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.”

The most massive Ponzi scheme that America has been selling for decades is the sex offender registry. It too has a pyramid scheme that allows investment in public policy and administrative oversight. Individuals such as John Walsh have raked in over $42M for his charities and amassed a net worth of $20M. States receive over $200M annually from the Edward R. Byrne grant program that helps fund offender registries nationwide. All while Walsh increases his rhetoric and scare tactics to increase funding and additional non-compliance penalties, states are struggling to keep up the pace where jails are beginning to fill up because of Ponzi styled policies backed by law enforcement agencies seeking to cash in on the opportunity.

All while sex offenses appeared to decrease overall, the recent #metoo and #timesup movement helped contribute the Ponzi effects by rescinding statute of limitation policies to dig some thirty plus years in the past adding to what appeared to be a stabilized registry. High profile additions have created the registry as a method to keep registry legislation, and pyramid schemes are breathing another sigh of relief that funding will indeed increase. While others are warning of the critical effects and possible backlash, the registry grows wildly into a mishmash of anyone easily or conveniently targeted.

But will the sex offender Ponzi scheme find itself on the brink of collapse? Many states are seeking registered offender to pay an annual fee to keep the registry requirements relevant all while continuing to acquire millions in government grants intended to pay for those that cannot contribute. It is usually Ponzi schemes that begin asking for investors to invest more or seeking undisclosed payments similar to what states are introducing to registrants. Citizens are starting to ask questions about the overall effectiveness of the registry and if it has gotten out of hand. The same similarities were asked by those wary of Bernie Madoff but went ignored for over a decade. Eventually, the world came crashing down around those that invested or supported Ponzi or pyramid schemes. It was ordinary folk and families that were ultimately destroyed by the cause and effects.

In general, the sex offender registry is nothing more than an elaborate and complicated Ponzi scheme. It promises an immediate return on investment by providing a secure community and added protections to educating those that choose to access it. In the past decades, it has produced no such reliability nor has an outlook that provides security at all. States continually add to the already convoluted and confusing laws or policies introduced, struck down, or amended on a quarterly basis leaving those affected by the registry entirely in the dark and vulnerable. This not a sign of an adequate return on investment. It is a sign that Americans have been duped out of billions of dollars at a failed experiment. It sounds more like a FEMA recovery plan for Puerto Rico with similarities of homelessness, hunger, no work, and a bleak outlook for the future.