Slamming Door on Predators

Inside an odd Los Angeles County courthouse, perhaps the most vexing problem facing the criminal justice system plays out several times a week.

It’s a place where constitutional liberties, society’s right to protect itself and the ever-changing science of abnormal psychology collide. And there are no good solutions.

This is the courtroom, the only one of its kind in the county, devoted to cases involving violent sexual predators, the child molesters and repeated rapists who have finished their prison sentences but are liable for civil commitment.

These are the ones no institution wants. These are also the ones whose risk of reoffense is so high almost nobody wants to let them go, either.

In an unprecedented use of the legal system, the state allows sex criminals to be locked away based not on crimes they have committed, but on the possibility they might offend again. And that, simply, is the root of the controversy: Is society going too far, as the judge who oversees these cases believes, or are vulnerable people being rightfully protected from dangerous sex criminals?

California approved its sexually violent predator law four years ago after a number of high-profile cases, such as that of the so-called Pillowcase Rapist, stirred politicians and activists into action. Christopher Hubbart, who was linked to about 30 rapes in which he typically covered victims’ faces with a pillowcase, was the first to be held under the law.

The politicians’ goal was to keep sex criminals who were convicted before stricter sentencing laws were enacted from reentering society. The law allows the state to civilly commit repeated sex criminals to a state mental hospital where they must remain for at least two years, and might be held indefinitely.

As in 16 other states with similar statutes, California’s law has been tested time and again in the courts. The California Supreme Court upheld the law last year. The U.S. Supreme Court found in 1997 that Kansas’ law, which is similar to California’s, could not be considered punishment if sex offenders are held in state treatment facilities. The justices agreed in March to review Washington state’s statute based on a case brought by a man who contends that he has been unduly punished by being held for nine years without treatment.

The state’s mental health department contends that the program will eventually require construction of a new state hospital devoted to the treatment of sex criminals. Until then, however, “a clash of tensions” is resulting, according to Steven Mayberg, the department’s director.

The inmates are angry about being detained when they are nearing the end of their prison terms; the Los Angeles County Sheriff’s Department chafes under the difficulties of keeping them as they await commitment proceedings; some judges and lawyers question the constitutionality of the law while even some civil libertarians argue that these offenders should be kept in some kind of controlled environment. Advocates for the mentally ill, meanwhile, believe the statute is diagnosis by legislation, rather than a determination of a true medical disorder. Sex offenders, they say, are taking up valuable space in a state mental hospital.

Public sentiment appears to lean toward keeping sex offenders detained, anywhere, at any cost.

“When you say to a person sitting on a jury: child molester on the streets, child molester in jail?. . . . They’re going to say that we should never have let them out to begin with,” said John J. Vacca, head deputy of the mental health branch of the public defender’s office.

All Agree No Cure Exists

Although a range of disagreement exists over the merits of the sex offenders law and treatment, everyone agrees that no cure exists. Many experts say treatment can reduce the risks of reoffense but that a deviant sexual behavior is more of an addiction than an illness.

“It’s not a mental illness like schizophrenia or bipolar disease,” said Dr. Craig Nelson, the clinical administrator at Atascadero State Hospital, “but it’s clearly a mental disorder. It’s a fine distinction that gets lost on most people.”

Sex offenders are typically diagnosed as having paraphilia, a relatively generic term used to describe deviant sexual behavior.

Research shows that sex offenders whose victims are male and who have a history of violent sex crimes have high recidivism rates. One study conducted by Canadian researchers found that sex criminals probably will reoffend the first few years after being released, and that the rates keep increasing with time.

The sexually violent predator program begins with the Department of Corrections, which refers repeated sex criminals at the end of their prison terms to the Department of Mental Health for psychiatric examinations. Since the law became effective, the corrections department has screened more than 36,000 inmates.

Those evaluations must determine whether inmates have a history of violent sex acts toward strangers or casual acquaintances and whether they have a mental disorder making them “likely” to reoffend if they are released. If inmates meet those criteria, they are determined to be sexually violent predators and they typically are referred to the county where they were last sentenced to await hearings and finally jury trials to determine whether they will be civilly committed. More than 3,100 inmates statewide have been referred to the program since 1996, and about 300 offenders have been committed.

Each inmate at Atascadero State Hospital costs the state about $107,000 a year, about four times more than a regular convict.

In Los Angeles County, sex offender cases are heard in an oddly located Superior Court, a decaying former pickle factory between the Golden State and Pasadena freeways, isolated miles away from the downtown courts. Superior Court Judge Harold Shabo presides.

On a recent day, Eli Delray, a repeat child molester, sat quietly listening as a psychologist explained why he believed Delray would run a significant risk of committing more sexually violent crimes if he were released from custody.

“He has a pattern of arrests for similar behaviors . . . and we also know that many sex offenders commit crimes for which they are not arrested,” said Hy Malinek, a Beverly Hills clinical and forensic psychologist and member of a state panel of experts on risk assessments. Malinek is frequently called as an expert witness for the prosecution in these cases.

In an interview later, Malinek said the law requires “a highly complex judgment call.”

“Every single day, people convicted of murder and all kinds of heinous crimes do their time and then are free,” Malinek said. “In these cases, because of the underlying mental disorder, the state has this kind of protective measure. . . . No doctor can tell the future . . . but I think the law means well.”

Delray’s rap sheet includes numerous convictions and charges of sexually deviant behavior, including molesting children as young as 4 and even a case of indecent exposure while he was being held at the Atascadero hospital.

Like most of the sex offenders in the county, Delray, 43, is represented by the public defender’s office. None of those attorneys would allow their clients to be interviewed for this article.

But those lawyers say they have difficulties with the way the law treats sexual offenders. They note that tougher sentencing laws passed in 1994 mean that most violent sex offenders convicted today are sentenced to life in prison. For those already in prison before 1994, the civil commitment statute can produce virtually the same result. In addition, they point out that other laws allowing involuntary commitment require some proof that the person exhibits a present danger to society, and usually that requires evidence of a dangerous act within two weeks before confinement.

To some, all of this amounts to a double standard or worse.

“Here we are saying sorry you’ve already served your term but we still won’t let you out,” said Vacca of the public defender’s office.

Shabo goes further, saying the law is essentially feel-good legislation intended for politicians and crusading activists.

“If we’re going to have preventive detention, let’s call it that and deal with that,” Shabo said recently during a break in court proceedings. “A healthy society doesn’t lie to itself and that’s what we’re doing. . . . No one wants to see another victim but at the same time we don’t want to have a meat-ax approach, assuming everyone is dangerous.”

Shabo acknowledged that he sees a need for the law in some cases but said he doesn’t believe the majority of these offenders are mentally ill. Rather, he believes they need psychological treatment immediately after they have been convicted, “before the person can rationalize the crime and/or shift the responsibility to the victim.”

Perhaps what is needed, the judge said, is an alternative facility to house these offenders once they’ve been convicted. That way, they might more quickly receive needed treatment and the state won’t rely on what the judge views as subjective criteria to detain them after their prison sentences.

Los Angeles County Sheriff Lee Baca, and those who run the jails, would also prefer to have the sex criminals kept elsewhere. Instead, they have to deal with the inmates’ repeated requests and sophisticated tactics in working the system. “Undoubtedly I want them out of my jail,” Baca said. But the sheriff said he doesn’t want these offenders on the streets “because I’ll have to deal with them again.”

Currently, 47 sex criminals awaiting civil commitment, ages 29 to 70, live together as so-called K-10s--or keep-aways--in Twin Towers because sheriff’s officials say they would come under attack from other inmates if they were left to live within the general jail population. Some of the sex offenders refer to themselves as “political prisoners.”

These inmates are a tough group for the Sheriff’s Department, officials say, partly because of the sex offenders’ personal knowledge of the criminal justice system and partly because of the judge’s compassion for them. They frequently pass notes, write letters and file complaints to Shabo, the judge; he in turn writes orders to the Sheriff’s Department. To deal with the numerous requests, the department has added two additional positions.

“We are inundated,” said Cmdr. Bob Hoffman, who oversees Twin Towers, among other duties. “As we give them more privileges, that causes them to believe they’re special . . . it reinforces their feeling that they don’t belong in jail.”

So far, the department has agreed not to handcuff or shackle the sex offenders when they’re in Twin Towers, even though most of the other segregated inmates in the special keep-away unit are restrained that way. The department readjusted the television sets allowing these inmates access to more major stations than others in the jail, and they now have different--and more frequent--visiting hours than the general population. They also are allowed hot water to make coffee, tea and soup.

The latest dispute focuses on strip searches: The sex offenders are searched when they return from court--as are all inmates--but they object to being searched in an outdoor area when it is cold.

“Many of them are sitting in sheriff’s custody in limbo,” Shabo said. “To manage their frustration and bitterness has been a goal of mine. . . . It [ultimately] helps maintain order in the courtroom.”

Inmates File Class-Action Suit

One of the Twin Towers inmates filed a class-action federal lawsuit this year alleging that the sexually violent predators are being wrongfully incarcerated in a penal institution.

“I don’t believe a facility exists [that is] designed for capable, competent mental health commitments,” said Kenneth Ciancio, 39, who was incarcerated in state prison for 17 years for three rape and oral copulation cases. He has been held in Twin Towers for 18 months.

The civil commitment law is “a sham,” said Ciancio, who is representing himself in the federal case and who has filed 61 complaints since November against the Sheriff’s Department.

While the offenders and Shabo are outspoken in their criticism of the law, the Los Angeles County district attorney’s office finds itself caught in a tricky position. Prosecutors say they continuously battle delays and other rulings sought by the defense and agreed upon by the judge. In four years, the district attorney’s office has appealed decisions and other rulings by Shabo in up to 40 cases, said Pam Booth, who oversees the district attorney’s sex crimes division.

“Look, he’s a very kind man and he cares passionately about these people,” Booth said. “He wants to lighten their burden. . . . But they wouldn’t be in this program if they weren’t deemed to have a risk of reoffense.”

That risk is not lost on advocates of the mentally ill but they believe the sex offenders should not take up valuable space in the state’s mental health system. Moreover, they contend that the program takes precious state funding; last year the state Legislature allocated nearly $42 million for the commitment program.

“It’s not because I don’t want society protected from dangerous people, but I think it’s using the mental health treatment system as a form of social control,” said Carla Jacobs, who serves on the board of the National Alliance for the Mentally Ill. “It’s a legislated diagnosis and a political commitment.”

Regardless, Rep. James E. Rogan (R-Glendale), who sponsored the legislation while in the state Assembly, has no regrets. In fact, he said that repeated violent sex offenders should “probably get the death penalty” and that the legislation was the most important he ever carried.

“Sorry, go hold the hands of parents whose children’s lives have been scarred forever,” Rogan said. “I’m afraid if they’re looking for sympathy from me, they’ll be hard-pressed to get it.”