Did California Authorities Suppress Research on Sexually Violent Predators?

Evidence indicating that individuals imprisoned for sexually violent offenses have a low likelihood of recidivating was never made public, according to two California scholars─perhaps because it called into question the constitutional legitimacy of state laws making sex offenders subject to indefinite civil commitment long after they served their sentences.

State laws that allow sexually violent predators to be locked up even after they have served their sentences are based on questionable assumptions that they continue to pose a danger to society, according to a study published in the American Criminal Law Review.

The study focused on California where, according to the authors, research indicating that sexually violent predators (SVPs) are less likely to re-commit crimes than other offenders was suppressed because it challenged the constitutional legitimacy of the state’s SVP laws.

The research in the mid-2000s by Dr. Jesus Padilla, a clinical psychologist at Atascadero State Hospital, a California maximum-security institution that houses mentally ill offenders, found that just 6.5 percent of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.

But the research was halted and its findings hidden in what, in effect, was an attempt to “bury” information that might challenge the constitutional basis for the $147.4 million program operated by the California Department of Mental Health that supervised the involuntary commitment of SVPs, the study claimed.

The authors, Tamara Rice Lave of the University of Miami School of Law; and Franklin Zimring, of the University of California, Berkeley, wrote they learned about the concealed study from a former public defender who is now a Superior Court judge in San Diego, and then contacted Dr. Padilla.

“Dr. Padilla was very responsive and gave us a detailed account of what had happened,” the authors wrote. “We then submitted a FOIA request to the newly created Department of State Hospitals (DSH). But we were told that they were ‘unable to verify any study on recidivism conducted by Jesus Padilla, PhD.’

“We shared DSH’s response with Dr. Padilla, and he sent us a packet of documents pertaining to the study including internal memoranda, emails, and the signatory page granting approval for the study.”

An examination of the study, which was originally commissioned to assess the value of clinically treating SVPs, revealed the lower recidivism rates—a result that surprised researchers at the time, but also paralleled the findings of a 2003 study by the Department of Justice’s Bureau of Justice Statistics (BJS) that showed 2.5 percent of rapists were rearrested for rape within three years of release from prison, and just 3.3 percent of child molesters were arrested for another sex crime against a child during that same period.

In contrast, during that same three-year period, the BJS researchers found that 13.4 percent of robbers were rearrested for robbery, 23.4 percent of burglars were rearrested for burglary, and 41.2 percent of drug offenders were rearrested for a drug crime.

The recidivism statistics call into question the entire basis for the involuntary civil commitment of sexual offenders, wrote the authors.

Currently, 20 states and the federal government have similar SVP laws, and as of 2016, there were 5,355 persons committed as SVPs across the country, with an additional 1,001 detained pending commitment, the study said.

Because the Constitution prevents a person from being punished multiple times for the same crime in criminal cases, the courts have enforced civil commitments in the cases of many SVPs, which allow for a post-sentence detention in an effort to prevent further offenses.

“We have no way of knowing the real reason why California halted the Padilla study and then tried to bury it,” wrote the authors. “Although our FOIA request asked why the study was terminated, we never received an answer.

“Perhaps higher-ups at DMH (the California Department of Mental Health) had not initially paid attention to the study because they did not expect the results….DMH may have realized the study had to be stopped because it threatened the legitimacy of the entire SVP program.

“The only constitutionally acceptable rationale for SVP commitment is that offenders are so dangerous that they must be locked away, and this study showed otherwise. If the SVP law were to be declared unconstitutional, it would threaten the $147.3 million annual budget DMH (and now Department of State Hospitals) receives for the civil commitment program.

“People have done far worse than bury a study for a hundred million dollars.”

The authors noted that the use of SVP laws was given the stamp of approval by a 1997 U.S. Supreme Court Case Kansas v. Hendricks, which accepted claims that SVPs are “extremely dangerous” and that their “likelihood of engaging in repeat acts of predatory sexual violence is high.”

In that case, defendant Leroy Hendricks “admitted that he was an uncured pedophile who could not control his desire to molest children.” But, as the authors argue, Hendricks does not represent the greater SVP population.

“If the Court had asked what the basis was for this conclusion, they would have been sorely disappointed,” the study says. “We searched the legislative minutes for the 1994 Kansas law and found no citations to data on prospective danger.”

The unwillingness to substantiate the claims may be be rooted in fears of inflaming public opinion, argued the authors. A 2010 national opinion poll found that 72 percent of respondents believed that at least half, if not most, of convicted sexual offenders would commit additional sex crimes later on, according to the study.

A separate study from the Washington State Institute (WSI) reported that recidivism rates were as high as 25 percent in Washington. But the authors note a variance in age demographics between WSI and Padilla’s studies, with WSI’s largely consisting of a younger demographic.

Data from the Department of Justice released in 2016 shows that recidivism rates among sex offenders for other non-sexual crimes was around 60 percent. Only 5.6 percent were re-arrested for rape or sexual assault.

“If SVPs are no different than the dangerous but typical recidivist convicted in an ordinary criminal case, then the state has no constitutionally permissible reason to continue locking them away,” the study says.

California’s use of indeterminate civil commitment means that it is unlikely that the state’s SVPs, most of whom are over 50, will ever be released, the study said—based on the presumption that the risk posed by an offender at 40 remains the same when he is 50, 60 “or even 90.”

The rediscovery of the Padilla study should spur California and other states to make it a requirement that SVPs are regularly examined to prove they are likely to recidivate—a system that California used before the onset of SVP laws, the authors wrote.

“The politics of crime and fear of sex offenders mean that someone like Mr. Hendricks, who is now 83 and confined to a wheelchair, will never prevail,” they added.

“The ironic result of allowing state governments to make up their own theories of prospective sexual danger and never to test their hunches goes beyond the wasteful and unjust incarceration of elderly men with histories of sex offenses.

“Detailed and careful empirical study could provide much better evidence of the age and other characteristics of persons who have significant offending risks.”

The authors called on the Bureau of Justice Statistics to resurrect and continue the Padilla study.

“Until such research is conducted, we will never know whether the true legacy of Kansas v. Hendricks includes not just unjust confinement but also an allocation of limited resources with no focus on populations of maximum danger.

“Justice and community safety demand the truth.”

A complete copy of the study can be downloaded here.

TCR News Intern Marianne Dodson contributed to this summary. Readers’ comments are welcome.

from https://thecrimereport.org

Should Opioid Addicts Be Forced to Undergo Medical Treatment?

According to a forthcoming study in the Journal of Law, Medicine, and Ethics, there’s little evidence that opioid addicts benefit from involuntary commitment, and the “legal and ethical” concerns raised by such strategies should make policymakers think twice about employing them.

According to a forthcoming study, there is little evidence that opioid addicts benefit from involuntary commitment, and the “legal and ethical” concerns raised by such strategies should make policymakers think twice about employing them.

“Like most medical treatment, addiction treatment depends on the patient’s voluntary cooperation,” says the study, to be published in a forthcoming issue of the Journal of Law, Medicine, and Ethics.

 “Although some evidence suggests that certain types of people might benefit from involuntary treatment, a 2016 review of available data concluded that evidence does not suggest improved outcomes of compulsory treatment, and some studies suggested potential harm resulting from such treatment.”

In one example, the study points to concerns raised about the standard of care by a forced-treatment program in Massachusetts, where the state mental health code allows individuals to be involuntarily committed for periods of up to 90 days.

Some 6,500 individuals were committed to treatment in 2016, but a 2017 report by Boston radio station WBUR described one treatment facility—a former minimum security prison in Plymouth—as still reflecting a prison atmosphere:

Men arrive in handcuffs, they wear orange jumpsuits, and they’re monitored by correction officers.

While the study concedes that the spreading opioid epidemic requires “significant intervention,” it adds, “not every perceived solution is legitimate or desirable, no matter the scope of the crisis.”

Although civil commitment laws exist in 38 jurisdictions, the practice of detaining substance abusers who have not broken any laws is still rare.

The study observes that the infrequency of civil commitment for substance abusers is related to reluctance on the part of clinicians and others to spend money on forced treatment when availability of voluntary addiction treatment remains scarce.

In many states, the study notes, civilly committed substance abusers are unable to undergo medication-assisted treatment (MAT) due to state law or practice, even though a combination of MAT and psychosocial interventions is the standard of care for treating opioid abuse.

Moreover, in cases where MAT is prohibited by state law or practice, medical professionals are faced with an ethical dilemma.

“If they participate in the coercive achievement of abstinence during confinement, they are not only acting outside the ordinary standard of care for substance use disorder, they are also participating in creating the risk that the individual will accidentally overdose when discharged,” the study said.

Under Massachusetts state law, courts can issue orders of commitment to a person according to the likelihood of serious harm to that person or to others. Likelihood of serious harm can be demonstrated through evidence of intent to harm oneself or others, or if a person’s judgement is shown to be so impaired that “he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.”

The study was written by Ish Bhalla and Rocksheng Zhong of Yale University; and Nina Cohen, Claudia E. Haupt, and Kate Stith of Yale Law School.

åAnother reason why the practice of involuntary confinement for substance abuse is still rare is a “genuine societal ambivalence over whether substance abuse should be viewed as willed conduct or the consequences of unwilled affliction,” the authors wrote.

They cite a 1978 Supreme Court ruling in Addison v Texas that “a state cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

In light of the Supreme Court’s stance on civil commitment, many states call for evidence that a substance abuser has threatened, attempted, or caused harm to themselves or another person, or evidence that there is an imminent risk that the person will harm someone if not detained.

The third possible condition for involuntary confinement depends on whether the substance abuser is so incapacitated by their addiction that they cannot provide for the basic necessities of life, and there is no suitable provider for said needs.

See also: Will More States Force Opioid Abusers to Get Help?

 The full study, entitled “The Role of Civil Commitment in the Opioid Crisis,” can be downloaded here:

This summary was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.

from https://thecrimereport.org

The Wrong Path: Involuntary Treatment and the Opioid Crisis

The use of involuntary commitment for drug addiction is expanding across the country, as desperate families seek help for their loved ones. But it is likely to make things worse.

In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

Leo Beletsky

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 in this preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Elisabeth Ryan

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach 

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs publichealthlawwatch.org, on Twitter at @phlawwatch. They welcome comments from readers.https://twitter.com/phlawwatch 

from https://thecrimereport.org