Program for Violent Sex Offenders Under Scrutiny

By Amanda Iacone, Virginia Statehouse News Sunday, July 17, 2011

RICHMOND - Virginia taxpayers are spending about $150,000 per year for each sexually violent person the state chooses to commit civilly commit after the offender completes his prison sentence.

Hundreds of sexual offenders are expected to be released from state prisons this year; about one percent of those offenders each year end up in a state-run mental health institution in Nottaway County. The population at the Virginia Center for Behavioral Rehabilitation is expected to peak this summer at over 300 men.

Their stay is indefinite and costly to the taxpayer. Although they are being held to receive psychiatric treatment, there are serious questions whether these individuals can be effectively treated.

The population of violent sexual predators at the Virginia Center for Behavioral Rehabilitation is ballooning as judges send more offenders to the facility and few leave.

Governor Bob McDonnell asked for additional funding this year to add a second treatment hospital in nearby Brunswick County, but lawmakers cut the funding from the budget. Legilsators also dragged their feet to fully fund the existing facility, instead requiring that the patients double-bunk for now.

This summer a joint legislative committee is reviewing the program to ensure that only the worst offenders are committed to Nottoway. The committee is also checking whether the 10-question assessment tool the state uses is effectively screening offenders.

Offenders are assessed during their final 10 months in prison to determine whether they should be ordered into the program. About 20 percent of the offenders eventually go before a civil judge, who determines whether they are sent home or sent to the predator program, which is known as a civil commitment.

Few lawmakers question the intent of the program. But legislators do question the cost of the program and wonder whether the state is obligated to pay for treatment if treatment isn’t helping.

Although the program has operated since 2003, questions also remain whether it violates offenders’ rights and whether it protects the public.

“It is literally the most important program in the entire state of Virginia because the people who are put in this facility are 99.99 percent certain to molest a kid when they get out,” said Delegate David Albo, R-Fairfax, who was a co-sponsor of the original authorizing legislation. “Having them in this facility literally saves children from being raped. All that sounds extreme; it is that dire.”

Albo said he believes the program is working and that all of the offenders housed in the Nottoway facility belong there. Although costs have skyrocketed, Albo said the program is worth the hefty price tag and should be funded before any other state program.

The legislator said he would be willing to consider reducing the number of crimes that make offenders eligible for the state’s screening process. He wants to see the results of the legislative study, which is expected in November.

Sharon Reed has spent her career working with the victims of sex crimes — both young and old — and she said it’s tax money well spent to keep child abusers off the street.

“For most of my victims, their worst fear is re-encountering the offender,” said Reed, the director of the Washington County Victim/Witness Program, which helps victims navigate the justice system. “We’re a small community. They’re going to pass them somewhere, the Walmart, the Food City.”

She said she wishes there were effective treatments for sexual predators to keep them from offending. But the state’s civil commitment program is the next best thing because it keeps them from returning home, Reed said.

Scientific study results on whether treatment helps sex offenders from re-offending are mixed, said Roxanne Lieb, associate director of the Washington Institute for Public Policy and an expert on sex offenders. The institute is the nonpartisan, research arm of the Washington state Legislature.

The results depend on the type of sex offender and the offender’s history. Behaviors can improve with age for some; others learn to accept that their behavior is not culturally accepted and try to curb their urges, Lieb said.

Still others will never be able to stop re-offending regardless of treatment. Even castration —  chemical or surgical —  isn’t a sure-fire fix, Lieb said.

The U.S. Supreme Court has determined that governments can isolate violent sexual offenders to protect the public as long as the offenders receive treatment, she said.

“You don’t have to know what you are doing is going to turn people around,” Lieb said.

The American Civil Liberties Union says civil commitments violate an offender’s due process rights because the offenders essentially serve an indeterminate sentence in the institutions, said Kent Willis, director of the ACLU’s Virginia Chapter. The ACLU is a national nonprofit that works to protect constitutional rights including freedom of religion and equal protection rights especially as they apply to minorities, the disabled and prisoners.

“A fundamental principle of the United States is that you have due process rights when you’ve been accused of a crime. It should apply to everyone equally; this includes sex offenders and murderers as well as people who commit minor crimes. It’s a fundamental notion of fairness in the criminal justice system,” Willis said. “What you can’t do is put someone behind bars until you feel like letting them out. That’s what’s happening here.”

He said the ACLU also questions whether Virginia’s program meets the minimum requirements laid out in a U.S. Supreme Court ruling, based on a Kansas program.
That ruling led the way for many states, including Virginia, to create civil commitment programs even though Virginia had never discussed the concept before the Supreme Court’s decision, Willis said.

Virginia passed its authorizing legislation in 1999. During debate, legislators were concerned about violating offenders’ due process rights. But they were more concerned about the cost of the program. The legislation passed easily but without any funding, Willis said.

Mary Devoy is one of the few people in Virginia who advocates on behalf of sex offenders. The wife of a registered sex offender, she is the director of a group called Reform Sex Offender Laws of Virginia, which seeks a more-even handed approach to investigating, prosecuting and punishing sex offenders.

She said the state’s civil commitment program overreaches and that the assessment process is rife with problems.

“It needs to be returned to the four original crimes. We keep widening the net,” she said.

Devoy said the 10-question test, which is used to weed out offenders that could be committed, focuses on an offender’s past criminal history but doesn’t take into account how they’ve responded to any therapy they’ve received, if they admitted their guilt, or whether they’ve apologized to the victim.

“It has nothing to do with your possible future of re-offending. It was all about your past behavior. That’s not the way we should be judging if people are predisposed to re-offend,” she said.

Delegate Johnny Joannou, D-Portsmouth, was one of the few lawmakers who voted against the authorizing legislation that set the framework for the state’s civil commitment program. He agreed with Devoy that the number of crimes that make offenders eligible for the program needs to be scaled back so that only the worst and most violent offenders are housed in Nottoway.

The more offenders who enter the facility, the more nurses and support staff are needed, Joannou said. He questions why the state should pay for such a program when developmentally disabled adults and children wait years to receive state benefits.

“It’s so costly now. I don’t know how we’re going to fund it,” Joannou said. “What do you cut, aid to children who desperately need it?”