Tuesday, September 15, 2015

Tamara Rice Lave and Justin McCrary: Are Sexually Violent Predators Dangerous Enough?

Are Sexually Violent Predators Dangerous Enough? September 15, 2015
By Tamara Rice Lave and Justin McCrary

On June 15, U.S. District Judge Donovan W. Frank struck down Minnesota's law allowing for the civil commitment of so-called sexually violent predators. SVP laws allow a person to be locked away indefinitely after he has completed his maximum prison sentence. Twenty states and the federal government have passed such laws, and over 5,000 SVPs are incarcerated at an annual cost in excess of 450 million dollars. 

Judge Frank found Minnesota's law unconstitutional because it continued to hold people after they were no longer dangerous. The next day, a three-judge panel on the Ninth Circuit Court of Appeals held that California's SVP law did not violate the Constitution because, as Judge Susan Graber wrote, "a state rationally may decide that sexually violent crime is qualitatively more dangerous than other kinds of violent crime."  

These cases came out differently in part because Judge Frank considered evidence of SVP dangerousness, while the Ninth Circuit for the most part did not. Shirking facts is nothing new when it comes to sex offender laws. In Kansas v Hendricks, the U.S. Supreme Court simply accepted as true the legislature's claim that SVPs are "extremely dangerous" and their "likelihood of engaging in repeat acts of predatory sexual violence is high."

Yet dangerousness is critical to the constitutionality of SVP laws. Many people support putting away sex offenders forever, but the Constitution prohibits a person from being punished twice for the same crime. Legally, a state may not hold a sex offender past his release date because it feels he deserves more time, but it may civilly commit him if it can prove that he is mentally ill and dangerous. 

In a 2013 paper published in the Brooklyn Law Review, we questioned this central premise -- that there is a small, readily identifiable segment of the population so dangerous public safety demands they be locked away. If this claim were true we would expect to see what criminologists term an "incapacitation effect" -- in other words, removing these dangerous people from the community should have a negative impact on the rate of crimes we believe they are at risk of committing.

Dr. Karen Franklin Blog: As Courts Censure Civil Detention Practices [Civil Commitment of Sexually Violent Predators], is it Time for Professionals to Speak Up? By David S. Prescott

As courts censure civil detention practices, is it time for professionals to speak up?
Guest commentary by David S. Prescott, LICSW*
September 14, 2015

Last week, a federal judge ruled that Missouri's civil commitment program is unconstitutional, the second such court decision in three months. For readers unfamiliar with the US civil commitment laws (AKA “SVP” laws), the short version is that 20 states and the federal government have laws that allow states to indefinitely confine sex offenders who are assessed as having a mental diagnosis that predisposes them to commit future sexual violence. There are controversies at every possible turn in these laws, their processes, and subsequent programs, and the US Supreme Court decisions allowing civil commitment have passed by as little as one vote. Because the author was an expert witness in the Missouri case, this essay looks more at the big-picture issues rather than at that specific case. What seems clear is that there is an evolving consensus in the courts that civil commitment as it is being practiced in many places is unconstitutional and that governments and programs must work together closely to rein in widespread abuses.

As in the Minnesota case decided this June, the Missouri case involved a treatment program in operation for many years (roughly 15 in Missouri’s case and 20 in Minnesota’s) from which few have been released and no one has ever been fully discharged. On one hand it is clear that some people who are civilly committed are truly dangerous; I have worked with men who openly vow to re-offend. On the other hand, no bona fide form of treatment takes a minimum of 15 years to complete. Add to this a political climate that is at best unconducive to genuine rehabilitation, and the die for these court decisions was cast long, long ago.

For all of our profession's advances in assessment and treatment, we seem to be producing no improved outcomes whatsoever in the civil commitment arena. A study that has not garnered the amount of discussion that it deserves is Grant Duwe’s 2014 research finding that only 28% of a sample of civilly committed offenders would likely have re-offended again in their lifetimes, raising questions as to whether states have cast their nets too wide. In a nation in which “Blackstone’s Formulation” -- "It is better that ten guilty persons escape than that one innocent suffer" -- is taught in schools as a fundamental principle of justice, the practice of holding thousands of people indefinitely beyond the expiration of their criminal sentences ought to give anyone pause. In fact, the principle behind Blackstone’s Formulation goes back to antiquity. For example, in the Bible, Genesis 18:23-24 quotes Abraham as asking: “Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it?” What are the implications for civil commitment?

John Oliver Show on HBO: Public Defenders in America....... What About Public Defenders in Virginia?

September 13, 2015 

The above clip from the John Oliver Show is really worth watching. 

I’ve done some research on Public Defenders in Virginia since first viewing the above. 

In Virginia the appointment of a Public Defender or Court Appointed Lawyer is only permitted in cases in which the accused is facing the possibility of a jail sentence AND is deemed to be indigent. 

Virginia has strict financial guidelines for determining whether someone is eligible to have a Public Defender or Court Appointed Lawyer and those seeking appointed counsel must fill out a financial questionnaire regarding assets, and do so under oath and penalty of perjury. 

Some jurisdictions in Virginia have a Public Defender office and other jurisdictions do not.  Jurisdictions which do not have a Public Defender office have a list of private lawyers who have agreed to be appointed to represent indigent criminal defendants.   

Virginia Public Defender offices are government offices staffed by government employees who are paid by the Commonwealth of Virginia - just like the people working in the Office of the Commonwealth Attorney. Virginia Public Defenders are paid a salary and have the seemingly incomprehensible task of handling essentially every case involving an indigent criminal defendant, regardless of workload.  They simply don't have the option to say they are too busy and can't handle another case.  Instead, they have to take on all the cases that come in and do the best they can to provide the best possible representation.

Private Virginia Court Appointed lawyers are not government employees, but rather lawyers who work in the private sector and have agreed to represent indigent criminal defendants in Virginia for embarrassingly low compensation.  

  1. In Virginia if you have been found guilty OR you take a plea deal of guilt (94%+ of criminal cases in Virginia) the defendant per code (see below), will be billed the cost for the use of the public defender. If you are found not guilty, you do not owe any costs.
  2. In Virginia if you are deaf and indigent and need an interpreter in court, an interpreter will be appointed and it appears per code (see below) the defendant will NOT be billed for the serviced based on a guilty or not guilty outcome.
  3. In Virginia if you do not speak English and are indigent and need an interpreter in court per code (see below), the judge decides if you need an interpreter or not and the cost is paid by the state whether you are found guilty or not guilty. But, in 2015 there was legislation to try and mandate anyone found guilty (including a plea deal) would be required to pay for their English interpreter, that bill failed.
  4. In Virginia per code (see below) if you have been found guilty OR you take a plea deal of guilt the cost of the court recording and transcripts are billed to the defendant.
  5. In Virginia per code (see below) if you if you have been found guilty OR you take a plea deal of guilt the cost of the gathering of medical evidence and any medical tests are billed to the defendant.