Wednesday, February 22, 2012

A guest blog from Jon Brandt regarding SVP programs...

This blog post features commentary by ATSA member and Minnesota resident/clinician Jon Brandt.

Doubts about SVP Programs

Jon Brandt, MSW, LICSW
St. Paul, MN

Recently there have been some excellent commentaries on the ATSA LIST about the state of sexual offender civil commitment (SOCC) and SVP programs in the US and Canada. With the pending discharge from SOCC in Minnesota of only the second guy in 20 years, this is a hot issue here. Not surprisingly, some state legislators are already trying to figure out how to block the release of 64-year-old Clarence Opheim.
For 20 years, Minnesota’s SOCC program has been a one-way door, with releases determined by political fiat rather than by therapists or judicial review. The SDP threshold into SOCC in Minnesota (MN Stat 253B.02 (18c)) is frighteningly low and the obstacles out are impossibly high. The current census at Minnesota’s SOCC facilities, the Minnesota Sex Offender Program (MSOP) is about 640. By 2020, MN DHS projects 1,100 clients.

At least in Minnesota, my experience is that most of the professional, competent staff at MSOP are trying to provide effective treatment to clients. However, it is not lost on either clients or staff that there is an intellectual dishonesty about treatment goals that no one has ever completed. When treatment is unending, can we expect clients to maintain endless motivation? MSOP reports an 80% treatment participation rate; evidence that dedicated staff and hopeful clients are trying to make the best of current circumstances. I do not think it is a moral abdication for clinical staff to provide services to clients while supporting and encouraging reforms and participating in the academic debates about SOCC.

Just a year ago, in March 2011, The Minnesota Office of the Legislative Auditor released an evaluation on the Civil Commitment of Sex Offenders in Minnesota. Like a similar 2011 legislative report just released in Virginia, it offers a review and critique of how MSOP is operating, relative to legislative intent. Needless to say, it is difficult to have outcome data without any “outs.”

The Minnesota report is over 100 pages, but there is a summary of recommendations starting on page 93. The summary, however, does not do justice to the narrative, which actually has a candid discussion about some of the problems and weaknesses in the MSOP program. The authors did not sidestep the issue of morale and client motivation for a program that operates like the Eagles' Hotel California – “you can never leave.”

I appreciate the insightful commentaries on SVP programs recently posted by Merrill Main and David Thornton on the ATSA-LIST. There was much to agree with, but I disagree with Dr. Thornton that, "you can only work with sexual offenders in the USA if you are prepared to work as part of a system that is substantially less just and less effective than it should be. Your choice then is whether you either withdraw from that system as a whole or work within it trying to incrementally shift it in the direction of becoming less unjust and less ineffective."

Thornton has expressed his views often enough on the ATSA-LIST and in other professional forums to leave no doubt that he is an advocate for the better management of sexual offenders, but I think it is BECAUSE we know that we are working in a broken system that we should neither withdraw from the system nor acquiesce to "incremental” changes.

Per capita, Minnesota has the highest SOCC rate in the world, and has had only one provisional discharge in its 20-year history. It was unsuccessful, his release was revoked, and he died at MSOP. If Mr. Opheim is able to avoid revocation of his discharge, he will be the first-ever MSOP client to not leave SOCC in a body bag. SOCC in Minnesota and elsewhere is badly broken and needs more than incremental change.

In January of this year, MN DHS and the William Mitchell Law School co-sponsored a symposium on SOCC, comparing systems in four states (MN, WI, TX, NY). There was no consensus on whether Minnesota should look at "more successful" models of SOCC, or whether we should consider the possibility that the 30 states in the US and almost all other countries around the world who do not have SOCC might be the model to follow. Every state/country has dangerous offenders; how are they managed without SOCC? With all due consideration for the dangerousness of those men on the morally depraved end of the scale, how many guys at the other end of the continuum should not be under SOCC?

Prior to SOCC, the last widespread use of preventive detention in the USA was when all three branches of our federal government approved the roundup of Japanese-Americans during WWII. After Pearl Harbor, “internment” was popular with the public and, with roots in anger, fear, and misinformation, it was legally justified on concerns for public safety. At the time, there were undoubtedly a lot more discussions about who qualified as “Japanese” and the logistics of mass incarceration, than there likely were about triage for risk or concerns about social injustice. Surely, anyone who spoke to the idea that preventive detention might be a misguided reaction to overblown fear had a small audience. While, perhaps, some argued for incremental changes to the living conditions at internment camps, the existence of the camps themselves were challenged by too few.

Internment was wrong, and most educated, informed people knew it. Nevertheless, leadership caved and public policy was driven by widespread hysteria. If Japanese internment is an unflattering comparison, that does not make the analogy invalid; in fact it makes the point stronger. If we will use preventive detention without considerations for efficacy or social injustice with Japanese-Americans who did not do anything to warrant detention, is it any wonder that the public seems entirely “comfortable" with using preventive detention for sexual offenders? If hindsight is 20/20, when we look back at SOCC many years in the future, will we be proud of the roles that we had today?

William Mitchell Law School Dean Eric Janus warned 20 years ago that SOCC was both deceptively enticing and deeply flawed. He predicted that SOCC would over-reach, compromise legal integrity, and foster misguided solutions to complicated social problems. Professor Janus wrote about this in his 2006 book, "Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State." Some of his arguments were laid out in a 2008 journal article. Janus appears to be correct in his prophesy of “build it and they will come.” At the symposium last month Janus issued another warning, that SOCC is an "impending train wreck."

Washington became the first state with SOCC in 1990. Like in Minnesota, the impetus was a couple of high-profile heinous sex crimes. SOCC has now been enacted, in some form, in 20 states. The US Supreme Court had doubts about sexual civil commitment in 1997 when justices approved it, in concept, by a narrow 5-4 vote in Kansas v. Hendricks. Kansas v. Crane, decided in 2002 by a 7-2 vote, clarified the Hendricks decision in regard to volition. A read of the opinions in these cases reveals how fluid the legal underpinnings of civil commitment are. It is noteworthy that Justice Breyer, in his dissenting opinion in the Hendricks decision, refers to an Amicus Brief filed by ATSA, attesting to the treatability of sexual offenders. If one justice in the majority on the Hendricks decision had joined the dissenting justices, SOCC would not exist as we know it today. If the courts, upon further review, find SOCC in practice to effectively be prison in disguise, the courts may find SOCC to be unconstitutional. Indeed, we should have doubts about SVP programs, and as a profession be prepared to offer viable, effective alternatives.

If professionals who work with sexual offenders do not challenge the politics, misinformation, and misguided management of SOCC, where is a more credible voice going to come from? In an area of public policy where reason is often eclipsed by emotion, ATSA members may be in the best position to know the research, understand competing principles, and advocate for sound rationales. If forensic psychology with sexual offenders is being dominated more by forensics than psychology, I would suggest that the tail might be wagging the dog.

A 2012 report just released on Sex Offender Recidivism in Connecticut confirms that recidivism for sexual offenders continues to be extraordinarily low. In a five-year review of 14,400 men released from prison in 2005, of the 746 parolees who had served a prison term for a sex crime, only 27, or 3.6 percent were arrested and charged with a new sex crime; 20, or 2.7 percent were convicted; and 13, or 1.7 percent were returned to prison with a sentence for a new sex crime. (Incidentally, the report has excellent demographic data.)

In contrast, the report indicates that overall recidivism for general parolees in the same period was 78.6 percent arrested, 69.3 percent convicted, and 49.8 percent returned to prison with new sentences. It is noteworthy that the report also reveals that a large number of paroled sexual offenders reoffended in other ways, but not sexually, which is what sexual offender management and SOCC is targeting. Still this report supports the conclusions of other research—that sexual recidivism is exceptionally low and there is something materially different between most sexual offenders and most “common criminals”.

Consider the data in the CT report in the context of actuarial risk tools. Only 3.6% of 746 paroled sex offenders were charged with a new sex crime. Is it any wonder that actuarial risk tools are having a difficult time determining which 27 guys out of 746 parolees will sexually re-offend? The report offers some clues, but they are not likely to be statistically significant. It is widely believed that most actuarial tools, in practice, are over-reaching the underlying science. How does this affect the rate of SOCC?

Furthermore, consider the implications of this CT report for SO registration. Add these new Connecticut findings to a 2008 New York State review of 170,000 arrest records for sexual offenses over a 20-year period. The review determined that 95% were first time sex offenders. As a matter of good public policy, does a reoffense rate of 4-5% justify the registration and tracking of the other 95% of sexual offenders?

A growing body of national research is beginning to arrive at a consensus similar to findings in New Jersey, that SORNA is at best a misguided solution; at worst contributing to the “social death” of sexual offenders, not cost effective, and by missing 95% of sexual offending not effectively making society safer. If sexual offender registration is severely over-reaching in the management of low-risk sexual offenders, is it not likely that the same risk management system might also be over-reaching in SOCC?

How many men with sexual offenses are getting caught in the SVP nets, not because they are actually dangerous, but because what they did is exceptionally offensive? What level of false positives is acceptable? The cost to taxpayers, lost productivity, and social injustice cannot be quantified.

If Clarence Opheim is provisionally discharged from MN SOCC next month, morale at MSOP will rise and scores of clients will reinvest in treatment. Hundreds of MSOP staff and 639 other clients are pinning their hopes on one man’s success. Every day that Mr. Opheim remains offense-free, survives the public wrath, holds up to the scrutiny of the media, and professionals do not overreact to minor violations, will build success. Stakeholders on both sides of the razor-wire will be watching to see if he is able to put 20 years of sex offender specific treatment into practice in a “real social environment,” or if he has forgotten how to function in the real world.

The state might indefinitely have to provide housing and facilitate employment. “Ex-con” or “Sex Offender” is a tough enough label but being tagged the “worst of the worst” might be a deal-breaker on a resume or a housing application. While I’m intending to be only a little bit cynical, without significant reforms, most adjudicated or convicted sexual offenders today, no matter how successful their efforts in the future, will never escape their past. That will be especially true for every guy coming out of SOCC.

It is not just in everyone’s interest that Mr. Opheim succeeds; it is imperative. Consider the alternative: If the second of only two discharges in MSOP history fails, for any reason, both failures will be seen as a malfunction of both MSOP and SOCC. A second unsuccessful discharge is not only likely to have far-reaching consequences for sexual offender management in Minnesota; a seismic “thud” may well be heard at ATSA listening posts across the country. In addition, it would be hard for the courts to ignore.

SOCC in Minnesota may now be painted into a corner. In the interest of public safety we may have compromised Constitutional protections beyond integrity. Perhaps Ben Franklin’s quote is apt, that “those who would give up essential liberty to purchase a little safety deserve neither liberty nor safety.” This might be part of the “train wreck” scenario envisioned by Janus.

The successful release of Mr. Opheim and other men under SOCC will be something to celebrate by all of us in this field that believe in effective treatment, the power of redemption, and the principles of social justice. But, going forward, if we are going to effectively manage sexual offenders, we need a significant paradigm shift.

We have very solid empirical evidence to challenge current misguided public policies. We need to get good research to the right folks. We need to infuse policy makers with the necessary information for bureaucracies to champion productive recommendations into meaningful change. Many ATSA members are doing the “heavy lifting” of trying to bring good research, balanced perspectives, and reasoned initiatives by writing and speaking to the media and at public hearings in the US and Canada.

We should all push past some inherent reticence that interferes with our ability to professionally speak up, take a stand, or find a place at the table with other stakeholders who share our common goals of making society safer. If we use our knowledge and expertise to educate the public, inform our colleagues, and persuade policymakers that best practices should emanate from good science, we might not have to settle for incremental changes. We can help create new paradigms.

A postscript:  There is a sobering caveat contained in the Connecticut report. The data was based on offenders released from prison during 2005. In 2007 was the horrible home invasion murder of the Petit family by two CT parolees. In the months following, the state’s parole system stopped functioning, the prison system grew by almost 1,000 inmates, and remand rates soared. This is similar to what happened in Minnesota in 2003 when Dru Sjodin was murdered by a Minnesota parolee. The following year, the referral rate for SOCC in Minnesota went from an average annual rate of 26, to 235. Since then, SOCC referrals have remained at an average annual rate of 140. Horrendous events resulted in Adam Walsh, Jacob Wetterling, Megan Kanka, Dru Sjodin, and too many other murdered individuals becoming the namesakes of Congressional Acts. This should remind us of the urgent and ongoing need to do much, much more on the prevention side.


  1. You managed to eloquently and professionally communicate what I try to tell people every day. WONDERFUL entry and I think it should be required reading for ALL lawmakers! Thank you!

    1. Completely agree Shana...have emailed this out to my Nevada list of those able to make a difference in many humans and their families lives with proper policy...including my own son. Fear is no longer an option at this point of our efforts...we have proof to the contrary on all! I firmly believe in not only our s.o. population gaining proper understanding and treatment but our victims as well. They must not only be used in a courtroom for the conviction...following up to be certain all have been healed on their own levels...this is working towards prevention as well! Health & Peace ALL! Mother of a jso immediately adjudicated to an adult s.o., previous victim of physical & sexual abuse and upstanding citizen of Nevada and our confused due to myths U.S. of A.

  2. I think every person needs to read this! All people have to do is look at things from an objective standpoint for even a minute and the questions come. I hope people read this and see the facts and see that what society says and the facts are different!

  3. The insight of this clinician is very much grounded in his training as a social worker. We need more social workers interacting with the criminal justice system, because the criminal justice system believes itself to be the only relevant stakeholder.

  4. This post was slightly modified at the request of the blogger on 02/24/12. RJW