Ballooning costs are making states rethink laws that would keep these criminals in civil detention for life
In February, a Minnesota judicial panel ordered the release of 64-year-old Clarence Opheim, a convicted child molester who had served nearly 20 years in the Minnesota Security Hospital in St. Peter.
Before being committed to St. Peter, Opheim had served a five-year prison sentence for molesting an 11-year-old boy. (He also has admitted to molesting nearly 30 other children.) He is currently the only sex offender to ever be successfully released from the state’s Sex Offender Program.
The historic significance of the moment, however, was lost on many residents of Golden Valley, Minn.
Before Opheim’s scheduled release in March, according to news reports, concerned residents of the town packed a community meeting hall to hear the terms of Opheim’s release, meet his social worker, and express their fears of living alongside a convicted sex offender.
Although Opheim will live in a halfway house, be accompanied by a social worker in public at all times, be forced to consent to regular polygraph testing, and wear a GPS tracking device, residents were still uneasy.
“Why wasn’t he left in the St. Peter community?” asked one. “I don’t understand why he had to move.”
Others at the town hall meeting asked officials why it had been decided to release an accused predator into a community with so many children.
“We think it’s time,” Assistant Hennepin County Attorney George Widseth answered. “Is there a way [that we] can take a dipstick and run it down his throat…for a certain measurement? No.”
But he didn’t reveal the state’s own uncertainties about whether to continue the kind of post-custodial oversight that is required to ensure that Opheim never molests a child again.
Minnesota is one of 20 states that have civil commitment programs, which allow for the indefinite detention of sexual offenders after their criminal sentences are completed.
In order for offenders to be held under the program, a court must determine whether they are sexually violent predators, incapable of controlling their impulses, and too dangerous to be allowed back into communities.
In 1997 the U.S. Supreme Court in Kansas v. Hendricks held that civil commitment programs are constitutional if the commitment is non-punitive.
Expansion of Programs
In the early 1990s, states with flush budgets began expanding their civil commitment programs to include sex offenders, as part of a tough-on-crime approach to high-profile, brutal sex crimes.
At the time, civil commitment once seemed the best solution to protect communities from released offenders who may once again commit brutal crimes.
Under what are usually called “Sexually Violent Predator” laws, prosecutors could file petitions to commit offenders if they believed those offenders were likely to re-commit.
Offenders are evaluated by court psychologists who must prove that they are unable to control their impulses.
Since there is no accepted or scientifically valid way to predict whether an offender will commit another crime, psychologists usually use an assessment tool called the Static 99 to evaluate risk, which rates sex offenders on standard criteria, including the sex of their victim(s) and number of crimes.
The Static 99 was created by psychologists R. Karl Hanson, Ph.D. and David Thorton, Ph.D.
Scores are then compared to recidivism rates of similar sex offenders. Once an offender is committed, the laws stipulate they must have access to treatment.
But ballooning costs and new court challenges are forcing state leaders to rethink.
States like Minnesota are finding that, while there’s no easy way to “measure” whether a sex offender is ready to be reintegrated into a community, budget concerns and court challenges have made detaining them indeterminately no longer an option.
“At the beginning, there was a genuine thought that these were going to bonafide treatment programs,” said Eric Janus, Dean of the William Mitchell College of Law in St. Paul.
“The idea was that people might be committed for several years, and they’d work their way through a real treatment program and a majority of them would be released. But it did not develop in that way.”
Washington, the first state to pass a civil commitment law, holds nearly 300 sex offenders on an island in Puget Sound. The offenders are “Level 3,” the most dangerous category of sexual predators.
The imposing facility is bordered by concertina wire, but residents are allowed to roam the inside of the facility relatively freely. They participate voluntarily in group therapy sessions.
Others are more state-of-the-art. A $388 million, 1,500-bed facility in Coalinga, California has stores, a library and a barbershop.
Offenders typically remain committed for years, sometimes decades. The number of offenders released differs from state to state—Wisconsin has released nearly 70 offenders, while Pennsylvania has released only one—but generally it is difficult to be released from commitment.
$180,000 a Year
On average, civil commitment programs cost taxpayers more than four times what it costs to imprison someone for a year. The most expensive programs can cost up to $180,000 a year, per sex offender.
Lengthy civil commitment cases can cost states thousands, or millions, in legal expenses.
“Civil commitment is like a roach motel,” said Al O’Connor, an attorney with the New York State Defenders Association. “They go in, but they don’t come out.”
New York State’s program costs over $170,000 per year.
“Every year,” added O’Connor. “it becomes a greater and greater drain on the mental health budget.”
Toward the end of the 1990’s state budgets began to tighten, but the civilly committed population continued to rise.
In Minnesota, according to Janus, “the buildings were filling up. The bureaucrats were coming to the legislators and saying, ‘We need millions to build more buildings. That was contradictory to the nation that these programs were stop gap measures.”
“They wound up this machine and they can’t politically stop it,” O’Connor said of New York’s law. “Once you have the law, you can’t stop putting people in the facility, because God forbid, one gets out and they go and do something. It becomes a scandal.”
Political pressure, both in state legislatures and judicial districts, often makes it exceedingly difficult to release offenders. It’s a common aphorism that the only way to leave St. Peter’s, and other civil commitment facilities across the country, is in a body bag.
In 2003, just as officials were crafting plans to begin releasing low-level offenders back into communities, a Minnesota sex offender named Alfonso Rodriguez Jr. abducted and murdered a 22-year-old North Dakota college student after he completed a 23-year sentence for attempted abduction.
After then-Republican Gov. Tim Pawlenty pledged not to release any sex offenders, Minnesota’s committed population exploded. Current attempts to reform Minnesota’s program—and increase opportunities for release—have fallen short after a 2011 legislative audit pointed out it was becoming financially untenable.
“Almost all the legislation that exists now is based on the exception, rather than the rule,” said Dr. Fred Berlin, director of the Sexual Behavior Consultation Unit at Johns Hopkins. “It’s legislation enacted when a horrible crime with lots of publicity occurs. It begs the question of whether we’re really going to have the most effective public policy.”
“It’s a radical concept,” Berlin added. “What we’re basically saying is we’re going to deprive someone of their liberty, based on a future crime we fear they’re going to commit.”
The slim likelihood of release from commitment has been the basis for many lawsuits against states’ sexually violent predator laws.
The U.S. Supreme Court has upheld state and federal sexually violent predator laws partly because the programs purport to treat sex offenders with the goal of releasing them back into the community.
However, the Supreme Court also ruled in Kansas v. Hendricks, that mental health treatment is “merely an ancillary, rather than an overriding, state concern,” and programs do not necessarily become punitive if they fail to offer adequate treatment.
But problems within the system go beyond a failure to provide mental health treatment. The Minnesota Security Hospital in St. Peters, from which Clarence Opheim was released, has recently been rocked by scandal. In late March, CEO David Proffitt was fired after reports of rampant mismanagement. The state’s Office of the Legislative Auditor is now investigating the facility as well as the hiring practices of the Department of Human Services.
Meanwhile, the committed continue to challenge the laws.
Sex offenders have filed reams of pro se filings over the years. A handful have moved into higher courts, and some states have been ordered to improve conditions or treatment programs at their facilities.
Early this year, before judges approved the release of Clarence Opheim, a Minneapolis-based law firm took up two suits against Minnesota’s program—including a class action suit on behalf of 14 plaintiffs currently housed in Minnesota’s Moose Lake facility.
David Goodwin, part of the team that’s litigating the case, said the plaintiffs allege they are not receiving adequate mental health treatment, and are being housed in a criminal facility without criminal protections of due process.
Goodwin said detainees at Moose Lake are subject to unannounced search and seizures and are locked in their cell-like rooms for ten hours a day.
“As a person off the street you walk in and think, my goodness, this is certainly a prison,” Goodwin said. “There’s double razor wire, and cameras, and guards in every room. It’d be hard to argue that it’s not a prison.”
Moose Lake did not respond to a request for comment in time for publication.
Minnesota officials’ fear that the suits could successfully challenge its civil commitment law precipitated Opheim’s release into Golden Valley.
Lawmakers in Minnesota and other states have suggested extending sentences for sex offenders. Prison, where states don’t have the burden of providing mental health treatment, costs less than civil commitment facilities.
“Many of these people do need treatment,” Berlin said. “If people say, let’s just give them all tougher sentences, put them in prison and do nothing else, there’s nothing in prison that will erase these attractions or successfully help them resist acting upon them.”
Berlin said he advocates for inclusion of outpatient treatment, and structured transition programs into communities, into civil commitment programs.
“We need a criminal justice component,” he added. “But we also need a public health component.”
“Political Space” Needed
Last January, William Mitchell held a symposium on Minnesota’s civil commitment program. A number of key legislators and officials attended, Janus said, and agreed that “there needed to be political space to make changes both in the admissions side, as well as the discharge side.”
It was a positive step, Janus said, adding, “What political leaders have hoped for in the past is that they could take care of the problem by tweaking the criminal sentencing rules.”
“But even if you increase the length of sentences there will always be sex offenders getting out of prison,” he continued. “Inevitably, there’s always the potential that someone will commit a recidivist crime. Prosecutors know that they could be held responsible for those crimes if they fail to use the available tools.”
Some states, however, have experienced successful release of sex offenders.
Arizona has released the most sex offenders out of any state, with 69 in provisional release and 81 fully discharged, as of 2006.
Daniel Montaldi, who served as the former director of Arizona’s civil commitment facility until 2010, recalled that the state began accepting residents into its facility, located on the grounds of the state hospital in South Phoenix, in 1999.
The facility was built to hold 300 people, said Montaldi, who now works in Florida’s civil commitment program. “It was meant to be a mostly full confinement program, and people weren’t meant to get out.”
Less Restrictive Alternative
But Arizona’s sexually violent predator law allows for the committed to participate in a Less Restrictive Alternative, or LRA.
Around 2003, Montaldi said, “we took half of our administration building and made it a halfway house for offenders who had done really well in treatment. They could start off by having one outing a week, or month, where they could go out into the community with a staff member present.
“They would have GPS monitoring. Then you could progress gradually, where the guy could go out into the community by himself, and he could go to work, and our surveillance team would monitor him.”
Offenders who had progressed that far in the program would eventually be given a sponsor, be forced to submit to polygraph tests and physical surveillance.
“The advantage in Arizona was we could base our LRA program in the facility itself, but he would gradually pick up some freedoms, where the last step was living in the community after he’d already proven himself with the freedoms he already had,” said Montaldi.
“You didn’t have this dilemma where, ‘I’ve either got to lock him up completely or have him living in a neighborhood.’ ”
“The legislature,” he added, “also didn’t pay a lot of attention to the program,” he added. “It was the idea that if you stay out of the newspapers and you don’t have re-offenses or escapes, we’re not going to interfere a lot. That gave us the room to innovate.”
But when the facility suffered an escape in 2010, officials were forced to rein in its LRA program.
“An extensively developed community reintegration program is a fragile flower,” Montaldi said. “It’s very vulnerable, because suppose the guy is in the community and he escapes. You may catch him the next day, but if it makes the news, you’re going to get a strong reaction.”
With the Arizona model, he said, “you’re taking some risks that you wouldn’t be taking if you just put them behind walls and left them there forever. But our view was [that,] eventually, these guys are going to get out.
“At some point, a federal judge could shut this all down. At some point, the whole thing could go away, and you’ll have a whole lot of guys who have had no experience in the community, and suddenly, they’re out there.”
“The other part of what’s going to happen is that these guys are getting old,” Montaldi added, “You’re going to have the problem of needing nursing homes for sex offenders.”
Hannah Rappleye is a freelance reporter based in Brooklyn, NY. Her work has appeared on MSNBC.com, The New York Post, the Wall Street Journal, and the Mail & Guardian. She welcomes comments from readers. More Hannah Rappleye.
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