Questions Rise Over Imprisoning Sex Offenders Past Their Terms
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By LAURA MANSNERUS The New York Times
KEARNY, N.J. ? Robert Deavers, guilty of two rapes, has done his 20 years in prison. He still has not been freed. Instead, for five years, he has been locked up by state officials who are worried about what he might do.
Mr. Deavers took another try at gaining his release in the fall of 2002 at a hearing, his third. The subject was his state of mind, and he quickly lost hope.
A state psychiatrist who had interviewed him briefly told the closed, nearly empty courtroom that Mr. Deavers tended to self-righteousness and had been taken to task in group therapy for being overconfident.
A psychologist who had never met him but had reviewed his records said he was egocentric. There was much testimony about an incident in which he had bumped into a female guard.
By noon Mr. Deavers knew what would happen a month later: the judge would rule that he was too dangerous to be released.
Back in his room, Mr. Deavers resumed his role in a fiercely debated but politically popular system of preventive detention used by New Jersey and 15 other states. In hearings here at the Northern Regional Unit at Kearny, a Department of Corrections center, men who have finished their prison terms are involuntarily committed as psychiatric patients and, with a handful of exceptions, are recommitted each year.
Mr. Deavers is one of 287 "sexually violent predators" in two high-security psychiatric centers in the state.
The law has long allowed the commitment of mentally ill people who pose an imminent danger to others. But the detention of these men, many legal experts say, is a striking departure from the principle that people who are not mentally ill may be confined only for their acts, not their thoughts.
In yearly review hearings, the men are judged by their sexual tastes and fantasies ? or what psychiatrists suppose to be their fantasies ? as well as their performance on psychological tests, their attitudes toward authority and their willingness to acknowledge their crimes and disorders.
Many are rapists or child molesters, and the fear that they might commit more of the same crimes is grave. In 1998 New Jersey ? like other states reacting to murders by sex offenders with previous convictions ? authorized the commitment of anyone who has served time for a sex crime and is found to have a "mental abnormality or personality disorder" that makes him likely to commit another crime. These men are to be given treatment, chiefly group therapy, until they are judged no longer dangerous.
Five years later, only a handful have been released, and critics of the commitment process ? psychiatrists, civil-liberties advocates and even some early supporters of the law ? are concerned that it is merely an exercise rigged to keep sex offenders locked up for a lifetime.
One Kearny resident, committed after five years in prison for having sex with a teenager, said, "I'd be better off if I'd killed him."
The process is severe for a purpose: dealing with a type of criminal that society regards as dangerous, devious and manipulative.
New Jersey's law is considered one of the strictest, prompted in part by the 1994 rape and murder of a 7-year-old, Megan Kanka, by a neighbor who had served two prison terms for sexually assaulting children.
Supporters of the law note that most of those committed are repeat offenders, and say they warrant every effort to determine whether they might commit future crimes. As hard as it may be to predict behavior, they say, the alternative is waiting for another rape.
Yet because of the secrecy surrounding the law, few of those supporters know how it has been put into practice.
New Jersey, more than most states, seals the commitment process from public view. It is one of three states that do not have juries at the hearings, which are closed to protect patients' confidentiality. Patients' names never enter any public record. The decisions of the two Superior Court judges who handle all the cases are sealed.
But in a half-dozen recent cases, a New York Times reporter was allowed, with the patients' permission, to attend hearings at Kearny. Those proceedings ? along with interviews with lawyers who represent sex offenders, with some current and former state employees and with more than a dozen patients ? offer a glimpse into the workings of the Sexually Violent Predator Act.
The proceedings are a mix of psychiatry and law that according to many in both professions, blurs distinctions the system has long made between the mad and the bad.
The hearings are roughly modeled on commitments for the mentally ill, but with a key difference. In a regular civil commitment, the focus is on the patient's current state of mind; crimes committed long ago are usually not considered relevant. In the hearings at Kearny, however, criminal records are considered critical evidence of the patient's thoughts, behavior and possibility of committing future crimes.
Since the patient's state of mind is at issue, almost any information about him is admissible, including much that would be barred in a criminal proceeding, like hearsay evidence, evaluations written years ago by the police or psychiatrists, statements to therapists and the patient's own writings.
Critics say the hearings deny offenders both the legal protections of a criminal prosecution and the sound medical grounding of a regular civil commitment case. They say the diagnoses ? framed by lawmakers rather than doctors ? are so vague they could apply to millions of people. By rummaging through a patient's past and psyche, they say, the state can always find a reason to keep him confined.
Several people who have worked in the system told of prosecutors' shopping for psychiatric opinions and of exaggerated, even erroneous testimony and public defenders too overwhelmed to organize a proper defense.
It is hard to find anyone working in the system to speak about the process. All the state agencies involved declined requests for interviews with officials; the public defender's office and the attorney general's office answered some written questions.
John Kip Cornwell, a law professor at Seton Hall University who testified in support of the sexual predator bill and still backs it, said that it was difficult to draw distinctions between the truly dangerous and the merely criminal but that those judgments could and should be made. Psychiatry is an inexact science, he said, but the hearings do allow expert testimony from each side.
Still, he is concerned that the process focuses on the patient's criminal record, "and then once you're in, it's tough to get out."
Other backers of the law have similar qualms. Five years ago the New Jersey Psychiatric Association broke with its national parent organization and supported the predator law, to assure psychiatrists a role in the process.
Has the law worked as hoped?
"Let me put it this way," said Dr. David A. Reskof, chairman of the association's forensic psychiatry committee. "How many people have been committed to Kearny? And how many have come out?"
Days Before Freedom The secret process begins, aptly, with a surprise. Days before they are to be released, inmates are notified that they will be sent to Kearny.
Candidates for commitment are identified by the Department of Corrections shortly before their release dates. The attorney general's office screens the cases and seeks commitment of about 45 percent of those offenders, said Barbara Waugh, the assistant attorney general who supervises the cases.
"This is not something we take lightly," Ms. Waugh said through a spokesman. But she said the office had no written guidelines for the screening process, which is under challenge in federal court. In a class-action suit, patients contend that it is unconstitutionally arbitrary; the state has not replied.
To get a temporary commitment order from a judge, the state must present two medical recommendations. One psychiatrist who supplied them, Dr. Gerald Groves, said that sometimes, if he advised against committing someone, "the institution might go find another psychiatrist who would be willing to commit."
The offender then awaits an initial commitment hearing. There, the state presents its diagnoses and usually argues that the offender has shown an inability to control his deviant impulses, which in turn shows a high likelihood of committing another crime. The state wins 95 percent of those cases, according to the attorney general's office, and even more of the annual review hearings that follow.
In five years, 11 patients have been released out of 302 committed, according to the Department of Corrections, which would not say why. The state has recommended none for release.
Courts around the nation have upheld violent-predator statutes since Washington State enacted the first in 1990, but have expressed concerns. The United States Supreme Court cautioned in 1997 that a commitment must have a psychiatric basis and cannot be a mere extension of punishment, and it held last year, in upholding the Kansas law, that states must establish an offender's "serious difficulty in controlling behavior" before committing him.
The New Jersey Supreme Court ruled last year that the offender must be found "highly likely," not just more likely than not, to commit further sex crimes.
But experts say none of those rulings have had much effect.
Dr. Paul Appelbaum, a past president of the American Psychiatric Association and an authority on psychiatry and the law, said the United States Supreme Court had ratified a vague standard that gave wide discretion to prosecutors and judges.
The association has called the predator statutes "a serious assault on the integrity of psychiatry," objecting to the use of statements made in psychotherapy as evidence against patients, and the use of the mental health system for people who are not mentally ill. (Like most states, New Jersey has a separate hospital for violent criminals who are mentally ill.)
"It's hard to know where to start because the whole thing is so crazy," Dr. Appelbaum said.
Many of those familiar with New Jersey's process say the diagnoses, which need not include specifically sexual disorders, are often highly debatable.
Dr. Timothy P. Foley, a forensic psychologist who has testified for both sides in commitment hearings, said one common diagnosis ? "personality disorder, not otherwise specified," or N.O.S. ? could apply to "anybody who's interesting."
"I would diagnose myself with personality disorder, N.O.S.," he said.
Most psychiatrists and psychologists also say they can never reliably predict recidivism, which Justice Department ( news - web sites) analyses show is lower among sex offenders than in the general criminal population, though it varies greatly by offense.
The state often cites patients' denials ? or playing down ? of offenses as evidence that further treatment is needed. But most forensic studies have found no link between denial or hostility to treatment and future crimes.
Proponents of the sex-offender laws say it is the responsibility of the legal system to make that difficult prediction.
"That's the way the law always works," said Richard Samp, the chief counsel of the Washington Legal Foundation, a conservative group that filed a friend-of-the court brief supporting the Kansas law. "When you're predicting the future, all you can do is ask a doctor to make his best medical judgment."
Brushing Against a Guard
Robert Deavers was the first person to be committed under New Jersey's sex-offender law. And at his last review hearing, he expected to become the first to be released.
Mr. Deavers, a 53-year-old Vietnam veteran, has a dubious history: shortly after finishing a prison term for attempted rape, he raped two women. Yet he has been considered a success in treatment, and the state attorney general's office had tentatively endorsed a plan for his release.
"I told them I'd wear a bracelet, a chip with a G.P.S. tracking device," Mr. Deavers said in an interview before the hearing. "I told them I'd urinate in a jar weekly. I'm the one who put myself in this position, so in order to make them feel comfortable I'm willing to give up some of my own civil liberties."
But in the hearing, a new problem emerged: rushing through a doorway recently, he brushed up against a female guard. Sent to solitary confinement, he went on a hunger strike in protest and refused to speak to staff members.
Mr. Deavers's public defender, Joan Van Pelt, said the incident had been an accident and not sexually motivated, and introduced the results of a polygraph test that backed him up. But the state's psychiatrist was skeptical.
"That doesn't mean he didn't have those thoughts," said the psychiatrist, Dr. Charles Gnassi. "Brushing past a woman, a man ? it's difficult, I would think, not to have some type of sexual thinking."
But it was Mr. Deavers's reaction to the incident that most concerned the state's next witness, Dr. Merrill Berger. "He didn't get it," Dr. Berger said of the guard's complaint. "He was crushed that she would feel this way. This really speaks to his egocentric view of the world."
The state contended that the incident showed a lack of self-control, which would make Mr. Deavers likely to commit another crime. The argument succeeded. The judge, Serena Perretti, found that he had been "acting against his best interest, asserting his entitlement, regardless of the rights of others."
In some states, similar commitment hearings are full-fledged trials lasting weeks, but in New Jersey, they rarely take more than a day. In most cases, the state's experts have only recently met the patient. Therapists who have treated the patients do not normally testify, since that might interfere with the treatment.
Patients often have no expert witnesses to dispute the state's findings. Many said the public defender's office had denied their requests for an independent evaluation, leaving them with no allies in court but a public defender who might have 40 other cases.
Their complaints are hard to verify; the public defender's office would say only that "occasionally" it would refuse to hire an expert "where to do so would not be reasonably expected to advance the client's case."
Most of the testimony is based on the patient's records, containing everything from juvenile charges to the notes of his therapists. Many of the evaluators' reports were written years ago and borrowed from yet older evaluations. The reports are often ambiguous or sketchy, even indecipherable.
At a September hearing for Edward Gorcica, an exhibitionist who had exposed himself to children, the state's psychiatrist, Dr. Michael McAllister, said he would tentatively add fetishism to his list of diagnoses. He said he had just noticed a statement in a 1999 psychiatrist's report that Mr. Gorcica had mentioned fantasizing about feet.
Patrick Madden, the public defender, said the handwritten report appeared to say that the patient "fantasized about women but not children." Dr. McAllister, he said, had probably mistaken the word "but" for "feet."
Judge Perretti, squinting at the document, said that was the more logical interpretation and asked the doctor if he would withdraw his statement. Not necessarily, Dr. McAllister replied. He said he had seen other reports by that psychiatrist, who was foreign-born, and that "sometimes his syntax is a bit off."
The record of a patient's crimes ? usually called "the official version" ? takes on an authority of its own, not just for its details, but also for the psychiatric interpretations it contains about those details.
"This is so much like everything that was criticized in the Soviet Union," said Margaret Smith, a criminologist who works at the Prisoners' Self-Help Legal Clinic in Newark, and is one of the few outsiders who has attended hearings at Kearny. "There's no way to contest any part of the official record without it being spun in a way that makes you look sicker."
She added, "If you say you didn't do it, that's just evidence of how much you need treatment."
A Piece of His Record William Anderson, an amateur boxer and occasional drug dealer from Newark, pleaded guilty to two felonies ? the rape of a 21-year-old woman and aggravated assault on a 12-year-old girl ? and he served seven years in prison.
But in July, at his latest review hearing, he was confronted with a piece of his record that he thought had been resolved: the specifics behind charges that were dropped when he accepted the plea bargains.
Mr. Anderson, 34, maintains that from the start, he had denied some of the accusations in police reports. That was exactly the problem, said Dr. Stanley Kern, the state's psychiatrist, who argued that Mr. Anderson posed a risk of offending again in part because he "does not fully admit to sex offenses as documented in the official records."
As Dr. Kern recounted the rape, Mr. Anderson, then 23, forced the woman to perform oral sex on him and submit to vaginal and anal sex, and then raped her anally with a flashlight.
Mr. Anderson's public defender, Ms. Van Pelt, protested that there was no evidence of an assault with a flashlight and that that charge had been dropped. Ms. Van Pelt asked Dr. Kern if he had seen the report of the doctor who examined the victim; it noted that there was "no medical evidence of any lacerations or bleeding in the genital or rectal area." Dr. Kern said he had not.
When Judge Perretti announced her decision, it was not clear what weight she had given the events of a decade ago. But she did note another detail from his record: Mr. Anderson had fathered five children by the age of 18, "only three in wedlock."
"That does clearly indicate a maladaptive pattern of behavior," she said.
She concluded, "I do not find any evidence that, given denials, rationalizations and blame-shifting, that the respondent's treatment has in any respect diminished his risk."
CG