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Sunday, Nov 8, 2009
A new Supreme Court ruling could increase the number of former sex offenders released into the community. For these ex-cons, the end of detention marks the beginning of intense, and possibly endless, therapy.
Jan 24, 2002 | Bert, a wide-hipped man in his 40s, perches on a stool to the left of a white marker board. He writes down numbers as men in the room call them out. When the math is done, participants in the tally -- 16 sex offenders who range in age from their 20s to 60s -- learn that, all together, they have had 214 victims.
Primarily pedophiles, rapists and perpetrators of incest, the men sit in a nondescript office space in a small Wisconsin town -- across a river, between a feed mill and a car dealership. They meet every Saturday afternoon with Joe Henger, a psychotherapist who facilitates therapy for sex offenders at confidential sites around the state.
These are Henger's highest-risk clients. Most have spent many years in prison, and their parole agents will check to see whether they attended this mandatory weekly session. They all face a possible lifetime of therapy, as well as constant, and sometimes humiliating, surveillance in their communities -- but they are considered lucky. They have, as Henger says, "ducked the bullet" of indefinite civil commitment, a means by which courts in Wisconsin and 15 other states can detain prison inmates identified as violent sex offenders -- even if they have served their sentences.
Indefinite commitment is the subject of intense national debate, focused mainly on the constitutional rights of offenders. Just this week, the U.S. Supreme Court issued a ruling in a Kansas case that adds to the state's burden in justifying commitment. Previous to Tuesday's ruling, states with commitment laws had two basic standards for holding an offender: proof of a mental disorder that predisposes the offender to engage in sexual violence, and evidence that the offender is likely to reoffend if released. In a 7-2 decision, the Supreme Court ruled that the state must also show that the offender poses a "serious difficulty in controlling behavior."
Further constitutional challenges, arguing, for instance, that commitment constitutes double jeopardy, have been unsuccessful. The laws overcome the charge by shifting the status of sex offenders from inmates to "patients," who are not considered "incarcerated" but rather "in treatment" at secure facilities. (In some states, offenders serve their commitments in the community with supervision.)
Proponents of civil commitment laws point out that, once inmates become patients, their status is significantly enhanced, while the community is protected from a threatening presence. "Patients" are required by law to have access to treatment (prisons have no legislative mandates to provide treatment), and patient housing, while it sometimes resembles a prison, is specialized in states where there is no option to serve commitments in the community: It might be a building specifically designed for sex offenders, a mental hospital or wing of a prison. The patients have the ability to petition the courts for release based on their progress in treatment -- typically, once a year.
In each of the 16 states with civil commitment laws, no more than a handful of patients have been released after completing treatment. Some lawyers have initiated suits claiming that the dearth of releases shows that conditions for committed offenders are more punitive than therapeutic, and as such constitute double jeopardy. So far, these efforts have failed. The U.S. Supreme Court ruled last year that deficiencies in Washington state's treatment program for a particular patient did not constitute double jeopardy, or grounds for release.
At the moment there are about 1,200 committed offenders nationwide. Case by case, county judges will decide whether individual offenders, supported by the recommendation of mental health professionals who treat them, are ready for release.
When Washington state enacted the country's first commitment law for sexually violent persons in 1990, treatment for offenders was in total disarray. Mental health professionals were using primarily psychoanalytic, humanistic or behavioral models with widely varied results. In a 1998 issue of "Psychology, Public Policy, and Law," two articles written by psychologists and academics reviewed studies of the methods and concluded that they had very limited impact. In one article, three researchers concluded that "even more discouraging" than the lack of the methods' effectiveness was "the suggestion that [humanistic and psycho-dynamic treatments] may even increase the likelihood of new sexual offenses."
