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September 12, 2015

Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program

As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws.  Here are the details:

In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.  The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.

With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend.  The program has been praised and criticized since it began in 1999.  Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington.  They entered the program after completing prison sentences for sex crimes.

“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.

“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Those issues will be addressed soon in the remedy portion of the trial.  A hearing will be held Sept. 29.

“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005.  “It’s hard to describe after all that we have been through here.  Finally, we get some light at the end of the tunnel.”  The class-action lawsuit began in 2009.

Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...

Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool.  He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.  Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.

The judge agreed. In her ruling, she said the state of Missouri has not:

  • Performed annual reviews in accordance with the Sexually Violent Predator Act.
  • Properly implemented any program to ensure the least restrictive environment.
  • Implemented release procedures, including director authorization for releases, in the manner required by the law.

At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system.  In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.

While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society.  They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.

Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.  “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added.  “The setting would likely enhance their treatment and provide motivation.”  The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.

Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.  With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.

The full 60-page trial court ruling in this matter can be accessed at this link.

September 12, 2015 at 01:12 PM | Permalink

Comments

Civil commitment programs could actually put corrections staff and custodial guards at extra risk for their own safety. Think outside the box for a minute. When you keep a man or woman beyond his or her fixed prison sentence, what incentive does that civilly committed inmate have to behave himself or herself toward staff if doing so does not guarantee release from civil commitment, much less a reduction in their original sentence prior to civil commitment?

Many states used to have early release programs even for violent people and certain types of sex offenders so as to discourage them from acting out on staff. If one knew he or she could get early release, then he or she had a vested interest to be a model prisoner.

Frankly, it is a wonder that civilly committed detainees have not taken a page from the Attica and Lucasville prison uprisings twenty to forty-five years ago that took the lives of some guards along with inmate participants in those disturbances.

Unless I am badly mistaken, I doubt if sex offenders respond any differently than other inmates do to positive and negative reinforcements.

I could see a situation where one gets more politically aware inmates in civil commitment have no second thoughts toward engaging in militant, or even violent, behavior if such inmates think that is the only road to freedom and dignity. Even where inmates are normally cautious about not assaulting staff or guards, one has exceptions where if a guard or staff member is particularly cruel to an inmate, that inmate might flare up and assault or kill the man or woman who is "riding" that particular inmate.

To be sure, such violence against a guard or staff member often results in further repression against other inmates, but such depression does not serve to deter as the inmate who DOES lash out at his or her jailers is too enraged to be even thinking about the consequences of rebelling against authority. These are things for supporters of civil commitment to carefully think about.

Posted by: william r. delzell | Sep 12, 2015 3:00:18 PM

Of course, the program was to continue incarceration, but at much higher cost to the tax payer, calling it, treatment. No sane therapist would ever release a patient. The therapist would be sued by any of the hundreds of victims that resulted from the release.

So instead of making $50,000 for ordinary prison from the taxpayer, they make $175,000 a year. This is rent seeking because the sole value of the program is incapacitation. No one will change sexual preference. Any drop in impulsivity or sexual drive will come from aging, not from make work treatments. Any helpful and effective medications may easily be dispensed in ordinary prison.

But assume, it adds some value, and many inmates have changed, and are better. You still have to crush the tort plaintiff bar, or else put up the shield of release only by a judge. Judges have to be elected and re-appointed. So if they release a prisoner and the prisoner kidnaps, rapes, and kills a little girl, one will surely lose one's job.

I have proposed the return of status crime, the criminalization of just being a certain type of person. Because they have hundreds of victims of violence and sexual abuse, and none will ever change, all meet the criteria for 123D.

You lawyers will argue, this is an involuntary condition, and they should receive handicapped parking stickers and lifetime disability payments. I would answer, go ahead, and we will place them all in halfway houses surrounding yours, with your little girls walking to the school bus stop past their staring from the porch.

Posted by: Supremacy Claus | Sep 13, 2015 1:01:01 PM

Extreme positions make for great political theatrics but lousy policy implementation.

The bottom line is that the basis for all sex offender laws and incarceration issues are decided by man's base natural instinct: The preservation of children at all costs, including overriding constitutional austerity. It is (by definition) an "irrational" instinct, although it comports with nature's rational order for preservation of the species.

That is why with a recidivism rate that ranges from 0.8 to 3.5% (depending on state) will never satisfy the politicos and their constituency, and create either headaches or opportunities for legal beagles to bring great legal minds to fisticuffs.

Posted by: Eric Knight | Sep 14, 2015 2:41:22 PM

My father is a detainee in the SORTS program. He served 8 years for rape. He was due to be released, when he was commited to the program , where he has been for an additional 16 years.The victim was 40+. And both were drug users. My father is 70 years old, has lost a lung to cancer, has stints in his heart and also suffers from COPD. He has been denied family visitation at the facility with no explination. My father has never, ever, been convicted of any crime against a child. He doesn't have multiple victims. My father maintains that because of drug use and lifestyle he has made poor choices. However, he was not sentenced to life in prison.

Posted by: Stephanie Morgan Boone | Oct 4, 2015 9:47:46 PM

My father is a detainee in the SORTS program. He served 8 years for rape. He was due to be released, when he was commited to the program , where he has been for an additional 16 years.The victim was 40+. And both were drug users. My father is 70 years old, has lost a lung to cancer, has stints in his heart and also suffers from COPD. He has been denied family visitation at the facility with no explination. My father has never, ever, been convicted of any crime against a child. He doesn't have multiple victims. My father maintains that because of drug use and lifestyle he has made poor choices. However, he was not sentenced to life in prison.

Posted by: Stephanie Morgan Boone | Oct 4, 2015 9:47:46 PM

My father is a detainee in the SORTS program. He served 8 years for rape. He was due to be released, when he was commited to the program , where he has been for an additional 16 years.The victim was 40+. And both were drug users. My father is 70 years old, has lost a lung to cancer, has stints in his heart and also suffers from COPD. He has been denied family visitation at the facility with no explination. My father has never, ever, been convicted of any crime against a child. He doesn't have multiple victims. My father maintains that because of drug use and lifestyle he has made poor choices. However, he was not sentenced to life in prison.

Posted by: Stephanie Morgan Boone | Oct 4, 2015 9:47:52 PM

My father is a detainee in the SORTS program. He served 8 years for rape. He was due to be released, when he was commited to the program , where he has been for an additional 16 years.The victim was 40+. And both were drug users. My father is 70 years old, has lost a lung to cancer, has stints in his heart and also suffers from COPD. He has been denied family visitation at the facility with no explination. My father has never, ever, been convicted of any crime against a child. He doesn't have multiple victims. My father maintains that because of drug use and lifestyle he has made poor choices. However, he was not sentenced to life in prison.

Posted by: Stephanie Morgan Boone | Oct 4, 2015 9:47:52 PM

My husband is a detainee in Missouri prison. He has refused the treatment program because he has claimed his innocence to the original crime. He is in DOC for failure to register, and not a repeat offender. Hmm.. Here is the thing people... to go through the Missouri treatment program you have to admit to committing the crime. If you do not them you are violated and returned to prison. If you are innocent and did not commit the original crime your not going to give up that innocence by saying I did this. He only has one felony conviction and a failure to register. He is what is wrong with Missouri's sentencing laws. If you are sentenced to 4 years and you also get 6 years probation. Wow that is above the sentence.
The 5 years probation is in my book is added punishment. Undo harassment of the offender and his family.

This is Missouri's way of keeping inmates under their thumbs and is without due process. My husband has never been deemed a repeat offender and is not a menus to society. But is still not allowed to come home. Here is another tip bit, if you have a minor in the house, Missouri takes it up to themselves to separate the family with out due process.

This is a modern day witch hunt. And society needs to get a grip. Not all convicted sex offender are guilty. Welch Act needs to be repealed because Welch's son was not killed by a sex offender and that is a proven fact. This is killing families all over the US. I know my husband is not guilty. I saw how his daughter reacted to him, and how his ex confessed to lying to get child protected services off her by saying daddy did this.

When will this witch hunt end?? It will end with the world stops being foolish and see past the lies, stop pointing fingers, and get to the truth. If Cosby can beat charges for the lack of evidence why can't the little man.

Wake Up and Smell the Coffee. In the words of Moses, "Let the people go."

I am a wife and a paralegal.

Posted by: Annett | Jan 7, 2016 4:34:14 PM

I know how people who are still in prison for sex offenses they didn,t do feel I spent time in prison and 5 years probation and now register for life because someone had gotten mad at me and said I touched my daughter. Now I can,t get a job anywhere just completed the Paralegal program at Everest. I want to be a disability and family law Paralegal and would like to do investigation work as well.

Posted by: Troy Fletchall | May 12, 2016 2:39:53 PM

I think the hearsay law should be removed as a law.

Posted by: Troy Fletchall | May 12, 2016 2:53:27 PM

I am Darnell McGary, and am responding to the above article. My life centered around drugs I had been sent to three inpatient drug facilities as a teenager. I began a life of burglary at twelve which resulted in three rape, robberies, during the course of burglary. I am not paraphiliac. When my sentence expired they petitioned to have me committed in Washington State. I year later they dismissed a sent me to a state hospital for standing my ground. This actually unqualified me for the sexually violent predator act. However, when medicated the county of conviction forced re-commitment. I remained for seventeen years. On September 27, 2016, after winning show cause the state expert for trial properly diagnosed me without a rape disorder. The Attorney General dismissed the action. I am now with family, been to college while incarcerated, but struggling due to back ground checks, and registration "its like probation," every ninety days I must check with sheriff where I live...I was never sadistic or paraphiliac, just a criminal. The misused the statute, and it was the county of conviction that wanted detainment...

Posted by: Darnell McGary | Dec 30, 2016 3:45:04 PM

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