Law \ Legal

25 Years After Court Ruling, Released Sex Offenders Endure ‘Shadow Prisons’

On June  23 1997, the U.S. Supreme Court, in Kansas v. Hendricks, upheld the practice of detaining people convicted of sexual offenses beyond prison sentences under the guise of treatment.

The landmark 5-4 ruling also concluded that the Kansas law governing the practice did not constitute  double jeopardy since it merely authorized “civil” rather than “criminal” commitments.

Taken together with  Kansas v. Crane, a 7-2 ruling announced in 2002  that denied requiring a set legal standard for determining “behavioral abnormality” in civil commitment proceedings, the  High Court in effect created a purgatory for persons who have served their sentences but are subject to indefinite detention based on fears that they are a danger to the public.

At least 20 states have involuntary sex offense civil commitment programs. So does the federal system.

A headline in Reason Magazine over a story by Jacob Sullum effectively summed up what such programs amount to: “Civil Commitment of Sex Offenders Pretends Prisoners Are Patients.”

There’s a good reason why critics refer to these programs as “shadow prisons”:  They resemble prison in all but name.

In a 2015 Op Ed for the Minnesota Star-Tribune,  former Minnesota State Senator Don Betzold said of the controversial Minnesota Sex Offender Program (MSOP):

The sex offender treatment program is like a prison — only worse, because there’s no ‘out’ date. The Moose Lake building was designed as a maximum-security prison. The treatment program has been led by some state employees who came from corrections backgrounds.

Many treatment programs are located within prison complexes and refer to those detained within as “prisoners.” Some are run by private prison companies.

The civil commitment program in Littlefield, Tx.,  is run by Management and Training Corporation (MTC), a private prison company. The MTC calls those detained in the facility “prisoners.” The Littlefield facility was once used as a private prison, until it shut down after one prisoner committed suicide.

Some prisoners wear ankle monitors or are left in solitary confinement for months at a time.

Texas had once created an innovative “outpatient civil commitment program,” but after scandals involving the judge of the dedicated civil commitment court and mismanagement of halfway houses by the state’s Office for Violent Sex Offender Management (OVSOM), the Texas legislature created a series of “reforms” that led to the creation of an “inpatient” facility in 2015.

Shadow prisons posing as treatment are not limited to Texas.

Susan Keenan Nayda, Vice President of Operations at Liberty Behavioral Health Corporation, testified during a deposition her thoughts on the Florida Civil Commitment Center in Arcadia, Fla.:

There’s a little bit of confusion…What is this place? Is it a prison? Is it a mental health center? A residential treatment facility where people are clients? What is it? We ask that question sometimes too. We really don’t have a lot of guidance around what it is the state wants the facility to be, and we would encourage the state to look at that.

A lack of adequate treatment and a program designed to keep people detained as long as possible are common themes in civil commitment programs.

It is not uncommon for these programs to undo years of treatment “progress” for minor violations. Between 1999 and 2015, Texas Health and Safety Code §made minor program rules violations a felony offense.

In Minnesota, extremely high staff turnover rates often lead to detainees frequently starting from scratch.

As a result, few indefinite detainees are ever released from these shadow prisons.

Minnesota has not released anyone until 2015 and only due to a federal lawsuit. Since 2015, 15 people have been released  from the MSOP, while at least 88 have died. In Texas, TCCO claims they have released 13 prisoners and only three died, but protesters have countered by stating the number is closer to six releases and at least 29 deaths.

Civil commitment proponents know these programs do not work but will actively suppress studies that prove the programs are ineffective. California suppressed a study by Atascadero psychologist Jesus Padilla in 2006 which found those deemed “high risk” and released from the state civil commitment program reoffended at the same rate as those released from prison but were not considered a high risk to reoffend.

Padilla’s records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.

There is a profit motive for keeping this civil commitment scheme afloat. Shadow prisons are lucrative business.

A 2021 study estimated there were 4,321 “inmates with child victims in high-security sex offender civil commitment facilities” with an annual average cost per inmate of $139,489. Civil commitment programs cost taxpayers roughly $538 million in 2021. The average cost of incarceration is far less.

As the US economy is seeing inflation at levels not seen in decades and a looming recession, Americans should be looking to trim pork barrel spending. Sex offender civil commitment programs are costly and ineffective.

derek logue

Derek W. Logue

These programs are merely extensions of prison intended to make people feel safe but provide no actual benefit to society. As with other sex offense laws life the public registry, these laws only serve to extend punishment beyond a court sentence.

For all these reasons, civil commitment must be abolished.

Derek W. Logue is a Nebraska registrant and activist for the rights of returning citizens, and founder of the sex offense education and reform website

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