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Sex predator law still stirs debate
Judge to decide whether to fine Special Commitment Center
Monday, April 17, 2000
By ELAINE PORTERFIELD
To the state, despite the guard towers and razor wire, it's a mental health facility designed to hold and treat those deemed likely to rape or molest after getting out of prison.
To defense lawyers and civil libertarians, it's a gulag -- a place where the state holds men indefinitely without real psychological care and with a blatant disregard for constitutional rights.
The number of sex offenders held there will have risen from four in 1991 to about 139 by the end of next year, increasing costs even more. It seems residents keep checking in, but the state has never willingly let anybody out.
Judge refuses to give up his final landmark case
It's a program that began as a model for the nation in protecting the public from dangerous sex offenders. Ten years later, it's now viewed by some states as a cautionary tale in what not to do when crafting such a program.
In Virginia, for example, members of a commission studing civil commitment laws modeled after Washington's called them a "hornet's nest of fiscal, constitutional and practical problems."
Other states have chosen to concentrate on intensively managing sex offenders in the community after their release from prison, or on creating transitional community housing that moves sex offenders out of total confinement to avoid the legal and ethical problems that have cropped up in Washington.
One thing is clear: The state's program still inflames passions on both sides of the debate.
"We do have a safer community today" because of the law, insists King County Prosecutor Norm Maleng, one of its chief architects.
Former Seattle University law Professor John La Fond's counter: "This incredibly stupid and incomprehensible insistence that sex offenders must be incarcerated for a lifetime at inordinate expense to safeguard the public is just plain wrong."
Tomorrow, a federal judge overseeing the McNeil Island center will began hearing testimony on whether the facility should be fined more than $38,000 a week for problems ranging from poor living conditions to a lack of release plans for the residents being held there.
The center, run by the Department of Social and Health Services, indefinitely holds sex offenders deemed at high risk to reoffend after they've completed their prison sentences.
Washington's sex predator law was the first program in the nation when it was created by the Legislature in response to public outrage over the Pioneer Square murder of one woman and the sexual mutilation of a 7-year-old Tacoma boy in the late 1980s. Both crimes were committed by known sex offenders.
In the decade since the center opened, not a single resident has been released without a court order. Only five men committed to the facility have ever left it.
Even the center's director concedes many residents may never leave. In testimony in January before the House Committee on Criminal Justice, Mark Seling told lawmakers: "I don't think it's reasonable to expect that everyone who comes in is going to get out. . . . If we end up in (future) years releasing half as many people as we admit, that may be reasonable."
La Fond, who has studied similar laws nationally, said he is floored by Seling's prediction.
"If that's his statement, then the state of Washington should declare bankruptcy right now," because of all the lawsuits that would undoubtedly be filed, La Fond said.
The U.S. Supreme Court upheld the sex predator statute as constitutional in 1997, based on a Kansas law modeled after Washington's. Today, 15 states have such laws.
The Special Commitment Center, which now oversees 110 men and one woman held in a separate facility, has proved extraordinarily costly for taxpayers. It now costs more than $12 million annually to operate the center, nearly twice what the state shelled out two years ago.
The law also spawned an endless round of litigation through state and federal courts, including an ongoing six-year injunction slapped on the center by U.S. District Judge William Dwyer in Seattle.
That injunction is the focus of tomorrow's court hearing.
In November, Dwyer found the center in contempt for a number of failings, ranging from poor living conditions to a lack of meaningful therapy. If his ordered improvements aren't made by May 1, the judge says, he will fine the state $50 a day per resident at the center.
Washington already has paid for problems associated with the SCC. In 1998, the state -- while admitting no liability -- agreed to pay 16 sex offenders at the center $10,000 apiece for failing to provide adequate mental-health treatment, among other problems.
Complicating the legal problems surrounding the center, the U.S. Supreme Court agreed last month to hear the case of SCC resident Andre Brigham Young, who alleges the center acts as a prison, not as a mental-health hospital, thereby violating his individual civil rights.
If the high court agrees with him, it could send his case back to U.S. District Court, where a judge could order his release -- perhaps clearing the way for the release of other sex predators.
Bob Boruchowitz, head of the Defender Association in Seattle, said he is pleased the nation's high court will consider Young's case. Boruchowitz said there are so many flaws with the state's sex predator law and the way the Special Commitment Center is run that the case begs for review.
"The state should not be permitted to corrupt true mental health commitment law by the charade of the 'predator' statute," Boruchowitz said.
Even state Rep. Ida Ballasiotes, R-Mercer Island, an ardent backer of the law since the 1988 slaying of her daughter by a sex offender, says she is deeply discouraged by what seems to be near-endless problems connected to the Special Commitment Center.
"There's been a lack of commitment about getting it running the way it should," Ballasiotes said. "It's just been very frustrating."
But other early supporters of the law remain staunchly behind it.
Maleng, a Republican, headed a task force responsible for drafting the Community Protection Act of 1990. Along with the creation of the sex predator law and the SCC, the act mandated the registration of all sex offenders released from prison. It also stiffened penalties for sex offenders.
Despite the legal problems surrounding the center, the law has been a superb tool for prosecutors to protect the public, Maleng said.
That is a view shared by his fellow prosecutor to the south, John Ladenburg of Pierce County, a Democrat. Ladenburg says one of the cases that inspired the law, the sexual mutilation of the Tacoma boy, still haunts him.
The boy, who was raped, stabbed and had his penis cut off, lived in Ladenburg's neighborhood.
Ladenburg's agency knew Earl Shriner had told other inmates about his plans to sexually assault children after he was released from prison. But the prosecutor's effort to have Shriner civilly committed to Western State Hospital failed.
"I was crushed, just crushed," by the attack on the boy, Ladenburg said.
Although he is also frustrated by the litigation surrounding the center, he believes the law has been used wisely by authorities seeking to commit sex offenders.
"Ten or so offenders a year for a decade is not a tremendous burden on the state," Ladenburg said. "That these people would have committed further crimes is absolutely beyond doubt. They are the worst of the worst.
"This is a very different law that has given power back to citizens to set the rules for society."
The Special Commitment Center resides within the walls of the state prison at McNeil Island, reachable by ferry from Steilacoom, near the Fort Lewis Army base.
Jagged peaks of the Olympics form a backdrop to the prison complex, while Mount Rainier looms over south Puget Sound to its front.
The center was moved to the site in 1998, from the grounds of the state prison in Monroe. The number of residents has doubled since then, and costs have jumped from $6.5 million then to about $12.3 million this year. Approximately one in every three dollars of the money is spent on legal fees connected to the center, according to the state.
The cost per resident is now about $130,000 annually -- more than five times the average annual cost of keeping an prison inmate.
Judge Dwyer criticized the state in November for a lack of clear release plans and inadequate mental-health treatment. Without solid therapy, center residents can't improve to the point where they can be released, a critical point in the constitutionality of the program, he concluded.
"The (residents), and others involuntarily committed, cannot simply be warehoused and put out of sight; they must be afforded adequate treatment," Dwyer wrote in his contempt ruling.
The judge also castigated the center for failing to draft progress and treatment reports for each resident. "There is still no coherent and individualized treatment plan for each resident, complete with understandable goals and a road map . . . showing the way to improvement and release," Dwyer said.
Other problems included the fact that the center was improperly housed in grim and cramped conditions on McNeil, where the prison, run by the Department of Corrections, improperly dominated the center, the judge wrote.
He also took authorities to task for continuing to monitor and restrict the telephone calls of residents, despite his previous orders to the contrary.
Allen Ziegler, the No. 2 administrator at the center, concedes the center has had a rocky past. But Ziegler, a veteran DSHS manager who came to the SCC in August, says substantial, solid progress has been made at the facility since Dwyer ordered improvements.
"I think we have major strides forward within the treatment environment and with hiring staff," Ziegler said. "There's been progress. It's a sincere effort."
Progress includes the fact that by the end of April, 94 percent of the staff will have at least minimal training in mental health, he said.
"We're seeing a difference in our staff confidence levels," Ziegler said.
There is also more opportunity for residents to pursue spiritual goals, he says; there is better access to a prison chapel and a sweat lodge for Native American residents. Residents will be able to take college courses soon and now have increased access to a large exercise yard. And men at the SCC can now make outgoing phone calls using prepaid phone cards.
Most important, the center expects to release in the next six months up to three residents who SCC therapists believe have made satisfactory progress in therapy, Ziegler said. The three would be strictly supervised in whatever living situation they go to, whether it be transitional housing or a family member's home.
An independent, court-appointed expert -- known as a special master -- has periodically investigated conditions at the center since Dwyer placed it under injunction. That expert, psychologist Janice Marques, noted in her most recent report to the court that improvements appear to be under way.
In particular, staff training, mental health treatment and record keeping seem to have improved, Marques said in her report, released earlier this month.
Dwyer will use the report, along with testimony and evidence presented at tomorrow's hearing, to determine whether to continue the injunction or impose fines against the state.
Seling, a psychologist who has been the center's director since 1996, anticipates that moving some residents into less-restrictive community placements promises to be a tough sell with the public.
No one wants men tagged as sex predators -- even ones who have graduated from intensive therapy and who are closely supervised by authorities -- living in their neighborhoods.
That was certainly true in 1997 when Joe Aqui, a serial rapist, became the first man released from the SCC after completing treatment. He moved to the small Eastern Washington town of College Place, where local reaction was swift and angry. Dozens of town residents packed emotional community meetings and demanded he be moved elsewhere.
La Fond, the law school professor, said community placement is where Washington should be headed. The vast sums channeled into keeping the SCC afloat with its relatively few residents could be far better spent assessing the dangerousness of sex offenders coming out of prison and intensively supervising in the community those deemed at high risk for reoffending.
Much more is known today about sex-offender treatment and management than when the sex predator law was passed 10 years ago, he said.
"Arizona has a very aggressive system of lifetime probation," he said. "They have urinalysis, restrictions on where they can go, electronic home monitoring."
The same is true in Texas, a politically conservative state that has chosen intensive community management of sex offenders rather than a civil commitment center.
"My viewpoint is not just the liberal viewpoint," La Fond said. "What if that (SCC) money was spent on monitoring 1,000 or more sex offenders in the community? I personally think Washington would be a safer place."
But such a sea change would be difficult, La Fond said, because no politician wants to be seen as easy on rapists or child molesters.
"It's terribly hard politically," he acknowledged. "But I think the time is right to convene a public policy group to see . . . if there is a more effective and less costly way of protecting the public."
Certainly, the law still has the backing of the state's top elected official. Gov. Gary Locke, a former prosecutor, said recently that although expensive, the state must fund the SCC.
"We have always known this would be a costly program, and we have been willing to pay the price to keep our children and our communities safe," Locke said. "The alternative is a dangerous gamble with public safety."
A timeline: 1988 1989 1990 1993 1994 1995 1997 1998 1999 2000
P-I reporter Elaine Porterfield can be reached at 206-467-5942 or elaineporterfield@seattle-pi.com
SEATTLE POST-INTELLIGENCER REPORTER
The place is the state's Special Commitment Center for sex predators, a facility under fire since its inception in 1990. It has cost taxpayers tens of millions of dollars. It promises to cost taxpayers tens of millions more, if state lawmakers approve a proposed $81 million new home for the program.
Related stories:
Aqui is proving skeptics wrongState held in contempt
Five times the cost of a prison
Selling the community
Developments in sex predator law
Diane Ballasiotes is murdered in Pioneer Square by a convicted sex offender on work release.
February: A 7-year-old Tacoma boy is stabbed, choked with a rope and sexually mutilated by Earl Shriner, a convicted sex offender. State officials had unsuccessfully attempted to have Shriner committed to Western State Hospital after his prison release.
State Legislature passes the Community Protection Act, allowing authorities to seek indefinite civil commitment of sex offenders, lengthening sentences for sex crimes and requiring sex offenders to register with police.
The Washington Supreme Court upholds the sex predator law as constitutional.
U.S. District Judge William Dwyer issues an injunction ordering the state's Special Commitment Center (SCC) housing sex predators to hire better-trained staff, develop better treatment and release plans, and improve facilities. The injunction remains in effect.
A federal court in Seattle finds the law unconstitutional.
January: Joe Aqui, a former serial rapist, is the first person to be released from the SCC on a judge's order after undergoing psychological treatment.
June: U.S. Supreme Court rules 5-4 that the civil commitment of sex offenders is constitutional, even after their prison sentences have been served. The court makes its ruling based on a Kansas law modeled after Washington's.
The state agrees to pay 16 sex predators $10,000 apiece for failing to provide adequate mental health treatment at the SCC.
Judge Dwyer holds the state in contempt and says he will fine it $50 a day per resident if his ordered improvements aren't made at the SCC.
U.S. Supreme Court agrees to hear the case of Washington sex predator Andre Brigham Young, who argues that his confinement at the center is punishment, not treatment. Washington Supreme Court and 9th U.S. Circuit Court of Appeals earlier issued conflicting rulings in Young' s case.
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