State officials blamed lengthy delays in moving offenders to less-secure settings on staffing and space shortages.

Sixteen men who have been cleared for transfer from Minnesota’s high-security treatment centers for sex offenders are being held beyond their transfer dates, state officials say, because they lack the space and staff to treat them in a community setting.

The backlog means that these men, who are civilly committed for sex crimes, are sometimes waiting months to be moved to a less-restrictive campus in St. Peter that is designed to help them learn skills to reintegrate into society. While the need to expand that campus has been identified for years, state lawmakers have declined to pay millions more to house Minnesota sex offenders.

Now lawyers for patients in the Minnesota Sex Offender Program (MSOP) are suing the state in Ramsey County District Court, claiming the transfer delays violate their civil rights. They are demanding the immediate release of one man, James J. Rud, who has been held at the treatment center in Moose Lake for more than eight months after a judicial panel ordered that he be transferred to MSOP’s community program in St. Peter — where men live outside the secure perimeter but still wear ankle monitors and are closely watched.

The attorneys point to a recent Minnesota Supreme Court ruling that determined the patients have a “clearly established right” to be transferred to the less restrictive setting within a “reasonable time” following a court order.

“This is a question of fundamental liberty,” said Dan Gustafson, the primary attorney in the recent lawsuit, which is seeking class-action status on behalf of MSOP patients who have been held beyond their court-approved transfers. “When a court says you have to transfer someone to reduced custody, you can’t just wait until it’s convenient.”

Officials at the Minnesota Department of Human Services, which oversees the sex offender program, declined a request for an interview.

However, in a written statement and court documents, the agency has blamed the backlog in transfers on staff and space constraints brought on, in part, by inadequate state funding. Since the pandemic began, the MSOP has struggled to recruit and retain employees in a tight labor market, the agency said. One out of four clinical positions are currently unfilled, and there are nearly 150 vacant, full-time positions throughout the program. “MSOP has been recruiting aggressively, but it has been challenging to hire the necessary clinical and support staff,” DHS said in its statement.

The capacity problems have been exacerbated by the growing number of civilly committed men being approved for transfer by special judicial panels, which have shown a greater willingness in recent years to grant requests for reductions in custody. These panels issued 25 orders to transfer MSOP clients to the community program in St. Peter last year, up from 15 in 2021 and eight in 2013, according to DHS data.

To clear the backlog and comply with the growing number of court orders, Gov. Tim Walz’s administration is seeking as part of its bonding bill $21.6 million to renovate two buildings at the St. Peter campus to add 30 beds and provide more treatment space.

The bonding request faces a challenge at the State Capitol, where lawmakers have been reluctant to approve more money for a program that treats about 740 men and costs more than $90 million a year to operate. Nearly every year since 2016, the Legislature has declined to approve bonding requests to add more beds to the St. Peter community program.

As it stands, 16 men confined at Moose Lake and St. Peter have received court orders to be transferred to the less-restrictive Community Preparation Services program, which has 145 beds. The waiting list has declined from a high of 51 men a year ago, before the MSOP expanded its capacity by taking over a vacated building on its St. Pater campus.

“MSOP has contended with insufficient capacity in Community Preparation Services [in St. Peter] for years, which significantly impacts the ability to transfer clients into the program,” Nancy Johnston, MSOP executive director, said in a written statement. “Securing funding from the Legislature for more beds has been a very high priority.”

The MSOP has been the target of multiple legal challenges in recent years for its practice of confining men for indefinite periods who are designated by the courts as “sexually dangerous” or as having “sexual psychopathic personalities.” Some have been held at the MSOP treatment centers for years — even decades — after they have completed their prison terms. As patients progress in treatment, they can be moved to CPS — often seen as the final step on the path back to community life.

Yet men can be held for months after they have been cleared for transfer by the courts, prolonging an already Byzantine process. Civilly committed to the MSOP in 2009, Rud was approved last June for transfer to the St. Peter community program. Yet Rud remains at the high-security facility in Moose Lake, which is surrounded by a fence topped with razor wire. He has received no information on when, if ever, he will be moved to the less-secure setting, according to the lawsuit filed last month in Ramsey County.

In at least two other cases, MSOP patients have waited more than two years to be transferred to CPS after judicial panels ordered it.

Gustafson took issue with the state’s contention that CPS has been underfunded, lacking staff and space to accommodate the transfers. “Insufficient funding cannot be a defense” of the delays, he argued. “Because if that were true, the state could say, ‘We’re not going to provide medical care or food to these people anymore because the Legislature didn’t fund it.’ That’s the logical conclusion of the money defense.”

Daniel A. Wilson, an MSOP patient who co-founded a group of detainees pushing to close the program, said the prolonged transfer delays contribute to a “lack of hope” among patients. “It’s clear that they never designed this program … in a way that would promote progression” from MSOP to the community, said Wilson, who has been confined at Moose Lake for six years. “When there aren’t even beds available, it becomes apparent that one’s progression has little to do with one’s willingness to participate in treatment.”

“They cast this illusion that it’s our own fault,” for not moving through treatment, Wilson added, “when the evidence shows there’s not enough space.”

On Thursday, the highest court in Virginia ended the Commonwealth’s 13-year campaign to indefinitely detain a prominent advocate on criminal justice matters, Galen Baughman. In a victory for justice, the Supreme Court ruled that the petition filed against Baughman in 2017 was illegal.  Baughman v. Commonwealth

A Short History of Baughman’s Fight

Baughman has been targeted by the Virginia attorney general’s office under the state’s civil confinement scheme since 2009 when prosecutors filed a petition to send him to Virginia’s shadow prison in Burkeville shortly before his release from a seven-year prison sentence for consensual adolescent sexual conduct. That initial petition went to trial in 2012 and a jury voted unanimously in his favor. Baughman describes that trial in a 2015 TED Talk. In 2017, less than 24 hours before his release from a 20-month sentence for an alleged first-time technical violation, the attorney general’s office petitioned a second time to have Baughman indefinitely detained past his release date. The Supreme Court’s ruling last week dismissed that 2017 petition because it was based on the testimony of an expert who was prohibited from testifying under “the plain language of the statute.”

Galen Baughman, Soros Justice Fellow

Outrage Against Injustice

Virginia legislator Patrick Hope (D–Arlington) described the situation in an op-ed published immediately before Baughman’s second trial in 2019: “The [Virginia Department of Behavioral Health and Developmental Services (DBHDS)]-hired psychologist found Baughman did not meet the criteria and recommended his release. The attorney general’s office ignored that finding, went outside the law and hired a second expert. This expert did not interview Baughman, but nonetheless claims that Baughman meets the statutory criteria. At trial, Baughman’s defense attorneys may not present the results of the 2012 civil commitment trial or the results of the DBHDS psychological assessment, nor can they present qualified psychological expert testimony. His trial… serves as a prime example of how the SVP laws are unjust and unfair.”

The Baughman case was closely watched by lawyers, activists, and civil and human rights organizations. Amicus briefs were filed by the National Association of Criminal Defense Lawyers (NACDL) joined by Del. Patrick Hope (D–Arlington), law professors and scholars, as well as a coalition of LGBTQ+/HIV rights advocates and organizations. Baughman was represented by a pro bono team from KaiserDillon PLLC, a notable boutique firm in Washington D.C. (Jonathan Jeffress, Emily Voshell, and William Zapf), supported by the Washington Lawyers’ Committee for Civil Rights & Urban Affairs.

Orwellian civil commitment assessment process

Catherine Hanssens, founder and then-executive director of Center for HIV Law & Policy (CHLP), was especially instrumental in bringing this issue to the forefront by organizing an LGBTQ+ sign-on letter to attorney general Mark Herring (D-Virginia) very early in this case. KaiserDillon also sent successive letters to AG Herring (in 2018 and 2020) asking him to stand down from this obviously illegal action — on the same grounds that the Supreme Court ultimately used to dismiss the petition. CHLP’s amicus brief “describes the deep homophobic bias embedded in an already-Orwellian civil commitment assessment process, and in the drive to confine him as a dangerous predator in the absence of credible evidence.”

Ruling Dramatically Limits State Scheme

The Court also addressed claims by the attorney general’s office that a judge could find probable cause that someone suffers from a “mental abnormality or personality disorder” based on conviction history alone. “As the trial court had no evidence regarding Baughman’s mental state, it could not have found that there was probable cause to believe that he was a sexually violent predator,” the Supreme Court said. “Accordingly, the trial court should have dismissed the Commonwealth’s petition.”

Because the second petition was unlawful from its inception, the Court decided “the other matters that Baughman raised in his appeal (i.e., the trial court’s decision to exclude the testimony of his expert witnesses, its denial of his motion for summary judgment and its failure to dismiss the petition based on res judicata) are… rendered moot.” Regrettably, the justices declined to address these other important issues that might have made a significant difference in the lives of other individuals targeted by Virginia’s pre-crime preventative detention program — those questions remain unsettled by the court.

Prosecution Overreach & Judicial Activism

The Baughman case is a stunning win that beats back a disturbing attempt by the Virginia attorney general and an activist judge to dramatically expand the scope of involuntary civil confinement. If the state had gotten its way, prosecutors would be able to shop for experts until they find someone willing to give whatever opinion they wanted and judges would be encouraged to proceed with a putatively “mental health” commitment case absent any psychological evidence.

A sustained and systemic constitutional violation to get outraged about

Virginia is one of 20 states (and the federal government) with laws allowing for the indefinite ‘civil’ confinement of persons after the completion of a prison sentence for a sex-related crime. At least 7,000 people in the U.S. are presently held in prison-like facilities under the guise of involuntary psychiatric confinement based on a past sex-related conviction. While many facilities have begun to release people to an Orwellian form of “conditional release” as states begin hitting the practical ceiling that comes from a system designed to lock up more people every year without ever letting anyone out; for many, “civil commitment” for the purposes of “treatment” remains a life sentence.

Systems of pre-crime preventative detention have been under fire since their inception in 1990. The American Psychiatric Association formally opposes so-called “sexually violent predator” laws and has described these legislative schemes as a “misuse of psychiatry” designed to “preventively detain a class of people for whom confinement rather than treatment was the real goal.” In 2015, legal scholar David Post quipped for the Washington Post, “If you’re looking for a sustained and systematic constitutional violation to get outraged about, may I suggest this one?”

Impact of Baughman Supreme Court Win

This decision from the Virginia Supreme Court makes plain that the attorney general’s office flagrantly violated the “plain language of the statute.” Even with top-notch lawyers, it took Baughman 5 years to reverse this unlawful action — resulting in 40 months of unnecessary incarceration past his release date in a punitive carceral setting at the Arlington County Detention Facility (ACDF), and another year and a half of draconian conditions including being restricted from leaving Arlington County and house arrest for up to 18 hours per day.

Baughman is a leading advocate bringing to light the flawed rationale and human rights implications of efforts to lock up people prospectively for what they might do in the future. Baughman’s case should be a warning to any defenders of due process and freedom that so-called “sexually violent predator” laws lend themselves to wild misuse by unscrupulous government officials.   The fact that Virginia was able to very nearly get away with committing someone who does not suffer from any volitional impairment-causing psychological conditions — but had no trouble finding and using an expert willing to cavalierly misrepresent the psychological literature for pay — should be terrifying to us all.

The Next Battle for Defenders of Human Rights

In 2021, Virginia became the first state in the U.S. to consider abolishing its system of post-sentence ‘civil’ confinement. Baughman v. Commonwealth clearly illustrates the need to abandon laws and policies designed to incarcerate people for imaginary future crimes based on deeply dubious predictions by “experts.”

“The Commonwealth of Virginia’s case against Galen was morally and legally indefensible,” said Jonathan Jeffress, partner at KaiserDillon representing Galen Baughman. “It appealed only to the worst in people and their prejudices. I know I speak for everyone at KaiserDillon in saying that, although we are proud to have brought Galen’s case to a successful end, there is still much work to do, including reforming — or better yet, abolishing — Virginia’s broken, corrupt, and unconstitutional system of civil confinement.”

“The Commonwealth of Virginia’s case against Galen was morally and legally indefensible,” said Jonathan Jeffress of KaiserDillon. “It appealed only to the worst in people and their prejudices. I know I speak for everyone at KaiserDillon in saying that, although we are proud to have brought Galen’s case to a successful end, there is still much work to do, including reforming — or better yet, abolishing — Virginia’s broken, corrupt, and unconstitutional system of civil confinement.”

A while back, I would overhear the registry community speak about the term ‘civil commitment.’ I thought people were discussing gay marriage? However, I quickly realized that civil commitment was much worse than the sex offender registry and a ceremony that nobody wants to attend. 

The textbook definition of involuntary commitment, civil commitment, or involuntary hospitalization is post-sentence institutional detention of an offender to prevent further offenses – in nearly all cases are sex offense related. In addition, there are locations known as civil commitment facilities designed to help diagnose and treat sex offense conditions. Thus, it is not considered a punishment but rather a means of protecting people. At least, that is what people who strongly advocate for civil commitment would say. 

The reality is that civil commitment is a cleverly crafted feel-good scheme intended to make the general public feel like there is a managed solution to critical sex offense issues. It is a system designed to give a look and feel of a hospital or treatment facility setting. Let’s be crystal clear that civil commitment facilities are identical to prisons. There are guards, fences, barriers, often jail-like uniforms where every facet of daily routine is monitored. The only difference between prison and civil commitment is that at least with prison, one knows when he/she will be released. 

The contrast between health care and civil commitment is that healthcare workers such as nurses, nurse aids, doctors, and various therapists roam the patient corridors. This isn’t found within civil commitment centers. Instead, there are plenty of guards and perhaps a sprinkling of a case manager here and there. Some former civil commitment residents have said that civil commitment feeling “is like hospice. where people go to die” because they are told, “there is no cure for people like you.” You wouldn’t find such antagonism in a professional clinical setting. There would be beneficial resources available to create a target for a successful treatment plan. But states have perhaps found their crafty cash cow pretending to be a clinic or hospital to construct a loophole from being accredited by the Joint Commission. 

Involuntary commitment isnt cheap for patients. Civil commitment doesn’t accept or participate in health insurance plans. Instead, it bills patients at inconceivable rates. For example, the state of New York recently billed a patient 1.8 million dollars or over $380,000 annually. It is highly doubtful that any patient will be able to repay such an astronomical fee. But that leaves taxpayers on the hook for potentially hundreds of millions of taxpayer dollars for treatment that doesn’t appear to be working or cost-effective. Unfortunately, taxpayers are perhaps unaware of involuntary commitment programs in their states? But with the recent pandemic impacting state budgets, now may be the time where scrutiny is shined on the lavish spending by involuntary commitment programs.  

Mental health professionals have advocated that the most effective method in therapy for the treatment of sex offense is cognitive-based therapy (CBT). The Intensity and Timing of Sex Offender Treatment scholarly article is one of many evidence-based recommendations that caps a maximum of 2 years for sex offense treatment with CBT methodologies at its forefront. Yet, we continue to witness lawmakers and partisan policy advocates within the bowels of criminal justice propose ill-conceived indeterminate proposals. 

Civil or involuntary commitment is somewhat similar to the lyrics of the song ‘Hotel California’. “Relax, said the night man, We are programmed to receive. You can check out any time you like, But you can never leave! ” Essentially, civil commitment is nothing more than a disillusioned hospital or clinic where punishment is the prescription, but safety is the placebo for everyone else that fails to understand the civil commitment concept. A civil commitment that targets and warehouses sexual offenses is a hazardous and extravagant concept that quickly needs to be euthanized. Civil commitment programs are somewhat similar to the detention cells at Guantomino Bay. They are costly, unethical, political, harmful, have no practical benefit, and side-skirt fundamental human rights. 

Note: At the present time North Carolina does not participate in a sex offense based involuntary commitment similar to other bordering states such as Virginia. 

Critics say civil commitment laws are fundamentally unfair and violate the constitutional prohibition against punishing someone twice for the same crime. Supporters counter that the laws protect society from repeat offenders who are unable to control their behavior.

Sen. Joe Morrissey and Del. Patrick Hope, both Democrats, are co-sponsoring legislation that would end the state’s authority to civilly commit sex offenders.

“It is as archaic and as Neanderthal a process as I can imagine,” said Morrissey, a defense attorney and lead patron of the bill that would repeal 1999’s Civil Commitment of Sexually Violent Predators Act.

“We don’t sentence people because of what they might do,” he said. “That’s abhorrent to everything that our democracy and our criminal justice system believes in.”

Twenty states and the federal government now have civil commitment laws, which have been upheld by the U.S. Supreme Court.

Read the rest of the article at abcnews.go.com

In 1983, McCurdy had pleaded guilty to a rape, for which he served two years in state prison. In 1990, he was convicted of a burglary and served another six years. In 1998, McCurdy says he was brought in on a parole violation for living too close to a school, contrary to his conditions of release. Prosecutors used that violation and the two prior convictions to get McCurdy classified as a “sexually violent predator” (SVP), he says. That designation let them civilly commit him to Atascadero, much the way people with mental health issues can be locked up when they are deemed a threat to themselves or others.

Seven years after McCurdy was committed, his lawyer, Jim McEntee, was trying to persuade a judge that his client was a low risk to reoffend. If he failed, McCurdy would be confined at the hospital indefinitely. Fortunately, the lawyer had heard of evidence that might tip the scales: a study done at Atascadero itself that could help his client.

Read the entire story by clicking here

Strategies for reducing COVID-19 exposure by revising the implementation of registration policies, housing banishment laws, and other restrictions impacting people with convictions

MARCH 28, 2020 – We join numerous criminal justice organizations that have issued policy recommendations to prevent the spread of COVID-19 by suspending or eliminating non-essential police and court functions, while ensuring that law enforcement resources are used wisely to keep communities safe.

This guidance focuses on policies affecting people listed on sex offense registries. More than 900,000 Americans are subject to registration and/or housing banishment laws. The nature of these rules and regulations and the enormous number of people who must comply with or enforce them, raise urgent concerns about public health and resource allocation in this extraordinary time.

During the registration process, people are typically required to fill out forms stating their address, employer, school, phone number, vehicle data, etc. and to return, in person, to report even trivial changes.  These cumbersome registration processes tie up sworn officers who could instead be investigating crime, attending to emergencies, and assisting people in crisis.

Housing banishment laws often prohibit people from residing in the vast majority of residential areas of a city or town. As a result, those with stable homes, or several housing options, frequently become homeless anyway. This false scarcity of housing also increases prison populations as people have no legally authorized home in which to serve their parole or probation.

Even before COVID-19, the unintended consequences of these policies were well documented. The current pandemic, however, adds urgency to revise current registry and banishment practices as many of them undermine the critical public health measures being implemented nationwide to contain its spread.

The following strategies would reduce COVID-19 exposure among law enforcement officials and those required to register, as well as their families at home, and the broader community:

1. Suspend in-person registration requirements. Registration requires frequent in-person visits to police stations or jails, where dozens of people commonly congregate in waiting rooms or bullpens, multiplying the risk of transmission of COVID-19. Following the lead of Oregon and other jurisdictions, this process should be modified.
2. Waive or suspend housing banishment laws and other housing restrictions. People experiencing homelessness need emergency housing in order to comply with stay-at-home orders or self-quarantine. But many people listed on “homeless registries” have places they could otherwise reside: housing restrictions alone caused their homelessness. Likewise, prisons have backlogs of people incarcerated past their release dates, or who would be released on parole or probation supervision, if so much housing were not barred. Suspending these restrictions will allow cities to house people more efficiently, conserve emergency beds, and give prison officials the flexibility to place people in homes they already have available. This will protect their populations from the heightened risk of contagion created by needless incarceration and homeless encampments when there are safe available homes for people on the registries.
3. Waive or suspend arrests and prosecutions for failure-to-comply offenses. “Failure to comply” charges are the result of a missed deadline to reregister or update registration. Akin to technical parole violations, these are often hyper-technicalities that stem from the difficulty of following so many onerous reporting requirements, and have no reported correlation to public safety. Despite this, they contribute to jail and prison churn, risking increased transmission of the virus.
4. Suspend fees for registration. Economists are projecting 14%-20% GDP contraction for this quarter and unemployment in double-digit rates. Many people have already lost their incomes as a result of the shutdowns. People with past convictions are far more likely to be poor, with reduced job prospects. Non-payment of these fees can result in failure-to-comply charges; during this crisis registration fees should be suspended.
5. Suspend in-person address verifications. Routine police visits to the addresses of people listed on registries, for the sole purpose of an address check, should be suspended. These visits are widespread, and number in the tens of thousands. At a time when even 911 calls are under stress, law enforcement should be able to redirect their resources as needed.
6. Suspend Internet access restrictions. Some people who are on probation or parole are forbidden from accessing wide swaths of the Internet, and some states have laws limiting Internet access for people listed on a conviction registry. During this crisis, access to the Internet has become even more critical: nearly everyone must rely on Internet access for work, news, homeschooling, services, and family connections. Individual safety, as well as public health compliance, requires timely online access to crucial information about social and health services, as well as access to medical services that are moving online.
7. “Step down” people in civil commitment. More than 6,000 people are locked post-sentence in prison-like state civil commitment facilities, that pose the same coronavirus dangers to staff and detainees as jails and prisons. States should speed up “step-down” procedures and move people into supervised community settings.

CONCLUSION

State conviction registries were intended to be a tool for law enforcement officials and were limited in scope. In the past quarter century, legislators expanded these public databases and added hundreds of additional reporting requirements and other restrictions, including housing and public space banishment laws, and long-term confinement in civil commitment. Research shows that at least 95% of those arrested for a sexual offense have never had a previous sex offense conviction, while most people currently required to register are unlikely to be re-arrested for a sexual offense.  Rather than improve public safety, these regulations:

• Systematically displace people from housing and employment,
• Weaken the resilience of families and communities coping with crime and mass incarceration,
• Divert critical resources away from crime survivors and proven prevention strategies and expand them on regulating the few people who have already been held accountable and punished.

In contrast, public safety and crime reduction principles emphasize a public health approach to prevention, involving, among other things, primary prevention, focusing on the warning signs inside familial and social circles, and building early and comprehensive support and intervention for people, families, and communities most impacted by violence.

We urge policymakers to suspend rules and policies that are not essential to public safety or that contribute to the spread of COVID-19. These strategies allow law enforcement, on the frontlines of this catastrophe, to dedicate more of their limited resources toward crisis intervention and emergency assistance

Click here to read the entire article

On Monday, the Circuit Court in liberal Arlington County will be the scene of a heavy-handed morality play, with prosecutors seeking lifelong incarceration for a young gay man who has already paid an extraordinary price for youthful, nonviolent sexual indiscretions.

Virginia, like 19 other states and the federal government, has a Sexually Violent Predators Act (SVPA). Under these laws, people who have completed their criminal sentences under any of a large number of sex-related offenses can be indefinitely detained in a high-security facility until the state determines that they no longer present a risk, typically never.

Civil libertarians have always objected to such practices. They smack of double jeopardy, of ex post facto punishment and of a glaring form of Catch-22: The defendant is deemed mentally fit to stand trial but is mentally unfit for release. The Supreme Court has swatted aside such objections, ruling that civil commitment is not punitive as long as the state claims that the purpose of detention is psychiatric treatment.

SVPA laws and practices refer to “mental abnormalities,” which sounds scientific. But the American Psychiatric Association has opposed such laws, citing their abuse of civil liberties and the use of unscientific “disorders” as the basis for punishment. In practice, designation as a sexually violent predator (SVP) is not based on substantial scientific research, and the therapy received by detainees in “treatment facilities” is based more on passing fads than on careful scholarship.

Nationwide, some 6,400 people are being held in civil commitment.

Galen Baughman could be one of them. At age 20, Galen pleaded guilty to two charges of illegal sexual misconduct: The first “offense” occurred 10 days after his 14th birthday (he was charged as an adult six years later) and the second when he was 19. Neither charge involved violence or deception; neither “victim” participated in his prosecution. As a consequence of an unwise plea agreement, he served six and a half years in prison, much of the time in solitary confinement.

Before Baughman could begin his probation term, he was detained for two and a half more years pending a civil trial as an alleged predator under the Virginia SVPA.

The commonwealth’s attorney general at the time, Ken Cuccinelli, attempted to paint Baughman as a dangerous sexual criminal. But an Arlington County jury of his peers unanimously rejected the prosecution’s arguments and refused to find Baughman a SVP.

After his release on probation in 2012, Baughman became a professional advocate for himself and others victimized by SVPA laws. He held a Soros Justice Fellowship, writing articles and speaking on the topic in forums around the country and internationally. Much of his work was focused on the Virginia law under which he had been so abused.

But the commonwealth was not finished with him.

In 2017, Baughman went to a funeral in another state — with his probation officer’s permission. There, he met a 16-year-old family acquaintance and began exchanging text messages with him. The messages were non-sexual, and the boy was above the age of consent in his state. But the commonwealth seized this as an opportunity to revoke Baughman’s probation.

Fred Berlin, a psychiatrist and internationally recognized expert on sexual disorders, testified at the hearing that the messages did not constitute “grooming” or manipulation. But Arlington Circuit Court Judge Daniel S. Fiore II insisted that the texts were evidence that Baughman was trying to recruit the heterosexual youth into gay sex. Asserting that a “tragedy for a minor” had been narrowly averted, the judge sentenced Baughman to 21 months in jail. Such a minor technical violation would normally not result in jail time.

Despite the tenuousness of its case, the commonwealth has seized on Baughman’s second incarceration — on a technical, not criminal, probation violation — to initiate a second attempt to have Baughman labeled a SVP.

As a standard part of the SVPA process, the Department of Behavioral Health and Developmental Services hired a psychologist to determine whether Baughman was a sexual predator. After conducting a mental health assessment, psychologist Ilona Gravers found that Baughman was not a predator and recommended his release.

Unsatisfied with this opinion, Virginia Attorney General Mark R. Herring (D), ignored Virginia law and hired a second psychologist, Michelle Sjolinder, who was handpicked by prosecutors outside the statutory process. With the first report in hand, the replacement expert gave the state what it wanted and claimed that Baughman was a SVP in need of potentially lifelong commitment. She did not allege any change in Baughman’s mental health since his previous SVP trial in 2012, effectively rejecting and reversing the 2012 jury decision.

Baughman’s second SVPA jury trial is scheduled for Arlington next week. He is facing the possibility of indefinite detention despite having never committed a violent offense.

This new civil trial will be played out with few of the legal protections assured criminal defendants. Fiore has barred Baughman’s attorneys from presenting the state’s first psychologist as a witness or from even introducing her report into evidence. Nor can any mention be made of the first SVPA trial and that jury’s findings. Psychiatric evaluations by Fred Berlin and psychiatrist Richard Krueger at Columbia University that found that Baughman suffered no mental health problems also will not be admitted.

If Baughman’s offenses had involved noncoercive, nonviolent conduct with a young woman under the age of consent, it is unlikely Virginia would have prosecuted him under SVP laws. The “scientific” instrument Virginia uses to screen for future dangerousness, known as the Static 99, is simply a checklist of supposedly relevant factors, including the offender’s age, whether he has had a long-term intimate relationship and the victim’s gender. Because he is young, has no “significant other,” pleaded to two offenses and is gay, Baughman accumulated four points, scoring him as “high-risk.”

It is impossible to call any of this “scientific” or fair. Homophobic bias is built into the process.

The SVPA also grants the state extraordinary power to impose potential life imprisonment. Prosecutors unilaterally decide which of those individuals previously convicted and punished for sex-related offenses (typically fewer than 17 percent) will be tried again for lifelong civil commitment.

If a jury rejects the state’s assessment, the process can be repeated under a variety of pretexts a second (or third) time until the state achieves its goal. And as seen in this case, prosecutors are free to shop for “experts” whose paid assessments match that goal.

Baughman’s case stretches legal practices and commonsense definitions to their breaking points, but it is not altogether exceptional. Others who have never committed a violent crime have been civilly committed. Minors have been subjected to indefinite detention, as have senior citizens in debilitated condition.

Indeed, our civil containment practices for sex offenders are so extreme that high courts in the United Kingdom and Canada have deemed that they are in flagrant violation of international human rights standards and have blocked defendants’ extradition to the United States.

Some states are rethinking their civil commitment statutes in the face of successful legal challenges to portions of their SVP laws and practices. Virginia, by contrast, is expanding its 28-acre Nottoway County treatment facility by 258 beds at a cost of $110 million, or $426,000 per bed. It expects to run out of beds (again) in 2022 as the state zealously expands SVPA prosecutions.

Baughman’s case is a prime example of why Virginia and other states should scrap the SVPA: It corrupts science and the legal system. It normalizes prosecutorial vindictiveness. It erodes citizens’ basic rights and protections against punishment without a crime.

Source: The Washington Post