Civil Commitment
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July 2002
Civil Commitment
A growing threat
At the North Central Correctional Institution in Gardner, Massachusetts, Alden Baker served out a ten-year sentence for raping the 29-year-old man he employed as a driver. He maintained an almost flawless record of good behavior as he inched toward a June 2001 release. “I thought,” he says, “if I could just make it through, I’d be able to put those ten years behind me and move on.”
But shortly before his release date, the Middlesex County District Attorney’s office obtained an order to transfer Baker to the Massachusetts Treatment Center for Sexually Dangerous Persons at Bridgewater. Now, more than one year after completing his sentence, the 52-year-old Baker, who insists he is innocent of rape, remains incarcerated pending a civil trial whose outcome could facilitate his permanent detention. (See August 2001 and May 2002 Guide editorials.)
Acting on state legislation passed in 1999, the Commonwealth of Massachusetts is seeking to prove that Baker, once considered sufficiently responsible for his actions to be criminally tried for them, can be reassessed as an individual whose lack of self-control poses a threat to society. If a jury finds that Baker is a “sexually dangerous person”– a disordered individual whose behavior patterns are compulsive– he can be kept at the Treatment Center from one day to life without the imposition of a criminal sentence.
The process reflects a national trend toward circumventing criminal law through civil procedures. One-day-to-lifetime civil commitment, the most extreme result of that trend, is now an option in at least 16 states. Some version of an active civil commitment statute exists in Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, North Dakota, New Jersey, South Carolina, Texas, Washington, Wisconsin, and Virginia. Legislation is pending in at least a dozen more, including New York.
The concept of incarceration without a prison sentence isn’t new. But civil commitment used to be reserved for the overtly insane, or for sex offenders who, with a mental health professional’s endorsement, voluntarily entered treatment programs while serving their criminal sentences. Contemporary civil commitment legislation is descended in part from “defective delinquent” and “sexual psychopath” laws passed in the early-to-mid-20th century to facilitate removing “deviates” from society. The difference is that now, an inmate need not be mentally ill, just “abnormal” or “disordered” and “volitionally impaired,” to qualify for commitment.
The current model for state laws aimed at detaining sex offenders is a stringent piece of panic legislation passed in Kansas following the 1993 rape and murder of a University of Kansas student by a man who had a previous rape conviction. The intent of the 1994 Kansas law was to prevent sex criminals perceived as likely to reoffend (despite the statistically low rate of sex-offender recidivism) from returning to the streets.
The Kansas civil commitment law and related measures have been filtered through a number of US Supreme Court rulings that have defined and redefined their powers. (See box.) The court’s Kansas v. Hendricks ruling, which upheld the Kansas Sexually Violent Predator Act, encouraged the passage of clones of the statute in other states. In almost every case, an authentically atrocious incident was used to justify locking ‘em up and throwing away the key. In New Jersey, the 1994 rape and murder of seven-year-old Megan Kanka led not only to civil commitment legislation, but to a widely emulated system of sex-offender registration under “Megan’s Law.” In Massachusetts, public outrage over the 1997 murder of ten-year-old Jeffrey Curley resulted in draconian rewrites of existing sex-offender statutes.
Provisions and criteria vary from state to state. In Kansas, a sexually violent predator (SVP) is anyone “who has been convicted or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.” In Iowa, SVP status can be achieved through vaguely defined “sexual misconduct.”
Some states restrict civil commitment to perpetrators of genuinely violent crimes. In Michigan, only an inmate who has committed murder in the course of his or her sexual offense can be detained by civil proceedings. Elsewhere, offenses resulting in civil commitment can range from violent rape to sedate fondling, from genital mutilation to “indecent exposure.” In Massachusetts, almost any sex crime can result in an extension of imprisonment past the chimerical release date indicated by the inmate’s original sentence.
The legal rationale for allowing this apparent double jeopardy is that since the commitment results from a civil proceeding, not a criminal trial, it does not constitute punishment. The civil trial may take on all the attributes of a criminal trial, including the presence of the same judge and prosecutors involved in the original criminal process, but its purpose and result are ostensibly different. The facility to which the detainee is remanded may be a guarded compound run by the state’s Department of Correction, but since it is called a treatment facility, not a prison, its role is not deemed punitive.
“It doesn’t matter what they call it– what should matter is the effect it has,” says Larry Frankel of the ACLU of Pennsylvania, a state where attempts to pass a sex-offender detention law have thus far failed. “The effect of civil commitment,” Frankel insists, “is to punish someone twice for the same crime.”
Three months after the Hendricks decision, the National Association of State Mental Health Directors (NASMHPD) adopted a resolution stating, “Laws which provide for the civil commitment of dangerous sex offenders for purposes that are primarily punitive or for the purpose of continuing confinement, rather than for the purpose of providing treatment or psychiatric services, disrupt the state’s ability to provide services for people with treatable psychiatric illnesses and undermine the mission and integrity of the public mental health system.”
But laws addressing sex offenses have achieved a spurious moral heft that flattens both therapeutic and constitutional considerations. Sex-predator laws, measures that pretend to protect public safety while caring and curing, appeal directly and viscerally to public appetites for vengeance and punishment. In a climate of “zero tolerance,” authorities who find the Bill of Rights inconvenient have succeeded in instituting preventive detention by changing its name.
They have also managed to erode Miranda rights, lawyer-client and doctor-patient confidentiality, and the Fifth Amendment promise of due process of law. There are now sex-offender exceptions for the US Constitution’s Article I provision against ex post facto liability for actions committed before they became illegal; for its First Amendment guarantee of privacy; for its Fifth Amendment safeguards against double jeopardy and self-incrimination; for its Eighth Amendment proscription of cruel and unusual punishment; and for its Fourteenth Amendment guarantee of equal protection for all citizens.
In 1999, when the California Supreme Court upheld the state’s 1996 Sexually Violent Predator law in Hubbart v. Santa Clara County, the court declared, “Rather than await a re-offense and offer condolences to the family of the victim, the people are not only ensuring that predatory, violent sex offenders be removed from society, but at the same time ensuring that they receive whatever treatment psychiatry can offer for their maladies.” Justice Marvin R. Baxter described the law as a “non-punitive civil commitment scheme covering… sick persons.”
In April 2002, convicted rapist Patrick Ghilotti, the first of California’s 330 civilly committed inmates to complete the SVP treatment program at Atascadero State Hospital, was recommited– presumably for non-punitive reasons– just before his release. The assertions of three mental health evaluators that Ghilotti is no longer dangerous were ignored.
Leaving aside questions of whether certain sex offenders can or should be “cured,” it’s fair to ask how many of those detained were ever dangerous, and how many are being kept under lock and key because of society’s distaste for kinks or paraphilias that harm no one. Psychoanalyst Thomas Szasz, who calls the involuntarily committed “society’s scapegoats,” insisted as long ago as 1968 that a determination of dangerousness “depends on the observer’s religious beliefs, political convictions, and social situation.” Determinations of sexual dangerousness may also depend on the observer’s erotic orientation and vision of sexual ethics.
In 2002, a fusion of reactionary law-and-order mores and “progressive” victim culture has shaped a system that echoes the Soviet Union’s practice of detaining dissidents in mental hospitals. That similarity is not lost on the inmates at Atascadero State Hospital, who call their facility a “hosprison,” and occasionally publish an unauthorized newsletter called Voices from the Gulag.
Many of those trapped in the system are gay men whose non-vanilla sexual lifestyles are distasteful to many. The real purpose of sex-offender legislation may be not so much to protect society from behavior that genuinely threatens children and others, but to shield it from the notion that many forms of non-procreative, non-monogamous, non-marital sex can have positive value.
At Al Baker’s recent probable cause hearing, the Commonwealth of Massachusetts provided a list of his personal kinks as evidence of an intractably depraved personality. Prosecutors and their pet expert, Dr. Ira Silverman, stressed his participation in the leather-SM scene, his possession of sex toys, his habit of cruising for sex, and his occasional practice of videotaping sexual encounters. Judge S. Jane Haggerty, who could have granted Baker his freedom, ruled in favor of a civil trial.
The original charges were based on reciprocal oral sex Baker had with his limo driver on various occasions in 1990. While these sexual encounters did not have sadomasochistic overtones, Baker was at that time proprietor of the Eagle’s Nest, a Boston-area computer bulletin board serving the leather-SM community.
The “victim,” who was subjected to intensive police interrogation before he agreed to cooperate, returned to Baker’s house for more sex even after testifying against him before a grand jury. Once the rape charge was in place, police conducted a fishing expedition into Baker’s home, seizing computers, videotapes, sexual paraphernalia, and other material. Pictures of young men, most probably in their 20s, posted at the Eagle’s Nest or otherwise found in Baker’s possession, were alleged to link Baker to child pornography.
At his 1991 bench trial, prosecutors cited the presence of a “dungeon” in Baker’s basement (”They called it a ‘dungeon,’” says Baker, “I called it my ‘playroom.’”), and exhibited videotape of Baker’s SM sessions with several sex partners– edited by the D.A.’s office for lurid effect. The limo driver had neither participated in the basement play sessions nor seen the video footage, but prosecutors were able to use these elements to portray Baker as degenerate. (The irony of a culture that revels in punishment taking exception to sadomasochism seems to have been lost on Baker’s prosecutors.)
Outsiders often take fantasy elements of the leather-and-bondage scene literally and misread SM sex play as sinister. The left-wing feminist screed Against Sadomasochism describes SM as an attempt “to replicate the phenomenology of oppression through role-playing,” and stigmatizes the practice as abusive and politically unacceptable. Right-wing zealots like Kinsey debunker Judith Reisman promote the idea that SM links gay men to Nazis. Whatever his personal politics, the staid, middle-aged, heterosexual presiding judge readily bought the idea that Baker’s lifestyle was sufficiently degraded to frighten and intimidate a vulnerable employee.
The degree to which Baker’s alleged victim was coerced, if at all, would seem to have warranted less than a decade’s imprisonment. But in 1991 Judge Barton could not have anticipated that Baker would not only serve every day of the ten-year sentence he imposed, but remain in prison after it ended.
At the Massachusetts Treatment Center, a secure facility topped by a watchtower and ringed by tall chain-link fences festooned with razor wire, over 180 civilly committed prisoners coexist with about 350 state inmates. Baker and 47 “civils” share a unit designed for 24 persons. Lights burn brightly all day; noise is constant. Inmates are taunted by guards and by one another.
The environment strips self-esteem away and replaces it with emotional pain that Baker describes as “a large sequestered anger.” As a 32-year-old civil prisoner named Ron discovered recently, an inmate’s anger can be cited to justify his civil commitment. Imprisoned past the end of a lengthy sentence for sexual contact at age 16 with a younger boy, Ron finds anger hard to defuse.
Similar facilities in other states are typically administered by the indigenous department of mental health. The Massachusetts Treatment Center, whose therapeutic programs are provided by outside contractors, is completely under the thumb of the Commonwealth’s Department of Correction.
At all such facilities, the inmates are subjected to an array of therapeutic protocols and diagnostic tests, including aversion therapies aimed at associating sex with bad odors, penile plethysmography (see The Guide, February 2002), drug therapies, and group sessions. At many treatment centers, one-on-one interactions between therapists and inmates are confined to psychological testing and such questionable exercises such as EMDR– Eye Movement Desensitization Response. Confidentiality does not exist.
The nature of an inmate’s offense may have minimal bearing on his treatment program. As journalist Mark McHarry states in his November 2001 Z Magazine analysis of sex-predator laws (http://zmag.org/zmag/articles/nov01mcharry.htm), “Many programs are not individually tailored but employ a cookie-cutter approach for everyone from an older violent rapist to a young adult man who had consensual sex with his underage girlfriend.” Gay inmates are often at the mercy of therapists who behave as if homosexuality had never been removed from the Diagnostic and Statistical Manual of Mental Disorders. At Minnesota’s Moose Lake treatment facility, where more than half the 147 inmates are gay or bisexual, there is no gay-identified staff member.
Release, rarely granted, depends on self-incrimination and remorse. Protestations of innocence are interpreted only to mean that the inmate is “in denial.” Inmates are required to recognize the damage done to victims, even when those “victims” were consenting partners. In determinations of sexual dangerousness, the burden of proof is placed squarely and impossibly on the inmate.
This is not to say that the inmate is in any way master of his fate. Decisions on whether to institute or terminate civil commitment can be based on biased and tamper-prone risk-assessment schemes. Many of these criteria are the invention of Ottawa-based penal psychologist R. Karl Hanson, whose best-known risk scale, Static-99, is widely used in North America, Europe, and Taiwan. Ira Silverman’s unfavorable Static-99 assessment of Al Baker was a point of contention in Baker’s probable cause hearing.
Static-99, which is supposed to measure the long-term risk potential of males over 18, tallies ten factors: prior sexual offenses, prior sentencing dates, convictions for non-contact sex offenses, current and prior convictions for non-sexual violence, victims who are relatives, victims who are strangers, male victims, the offender’s age at the time of the evaluation, and whether or not the offender is married. The test’s biases emerge most clearly in its interest in male victims and the subject’s marital status.
Prosecutors rely on a growing number of mental health professionals who seem eager to exploit such biases while crafting made-to-order portraits of sex offenders as predatory beasts. The new term sex predator semantically determines public perception not only of violent sex criminals, but of sexual dissidents. The discarded term psychopath might at least suggest a human being in need of help; the word predator evokes some non-human, malevolent entity, like the creature in Alien. In the early 21st century, sex-offender legislation is the art of conjuring monsters.
The erosion of Constitutional protections for sex offenders– or anyone ensnared by the American criminal justice system– began in the Nixon era, when the Supreme Court under Chief Justice Warren Burger began to chip away at rights established by the liberal Warren Court. In the Reagan-dominated ’80s, Republican denunciations of civil libertarians as “soft on crime” gained credibility. When the Reagan Administration’s Task Force on Violent Crime sought fewer strictures against use of illegally obtained evidence, and endorsed preventive detention, Middle America seemed to approve.
As David Rudofsky of the Defender Association of Philadelphia pointed out in a 1984 essay, the idea had arisen that “adherence to constitutional protections for the accused is incompatible with effective law enforcement.” Rudofsky observed that the typical end result of law and order campaigns is “enhancement of state power at the expense of individual rights, but virtually no reduction in crime.”
The observation remains accurate. Continuing the mission of the Burger Court, the Rhenquist Supreme Court is applying itself to disassembling the rights of the accused and the rights of the convicted. Meanwhile, John Ashcroft’s Justice Department works to convince Congress and the American public that new and extraordinary powers of law enforcement are needed to meet the occasionally overlapping threats of terrorists and free-range perverts.
Those expanded powers give the US government the means of probing more deeply into the private lives of all Americans. They provide officials with the means of creating new sex criminals at their convenience. At the very least, they represent a return to the days when J. Edgar Hoover’s FBI could seek to discredit a Martin Luther King, Jr. by delving into his love life.
Constitutional protections have weakened since the days of the civil rights movement. As legal scholar Sherry Colb warns in commentary published online by FindLaw.com, the Rhenquist Court’s approval of civil commitment for sex crimes “puts all of our rights in jeopardy– for if criminal procedure protections can be stripped away merely by calling an individual ‘mentally abnormal’ and impaired in his ability to control impulses, the protections become matters of sovereign grace rather than clear entitlement.”
Some citizens are fighting back. Although the American Civil Liberties Union has, in the words of one criminal justice activist, been “next to useless” in safeguarding the rights of sex offenders, the ACLU of Illinois is helping four civil inmates at the Joliet Correctional Center sue the state for adequate treatment. In Minnesota, Moose Lake inmates have secured a Patients’ Bill of Rights and a Resident Advisory Council– following, says openly gay inmate and Council cochair Rodger Robb, “two years of nasty fighting.”
There are grassroots efforts to counteract demonization with compassion. Families and friends of civilly committed inmates– and inmates themselves– have formed Citizens for Reform (www.geocities.com/citizensforreform/Citizens_For_Reform.html), a national network attempting to change the system and improve the lot of civil prisoners. “Some of these individuals did horrible things,” says Citizens for Reform coordinator Deanette Cole, “but they’re people. They’ve done their time. The system is unjust and expensive and it simply doesn’t work.”
Founded in 1998 by Tamara Menteer of Ollala, Washington, the Whitestone Foundation (www.whitestonefoundation.net) has religious underpinnings that include a belief in forgiveness and “God’s unconditional love of mankind.” The organization serves as a practical clearinghouse for information about sex-offender treatment and restorative justice. Its mission is “to increase dialogue and critical analysis of civil commitment nationwide” and “to empower those involved in such schemes to create fair programs dedicated to rehabilitation rather than continued punishment.”
Among criminal justice activists and prison reformers outside prison walls, gay men and lesbians are almost invisible. The indifference of middle-class progressives, both gay and straight, to the plight of civilly committed sex offenders may be as attributable to distaste for the predominantly working-class prison population as to revulsion toward its crimes. The gay movement, now dominated by wine-and-cheese corporate groupies (some of whom may even have sex with their limo drivers), has ceased to care about civil rights in a meaningful way.
In his recent book Sex-Crime Panic, Lambda Literary Award winner Neil Miller describes a group of gay men’s involuntary internment in an Iowa mental hospital in the 1950s. He examines the panic that produced the incident, but fails to relate it to the sex-crime panic of the present day. Asserting incorrectly that “at least [current laws] do target people who have committed violent sexual offenses,” Miller reaches the virulently naive conclusion that “If something similar happened today, gay political and legal organizations– to say nothing of the American Civil Liberties Union– would jump into the fray.”
Miller is expressing a delusion that pervades the gay community. Those who cling to the myth of constitutional protection might well take a closer look at what remains of that protection, and ask whether democracy can be said to exist in a country whose criminal justice system is fundamentally flawed and unfair.
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