Modern-Day Gulag In the Golden State

Modern-Day Gulag In the Golden State

https://washingtonspectator.org/koeppel-gulags/

June 4, 2019

By Barbara Koeppel in HealthPolitics

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal. This meant that 20 states—which had passed laws permitting the ongoing incarceration of sex offenders—could continue to keep the men confined even after they completed their prison terms. (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men mightcommit a new crime and a judge to say their cases can move forward. They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held—supposedly to determine if they will be civilly committed or released. The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time. Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined—that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer. The bottom line? “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country? Locking up sex offenders is always good politics, but it is also extraordinarily profitable. And since California has the biggest budget and locks up the biggest number—three times the next three states’ combined—the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

A golden opportunity

When the sex offender laws passed, some California mental health officials instantly grasped that the new measures were solid gold. Melvin Hunter, then director of Atascadero State Hospital, where the SVPs were sent, was elated. “Whoever came up with the term ‘sexually violent predator’ was a marketing genius.”

In their wildest dreams, California officials couldn’t have guessed just how golden. From 1996 to 2006, when the SVPs were sent to Atascadero, taxpayers coughed up $716 million to house and supposedly treat them. In 2006, the state opened Coalinga State Hospital, which cost a third of a billion dollars to build and even more than that to outfit. Over the next 13 years, the SVP tab swelled by at least another $2.1 billion. But who’s counting? Locking up sex offenders and throwing away the keys plays well with voters.

Across the country, the scene is the same. In Kansas, the cumulative 25-year tab is now $255 million to confine roughly 350 SVPs. In New York, it cost taxpayers $117 million in 2017 alone for 359 SVPs; and in Washington State, nearly $49 million in 2018 for 211 men.

Costs soar

Each year Coalinga Hospital’s operating budget spirals upward. In 2017, it was $280 million, the next year $322 million, and this year $333 million to house 953 SVPs and 370 non–sex offenders, called “mentally disordered” patients (MDOs).

Though stunning, these totals don’t reveal the real numbers, since they exclude capital and legal costs. For example, lawmakers allotted a total of $15.1 million from 2015 to 2018 to build an activity courtyard; the project was just put out for bids this past February, and not one basketball hoop is yet in place.

The taxpayers’ bills for the public defenders, district attorneys, courts, investigators and evaluators that handle SVP cases are enormous. Totals are tough to tally—since the state and counties pay for different services—but a starting figure could be the $21.8 million the 58 counties together spent in 2011 just for civil commitment hearings (which the state reimbursed). However, Heather Halsey, executive director of California’s Commission on State Mandates says this amount “only covered a tiny part of all SVP legal services.”

Add on the legal fees the state doesn’t reimburse: For example, San Diego County Public Defenders’ Office estimates the initial commitment hearings alone were $514,000 in 2011 and $279,000 the next year.

Securing funds

How California’s Department of State Hospitals (DSH), which runs Coalinga, primes the pump is not particularly novel, but the details are noteworthy. According to a lawyer I’ll call David Winters, who handles many SVP cases, the DSH tells lawmakers how much it needs to run Coalinga, and lawmakers fall into line. He says “It’s always more than the previous year. No one ever asks how much it should cost.”

First, the DSH secures a large enough pot so the dollars can be generously doled out—particularly to the key players who have the power to keep the men confined in perpetuity, such as psychologists and psychiatric technicians (called psych techs).

One psych tech I’ll call Alicia Torres worked at Coalinga for years but quit because she didn’t like the way the men were treated. She says, “The psych techs put negative statements in the guys’ records, and the psychologists who evaluate the men don’t know them, so they assume the notes are accurate and say the guys must stay.”

The men who are confined call it “cooking the charts.” Torres says, “If a man complains about something the psych techs did, they’ll write ‘He’s aggressive,’ even though he isn’t. One told me, ‘When I’m through with his chart, he won’t get out any time soon.’”

Second, according to a psychologist I’ll call Judith Powell who worked at Coalinga both as a consultant and salaried staff, “administrators send a clear message: ‘The men are not to be released.’”

Another employee I’ll call Paul Carter says, “It’s a modern-day gulag.” (Fearing certain retaliation, he asked me not to even mention his profession.) “There are no memos, but everyone knows what the officials want. They also know the DSH has never recommended even one man to be released in over 20 years.”

The numbers speak loudly: Of the 1,705 SVPs sent to Atascadero and Coalinga since 1996, the courts dropped the charges for 598 men, 135 have died, and roughly 950 remain.

Carter adds “If you advocate for the men or criticize Coalinga’s policies, you’re ostracized or fired. But the pay and benefits are great, and staff get promoted. So they do what’s expected.” With his degree and qualifications, Carter says he earns nearly double what he would anywhere else. His concerns were repeated by a Protestant minister who was reprimanded for counseling the men and their families, and told me he stopped visiting inmates at Coalinga before the hospital could discredit him, as had happened to his predecessor.

Powell says that besides the dollar incentives, most of Coalinga’s salaried psychologists have bought into the bias. “They’re supposed to evaluate if a man is progressing, but they never say an SVP should be discharged. If they did, they’d have to defend it in court. That’s tough to do, since everyone else says the opposite.”

The psych tech Torres says, “The staff also buy in because of cronyism and nepotism. Lots of them have family who work here, and they help each other get promotions and overtime.”

As a former Coalinga employee wrote anonymously on Glassdoor.com:

The hospital looks clean and modern. The pay is good. If you want overtime, you could be a millionaire after a few years.

But the psych techs are very disrespectful of other professionals, such as psychologists, nurses, medical doctors, and they run the place. The level of lying and deceitfulness is awful. You have psychologists lying in patients’ charts without any moral qualms. You have staff against staff. And, of course, they hate the patients they’re supposed to help to improve their conditions.

Coalinga staff are well known for advancing on thin credentials. For example, Brandon Price, Coalinga’s current executive director, started as a truck driver in a California prison, came to Coalinga to work in an office, and steadily moved up. His brother, Stirling Price, was an administrator at two other California state hospitals and is now the DSH’s deputy director.

Nudging the numbers

Coalinga’s budget is based on the number of men it holds, which means the figure matters greatly. But the numbers are moving targets—depending on who’s counting. At present, I’ve been told there are anywhere from 920 to 980 men in confinement, but we’ll use the 953 calculated by California’s Legislative Analyst’s Office. In 2016, Coalinga was budgeted to house 1,294 patients (the men are euphemistically called patients instead of inmates), but the census showed only 1,277: thus, Coalinga was paid for 17 patients it didn’t have—which adds several million to its budget.

Drew Soderborg, managing principal analyst for the Corrections Section of the Legislative Analyst’s Office, says Coalinga now holds 1,323 men, which includes the SVPs, and 80 more MDOs are expected by July, which will bring the total to 1,403. To house the newcomers, the DSH asked for (and legislators approved) $11.5 million in 2018 and $13.7 million this year. So far, only 60 have arrived; thus, adjusting the budget to account for the 20 missing men could theoretically lower costs by several million.

Allen Fletcher (his real name), a licensed fraud examiner who worked for Nike for about 10 years before being remanded to Coalinga after serving his sentence for a sex offense, says the 953 SVP head count is false. “Some men are away from the hospital for court hearings—kept in county jails during the trials, which can be months—or they’re back in prison, which can be years. I personally know four or five who are away.” He calculates that five times the annual cost estimated for each man (Soderborg puts it at $236,000) could reduce the bill by another $1 million plus a year.

One such double-counted man is Kevin Chavez (his real name), who was returned from Coalinga to prison for possessing child pornography (smuggled in by staff). According to a staff person who checked the Coalinga roster, Chavez is still on it.

The number of staff needed is also debatable. The DSH continually claims it’s short-staffed. But a 2013 Legislative Analyst’s Office report found the “DSH employed about 35 percent more staff than required under Title 22.”

Soderborg says, “Title 22 is about the minimum staff needed.” But he adds that the DSH “should have an independent consultant determine if the staff level is correct. Until this happens, we have to rely on the DSH’s numbers.”

In the 2019–2020 Governor’s Budget Proposal, the DSH again asked for more staff, citing “increased violence.” But Ralph Montano, an information officer in the DSH’s Office of Communication told me, “the SVP population . . . is often more psychiatrically stable . . . and does not need an intensive level of care.”

Bloated medical bills

When justifying its budgets, the DSH points to rising costs. This might be credible if we could trust its numbers. But alarms go off when we look at big-ticket items such as medical expenses. According to one man’s chart, over a four-year period, a single 81 mg child’s Aspirin was billed at $38, $48, $184, $238, $256, and $266; one 500 mg vitamin C tablet cost $19, $37, and $47. On another man’s record, a 375 mg Naproxen tablet was billed as $22, $130, and $140.

Why the disparity? Montano digresses, offering few facts: “Items … vary by price, quantity dispensed and strength.”

Ken Huskey, released two years ago, was charged for treatments that never took place. Huskey has 18 teeth, but over five years was billed for 57 fillings ($615 each), 20 “oral evaluations” (exams) at $349 each, and 51 “oral hygiene” lessons ($87 each) “to tell us how to brush our teeth,” Huskey says. I asked Montano to explain oral hygiene. He said “I’m not sure if I have to say that oral hygiene instruction entails this, that, and the other thing. I have to check with our Legal office to see if a specific response is a violation of patient privacy.”

Huskey’s dental bills also list “anterior—excluding final res” ($3,935), four “periodontal scaling and root” procedures on the same day ($1,922), and a “molar, excluding final res” ($6,558). He was also charged from $1,955 to $2,591 for a total of four “new patient eye exams.”

Who foots these bills? They’re not a line item in Coalinga’s budget, so I asked Montano, who told me to “ask Medicare.” The San Francisco Medicare office said that program reimburses some charges but wouldn’t disclose Coalinga’s total reimbursement in one year—due to “privacy concerns.” Its staff told me to send a Freedom of Information Act request to the national Department of Health and Human Services, which said mine “didn’t qualify for expedited processing based upon compelling need.” HHS suggested I file an appeal.

Coalinga has found ways to extract even more funds. One man confined at the hospital, whom I’ll call Joe Smith, says “Coalinga gets reimbursed for medical appointments whether they happen or not. But it needs to prove the appointments were scheduled. So the staff tell us to sign forms that we missed them—even if we never knew they existed. If we won’t, nurses or psych techs write ‘patient refuses to sign.’” One nurse (with a master’s degree in public health) who worked at Coalinga for years says the men were routinely billed for lab tests they never got.

I asked Torres, the psych tech, how often this happens. “Very often,” she confirmed.

The men themselves are a funding source. Coalinga creates a bank account for each man to withdraw funds as needed. But if his balance tops $500—say, someone sends him cash—Coalinga takes anything over that (except from Social Security or Veterans Administration checks). Smith said he was reimbursed $10,000 for some legal services he canceled, and when a check was sent to his account, Coalinga pocketed $9,500. When it refused to return his funds, he went to court and won them back.

In addition, California pays the DSH to confine 32 undocumented men at Coalinga who have also completed their prison sentences for committing sex offences—almost all of whom have asked to be repatriated to their home countries. At the average annual cost of $236,000 per “patient” (Soderborg’s estimate), the undocumented men generate a windfall for the DSH. According to a 2016 article in the Fresno Bee, the DSH says only the courts can release them from Coalinga. In 2001, one man, Juan Cordero, was ordered deported back to Mexico by the Los Angeles Immigration Court. Yet when the Bee ran the article 15 years later, he was still waiting there. As Fletcher points out, these undocumented men comprise another $7.5 million of the DSH gravy train. Although Coalinga’s kitty keeps growing, the DSH administrators continue to insist costs must be cut. For example, in 2012, they stopped all educational classes at Coalinga, such as remedial reading, basic Spanish, and General Equivalency Diploma prep programs—although the latter are mandatory in California prisons (since it’s a hospital, Coalinga is not considered part of the prison system). Interestingly, the DSH did not cut GED classes in its four other state hospitals. Stephanie Clendenin, its DSH’s acting director, says these cuts are “to achieve savings.”

A bevy of beneficiaries

So who benefits? Obviously not taxpayers and certainly not the reincarcerated men. Indeed, it’s hardly hyperbole to say they’re hostage to those who taxi around the trough.

Strikingly, however, contractors and salaried staff do extremely well (more on each later). The DSH, which says it must achieve savings, has not cut fees, wages, benefits or overtime. In fact, some businesses seem truly blessed. For example, a contractor, California Dining Service, runs Coalinga’s commissary and two restaurants—one for staff and another for the men. The owner pays Coalinga $24,000 a year in rent to operate all three; he has no competition and sets the prices he chooses: the canteen sells an 8 ounce jar of Folgers Instant Coffee for $9.25 and a 2.5 ounce Speed Stick deodorant for $3.95. (In Safeway, they cost $8 and $3.29.) The commissary also sells Little Caesar’s Pizza two days each month: it gets a box that holds eight pieces, for which it pays $5.99 to $7.99 (depending on the food store). It then cuts the pieces in half (there are now 16 slices) and sells each for $2.11.

Walkenhorst’s, which Montano says does not have a DSH contract, is nevertheless the sole company from which men can buy Hiteker tablets, the 7-inch mobile computers with touch-screen displays that are one of the few digital devices the men are permitted to use. While they cost $39 or $59 online, the men pay $230 to Walkenhorst’s. Montano says the price is higher because the devices are altered to block “incarcerated people from engaging in inappropriate behavior.” However, a technician familiar with the tablets says it costs almost nothing to modify them.

Another contractor, Liberty Health Care Corporation, received $6.3 million in 2017 to oversee 17 men whom the courts placed on “conditional release” (called Conrep). Liberty must pay for their housing, watch the men 24-7, except when they’re at their jobs, and provide a treatment program. If the men complete the treatment, Liberty may recommend to the court that they be unconditionally released. However, in the 20-plus years since Liberty has had the contract, it has only recommended that about 20 men be released. Moreover, when Liberty returns some of the men it is supervising to Coalinga for “violating” a rule, it need not return any of its $6.3 million.

One man whom Liberty supervised says his case manager asked for $1,000 a month toward his housing, offering no receipt. He told me, “There were rats, roaches and bedbugs where they placed me, and the program was awful, so I asked the court to return me to Coalinga. The judge agreed.”

Another man under Liberty’s care tried to commit suicide and was also returned. Psychologist Powell says, “Liberty is corrupt. They treat the men terribly.”

Soderborg (the legislative analyst) says that, according to the state’s contracting rules, “anything related to Conrep is exempt from competitive bidding.”

Contractors who administer polygraph tests also prosper. One public defender lawyer I’ll call Jim Woods told me, “It behooves them to say the men are lying because the treatment team sends them back for more tests to see if their answers change—even when they’re telling the truth. The price per test in Los Angeles is $475 to $750.”

Woods adds, “Although judges won’t allow the lie detector results as evidence, they’re put in the men’s records, which hurts their chances in court.” This, too, helps to keep Coalinga filled.

Other contractors are the nonsalaried psychologists and psychiatrists who evaluate sex offenders to be considered for release. According a 2008 Los Angeles Times article, “State Pays Millions for Contract Psychologists to Keep Up With Jessica’s Law,” business was bustling. The article notes that in 2007, “among 79 contractors hired by the state . . . the top earner, Robert Owen, pulled in more than $1.5 million. . . . He worked 100 hours a week for 52 weeks at nearly $300 per hour. The No. 2 earner, Dawn Starr . . . billed $1.1 million, including $17,500 for a single day in April, for five evaluations.”

It also named a psychiatrist, Dr. Mohan Nair, with offices in Beverly Hills and Los Alamitos, who earned nearly $1 million. The article said he simultaneously “saw private patients, directed a diagnostic lab, and supervised residents at two medical centers.”

These revelations provoked little change. Fast-forward to 2017–2018, and Owen again earned the most—$808,262—although others didn’t do poorly: the next three earned $729,500, $537,600 and $492,600. All 21 evaluators on the DSH’s roster only worked part time.

The DSH says the fees are reasonable since each evaluation takes at least 20 hours to complete. However Torres says, “Most evaluators don’t even speak to the guys. They look at their records, ask the office staff to copy some pages, and take them home. I’ve seen them do several cases in one day.”

Further, Powell noticed a troubling pattern: “The psychologists DSH gives the most cases to are the ones who say that a higher number of men should be committed.”

Lawyers, district attorneys and the courts

Lawyers—public and private—also thrive. Private lawyers’ fees for SVP cases are typically $100,000 to $150,000. Los Angeles attorney Todd Melnik charged one client a $100,000 retainer, from the start.

The public defenders, private lawyers, district attorneys, evaluators, investigators, and even the courts all have strong incentives to string the cases out before they go to trial. Each county’s legal offices and courts tally their budgets by the number of tasks they perform. Not unexpectedly, they perform a great many tasks.

Justin Boswell (his real name), who helped run a family business before he was confined at Coalinga in 2011, has not yet had a trial. He explains: “My public defender lawyer, William Markov, attended 64 status hearings” (the brief procedure when lawyers go to court and judges decide if cases should proceed to trial). “When a judge grants a delay, which is the norm, the lawyers must return for a new hearing. Each hearing equals another task,” says Boswell.

According to Glen Green, (his real name), a registered paralegal who worked in San Luis Obispo county for nearly 10 years and is now confined at Coalinga, private lawyers, DAs, and judges are just as likely to request (and get) delays.

Such machinations explain why George Vasquez, a sex offender, languished at Atascadero and Coalinga for 17 years (until 2018) without a trial. Los Angeles County Judge Gail Ruderman Feuer cited “violations of his right to a speedy trial and repeated delays” and released him. Over time, he had been appointed seven public defender lawyers, each of whom asked for delays.

It is estimated that at least another 300 men at Coalinga have never had a trial to decide if they should be civilly committed. Often, when they are first sent to the hospital, their lawyers advise them to wait and participate in Coalinga’s treatment program because it could cause judges and juries to view them more positively. In fact, participating has little effect: Of the 703 men who were released over 22 years (out of a total of 1,763 who were sent either to Atascadero or Coalinga), only 146 participated, and 557 did not.

Many of those incarcerated at Coalinga think that Vasquez’s release is a game changer, and that their cases will now move forward. But several lawyers told me this may not happen. They explained that some attorneys will fear that under California law their clients will sue them for negligence (because of the years they’ve waited) and may continue to delay the cases. Moreover, if new attorneys are appointed, they must start from scratch, which equals more delays.

Exceptional earnings

Salaried staff also do well. Some prison guards, now called correctional officers (COs), are employed by the California Department of Corrections and Rehabilitation (CDCR) at the nearby prison (ironically named Pleasant Valley). But they also do high-priced work for Coalinga.

To explain how they secured these plum jobs requires some history. The city of Coalinga (pop. 13,380), located in a desertlike area in the southern part of the state, is one of California’s poorest. Before the hospital was built, the only jobs were in agriculture, the oil industry (which was reducing its footprint), and the prison. In the early 2000s, when the city council gave the green light to build the hospital there, unemployment and poverty rates were high, and per-capita incomes were low (40 percent lower than the national average). The hospital would bring badly needed jobs and income to the city.

At the time, Ron Ramsey, a prison guard, was a city councilman; he later became mayor. Whether this mattered is anyone’s guess. But Pleasant Valley COs were tapped to patrol the area outside the hospital, screen all visitors, and transport men to outside appointments, such as at courts or hospitals, often one to three hours away. If the men have surgery and stay overnight, the hours mount, since the COs must guard them around the clock. Then there’s the return trip to Coalinga. The number of jobs exploded, as did overtime costs.

Interestingly, when the hospital opened in 2006, the inmates taken to the same location rode in one vehicle with two COs, one driving and the other guarding the men (whose hands and legs were shackled). A “chase car” usually followed the vehicle, carrying one or two more COs.

For reasons unknown, the rules changed. Each vehicle now carries only one man and two COs, with a chase car still bringing up the rear. Was a guard attacked, which would account for this? Montano told me: “Please contact CDCR, the Department of Corrections.” But CDCR wouldn’t say, citing “security reasons.” Hugh McCafferty, who was released from Coalinga two years ago, sent a PRA request asking for the “number and type of behavior incidents” to learn if some of the men being transported had acted aggressively. The DSH answered that Coalinga had “no documents responsive to this request.”

The transport COs’ salaries are telling. One CO, Lt. James Woodend, had combined pay and benefits of $178,690 in 2017, and Sgt. Eliseo Navarro earned $140,912 (base pay of $104,674, overtime of $28,269, and “other” of $7,969). But their wages were modest compared to those of their colleague, Lila Collins, who earned $224,622. By comparison, the average pay of a California CO is $76,000 a year.

It’s conceivable the COs’ good fortune is linked to their union’s largesse toward candidates running for office. According to a June 2018 Orange County Register article, the California Correctional Peace Officers Association had plowed $71 million into political campaigns since 2001, and Wikipedia noted its contributions “routinely exceed that of all other unions in the state.” Further, legislators approved a 5 percent pay hike in 2017, which, an AP article noted, “will cost taxpayers more than $1 billion over three years.”

Coalinga City still scores poorly when its economic indicators are compared to California and U.S. averages, but the hospital has clearly helped city businesses, buying $15.1 million’s worth of goods and services from them in 2016.

Besides the COs, other city residents—such as the psych techs, whose median salaries top those of the town’s firefighters, teachers and librarians—also have a lot at stake. Often the first in their families to go beyond high school, they secure a psychiatric technician certificate after a 12-month course at West Hills, the local community college.

The most numerous of all Coalinga staff—at least a third of the total—the psych techs have been promoted over the years and now run the units (supervising nurses, psychologists, and social workers) and the hospital itself.

While the city’s average per-capita income was $17,892 in 2016, the hospital’s 2014 payroll showed at least 50 psych techs with salaries of $100,000 to $200,000 and one with $347,000.

Such sums were secured with massive overtime. But overtime hours at all five DSH facilities—supported by the booming budget—have been suspect for years. Since the DSH doesn’t use time clocks, the staff enter their hours by hand onto time sheets. As early as 2011, auditors were “aware of payroll fraud, past and current, related to overtime.”

Overtime is a huge chunk of Coalinga’s wage bill. Based on a PRA reply in May 2018, salaries and wages were nearly $12 million, while overtime was $1.5 million. Montano says these numbers are “in alignment when compared to other hospitals.”

Others disagree. In the suggestion section of a staff online publication, where Coalinga employees can offer anonymous observations, one wrote, “So many staff . . . book and erase or cross out staff’s names in order to place their own names for overtime.”

Torres told me, “The hours the psych techs write in for when they arrive, leave, and do overtime can be easily cooked because there’s no oversight.” One nurse says while any staff can enter bogus numbers, it’s easier for the psych techs, since there are so many of them, and it’s hard to know who’s here.”

Further, she says overtime and lack of oversight are tightly linked—which explains how five psych techs at Patton State Hospital, another DSH facility—could embezzle $800,000 over five years. According to a 2014 San Bernardino Sun article, they were paid for hours they didn’t work from 2007 to 2011 . . . and the “state controller’s audit revealed sloppy payroll practices.”

Auditors discovered other payroll problems. In 2014, they found that Coalinga’s psychiatrists “regularly worked between 22 and 29 hours a week instead of the required 40 hours, costing the state nearly $300,000 in one year.”

Silencing the messengers

The desire to hold the men indefinitely is so strong that the DSH hid some very inconvenient truths. Consider Dr. Jesus Padilla, a psychologist whom it funded in the early 2000s to calculate sex offender recidivism rates (at the time the DSH was known as the Department of Mental Health). Of the men Padilla studied, he found that 4.3 percent committed new sex offenses over five years—far fewer than the 40 to 50 percent many officials claimed. Unhappy with the results, Jon De Morales, the director of Atascadero State Hospital, canceled Padilla’s funds, squashed his study, and forbade him to publish his data.

According to Tamara Lave, a University of Miami law professor and author of a 2018 article in American Criminal Law Review, “Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data,” “the DMH may have realized the study had to be stopped because it threatened the legitimacy of the entire SVP program. . . . His data was never returned, and the boxes of documents were destroyed.”

Padilla was not unique. In 1998, the state also funded another psychologist, Dr. Gregory Schiller, to study recidivism rates. Besides finding they were very low (like Padilla), Schiller noticed that the psychologists the DMH hired the most were those who predicted that a higher number of sex offenders would re-offend.

Worse, the lawyer David Winters says, “Schiller named the names of the evaluators, which really got the powers-that-be up in arms.”

Silencing the messenger is not just a California custom. In Florida, mental health officials funded a psychologist (who asked for anonymity) to study sex offender recidivism rates in the early 2000s. When he found that the numbers were far lower than officials claimed, the Department of Children and Families didn’t want them used in the evaluators’ training and distanced itself from the research. After that, Florida legislators told the DCF not to do any more research.

Why must the states disappear the data? Winters says, “If Coalinga has a large patient population, the DSH can ask for a big budget. The waste is justified because it’s a group no one cares about.” Another psychologist told me, “It’s a psychiatric-industrial complex. Everyone wants to keep it going.”

The men are also at risk. In early 2018, after many of the men launched complaints, Coalinga administrators put the hospital on “lockdown.” In-house police swept through the rooms, taking documents and electronic devices. Executive Director Price claimed it was to quell an “epidemic of child porn.” But, based on a PRA reply, the epidemic amounted to 20 cases over 19 months, 1 percent of Coalinga’s population.

Andrew Warren (his real name), who has been at Coalinga for over 10 years, cut hair at the hospital’s in-house barber shop. Just last month, Warren called the governor’s and a state senator’s offices to “blow the whistle” over the refusal of the DSH to disclose guards’ disciplinary records and Coalinga’s failure to protect the men from some who, he says, routinely attack those who are weak. Officers searched his room and seized his legal papers and an SD memory card with videos of Vietnam (Warren is Vietnamese-American), which they claimed was “contraband.” The next day, he was fired from his job.

Further, Fletcher and Boswell, who often criticize the budget and urge California legislators to audit Coalinga for what they see as fraud, have been regularly targeted. Early this year, police searched their rooms and took documents. Boswell says, “The officer apologized, saying, ‘This wasn’t our idea. It came from administration.’ In a few days, Fletcher was moved to a different unit. Why? “I was told ‘for my safety,’” he said. Staff never elaborated.

This past April, a top DSH administrator called Fletcher. “He told me, ‘I know you’re looking into DSH finances, which could cause grief for the hospital and patients. Do you want to go home? We can help or hinder that.’” Fletcher reported the call to the legislators, the FBI’s white-collar crime unit, and his lawyer. Boswell, too, was warned: “My treatment team leader told me my advocacy ‘reflected a lack of cooperation.’”

Two weeks later, five psych techs streamed into Boswell’s room, grabbed his legal documents, called the police—who repeatedly hit him—and placed him in isolation, where he was strapped down for several hours. This violence sparked a melee: the men on the unit ran to the halls, demanding Boswell’s release. In the fracas, the fire alarms and sprinkler systems went off. Under pressure, the staff unstrapped him.

Within an hour, a psychiatrist interviewed Boswell, and, hearing his story, filed “patient abuse charges” against a psych tech named Lisa Sansinena, who spearheaded the attack. The next day, however, Boswell was told to retract his statement that he was assaulted and felt threatened.

Boswell refused and was not allowed to leave his unit for four days without someone guarding him. He says other men have also protested Sansinena’s abusive treatment.

Sansinena is still at her job.

And so it goes.

“Modern-Day Gulags” is the second installment of veteran reporter Barbara Koeppel’s investigation into civil commitment in the United States. Her first piece, “Sex Crimes and Criminal Justice,” is available athttps://washingtonspectator.org/koeppel-sex-crimes-and-criminal-justice/. In that report she explores the circumstances of sex offenders in 20 states who, after completing their sentences, are reincarcerated in prisons and hospitals and kept there frequently until they die. Ms. Koeppel lives in Washington, D.C.

ACLU Pushes for removal of Michigan sex offender registry

ACLU Pushes for removal of Michigan sex offender registry

By:Clifton FrenchPosted: Apr 25, 2019 5:31 PM EST

NOW: ACLU pushes for removal of sex offender registry

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MICHIGAN — Could the sex offender registry soon be a thing of the past? The American Civil Liberties Union wants to possibly get rid of it, saying the registry doesn’t work. Right now, there are two cases out of Michigan, including a class action lawsuit, claiming several parts of the registry are unconstitutional.

“In August 2016, the federal court of appeals held that Michigan’s registry is unconstitutional.” Attorney for the ACLU in Michigan, Miriam Aukerman, said.

Aukerman represents hundreds of convicted sex offenders fighting the public registry and some of the sex offender restrictions imposed by the state. That suit is in response to the state of Michigan not coming into compliance with the Court of Appeals decision.

“Basically what the court of appeals said is that the registry is so ineffective, so broken, that it violates the constitution. What we know, through research, is that registries don’t work. They don’t keep people safe.”

The Michigan registry was initially created in 1994 as a database for law enforcement. Since then, there have been major changes. In 1999, the registry was posted on the internet. In 2004, pictures were added. In 2006, living and working restrictions were imposed, keeping offenders at least 100 feet from schools. In 2011, a tier system was implemented, which determines how long an offender is on the list, retroactively extending registration for some offenders, for life, in some cases. In 2013, the state imposed an annual fee for people on the registry.

People who were convicted prior to registry amendments were impacted by each change. The court determined the state couldn’t retroactively punish offenders. And, found some blanket restrictions, like prohibiting people to live within 1000 feet of a school, are unconstitutional if there isn’t an individual threat assessment of the offender to show the restrictions are necessary.

“The problem is the legislature hasn’t come into compliance with that court decision.” Aukerman said.

Aukerman believes the best solution is an overhaul of the system and a dismantling of the public database.

“Registries are counter-productive. They take people and push them to the margins of society. They take away the very things that we know make people successful, which are family support, housing and employment.” She said.

“It gives them a map. It’s got the pinpoints. This is where the sex offenders are residing and I can tell you, it’s of great solace for a mother with kids who wants to know what her neighborhood is about.” Cass County Prosecutor, Victor Fitz, said.

Fitz says he agrees that some people on the registry may not deserve to be there and thinks it’s reasonable for the courts to look at individual assessments. But, overall, he believes the database is key to public safety.

“This is throwing the baby out with the bathwater 100 times over in my opinion.” Fitz said.

And, without the registry, he believes prison sentences for sex offenders could be drastically extended.

“The courts know the registry protects people in the community. If you take that away, judges may look at it with a very different light. So, be careful what you ask for.” He said.

The state has just a little more than a week to respond to the ACLU lawsuit. The ACLU hopes the end result is state lawmakers passing new sex offender legislation. 

Mandatory GPS monitoring of some sex offenders violates privacy rights, SJC rules

Mandatory GPS monitoring of some sex offenders violates privacy rights, SJC rules

By John R. Ellement GLOBE STAFF  MARCH 26, 2019

Convicted sex offenders retain a constitutional right to privacy, and those rights are being violated by a state law mandating that everyone convicted of some sex crimes wear a GPS monitoring bracelet as part of their sentence, the state’s highest court ruled Tuesday.

In a 7-0 ruling, the Supreme Judicial Court decided that privacy protections found in both the state and federal constitutions apply to sex offenders, who are entitled to a case-by-case review of whether GPS monitoring is needed to protect society.

“The government does not have an ‘unlimited’ ability to infringe upon a probationer’s still-existing, albeit diminished, expectations of privacy,’’ Justice Frank M. Gazianowrote for the court. “GPS monitoring is not a minimally invasive search.”

The court said judges must now make an “individualized” determination that GPS monitoring is necessary in order to protect the public, especially children, from the offender, and will also decide whether GPS monitoring will help with rehabilitation of the defendant.Get Metro Headlines in your inbox:The 10 top local news stories from metro Boston and around New England delivered daily.Sign Up

“Mandatory, blanket imposition of GPS monitoring on probationers, absent individualized determinations of reasonableness, is unconstitutional under the Massachusetts Declaration of Rights,’’ Gaziano wrote.

The decision was issued in the case of Ervin Feliz, who pleaded guilty in Suffolk Superior Court to possession and distribution of child pornography and was ordered to spend five years on probation during which he would wear a GPS device and be monitored by the state probation department.

Feliz, who was also ordered to wear a GPS device while awaiting trial, argued the mandate should not apply to him in part because the probation department’s monitoring system excessively triggers alerts even when he was in compliance.

His attorney, David R. Rangaviz, also argued that his client is not a public safety risk and was classified as a Level 1 sex offender by the Sex Offender Registry Board, which meant he was considered least likely to reoffend.

In its ruling, the SJC said that Feliz will no longer have to wear a GPS device because prosecutors have not shown he is a danger to children, because his conviction was a “noncontact sex offense,” and because an expert did not consider him a threat to public safety.

“The reproduction and dissemination of child pornography itself harms the children who are depicted and revictimized with each viewing,’’ Gaziano wrote. But “the Commonwealth’s particularized reasons for imposing GPS monitoring on this defendant do not outweigh the privacy intrusion occasioned by the requirement of GPS monitoring.”

Rangaviz on Tuesday applauded the decision as one that reinforces public safety, not diminishes it. Studies have shown low-risk offenders wearing GPS devices can lose housing and jobs due to false alarms from GPS devices, eliminating stabilizing factors needed for successful rehabilitation.

And judges can still order the use of GPS, he noted.

“If you treat sex offenders [as] one category of people and you don’t treat them as individual human beings, the system isn’t going to work well from a public safety perspective,’’ he said. “From a public safety perspective, this is the best result.”

Gaziano wrote that GPS monitoring is an invasive government act that continues for days, weeks, or months, and is not a one-time intrusion like the law requiring defendants to provide a DNA sample collected by briefly swabbing a person’s mouth.

“GPS monitoring gathers vastly more information than otherwise would be collected in accordance with a defendant’s other conditions of probation” including where one is physically located, how fast they are traveling, and whether one is walking, running, or driving, and stores all of the data for potential later use by government agencies.

“In these circumstances, the government interests do not outweigh the privacy infringement occasioned by GPS monitoring,’’ Gaziano wrote.

The court noted, however, that a judge can readily find that another sex offender, especially those classified as Level 2 and Level 3 and therefore more likely to reoffend, should be monitored by a GPS bracelet.

According to the SJC, more than 3,900 people are currently being monitored through the GPS program operated by the probation department. The ruling potentially affects 879 convicted sex offenders, according to the department.

Rangaviz said he hoped to have the GPS device removed from his client as soon as possible.John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.

Sex Offenders Are Not Second-Class Citizens,’ Says Judge While Nixing Alabama Rules on First Amendment Grounds

Sex Offenders Are Not Second-Class Citizens,’ Says Judge While Nixing Alabama Rules on First Amendment Grounds

The decision rejects driver’s licenses labeled “CRIMINAL SEX OFFENDER” and a broad demand for reports on internet use.

Jacob Sullum|Feb. 13, 2019 1:15 pm, Reason

“Sex offenders are not second-class citizens,” writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. “The Constitution protects their liberty and dignity just as it protects everyone else’s.”

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls “the most comprehensive and debilitating sex-offender scheme in the nation,” is a prime example.

The lead plaintiff in this case, dubbed John Doe 1, pleaded guilty to two misdemeanor charges of indecent exposure in the early 1990s, when he was living in Wisconsin. He received a six-month suspended sentence for each charge and was not required to register as a sex offender, even after moving to Alabama in 1994. But 14 years later, Alabama expanded its registry, forcing Doe to comply with ASORCNA’s numerous demands and restrictions under threat of imprisonment. Among other things, that meant his driver’s license was marked with the phrase “CRIMINAL SEX OFFENDER” in bold red letters. Here is how Doe describes the consequences of that notation:

I have never felt so embarrassed and ashamed in all of my life. I would not wish showing this on my worst enemy. It makes me not want to go places where I have to show it, and I try not to go places where I know I will have to. But every week, there is some places that ask me to show it, and every time, I get them evil looks from people—like I’m a murderer or something. I done paid for what I did over 25 years ago. Nobody should have to carry this. It ain’t right, but I don’t have a way out.

On Monday, Judge Watkins ruled that Alabama’s branding of registered sex offenders’ identification cards is a form of compelled speech prohibited by the First Amendment. “The branded-ID requirement compels speech,” he writes, “and it is not the least restrictive means of advancing a compelling state interest.” The state conceded that its ostensible purpose of alerting police officers to a sex offender’s status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame. “Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others,” Watkins notes.

Another aspect of Alabama’s “debilitating sex-offender scheme” is a requirement that people in the registry report “email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction.” Registrants also have to keep the authorities apprised of “any and all Internet service providers” they use. The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

That requirement also violates the First Amendment, Watkins concluded. “An offender must report to the police every time he connects to a Wi-Fi spot at a new McDonald’s, every time he uses a new computer terminal at a public library, every time he borrows a smartphone to read the news online, and every time he anonymously comments on a news article,” he writes. “Every time he walks into a new coffee shop, he must determine whether opening his laptop is worth the hassle of reporting.” Those burdens “chill a wide swath of protected speech under penalty of felony,” Watkins says, making the law “facially overbroad.”

Watkins notes that the demand for information about online activity applied to Doe and the other four plaintiffs even though their offenses had nothing to do with the internet or children. And like other ASORCNA provisions, such as its restrictions on residency and employment, the rule applies for life, even though the risk of recidivism for most offenders declines over time to the point that registrants pose no greater threat than the average person. “The failure to account for risk is a problem throughout ASORCNA,” Watkins observes. “Not all sex crimes are the same. Nor are all offenders the same.”

That’s a striking statement from a judge who was appointed by George W. Bush just two years after the U.S. Supreme Court upheld Alaska’s sex offender registry based partly on fictitious recidivism numbers that continue to influence state and federal courts. It’s a message that judges and legislators throughout the country need to hear.

https://reason.com/blog/2019/02/13/sex-offenders-are-not-second-class-citiz

Attorney General Nessel Weighs in On Sex Offender Registration Cases Before MI Supreme Court

Attorney General Nessel Weighs in On Sex Offender Registration Cases Before MI Supreme Court

February 8, 2019

LANSING, MI – Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court today in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 – especially geographic exclusionary zones and in-person reporting requirements –are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

Source: https://www.michigan.gov/som/0,4669,7-192-47796-489212–,00.html

Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

 “These policies don’t work—let’s focus on something that does work.”

Lists that include out-of-state visitors are inflating the numbers and keeping fear at a boil.

by Steven Yoder, theappeal.org

Quentin (not his real name) was convicted eight years ago of child pornography possession in Florida. He served his time and has since moved to another state. But his sentence required his photo and other personal details to appear on Florida’s sex offender registry, and there they will stay for the rest of his life, even if he never sets foot in the state again.

The state’s registry is padded with thousands of Quentins, people who don’t live in Florida. Under a change to state law passed this spring, there will soon be more: Starting July 1, out-of-state registrants who visit for at least three days (down from five) must go to a sheriff’s office to have their personal details added to Florida’s list. If they don’t, they face a third-degree felony.

Rules like that aren’t unique—22 other states keep out-of-state visitors on their registries for life, according to a study released last November. It’s one reason state lists misrepresent the actual number of people with sex-crime records living in communities. As already-bloated lists keep ballooning, they feed the impression of a growing population of dangerous people who require ever-more-extreme laws to monitor and control.

On May 30, the National Center for Missing & Exploited Children (NCMEC) released its latest nationwide count of names on state sex offender registries. For the first time ever, the total was more than 900,000. NCMEC spokesperson Staca Shehan told The Appeal the organization doesn’t share data on growth trends because changes in state laws and other anomalies can make it difficult to accurately compare the data across years. But calculations by William Dobbs of Dobbs Wire, who tracks sex-offender registry developments nationwide, show a 3 percent jump in the nationwide number in the last six months. That’s slightly faster than in the past; increases have fluctuated between about 3 and 5 percent annually since 2007. Even if the growth rate returns to that historical average, by 2021 more than a million names will be on registries.

Many of those entries are duplicates like Quentin or represent people who are not actually part of a state’s population for some other reason. In a 2014 study in the journal Crime & Delinquency, a research team found that in the 42 states and two territories studied, 19 percent of those on registries were still behind bars, 9 percent lived out of state, and 3 percent had been deported. Of Florida’s 55,000 registrants at the time, more than 31,000 were in one of those three categories. “It’s a concern of ours,” Shehan said of problems with the count. She says NCMEC has no way of knowing how often an offender shows up on multiple state lists. “So that means then there’s duplicated offenders in our grand total,” she said. “And we have no way of knowing how often that happens.”

Dobbs, an adviser to the Sex Offense Litigation and Policy Resource Center affiliated with the Mitchell Hamline School of Law in St. Paul, says the inaccuracies are symptoms of a malignant logic at the heart of registries: that people who have served their time should be put on public lists because of the ineffable risk of what they might do in the future. Problems with registries can’t be fixed, he says, because the concept itself is a “broken” one. “It turns people into suspects forever—or at least as long as they’re on it,” he said. “The politicians have created this giant naming-and-shaming train and are fueling it with fear.”

One of Quentin’s cousins is getting married in October and invited him to be in the wedding in Florida, says Quentin’s mother. But to participate in the various events, he would need to stay more than three days—meaning a trip to the local sheriff’s office to get a new photo taken and have the address where he’s staying and the license plates of any cars he will drive added to Florida’s public registry. So Quentin is skipping the wedding.

Even if registry counts are inflated, it’s likely that the real number of registrants is rising as state lists scoop up an ever-broader swath of the population. One reason: New state laws governing who must register are typically applied retroactively to cover those who offended before the laws passed.

(Retroactive punishment is banned by the U.S. Constitution, but the Supreme Court ruled in 2003 that being placed on a registry doesn’t count as punishment. Since then, as evidence has emerged that registration is indeed punitive, the retroactive provisions of state sex-offense laws are being struck down: Several courts have ruled since 2016 that they violate the Constitution’s ban.)

Under the Adam Walsh Child Protection and Safety Act, passed in 2006, states have been required to expand their registries to cover people convicted of a broader set of crimes. The number on Wyoming’s registry in 2011, for instance, rose to 1,450 from 125 after the state passed legislation compliant with the act that required children and teens to be registered. As other states try to comply by passing new laws, additional categories of people get put on their registries, Shehan says.

And sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door. In 19 states, sex offender registration lasts for life for adults; in 16 others, it’s 15 to 30 years; and in another 14, it’s a minimum of 10 years, according to the Restoration of Rights Project run by the Collateral Consequences Resource Center and its partner organizations.

NCMEC’s steadily inflating number is catnip for those who traffic in evergreen scare stories. One website advises parents to use the map in deciding where to move. States with high per-capita sex offender populations might not be a good choice, it implies. NCMEC itself may feed those fears with its marketing: On its website, photos of missing kids are adjacent to the link to its sex offender tracking map.

But research shows that sex-offender maps have almost nothing to do with protecting children. Nearly all sexual abuse is perpetrated by someone not on a registry; first-time offenders commit north of 90 percent of new sex crimes, according to studies in New York and Minnesota. Most sexual violence victims know their perpetrators—86 percent in a Bureau of Justice Statistics study published in 2000. And those with a sexual offense on their record have low sex-crime reoffense rates: 12 percent on average, according to a definitive 2014 meta-analysis of 21 other studies. Those same researchers found that re-offense risk declines the longer that someone lives in the community crime-free. For those who hadn’t reoffended by 10 years after an initial sexual offense, their risk of committing a new sex crime was 1 to 5 percent—a rate comparable to ex-offenders with no history of sex crime.

Sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door.

All of that might explain why the registry count and sex-crime rates are traveling in opposite directions. Multiple studies show rates of sexual violence falling significantly after the early 1990s. “I care about [the inflated count] from a policy perspective because it keeps people in fear,” said Alissa Ackerman, a California State University, Fullerton criminologist who was part of the 2014 Crime & Delinquency research team and has co-authored numerous studies of sexual-offense issues. “It keeps them wanting legislation—you know, we have to do something. … It’s maps like this and propaganda like this that keep people feeling that way.”

Ackerman says rather than expanding the list, more resources should be focused on sexual-violence prevention programs and on mental health services and treatment for people who have experienced and committed sexual abuse. “That’s not where we’re putting our money,” she said. “These policies don’t work—let’s focus on something that does work.”

Shehan says NCMEC’s map isn’t intended to scare people. The group’s prevention education materials make clear the danger of sexual abuse committed by a stranger on a registry is small, she says. But she acknowledges that message could be clearer on the map itself. “We’ve taken several precautions and made adaptations to the map in the past,” she said. “That’s one I can definitely add to the list of considerations.”

This article was originally published on TheAppeal.org on July 3, 2018; reprinted with permission. Copyright, The Appeal, a project of Tides Advocacy

https://www.criminallegalnews.org/news/2018/aug/17/why-sex-offender-registries-keep-growing-even-sexual-violence-rates-fall/