if a hospital is not really a hospital because it doesn’t and cannot treat, then what makes a lifetime commitment beyond one’s sentence “civil” and not punishment? Would any Supreme Court Justice, lower court, or prosecutor like to sit in civil commitment?
In sum, how can the Supreme Court be serious? To someone being strapped in a Pakistani Chair, it makes little difference if one calls it torture or enhanced interrogation. It hurts just the same. It’s a human rights violation. At present, the Court passed on protecting one of the most vulnerable and voiceless groups. This is not about disgust or emotion, it’s about judicial ethics and discipline.
Galen Buaghman’s Virginia Case, Commonwealth Retaliation?
Let’s take the case of Galen Baughman that is in front of the Commonwealth of Virginia. According to Philip Fornaci and Roger Lancaster, Baughman pleaded guilty to two counts of “illegal sexual misconduct,” the first when he was 15 and the second when he was 19. He was charged at age 20. He took a plea agreement and spent over 6 years in prison. None of his actions were determined to be violent or deceptive. The victims did not play an active role in him being prosecuted. Most of his time was served in solitary confinement.
When he served his sentence, he was detained for 2.5 years waiting for a civil trial. That trial would determine if he was a violent predator under Virginia’s SVPA criteria. According to Fornaci and Lancaster, Ken Cuccinelle, the then district attorney, attempted to make Baughman into a high-risk violent sex offender. The jury did not buy it and Baughman was eventually released from prison and finished serving his probation in 2012.
In that time, as noted by Fornaci and Lancaster, Baughman became an advocate for those civilly committed, particularly in Virginia. He was very critical of the laws. He even won a Soros Justice Fellowship. He asked probation if he could go to a funeral out of state and got approval. When there, he communicated with a 16-year old boy that was above the legal age of consent. The texts were not of a sexual nature. The Commonwealth revoked Buaghman’s probation and the world-renowned expert, Dr. Fred Berlin, testified that Baughman’s texts were not grooming. Judge Daniel S. Fiore II chose to use his own judgment, though clearly not an expert in sex offenses, that they were evidence of homosexual grooming of a heterosexual youth. It is not out of the question that the Judge is biased against gay people and has little respect for experts he disagrees with. It’s best if such a judge is removed from the case.
Baughman’s is a technical violation, not a criminal one, and such seldom results in even jail time, note the authors. Even the State’s psychologist found that Baughman was not a sexual predator under the State’s SVP laws and noted that Baughman should be released.
According to Adam Romanik, the prosecutors for Baughman’s next hearing “ignored Virginia law” and hired psychologist Michelle Sjolinder that gave them what the Judge and prosecution wanted. She, against the recommendations of two other psychologists, one world-renowned and the other, a state psychologist, determined that Baughman is a violent sexual predator. The court also barred Dr. Richard Kruger’s findings, a Columbia University psychiatrist, that Baughman had no mental health problems.
Does any of this sound like a fair and democratic justice system to a reasonable person? Maybe it’s about time for professional licensing boards to pull licenses from those it finds are acting in a prejudicial and unethical manner?
Oh, and the judge barred the state’s psychologist from testifying for Baughman in the next hearing. Given the Judge’s decisions, I think we already know what will happen to Baughman, life in civil commitment.
Michael St. Martin’s Blood Pressure and “Civil” Disobedience
Martin served 18 years beyond his prison sentence in civil commitment. It is likely he will be there the rest of his life. In his 30s, he had violent sex offenses. Now he is in his sixties. One day, he felt pretty good, but he was asked to have his blood pressure taken. He refused since he felt fine. When it later came time for his hearing for possible release, he claims that his refusal to have his blood pressure taken was used to show he is a violent sex offender and a danger to the community. They said, his refusal shows that he will not follow rules and will go back and offend. Martin says that he is now in his sixties and a different person than what he was in his 30s. Refusing to have blood pressure taken is a human right, not a sex offense. If civil commitment is not punishment, then why is he being punished for refusing to get his blood pressure checked?
St. Martin did the numbers on the Registry Report Radio podcast. It costs approximately $240,000 per inmate per year at Coalinga State Hospital, and the facility has about 1,200 patients. Most are sex offenders. In the 20 or so years it has operated, it has cost taxpayers 5-7 billion dollars. The state wants to add more beds, yet the facility, as noted earlier, had only 7 people that were successful in 20 years. Of those that do get released, the recidivism rate is 4.8%.
Some may argue that the hospital is working because these violent offenders are not on the street, but let’s say that St. Martin is a violent predator and is simply lying. Let’s say Baughman is a violent predator and is also lying despite clear evidence that he is not a violent predator. What can a multi-billion-dollar hospital do that a prison cannot for someone violent?
Something Stinks in Missouri: Alleged Former FBI Agent Revamping SVP Treatment Programs
Cross-references a lawsuit that was filed against the Missouri Sex Offender Program that found the civil commitment facility was not treating anyone. In fact, no one had ever been freed from that system and 88 have died while allegedly being treated. Cross spoke to a former FBI agent that was hired to restructure the treatment program,
He let me know the design and intent is to ensure people are locked away from society as long as humanly possible, under the pretext of receiving treatment that leads to eventual release back into society. And so often both politicians and judges turn blind eyes because it is politically unpopular to assure the rights of such individuals are not violated.
What credits Cross’s claim is that what business is it of a former FBI agent to be revamping a sex offender treatment program? Such an agent is not at all qualified in any way to create a treatment plan, and given what such a former agent would do in the FBI and in our judicial system, locking people away is what they do. They never treat anybody. The State may simply want to skirt the whole lawsuit and make it look like it did something it had no intention of doing.
ATSA, Static-99, and a Judicial-Care-Less Culture
In “A Reasoned Approach,” published by the ATSA, the organization made the following comment about current sex offender legislation:
The majority of sex offender legislation has been built upon “stranger danger,” which now keeps society from looking at the more typical and predominant cases of sexual abuse that are perpetuated within the family and at the broader societal solutions for preventing child sexual abuse. Additionally, the broad application of these legislative policies to every adult, many adolescents, and even children convicted of sexual abuse has created unintended negative consequences.
These consequences are that if we see sex offenders as “monsters” and pedophiles as child molesters (many are not), people can miss the real danger around them. Given the harsh treatment, families may be less likely to turn in a person, or that person will go to all lengths not to seek help. Victims are also exposed and can be traumatized by the court proceedings.
Upon completing their sentences, former offenders have trouble finding jobs, getting housing, and forming healthy relationships. Such can lead to desperation, and desperation causes crime.
In sum: “…the broad application of these laws does not make the communities safer places for children, protect victims, or encourage the prevention of child abuse” (ATSA). Civil commitment, based on an undisciplined and bias court system will do nothing to add to the safety and the reduction of child sexual abuse.
The Static-99 is a static scale that relies on the psychologist’s objectivity, but the scale itself is subjective. Gay, single men can be hit particularly hard on this scale. A better approach is to use static and dynamic assessments, a combination plus professional judgment. It’s important to remember that, according to the ATSA, the best accuracy under the best conditions is a 50/50 accuracy rate. Is that enough to put someone away for life? Yet, it is highly doubtful that those assessing at these hospitals are anywhere near doing such assessments correctly or using a combination of scales. “Risk is not static,” as the ATSA notes, and people do change throughout time, unlike previous myths about sex offenders.
In closing, as we expand our laws to make almost everything under the sun child-sexualized, we will only have more and more offenders, more panic, and more lawmakers profiting off this panic. Though such will eventually bankrupt states and destroy the lives of millions of people and their families, a focus on only the victim will also cost victims and survivors of abuse as well. Sex will continue to equal trauma. Victims and offenders have one thing in common: the expectation that neither one will ever get better and heal.
Maybe it’s time to hold judges, courts, and prosecutors accountable for their total inability to discipline themselves and have basic critical thinking skills, something I teach at community college. It’s not simple for my students because I never want them to do what the Judge in Virginia and the Supreme Court are doing. Such is a disgrace to our nation and to the whole judicial system.
Civil commitment is just another form of enhanced interrogation and of alternative truths. It’s just another form of punishment disguised as treatment. I think the Bar Association, the American Psychological Association, and the licensing boards should look into professionals that are profiting from unethical behavior. If such is proven, then these individuals should have their licenses suspended. That would be a start without waiting for the courts to wake up, slow down, and show a little judicial maturity, ethics, and discipline.
Stop being so damn political.