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Wednesday, April 13, 2016

SVP Civil Commitment: Why Sex Criminals Get Locked Up Forever By Aviva Stahl

Illustration by Matt Rota
Why Sex Criminals Get Locked Up Forever, April 13, 2016
By Aviva Stahl

Gilbert Greenfield sits upright in the chair, his body tense, a blood-pressure cuff attached to his left arm. A sensor is strapped around his chest, and two more cap his fingertips to measure how much he's sweating. 

The polygrapher asks a question: "During the past year, have you fantasized about inflicting pain while having forced sexual intercourse with a female?"  

"No," Greenfield responds. 

The polygrapher prompts Greenfield again: "During the past year, have you masturbated to sexual fantasies about forcing a female to have sexual intercourse with you?" 

"No," he replies. 

When the test is over, Greenfield can breathe a sigh of relief—he passed. A court has ruled he's a sexually violent predator, and to go through the rehabilitative program, his treatment team must believe he is being open and honest about his deviant fantasies.
 

 
Greenfield is locked up in New Jersey for sex offenses he committed as a young man. At 14, he raped a woman by knifepoint, and at 20, he reoffended with a perhaps even more brutal crime. Armed again with a knife, he kidnapped a woman and raped her in the woods, then tied her to a tree, stabbed her, and sped off in her car. 

During years of treatment, Greenfield has been taught various strategies for reconditioning his sexual fantasies. When he was a child, the neighbors who lived next door had a house fire, according to Greenfield, and he has never forgotten the stench of burned flesh. "You could smell it in the air," he told me over the phone, the memory still sufficient to make him gag. Now whenever a violent fantasy pops into his head, Gilbert wills himself to return to the fire. 

Though the 51-year-old finished serving a 30-year prison sentence in 2004, he remains in confinement under the state's civil commitment statute. New Jersey isn't the only place with such laws: In 20 states across the country, as well as at the federal level, sex offenders labeled high-risk can be detained indefinitely upon completion of their criminal sentences. By one count, nearly 5,400 sex offenders are civilly committed across the country. 

Civil commitment raises a host of legal and ethical issues. Lawyers contest its constitutionality. Treatments tend to focus on how detainees should manage or change their "deviant" tendencies rather than advancing a more holistic approach to rehabilitation, an approach some experts say is ineffective and inhumane. But for men like Greenfield, the question is how to make sense of the logic that runs their lives. Despite his progress and good behavior, Greenfield has been told he will likely die in detention—not because of what he's done in the past, but because of what he might do in the future. 

"I always analogize this to the movie Minority Report with Tom Cruise," said Heather Ellis Cucolo, a former director of the online Mental Disability Law Program at New York Law School and an attorney who once served as a public defender for those facing civil commitment, including Greenfield. "It's the idea of projecting what future events are going to happen."  

"We don't have a crystal ball." 

In the 1980s and 1990s, Americans were gripped by high-profile media coverage of brutal sex cries against children and young women, sometimes by men who had been previously charged with sex offenses. New Jersey was not insulated from the rising panic about the sexual threats that might be lurking next door. The 1994 rape and murder of Megan Kanka in New Jersey spurred the passage of "Megan's Law," a series of bills mandating public sex offender registries nationwide. New Jersey's civil commitment legislation followed soon after, taking effect in 1999.  

Today, about 480 offenders are housed in the Special Treatment Unit (STU) in Avenel, New Jersey, an inconspicuous suburban town located about 50 minutes north of Trenton and just west of Staten Island.
(New Jersey's Division of Mental Health, which oversees the STU in Avenel, did not respond to repeated requests for comment for this story.) 

Civil commitment permits the indefinite detention of people who are found by a court to be "Sexually Violent Predators" (SVPs). That typically requires prosecutors to demonstrate to either a judge or jury that the individual has a "mental abnormality" or personality disorder that impairs their ability to control themselves, and that they would therefore be likely to engage in violent acts if released. 

Ever since those first civil commitment statutes were passed, scholars and lawyers have debated whether the laws infringe upon fundamental constitutional rights, including due process. Some have also argued that the laws violate protections against ex post facto punishment and double jeopardy (the legal principle of not being able to be charged with the same crime twice).  

But in 1997, the Supreme Court ruled in favor of such laws. In a five-to-four decision written by Clarence Thomas, the court decided that SVP hearings in Kansas were distinct from criminal trials, and therefore did not violate constitutional protections against double jeopardy. The Court also found that provision of treatment was a key part of civil commitment's constitutionality: If people were being given an opportunity to be rehabilitated, even if they didn't or couldn't get better, then their detention was distinct from a criminal sentence.  

All that doesn't mean much to Gilbert Greenfield. New Jersey, like several other states across the country, actually houses civil commitment programs in former prisons. Avenel's STU is located next door to two state prisons, and its main building was originally used as an administrative segregation facility, meaning the cells were designed to hold people in long-term solitary confinement.  

Visitors to the STU are greeted and patted down by Department of Corrections (DOC) prison guards, then led through a series of locked doors and past a 15-foot high chain-link fence that borders the outdoor recreation area. (Although the Department of Human Services provides treatment for the offenders, the DOC runs the facility.)

On a recent visit, Greenfield, who describes himself as interracial, had his black and gray hair pulled back into a ponytail. Seated in a maroon plastic chair just a few feet away from me, his large frame might have been imposing were it not for his warm body language and soft-spoken tone. Other family members and residents sat in pairs around us. Everyone spoke in hushed voices. 

Residents are locked into their cells for various periods of the day, including from about 10 PM to 6:30 AM. "When we step in our rooms, the metal doors slam closed," Greenfield had previously told me over the phone. His narrow window lets in only a sliver of daylight. 

The STU is supposed to make rehabilitation happen. But in New Jersey, like states across the country, questions linger about just how much treatment is enough. 

Andrew Harris is the associate dean for research and graduate programs at the University of Massachusetts-Lowell and has written about civil commitment in the past. "There's a whole debate: Are the people who are providing the treatment in SVP settings simply just doing it so that its kind of window dressing so they can justify the commitment?" he asks. "Or is this actually doing something and moving people towards rehabilitation?"

When I asked Greenfield about one treatment module offered at the STU called arousal reconditioning, he responded, "Do you know what Pavlov's theory is? It's kinda like that." 

During arousal reconditioning, detainees at Avenel are first asked to write a "deviant" scene—a fantasy or scenario that is especially arousing. Then each participant is asked to identify an "aversive" scene— a memory, or image, that is a particular turn-off. Greenfield's aversive scene is the fire. 

Gilbert believes arousal reconditioning has been effective for him, but the treatment is relatively controversial; it's reminiscent of gay "conversion" therapy, a practice most medical professionals now consider unethical and inhumane. 

There are other approaches to preventing harm, like Virtuous Pedophile, an online pedophile support group. Users say the site improves their self-esteem while reducing their sense of isolation. It provides a space for people to open up about their attractions, without reducing them to that one facet of their lives. But the site also nurtures and enforces strict standards of accountability for behavior in the real world.

If the nature of the treatment at Avenel is controversial, so are the ways in which treatment "progress" is measured—like the polygraph about sexual fantasies, which Greenfield said he most recently took in 2008. (In Greenfield's latest annual review, his treatment providers state he has never taken a polygraph while at the STU, but documents provided by the resident and authenticated by the polygraph examiner say otherwise.) 

The February 2016 guide to the STU instructs residents that "the polygraph is used as part of treatment to gauge how you are dealing with especially uncomfortable issues such as your current sexual arousal pattern."  

Polygraphs are highly controversial tools for measuring truth, especially in the civil commitment context. About 15 years ago, Dr. Stephen Fienberg chaired a committee charged by Congress to examine the polygraph's validity as a lie-detecting device. The team ultimately concluded that the polygraph could be useful in deterring and possibly detecting deception, but only when it came to specific kinds of information. 

"One needs to be really careful about distinguishing between questions, at least that relate to something factual that happened before about which one could, in principle, have real knowledge, versus states of mind or future events, where the polygraph essentially has no value," Fienberg tells me. 

"I want to make it very clear that I think the law needs to be very harsh with sex offenders," adds Fienberg, now a professor at Carnegie Mellon University in Pittsburgh. "But I don't think we should use a tool that has essentially no validity in assessing whether or not someone is or is not releasable to the community given whatever standards we set." 

Galen Baughman, the only person in Virginia's history to beat a civil commitment jury trial, describes the use of the polygraph as totalitarian. "It's just like Brave New World, where the government is allowed to interfere in the intimate realms of a person's mind," he argues. Baughman was imprisoned for nine years for having sex with a 14-year-old boy when he was 19. He is now a prominent speaker and writer on civil liberties issues faced by convicted sex offenders. 

While polygraphs are generally considered too unreliable to be admissible in court, they are still used in civil commitment programs across the US. According to the 2014 annual survey of sex offender civil commitment program, nine out of 15 participating states reported utilizing polygraphs to evaluate disclosure of sexual fantasies.  

Other states show residents sexual images or describe "deviant" scenarios, then use a device called a penile plethysmograph to track blood flow into the penis and measure arousal. (Although a handful of states civilly commit women, the vast majority of people detained under SVP statutes are men.) 

The practices of certain states have come under court scrutiny in recent years. Last June, a court found Minnesota's program to be unconstitutional. At issue in the ruling was not civil commitment in and of itself, but the fact that Minnesota had never fully discharged anyone placed in its detention facilities. 

"The overwhelming evidence at trial established that Minnesota's civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system," wrote Judge Donovan Frank. 

Other states' programs face similar legal challenges, including Missouri. 

Whereas indefinite detention has been a certainty for people civilly committed in Minnesota, the same actually hasn't been true in New Jersey. As of December 2015, 214 people had been discharged from New Jersey's civil commitment program, out of the 731 committed since the statute was brought into force. 

Although it was far from perfect, Greenfield told me that the decade of sex offender treatment he received during his criminal sentence helped him assemble a narrative of why he committed his crimes. 

Over the phone, he explained that it all began when he was five, when his dad passed away, leaving his mom as his primary caretaker. He faced repeated sexual and physical abuse from her until, at age seven, he asked child protective services to remove him from the home. He bounced in and out of foster homes, institutions, and juvenile detentions centers throughout his teenage years. 

Charles Whittud, 47, is also a repeat offender and has been civilly committed at Avenel since November 2013. Both of his crimes were against girls under the age of eight. Whittud told me that he was raped as a child and that his own unresolved pain and trauma were the root cause of his crimes. "The biggest thing [in my treatment] is just understanding my past," he said. 

Likewise, Greenfield believes his experiences of sexual trauma, and lack of family life, left him completely unable to interact with women—to communicate interest or nurture a relationship. "I wasn't able to do that," he said. "I wasn't socially capable, and so I did what happened to me—I just took it. I wanted it, I took it." 

He has never been in touch with his victims, and he doesn't think there would be much purpose in it, either.

"One of the things that allowed me to look at my victims as human beings, was that realization that—it's 30 years later," Greenfield said over the phone, "and let me tell you something, she could look in the mirror, she could hear a sound, she could see something—a shadow, and it could bring everything back to her." 

"That's fucked up, that it's not going to go away," he told me.  

On my visit to Avenel, Greenfield told me that he gets triggered, too. His mother once stabbed him in the face, he claims, and the betrayal and fear he felt then was absolute. Even now, when he looks in the mirror and sees the scar, Greenfield sometimes feels like he's that child again. 

When it comes to sexual violence, cases like Greenfield's and Whittud's are exceptions: The overwhelming majority of acts of rape and child abuse are not committed by a stranger lurking in the shadows or next door, but by a friend, acquaintance, or family member. 

Perhaps more important, as a group, sex offenders have one of the lowest rates of recidivism of all crime categories. According to research produced by the US Department of Justice in 2012, "the observed sexual recidivism rates of sex offenders range from about 5 percent after three years to about 24 percent after 15 years." 

At Avenel, what residents say in process groups or modules is subsequently used by treatment providers to argue for continued detention—or treatment progress. Which means detainees may be more inclined to approach therapy strategically instead of honestly. The trust and confidentiality that normally shapes therapeutic relationships is undermined. 

Yet sometimes, even a deep commitment to treatment and rehabilitation is not enough to earn freedom from the STU. "Mr. Greenfield continues to be very active and productive in treatment," his treatment team noted in his most recent six-month review. "He actively engaged in his process group, was generous with feedback to others and was able to accept feedback as well." 

But the treatment team added that due to several factors, Greenfield is largely unable to change—like high scores on risk-assessment instruments, diagnosed "psychopathy and sexual sadism" and "a markedly high victim impact of his crimes"—he will likely never get out of the STU.  

According to New Jersey's Office of the Attorney General, since the statute was brought into force, 58 people have been discharged to hospice care or died while at the STU. 

Greenfield is worried about the prospect of never getting out, and not just for himself. In 1995, a fellow prisoner introduced Greenfield to his sister, Jamie. Greenfield was immediately struck by her honesty, and the fact that they could talk openly about his crimes. The two were married in 2008, and speak on the phone every day. Jamie has two children, whom Greenfield considers his own. 

He believes the message he's receiving from his treatment team is crystal clear. "What you did, the schooling, the education, the cleaning yourself up, making yourself a better person, getting married—all that stuff was a waste of your time and a waste of everybody else's time," is how he described it. "'Cause the truth of the matter is you're nothing more than that same, 18-, 19-, 20-year old kid that came to jail 35 years ago." 

Do people think that criminals like Greenfield are unsalvageable? 

"I think they do," Whittud said when asked that question. "I think it's a very visceral reaction, when you hear someone doing something with a child. I think it just shuts people down from wanting to hear anything else."

In 2010, civil commitment programs for sex offenders cost American taxpayers close to $500 million—eclipsing the $413 million or so spent on domestic and sexual violence programs in fiscal year 2012. Canada and the UK have embraced a different approach for managing high-risk sex offenders, a model called Circles of Support & Accountability (COSA). Under COSA, when the offender is released, a team of professionally supervised volunteers is assigned to meet with him or her to provide sustained support. Initial research suggests that COSAs are both effective and cheap. The programs have been implemented in a small number of US jurisdictions. 

Instead of indefinitely locking up men like Greenfield and Whittud, advocates like Heather Ellis Cucolo believe states should use their money to provide assistance for victims and develop prevention and outreach programs in schools and communities. "The steps that we take to restrain these person's liberties in the community, and to constantly make them pay for a crime that they committed in the past—that won't keep us safe," she said. 

"We want to pretend that we're safe. But the fact is that we don't know—and we can't know."