Sex Offenders Are Still Locked Up After Serving Their Time. Why?
Craig Bolte did terrible things when he was an adolescent. At 11 he was already molesting girls, including his younger sister. He continued to be sexually out of control until, at 15, he began an enforced journey through a sequence of juvenile sex offender treatment programs, none of them successful.
When Bolte was about to turn 19, and could therefore no longer be held as a juvenile in Minnesota, he was declared a “sexually dangerous person” by psychologists who examined his record. Under a process called “civil commitment” he was confined with some 700 other past sexual offenders in a “secure treatment facility.” Eleven years later he is still being held in the rural town of Moose Lake with no release date in sight. “It's pretty much like any other prison,” he said. “It feels like a prison.”
Some 20 states have civil commitment programs for people deemed sexually violent predators. Records show that more than 5,000 Americans are being held this way nationwide. Those numbers have roughly doubled over the previous decade or so, as judges, governors and state legislators have reacted to public concern about violent sexual crimes.
Civil confinement lies at the fraught intersection of crime, sex, and politics, in which sexual crimes, and just the possibility of sexual crimes, are treated differently from other offenses. Murderers, armed robbers, drunken hit-and-run drivers, insider traders, and other criminals are released when their prison sentences have been served.
States operating these programs defend them as necessary to protect the public, especially children, against dangerous sexual predators. The Supreme Court has upheld them, ruling that as long as they are narrowly tailored, with their “clients” subject to regular reviews, they serve a legitimate public interest in keeping potential dangerous offenders off the streets.
But critics of civil commitment argue that men are being locked away (and almost all of the detainees are men), often effectively for life, on the basis of subjective predictions of what a former sex offender might do in the future. They assert that this is a flagrant violation of the 14th Amendment's requirement that no person shall be deprived of his freedom without “due process of law.”
“I'm extremely skeptical on civil liberty grounds that we can predict you might commit a crime and lock you up on that basis,” Noah Feldman, a professor of constitutional law at Harvard Law School, said in an interview. “We're practicing a systematic model of indefinite detention that relies on supposed social science expertise, not on due process.”
The arguments have found a flashpoint in Minnesota, which has one of the more aggressive civil commitment programs in the country.
The catalyst was the rape and murder of a 22-year-old student from Minnesota named Dru Sjodin in 2003 by Alfonso Rodriguez Jr., who had recently been released from prison after serving 23 years for sex crimes. The understandable public outrage over the woman's gruesome killing led to a quadrupling of civil commitments in the state. Certainly nobody can dispute that Sjodin would still be alive if Rodriguez had been confined in a secured hospital prison after serving his sentence (he is now on death row in North Dakota, where his victim disappeared).
The thorny problem is that most sex offenders are not like Alfonso Rodriguez. Various studies show that recidivism rates for sex offenders are lower than for people who commit other types of felonies. The largest study, involving 9,691 offenders released from prison in in 15 states in 2004, showed only 5.3 percent were rearrested for a new offense within the next three years. To be sure, some new offenses go unreported and some crimes were committed after three years, so the rate of recidivism is no doubt higher. Studies also show that the adult molesters of children are more likely to commit new offenses than other types of sexual criminals. Still, the overall figures show only a small percentage of sexual offenders of all types committing new crimes once they've gotten out of jail, probably around 10 percent or less.
“The research doesn't show a strong argument to continue confinement,” said Paul Heroux, a Massachusetts state legislator who studied criminology at the University of Pennsylvania. “There's emotion. There's fear. But it's not supported by the science.”
The procedure in the states with civil commitment programs runs roughly like this: When a past sexual offender is due for release from prison, the corrections department forwards his name to a review committee that performs a “risk assessment.” This evaluation is often based on a standard psychological measurement known as a Static-99. The review committee makes recommendations to a state or county prosecutor, who can then ask a court to confine the defendant to a secure hospital for treatment. The defendant normally has his own lawyer and can order an independent psychological assessment. But, if a judge or jury determine that he is a “sexually violent predator” or a “sexually dangerous person,” he can be confined at a treatment center indefinitely.
The idea is that only the worst of the worst, those who have committed what are generally called “qualifying offenses,” including rape, aggravated sexual assault, and carnal knowledge of a child, end up in civil confinement. Indeed, only a small fraction of those convicted of sexual offenses do.
In Minnesota, for example, some 17,000 people have been required to register as sex offenders; just 720 are currently in civil commitment, only one of whom is female. In Virginia last year, out of 629 people legally eligible for civil confinement, 62 were committed, the rest released. Only a few states use this process to hold offenders who committed their crimes as juveniles, as Craig Bolte did in Minnesota. In New York, for example, 653 prior offenders have been put into the state's civil commitment program—and all of them committed serious sexual offenses as adults.
New York and other states hold annual reviews of each confined person and every year some of them are released, usually for several years in some kind of halfway house arrangement where the person wears a GPS tracking device and regularly reports to a probation officer. In Virginia, there are currently 397 men and three women in civil commitment; last year 61 of them were granted supervised releases.
"I'm comfortable with our program because we do have a pathway to release," said Michael Schaefer, assistant director of forensic services at the Virginia Department of Behaviorial Health and Developmental Services. "I do believe in the treatment we are providing."
A legal challenge to Minnesota’s approach began in 2011, when a group of 14 men confined to one of the state's mental hospital-prisons, including Bolte, claimed that the state's civil commitment statutes were unconstitutional. Among their chief arguments was that in the entire history of the state's sex offender program — which included 714 people at the time -- not a single one had ever been unconditionally released. Similarly, the Houston Chronicle has reported that of the 380 sex offenders in civil commitment in Texas, only one has ever been released after completing treatment.
Moreover, 61 other men in the program besides Bolte had never committed a crime as an adult. As Bolte’s legal challenge noted, studies show that juvenile sex offenders only rarely continue to be sex offenders as adults. A group of experts commissioned by the District Court to evaluate the Minnesota program concluded: “The vast majority of juvenile delinquent boys, including boys who have sexually offended, mature out of deviant behavior as they move from mid-adolescence into young adulthood.” Interviewed by phone from Moose Lake, Bolte said that the four years he spent in what he called “juvie,” the treatment program for minors, were “justified,” but that for him to still be interned, with no end in sight, is not.
“More and more people are being committed in Minnesota, and the worst of the worst are not being separated from everybody else,” said Teresa Nelson, a lawyer for the Minnesota ACLU, which filed an amicus brief on behalf of the plaintiffs in the Minnesota case. “We're locking up more than that narrow category of people who are really dangerous. And once you're in, you're in for life.”
The U.S. District Court in Minnesota agreed in 2015, finding that the state's program violated the inmates' rights to due process. “It is fundamental to our notions of a free society,” the court ruled, “that we do not imprison citizens because we fear that they might commit a crime in the future.” The court noted that an atmosphere of “severe hopelessness” prevailed among inmates who believe that no matter what they do in the way of treatment, they will never get out.
But a federal appellate court in St. Louis reversed the lower court’s decision in January. It ruled that Minnesota's program served the “legitimate interest” of protecting citizens from sexual predators.
The decision came as a shock to the men who believed, after the District Court ruling, that they would soon be released.
“I cried a lot,” Bolte said. “I called my family and told them that I'll never get out of here. I have to accept that this is my life, locked up because of things I did as a child. I hope I'm wrong, but I don't want to get up my hopes again.”
“The 8th Circuit panel's decision is wrong,” wrote Feldman, the constitutional lawyer at Harvard. “It should be reconsidered by the whole court and by the Supreme Court if necessary.”
Another factor complicates the legal issue of whether the government should be allowed to detain anyone because of what they might do. It is the criteria now used to make the determination.
The entire system depends on psychological examinations that many professional experts in the field have found to be unreliable measures of future behavior. In the Static-99, which is in wide use, a person is given a numerical rating on a list of “risk factors,” including the person's age when released from prison, whether he's ever had any non-sexual violence convictions, and whether he'd victimized any males. If he scores above a certain threshold, he is deemed a likely future sexual offender.
This Static-99 is often combined with tests for what are called “dynamic factors,” often including what's called a penile plethysmograph, or a PPG. A subject views images on a screen, including scenes of simulated sexual violence or pedophile sex, and his response is measured by a sensor attached to his penis. Given that so few past offenders commit crimes after their releases from prison, such measurements are at best educated guesses about what a person will do in the future, and the guess is often wrong.
“These studies seem to do reasonably well at putting people into categories of risk, high risk, low risk, and the like, but at the individual level these assignments to risk levels are subject to considerable error,” said Paul S. Appelbaum, who is director of the Division of Psychiatry, Ethics, and Law at the Columbia College of Physicians and Surgeons in New York. “It would be a mistake to believe that predictions about the likelihood a particular person will re-offend can be made with a high degree of accuracy.”
Moreover, Appelbaum said, “there are more false positives than false negatives,” which would mean in practice that more people who would not commit sexual crimes are confined indefinitely than those who would commit such crimes are released.
As a result, thousands who would almost certainly not a commit sexual crime are being locked up because of the few who would. Once a past offender is put into civil commitment, the incentives for public officials and mental health experts to keep him there are powerful. If just one freed man commits a terrible new crime, the political price in public outrage will inevitably be very high.
“It's a classic case of moral panic,” Appelbaum said. “We're clearly responding to extreme fears of sex crimes, but the fear is in disproportion to the actual threat.”
