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.”

Bonnie Burkhardt has over 35 years of experience legally intercepting and analyzing electronic communication signals for the Department of Defense. In her book, she explains how Mr. Pick was arrested in a sting operation illegally conducted by county police forces in Virginia and later charged and convicted for soliciting a minor electronically, a felony.

Mr. Pick’s electronic communications were intercepted without a warrant by the police, those very electronic communications in which a county police detective impersonated an imaginary underage teenager. Later, the officer hacked those private communications between Mr. Pick and said teenager. Mr. Pick was convicted of illegally soliciting a minor, a sex offense, and imprisoned. Mr. Pick was also required to register as a sex offender.

Anyone who understands the latitude with which sex offender is applied to a person knows that the label distorts, is mandated for years if not one’ s entire life, and that it negatively impacts one’s ability to earn a living, support a family, to contribute positively to community life, and to reside in a community without harassment. In sum, labels like sex offender ostracize, because they are associated with the most heinous of sexual crimes, even if that person did not touch anyone, even if the said victim did not actually exist.

Pick versus Virginia, however, does not focus on the ethics of sex offender registries or sting operations. Instead it provides evidence of the unlawful practices employed by police, leading to a multitude of misdirected convictions. As an expert in electronic communications and the laws surrounding their security, Burkhardt details those laws’ finer points.  She explains how they are misinterpreted by judges, misunderstood by most attorneys, and abused by federal, state and local officials and agencies.

Burkhardt describes how thousands of Virginia residents were unjustly prosecuted in sting operations since their major funder, the ICAC (Internet Crimes Against Children), was created in 1998. Based on her research and extensive data, she estimates that 8,100 persons have been prosecuted for manufactured crimes in Virginia alone, while their Fourth Amendment rights have been violated. Across the nation, she reports that 150,000 people have been prosecuted in similar stings.

Fortunately, in all these ICAC-funded stings, there was no real victim, although the stings have resulted in thousands of felony convictions. Adult detectives created these imaginary underage victims, after all.  One might question why any state or county agency would employ a unit of officers solely to troll for pedophiles on the internet. The short answer is not surprising: follow the money. The grant- funded ICAC stings enrich law enforcement budgets. Such stings also persist because they make law enforcement look good. The public supports them because they assume that stings help to keep children and communities safe. That is a myth. Since its inception in 1998, not one ICAC-funded sting nationwide, including all those in Virginia, ever resulted in the rescue of a real child.

Burkhardt’s book and her efforts to help those unjustly prosecuted are only first steps in challenging illegal and ineffectual stings. In the meantime, every real, living, breathing human is affected by violations of our Fourth Amendment rights. Real children do not benefit from expensive sting operations that violate those rights, including those practiced in Virginia and nationwide. Real children are not made safer. Instead, valuable citizens who could play a part in making our communities better are prevented from living productively, individual lives are ruined, families are damaged, and millions of dollars are wasted.

Putting our Fourth Amendment rights on the line is a slippery slope. No one questions the importance of keeping our communities safe and protecting our children. How we get closer to that goal is the real question. Accessing electronic records recklessly and without just cause violates everyone’s rights.

As life goes on, I hope that you and your family remain safe, that your children grow healthy and strong and go on to lead productive lives, all while your Fourth Amendment rights, and those of every U.S. citizen, remain intact.

NOTE: Please consider signing Bonnie’s Change.org petition.

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. 

A state lawmaker who sponsored the legislation says it’s the first time in Virginia where someone will be compensated for both their time behind bars and the time afterward when they were required to be on the sex offender registry.

“This was such an egregious act, unfathomable in my mind,” said Del. Chris Jones, (R) Suffolk, calling it the worst miscarriage of justice he has ever seen.

The case involved the July, 1997 rape and murder of Michelle Moore Bosko in her Norfolk apartment.

Sailors Danial Williams, Joseph Dick, and Derek Tice were convicted of rape and murder. Eric Wilson was convicted of rape.

Their DNA didn’t match the evidence. Their confessions were forced. The lead detective was corrupt.

Another man eventually confessed to the rape and murder and his DNA matched the evidence from the apartment.

None of it mattered.

Three of the Norfolk four got life sentences for rape and murder, and one got eight years for rape.

“I cannot imagine being in prison for that long and then being on the sex offender list knowing that you’re innocent,” Jones said, “and they knew you were innocent within two to three years of the murder.”

Wilson spent eight years in prison, the other three more than ten each.

The compensation legislation takes into account not only their time behind bars, but also their parole and the time they had to register as sex offenders.

Their payouts will come from the state, and the city of Norfolk must match them. The combined totals range from $1.8 million for Williams to $1.7 million for Tice.

“You can never compensate someone adequately for the time that they’ve lost,” Jones said.

Lost, in large part, because of corrupt police detective Robert Glenn Ford. Documents say he forced illegal confessions from the Norfolk Four.

When Omar Ballard confessed to the rape and murder and his DNA was a match – Ford told him he could avoid the death penalty by implicating the innocent sailors.

Ford was convicted of perjury and taking bribes and is now in federal prison.

The payouts for the Norfolk Four will begin in about 90 days. They will each get an initial payout of about $170,000, with the rest coming over time as an annuity.

Governor Terry McAuliffe gave the Norfolk Four absolute pardons a year ago. Their records are erased and they’re no longer on the sex offender registry.

The legislation requiring the compensation recognizes their “horrific experiences in prison, lost employment opportunities, and shattered relations with family and friends.”

Jones said the efforts of several people and agencies were instrumental in getting the legislation passed, including Norfolk Mayor Kenny Alexander, the office of Attorney General Mark Herring, the Innocence Project, and the law firms of Eckert Seamans, Troutman Sanders, Squire Paton & Boggs, Hogan Lovells and Skadden Arps who served pro bono.

Sexting is the new black sheep

Depending on who is doing the judging, a sexting scandal in a Virginia high-school is either a darn shame or a child-porn case on a massive scale. In Hanna Rosin’s Atlantic article Why Kids Sext, she reports on some of the unintended consequences of these situations.

The key components are:
1. A girl (usually a female, but not exclusively) will send a racy or nude picture to a guy on his cell-phone, aka “sexting”;
2. Her intention, according to Ms. Rosin, is either to a) share intimacy inside a pre-existing relationship, b) attract the attention of a potential future mate, c) get herself noticed on an internet-wide scale, or, and most disturbingly, d) because she felt pressured or was blackmailed into doing so;
3. The picture is sometimes shared, sometimes with malice, normally without, and this can lead to some embarrassment for the teens, parents of the teens, and the school administration if somebody reports the incident;
4. The decision lies with the parents or school as to whether to handle the issue in-house or make it a police matter;
5. The police and prosecutors, for their part, have some discretion as whether or not to charge/prosecute the persons involved;
6. In many cases, statutes have for years forced the hand of the courts in subjecting “victims” to prosecution when they produced the images of themselves, ostensibly perpetrating a “crime” against themselves.

At Louisa County High School, Ms. Rosin reports a situation involving a sizable collection of nude photographs of high-school girls, all under the age of 18, posted to an Instagram account. The pictures were taken by the victims themselves and sent to one trusted person who then violated that trust. Police became involved, and a large investigation ensued.

Soon, hundreds of interviews of students revealed a systemic problem: more than a third of the school was involved in sexting, either sending or requesting “sexts.”

Bearing down on the culprits

The charge of “production of child pornography” carries with it possible long-term imprisonment, invariably creating new registrants, often for life. The investigator in the case of Louisa County High, Major Donald Lowe, began the inquiry into the source of the pictures, ready to find the culprits and act according to the laws at his disposal. At first figuring all the subjects as victims and those disseminating the photographs as suspects, Major Lowe had a change of perspective, like so many who find themselves a part of a system they do not themselves fully understand. Legally, Major Lowe’s victims were also suspects, as they had both produced and sent the pictures.

His mind-set changed at some point, as evidenced by his characterization of the nature of the offenses and offenders, from “victims,” to, “I guess I’ll call them victims,” to “they just fell into this category where they victimized themselves.”

The issues needing immediate redress are two-fold: hasty legislation grossly over-stepping the role of parents of hormonal teens (who are going to express themselves sexually) and the need to give help to those who have genuine criminal conduct because attacking crime with vengeance is like the proverbial “bombing for peace.”

New crimes

For the past decade, the United States Congress has created over 50 new crimes each year. In an article by John Baker on the growth of new federal crimes, he explores the difficulty in defining “crime” in the federal system, as the term is not given a specific definition. Instead, activities became crimes because Congress applied penalties.
So then, crime, a social construct, is given birth not by an actor in violation of a statute but by the creation of a statute criminalizing what was heretofore not criminal behavior. We create criminals where previously there was no crime and therefore no criminal.

In this way youth become criminals by doing what youth have done for centuries – except for centuries there was no permanent record of their curiosity and their experimentation, and they grew up and led normal, productive lives. Today their indiscretions are captured forever, and their lives are changed forever because of it.