Across the nation inmates and staff are increasingly testing positive for COVID-19. If you have a loved on who is incarcerated contact us today to see how we can help.
By Sean R. Francis, MS
Justice Solutions of America, Inc.
Currently, there are over 154,000 inmates in the custody of the Federal Bureau of Prisons ( BOP). The vast majority of these inmates suffer from at least one mental health diagnosis. To fulfill the primary mission of the BOP, which is the protection of the public, BOP has implemented various mental health programs to assist inmates who struggle with mental health difficulties. This paper will discuss the various treatment options available to inmates who suffer from substance abuse issues and sexual offending issues. This paper will also address the various ways in which forensic psychologists play a vital role in the execution of these programs and treatment of the inmates.
I. Why We Need Drug Abuse Education in the Bureau of Prisons
In the early 1970’s President Richard Nixon declared a “War on Drugs.” This declaration ushered in new law enforcement tools, such as mandatory minimum sentencing and “no- knock warrants”, to combat the flood of illegal drugs entering the United States ( Sirin, 2011). Many believed that this was a measure aimed at poverty stricken drug addicts and offenders, many of whom were black. One of Nixon’s top aids, John Ehrlichman, would admit years later that Nixon viewed black people as an enemy (Sirin, 2011).
However, it would not be until the 1980’s and the Regan era that the “War on Drugs” really got ramped up. The United States would embrace an almost hysterical belief on the harms of illegal drugs. This was spearheaded by First Lady Nancy Regan’s “Just Say No” campaign. This resulted in draconian laws, the abolition of parole in the federal system, the federal sentencing guidelines being passed and a zero tolerance policy with regard to drug abusers and suppliers ( Sirin, 2011)
These laws largely and unjustly targeted the black community. The biggest example of this was the disparity between crack cocaine and powder ( Sirin, 2011). Crack was treated as a substance that was vastly more dangerous and addictive than powder cocaine. Therefore, the law treated crack as 100 times worse than powder cocaine. The problem with this is that crack was cheaper to produce than pure powder cocaine. Thus, it was popular in many poverty stricken black communities while powder cocaine was popular with the white community. 5 grams of crack cocaine would result in a 5 year mandatory minimum. Drug offenders were now serving more time than rapists and murderers.
The result of such actions was an explosion in the number of federal offenders in the Bureau of Prisons. In 1981 the federal prison population was 26,313 ( BOP.gov). However, by the time President Regan left office the population had grown to 57,762 ( BOP.gov). This is an over 60 percent increase and was largely a result of the “War on Drugs.”
The next major increase in the federal prison population due to drugs would come during the Clinton years. Clinton would embrace many of the policies of his republican predecessors. He would also reject a proposal to end the disparity between crack and powder cocaine. Clinton would leave office with a federal prison population of 145,125 inmates ( BOP.gov).
In response to the growing number of drug offenders the Bureau of Prisons started a massive expansion of it’s substance abuse treatment programs during the 1980’s. In 1988 then BOP director Michael Quinlin created the first residential drug abuse treatment program ( RDAP)
( Pelissier, et al, 2001). Congress also amended 18 USC § 3621 to allow the Bureau of Prisons to grant an offender up to 12 months off of their prison sentence for successful participation in the 500 hour residential drug program ( Pelissier, et al, 2001).
Prior to the passage of the First Step Act in 2018 the 500 hour residential drug program was the only program that allowed offenders to get time off of their sentence. All federal offenders must serve 85 percent of their sentence.
II. Residential Drug Abuse Treatment Program
(A). The residential drug treatment program is an intensive 500-hour substance abuse program
( BOP.gov). It has been established at specific federal institutions throughout the nation so that all security levels may participate. Currently there are 90 RDAP programs at 77 BOP institutions throughout the nation. Participation is voluntary and successful completion may result in up to 18 months being deducted from an inmate’s sentence ( BOP.gov).
Once an inmate has 30 months or less remaining on their sentence, they may submit themselves for placement in RDAP (Ellis, Bussert, 2016).It is not certain that an offender will be accepted into the program and if they are it is not certain they will receive time off their sentence. The inmate must have a verifiable substance abuse issue. Often documents by the inmate’s pre-sentence report (Ellis, Bussert, 2016).
The inmate usually must be recommended to participate in RDAP by their sentencing judge (Ellis, Bussert, 2016). Also, only offenders with certain convictions will qualify for time off of their sentence. Violent offenders, sex offenders and those who have active detainers will not be eligible for the time off.
Once an offender submits a request for placement in RDAP the first step is to meet with a member of the psychological staff at the inmate’s current institution (Ellis, Bussert, 2016). The psychologist will review the inmates file, interview the inmate and conduct an evaluation that will result in a recommendation on RDAP placement. Because all inmates want time off their sentence the BOP psychological staff are instrumental in determining who is truly in need of these services and who is simply malingering in attempts to go home sooner.
Once an inmate is approved for RDAP they are re-designated to an institution with the program and transferred. When the inmate reaches their new institution, they are housed in a unit that is solely dedicated to the RDAP program (Ellis, Bussert, 2016). Only program participants are housed in these units and, while a corrections officer does staff the unit for security, the unit is run by the forensic psychological staff of the RDAP. The psychological staff have offices in the housing units and control every aspect of the unit, creating a treatment milieu (Ellis, Bussert, 2016).
During business hours the inmates will participate in a half day of programing. There are two programs, the AM & PM. Lunchtime being the end of the AM and the beginning of the PM. The treatment program is run by forensic psychologists and interns. The Cognitive Behavioral Therapeutic method is used for RDAP (Ellis, Bussert, 2016). Therapists work directly with offenders 5 days a week. Offenders have a one-on-one therapist assigned to them for individual therapy and assistance (Ellis, Bussert, 2016). They will also participate in process groups, relapse prevention and other groups dealing with substance abuse issues (Ellis, Bussert, 2016).
As an offender gets close to release their one-on-one therapist will work with the offender, their family and U.S. Probation to help the offender smoothly transition from incarceration to society. The therapist remains a resource even once the offender is released. Offenders often remain in contact with their one on one.
(B). Does participation in treatment impact an inmate’s behavior while in prison?
Some studies have found that inmates who participate in prison-based drug treatment programs have a 45 percent lower misconduct rate than inmates who are not programing (Welsh, et al, 2007). When dealing with the RDAP program inmates know that misbehavior will not be taken lightly by the therapeutic team. RDAP participants are supposed to hold themselves to a higher standard than other inmates. Misbehavior can result in loss of privileges, loss of time off their sentence if they complete the program or even expulsion from the program.
Langan & Pelissier, (2002 ) conducted a study of 600 inmates who completed the federal RDAP program compared to 451 inmates who had not completed the program but had a history of substance abuse. They found that the inmates who had completed the RDAP program had a “significantly reduction” in overall institutional misconduct. Similar results have been reported in many studies conducted in state prisons (Welsh, et al, 2007).
(C ). Does prison-based drug treatment work?
Pelissier, et al, (2001) found that only 12.5 percent of RDAP graduates were re-arrested within the first six months of release. Inmates who participated in drug treatment while in prison were found to be 73 percent less likely to be re-arrested than non-treated inmates ( Pelissier, et al, 2001). Furthermore, it has been found that offenders who complete prison- based drug treatment have a greater chance of successfully completing their post incarceration probation
( Pelissier, et al, 2001).
This is vital because in today’s world almost all offenders have parole or probation after the completion of their sentence of incarceration. The days of just walking out free and clear are mostly over. It has been estimated that close to 45 percent of all offenders in prisons are now probation and parole violators ( Time.com). Many offenders on probation and parole have terms and conditions that make actions legal for society in general illegal for them. Drinking alcohol and using marijuana is one such example. In fact, substance abuse violations are often pitfalls for such offenders. The fact that most who participate in prison-based drug treatment do not violate their probation or parole is a positive sign and clear proof that these programs are working.
(D). What role does a forensic psychologist play in the RDAP program?
Forensic psychologists are the backbone of the RDAP program. They play a vital role in every step of the inmate’s progression. As was mentioned above, the first step in an inmate’s journey to RDAP is an evaluation by the psychological staff at the inmate’s parent institution. This requires the psychologist to screen the inmate to weed out those who may be malingering in attempts of admission to the program for time off their sentence ( Ellis, & Bussert, 2016).
Forensic psychologists continually evaluate the inmates who are in the RDAP program and their progression. They developed and run the groups, as well as the program itself. The forensic psychologists work with U.S. Probation, the offender and their families to effectuate a smooth transition from incarceration to freedom.
When an inmate comes to prison they are placed into the custody and care of the correctional officers and the warden. However, when an inmate is placed in the RDAP program the rules are different. Those inmates are not in the care of the corrections officers. They are in the care of the forensic psychologists. Every aspect of the inmate’s life is dictated by security and therapy, including discipline. This is vastly different from most other inmates.
III. Non- Residential Drug Abuse Treatment
The non -residential drug treatment program is a comprehensive 12-week program utilizing Cognitive-Behavioral Therapy ( CBT) in a group setting ( BOP.gov). The program is voluntary and an inmate’s release date is not impacted by their choice to participate or not to participate ( BOP.gov). Generally, this program is for offenders who have short sentences and do not meet the criteria for the more intensive residential drug treatment program (BOP.gov).
However, offenders who have tested positive for drugs while incarcerated may also be recommended to take this program by their unit team. Also, those who will be entering the RDAP program are often required to complete the non-residential drug abuse program prior to their admission if time permits. For offenders in the non-residential program forensic and staff psychologists, as well as interns, work with offenders on issues such as problem solving, rational thinking and communication skills.
IV. Residential Sex Offender Treatment Program ( RSOTP)
This program is for inmates with a high risk for re-offense and is offered at two separate locations. Participation is completely voluntary. The program consists of residential therapeutic treatment lasting 12-18 months ( Jones, et al, 2006). Much like the RDAP program, an offender must have between 18-30 months remaining on their sentence to be accepted into the program. The offenders also must have a conviction for or history of sexual offending ( Jones, et al, 2006).
The role of a forensic psychologist in BOP sex offender treatment is significant. Once an offender applies for admission to the RSOTP the forensic psychologist must evaluate the offender to determine if they would be a good fit for the program and if they will be able to benefit from it ( Jones, et al, 2006). Criteria such as whether an offender has sufficient intellectual ability to participate in psychotherapy and if there is a mental illness that would preclude program participation are considered by the clinician ( Jones, et al, 2006). Additionally, offenders are evaluated for acceptance of responsibility, prior treatment failure and psychopathy ( Jones, et al, 2006).
(B). Does sex offender treatment work?
There is some evidence that suggests that sex offender treatment does work. Sexual offenders who have received treatment had only a 9 percent re-arrest rate compared to untreated offenders who had a 12 percent re-arrest rate. Furthermore, studies have shown that CBT therapy was the most effective form of treatment for sexual offenders (Polizzi, et al, 1999).
More recent studies have supported the finding that sex offender treatment reduces recidivism. Olver, et al ( 2020) found that treatment reduced recidivism among high-risk offenders by as much as 76-81 percent and among medium risk offenders by 65 – 75 percent. Importantly, this study showed that rates of reoffence among those with no treatment was significantly higher than offenders who had been treated ( Olver, et al, 2020).
©. Should offenders participate in sex offender treatment?
While treatment for sex offenders is often successful at reducing recidivism getting offenders to participate is difficult as they often face a “treatment paradox”. While many sex offenders have a desire to seek treatment and never re-offend. There is a real question of whether the treatment providers have the offender’s best interest in mind. Offenders are often forced to waive all confidentiality which makes treatment providers de facto law enforcement officers and results in offenders facing increased legal jeopardy for their admissions in treatment (Miller, 2010), ( Strecker, 2011).
Many treatment programs require complete “acceptance of responsibility.” The treatment providers often operate on the assumption that the offenders have committed more crimes than they have been caught for. Therefore, as a measure of treatment progress offenders are often required to complete victims lists. These lists are where an offender can detail for treatment providers crime’s they committed that they have not been caught for. While this may be a well -intentioned treatment method, with the lack of confidentiality it often is nothing more than a trap which results in additional charges for the offenders. This has resulted in attorneys advising clients to refuse to participate in sex offender treatment. Federal judges have even found that clinicians in the BOP sex offender treatment program have pressured offenders to make victims up in order to be seen as “making treatment progress” so they would not be expelled from the program.
“The Butner Study’s sample population consisted of incarcerated individuals participating in a sexual offender treatment program at a federal correctional institution. Tr. at 29. As Rogers testified, the program is “highly coercive.” Id. Unless offenders continue to admit to further sexual crimes, whether or not they actually committed those crimes, the offenders are discharged from the program.” United States v. Johnson, 588 F. Supp. 2d 997, 1006 (S.D. Iowa 2008).
Due to the lack of confidentiality and removal of statutes of limitations on most sex crimes it is hard to conclude that any sex offender should participate in a prison based or community- based sex offender treatment program.
V. Non- Residential Sex Offender Treatment Program
Inmates who do not have enough time to complete the residential sex offender treatment program or who are not considered “high risk” can still participate in sex offender treatment. Multiple institutions throughout the BOP offer non-residential sex offender treatment. These programs typically take 9-12 months to complete ( bop.gov). Offenders learn skills to understand their past offenses and reduce their chances of relapse.
Forensic psychologists play an important role in the non-residential sex offender treatment program as well. They must screen the offender to ensure they meet the criteria for the program. This criterion requires the offender to have a sexual offense history and to be willing to participate. The forensic psychologist will also continually evaluate the offender, including a psychosexual evaluation upon admission to then program.
However, many of the concerns mentioned above apply fully to the non-residential program as well. Attorneys typically advise their clients to avoid all prison-based sex offender treatment in my expeirance.
Unfortunately, there are not many prison based therapeutic treatment programs. Prisons, despite being called Departments of Corrections, really do very little to correct the behavior of the offenders they keep. However, some exceptions do exist, and the Bureau of Prison’s drug treatment programs and sexual offender treatment programs are two such examples.
These programs and their success are important to the field of forensic psychology because we are a nation whose prisons are bursting at the seams. Therefore, if we can use psychology to develop programing that reduces recidivism, we are not only protecting society, but we may also change the way policy makers look at drug and sexual offenders. As we know, the laws on the books that deal with many of these offenders are old, draconian and make little sense. But we also know that the law follows psychology ( Gomberg, 2018). So, if programs like these can succeed, hopefully, we can see some changes in the laws recognizing what psychology already knows. That these offenders have an illness and can have a productive and law -abiding life with the right treatment.
Ellis, A., & Bussert, T. A. (2016). Residential drug abuse treatment program (RDAP).Criminal Justice, 30(4), 30-33.
Gomberg, L. (2018). Forensic psychology 101 (Ser. Psych 101 series). Springer Publishing Company, LLC. INSERT-MISSING-URL.
Jones, N., Pelissier, B., & Klein-Saffran, J. (2006). Predicting Sex Offender Treatment Entry Among Individuals Convicted of Sexual Offense Crimes. Sexual Abuse, 18(1), 83–98.
Langan, N., & Pelissier, B. (2002). The effect of drug treatment on inmate misconduct in federal prisons. Journal of Offender Rehabilitation, 34(2), 21–30.
Miller, J. A. (2010). Sex offender civil commitment: the treatment paradox. California Law Review, 98(6), 2093–2093.
Olver, M. E., Marshall, L. E., Marshall, W. L., & Nicholaichuk, T. P. (2020). A Long-Term Outcome Assessment of the Effects on Subsequent Reoffense Rates of a Prison-Based CBT /RNR Sex Offender Treatment Program With Strength-Based Elements. Sexual
Abuse, 32(2), 127–153.
Pelissier, B., Wallace, S., O’Neil, J. A., & Gaes, G. G. (2001). Federal prison residential drug treatment reduces substance use and arrests after release. The American Journal of Drug and Alcohol Abuse, 27(2), 315–337.
Pelissier, B. (2007). Treatment retention in a prison-based residential sex offender treatment program. Sexual Abuse: A Journal of Research and Treatment, 19(4), 333–346.
Polizzi, D. M., MacKenzie, D. L., & Hickman, L. J. (1999). What Works in Adult Sex Offender Treatment? A Review of Prison-and Non-Prison-Based Treatment Programs. International Journal of Offender Therapy and Comparative Criminology, 43(3), 357–374.
Sirin, C. V. (2011). From nixon’s war on drugs to obama’s drug policies today: presidential p progress in addressing racial injustices and disparities. Race, Gender & Class, 18(3-4), 8 82–99.
Strecker, D. R. (2011). Sex offender treatment in prisons and the self-incrimination privilege: how should courts approach obligatory, un-immunized admissions of guilt and the risk of longer incarceration? St. John’s Law Review, 85(4), 1557–1594.
Welsh, W., Mcgrain, P., Salamatin, N., & Zajac, G. (2007). Effects of prison drug treatment on inmate misconduct. Criminal Justice and Behavior, 34(5), 600–615.
United States v. Johnson, 588 F. Supp. 2d 997, 1006 (S.D. Iowa 2008)
Dec 10th, 2020
By Sean R. Francis, MS
Justice Solutions of America, Inc.
It has been estimated that one in seven inmates in Western countries suffers from some form of mental illness ( Goff, et al, 2007). There is also significant evidence that many if not most prison inmates have suffered some form of abuse or neglect as children. Therefore, the prevalence of Post-Traumatic Stress Disorder in the inmate population is likely much higher than in the general population.
Furthermore, older inmates expeirance significantly higher rates of mental health conditions such as depression, mania and PTSD ( Flatt, et al, 2017). Older adults in the criminal justice system may be at an even greater risk for PTSD due to the high prevalence of early-life trauma and the impact of lifelong stress on this population. According to the cumulative advantage/ disadvantage theory, the cumulative effects of experiencing trauma and stressful events over the life course may heighten the risk for poor physical and mental health in later life. It may also increase the risk for subsequent and reoccurring health problems and social disadvantages (poor health, disability, poverty, home- lessness, discrimination, and violent trauma) over the life course. Criminal justice-involved older adults may be more likely to have experienced several traumatic and stressful life events ( Flatt, et al, 2017).
However, people facing difficulties from post-traumatic stress do have options to help them deal with these issues. One treatment option that is showing promise is group therapy. While this method is not recognized as a “first line” treatment option by the professional community it is becoming increasingly relied upon in settings, like in the Veterans Administration, where the rate of PTSD among patients is very high (Sloan, et al, 2012).
Group therapy has been found to help patients interact with others who have gone through a similar expeirance. This allows the group to support each other and allows the patient to begin to trust others and not socially isolate (Sloan, et al, 2012). Generally, there are three types of group therapy treatment models, psychodynamic, interpersonal and cognitive behavioral therapy (Sloan, et al, 2012).
Another treatment model that has been successful with PTSD patients is the prolonged exposure method. Specifically, this has been highly effective for victims of assault related PTSD (Zoellner, et al, 2003). Prolonged exposure therapy involves the patient confronting their traumatic memory or memories (Zoellner, et al, 2003). The client exposes themselves to situations that they are avoiding due to trauma. This can include in vivo exposure and imaginal exposure (Zoellner, et al, 2003).
Medication is also used as a treatment method quite frequently. Often patients suffering from PTSD also suffer from depression and anxiety disorders (Tetyana, 2017). Serotonin reuptake inhibitors (SSRI) medication has proven useful in treating these issues and helping those suffering from PTSD overall. Additionally, antipsychotic and benzodiazepines medication has been found to be useful in treating patients suffering from PTSD. Whether medication is appropriate or not depends on the patient’s motivation, preference and severity of symptoms (Tetyana, 2017).
Medication is often used in conjunction with a treatment method like eye movement desensitization and reprocessing ( EMDR). This treatment method is often used for combat veterans. EMDR attempts to reprocess the traumatic event or events that cause negative thoughts and feelings. The patient will focus on the traumatic event while moving their eyes back and forth. The goal of EMDR is to reduce the stress and trauma. Over time the traumatic memories should start to fade (Tetyana, 2017).
Cognitive therapy is a huge treatment model used for multiple psychological issues including PTSD. The goal of this treatment model is to identify thinking errors and correct them (Tetyana, 2017). CT therapy is used for managing traumatic memories and the persons perception of the world around them (Tetyana, 2017). This treatment model is viewed as time sensitive. Often clients are recommended to attend treatment weekly while engaged in this process (Tetyana, 2017).
In conclusion, post-traumatic stress disorder is a prevalent mental illness in our society and in our prisons. However, multiple treatment methods exist that can help control the symptoms and offer people relief.
Sloan, D. M., Bovin, M. J., & Schnurr, P. P. (2012). Review of group treatment for ptsd. Journal of Rehabilitation Research and Development, 49(5), 689–701.
(2013). Living with PTSD [Video file]. Healthily. Retrieved October 25, 2020, from Kanopy.
Zoellner, L. A., Feeny, N. C., Cochran, B., & Pruitt, L. (2003). Treatment choice for
ptsd. Behaviour Research and Therapy, 41(8), 879–886. https://doi.org/10.1016/S0005- 7967(02)00100-6
Tetyana, S. (2017). Effectiveness of ptsd treatments for military service members and veterans. Psihosomatična Medicina Ta Zagalʹna Praktika, 2. https://doi.org/10.26766/pmgp.v2i4.73
Goff, A., Rose, E., Rose, S., & Purves, D. (2007). Does ptsd occur in sentenced prison populations? a systematic literature review. Criminal Behaviour and Mental Health, 17(3), 152–162. https://doi.org/10.1002/cbm.653
Flatt, J. D., Williams, B. A., Barnes, D., Goldenson, J., & Ahalt, C. (2017). Post-traumatic stress disorder symptoms and associated health and social vulnerabilities in older jail inmates. Aging & Mental Health, 21(10), 1106–1112. https://doi.org/10.1080/13607863.2016.1201042
Oct 30th, 2020
THE CORRELATION BETWEEN CRIMINAL OFFENDING AND TRAUMATIC BRAIN INJURIES IN OFFENDERS IN THE FEDERAL BUREAU OF PRISONS
By Sean R. Francis, MS
Justice Solutions of America, Inc.
The link between traumatic brain injuries ( TBI ) and criminal behavior can no longer be ignored or disputed. Inmates in America’s prisons who have suffered a TBI at some point in their life are overrepresented. Some studies have found that as many as 60 percent of inmates have suffered a TBI at some point in their lifetime. ( Nagele, Vaccaro, Schmidt., & Keating, 2018).
1. What are the implications of a link between traumatic brain injury and criminal behavior?
The implications of a link between TBI’s and criminal behavior are that people who have no control over their behavior, due to suffering a severe head injury, will likely end up in the criminal justice system. Should they go to prison it is unlikely they will get the medical or mental health care they need and will deteriorate and have no realistic chance of re-integrating into society when their sentence is complete.
Lane, St. Pierre, Lauterbach, & Koliatsos, (2017). studied four individuals who ended up in the criminal justice system and had suffered TBI’s. The similarities between them was striking. Three of the subjects were in their mid to late 30’s and one subject was in his early 20’s. Three of the subjects had suffered TBI’s as a result of motor vehicle accidents. Two subjects suffered more than one TBI. (Lane, St. Pierre, Lauterbach, & Koliatsos, 2017). It appears that none of the subjects have ever been incarcerated prior to suffering a TBI.
Yet, after suffering a TBI all of the subjects of this study acted in ways that they had not acted prior to suffering the injury. Specifically, all of these subjects acted out violently and aggressively towards hospital staff and family members. They verbally abused staff and family and assaulted them. One subject even started to set fires. Additionally, some subjects were sexually inappropriate with female staff members at the hospital that they were being treated at. (Lane, St. Pierre, Lauterbach, & Koliatsos, 2017). These actions resulted in petitions being filed for involuntary hospitalization and interactions with law enforcement, including arrest. (Lane, St. Pierre, Lauterbach, & Koliatsos, 2017)
Considering this research, the American criminal justice system must take a fresh look at the nexus between TBI’s and criminal behavior. If the research cited above is accurate, we have a true mental health, medical and moral crisis unfolding in our nation’s prisons.
Currently, only a person who is “insane” at the time they committed their criminal offense may be found not responsible for the crime. Insanity is defined as not knowing the difference between right and wrong due to severe mental disease or defect and thus not having the mens rea or “guilty mind.” 18 U.S.C § 17 (a). However, what if the United States has a vast number of offenders who do realize the difference between right and wrong but have no volitional control due to suffering a TBI and cannot control their behavior? They certainly do not meet the legal definition of insanity…..but should they be held criminally responsible for their actions and locked away in prison?
2. Is incarceration for individuals with TBI an effective method of rehabilitation? Make a concise but logical argument for or against incarceration of individuals who engage in criminal behaviors with a TBI?
Incarceration is not an effective method of rehabilitation for individuals with TBI. To address this question, it must first be pointed out that rehabilitation in prisons is, for the most part nonexistent. The concept was widely abandoned in the mid 1970’s as crime exploded. This ushered in the era of long and unforgiving prison sentences. (app.org), (Phelps 2011).
To the extent that rehabilitation in a correctional institution occurs, the vast majority of programing does not address the unique challenges that inmates with TBI’s will face. Programing focuses mostly on drug offenders and sexual offenders. All prison systems and even some county jails now have programing to assist these type of offenders with their issues. There is also some programing that focus on job skills such as HVAC and electrical training. In over ten years working inside prisons I have never seen programs that address the unique challenges offenders with TBI’s face. Often these inmates are lumped into the “mentally ill” category. Most prisons deal with this population through medication that will tranquilize them and, when needed, force.
While there are prison hospitals in every system, state and federal, these facilities are designed to treat mental illness or physical ailments such as cancer, injury and heart disease. Rarely is TBI recognized for what it is inside of a prison. Rather, the inmate is labeled as “problematic” and dealt with accordingly. The medical staff in correctional institutions often lack the complex medical background to address TBI related issues. The cost of sending the offender for care outside the prison is huge. This is why it doesn’t happen. Often mental health staff is limited on a prison compound. Two psychologists for 1200 inmates is normal. These psychologists often lack the time or specialized training to deal with TBI related issues.
Therefore, prison is absolutely not the right environment for an offender with TBI to be rehabilitated. Again, this is the moral dilemma. What do we as a society do with offenders who act out due to a brain injury that they have suffered and not consciously?
An additional peer reviewed study that supports the link between traumatic brain injury and criminal behavior was “The Relationship Between Traumatic Brain Injury and Criminality in Juvenile Offenders” by Gordon, Spielman, Ketter & Therese ( 2017). The authors focused their study on adolescent offenders and found that over 72 percent of them had suffered a TBI. (Gordon, Spielman, Ketter & Therese 2017). Mood disorders were also more common among inmates that had suffered a TBI. The study also found that correctional institutions do not routinely screen inmates for TBI upon arrival to the institution. (Gordon, Spielman, Ketter & Therese 2017). Therefore, it is difficult, if not impossible to identify inmates who require special treatment due to their brain injury.
In “Traumatic Brain Injury and Recidivism Among Returning Inmates by Ray & Richardson ( 2017). The authors confirm what other studies have found, TBI’s increase the chances that an offender will interact with the criminal justice system. All of the samples used for this study were males in their early 30’s in Indiana (Ray & Richardson 2017). One third of the sample had suffered a TBI at one point in their life. (Ray & Richardson 2017). The study found that screening for TBI was vital so that offenders could be placed into programs that provide them the proper structure and support they need to succeed. With proper screening I mates can actually be treated for their brain injury and be much less likely to come into contact with the criminal justice system. (Ray & Richardson 2017).
In conclusion, the link between TBI’s and criminal offending is real and creates some real moral questions about the treatment of these offenders and whether they should be held fully responsible for their actions moving forward. Failure to properly treat these offenders will likely result in increased recidivism and crime.
Lane, K. S., St. Pierre, M. E., Lauterbach, M. D., & Koliatsos, V. E. (2017). Patient profiles of criminal behavior in the context of traumatic brain injury. Journal of Forensic Sciences, 62(2), 545–548. https://doi.org/10.1111/1556-4029.13289
Gordon, W. A., Spielman, L. A., Hahn-Ketter, A. E., & Sy, K. T. L. (2017). The relationship between traumatic brain injury and criminality in juvenile offenders. The Journal of Head Trauma Rehabilitation, 32(6), 393–403. https://doi.org/10.1097/HTR.0000000000000274
Nagele, D., Vaccaro, M., Schmidt, M. J., & Keating, D. (2018). Brain injury in an offender population: implications for reentry and community transition. Journal of Offender Rehabilitation, 57(8), 562–585. https://doi.org/10.1080/10509674.2018.1549178
Phelps M. S. (2011). Rehabilitation in the Punitive Era: The Gap between Rhetoric and Reality in U.S. Prison Programs. Law & society review, 45(1), 33–68. https://doi.org/10.1111/j.1540-5893.2011.00427.xLinks to an external site.
Ray B, Richardson NJ. Traumatic Brain Injury and Recidivism Among Returning Inmates. Criminal Justice and Behavior. 2017;44(3):472-486. doi:10.1177/0093854816686631
Oct 12th, 2020
By Sean R. Francis, M.S.
President, Justice Solutions of America, Inc.
While they initially were slow to respond to the COVID-19 pandemic, recent signs show that the Bureau of Prisons (BOP) is aggressively taking steps to stop the spread of the deadly virus in their institutions. In March Attorney General William Barr ordered the BOP to immediately expedite the transfer of eligible inmates to home confinement. While there was initial confusion in the implementation of the Attorney General’s directive, the BOP and DOJ have recently issued updated guidance on exactly who is able to be released during this time of crisis. This new criterion was recently disclosed in a court hearing in the Southern District of New York. The new criteria is as follows:
“[Bureau of Prisons] is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences,” the filing said. “As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise priority consideration.”
Thus far the BOP has released 1,440 inmates to home confinement. While this is a small drop in the bucket, considering that there are close to 200,000 federal inmates, it is important to remember that only a small percentage of inmates meet all of the criteria for release outlined by the Attorney General. It is also important to remember that this is a rapidly developing situation, requiring the BOP to adapt and adjust to increasingly fluctuating guidance from Washington.
Additionally, we are seeing signs of aggressive testing in some of the hardest hit federal prisons. In Butner, N.C., a correctional complex with multiple separate prisons, confirmed cases have soared. FCC Butner now has the most confirmed cases of COVID-19 in the federal prison system. This past week 185 cases were reported, almost all coming from one of the medium security prisons (FCI I) and adjacent satellite camp. In response, the BOP has tested all inmates for the virus and quarantined those testing positive at the low security prison on the complex grounds. https://www.newsobserver.com/news/coronavirus/article242327466.html
Additionally, the BOP has provided all staff and inmates at the prison with face masks and required them to be worn. https://www.cnn.com/2020/04/12/us/butner-prison-coronavirus-cases/index.html
As of April 28th, 2020, there are 1046 federal inmates and 330 staff who have confirmed positive test results for COVID-19 and 28 inmate deaths. While they may have gotten off to a slow start the BOP is clearly taking this seriously and working to flatten the curve in their institutions.May 1st, 2020
THE UNCONSTITUTIONAL REALITY OF SEXUAL OFFENDER LAWS FACING INMATES IN STATE PRISON AND BEYOND.
A DISCUSSION ABOUT HOW THESE LAWS DO NOT KEEP US SAFE AND ACTUALLY PUT US ALL AT RISK AND WEAKEN OUR LIBERTIES.
By Sean R. Francis, MS
President, Justice Solutions of America, Inc.
Since the early 1990’s multiple laws have ben enacted in response to the gruesome, yet rare, incidences of child sexual assault and murder. These laws include sex offender registration, resi-dency restrictions and civil commitment statutes. While these laws may have been well intentioned, they have fallen far short of their goals and have trampled the constitutional rights of offenders who have successfully completed their criminal sentences. Furthermore, these laws have created a public hysteria and lynch mob mentality when it comes to anyone with the sex offender label. This paper will show how the public fears regarding sex offenders are unfounded as research conclu-sively shows that sex offenders have a lower rate of recidivism than any other type of criminal of-fender. Furthermore, this paper will argue that sex offender laws make society less safe and threat-en the civil liberties of us all.
Sex offenders are those who stand convicted of certain specific offenses enumerated by statute. In response to these crimes, and the perceived rate of recidivism of these offenders, legisla-tors enacted laws intended to be “regulatory” in nature that would help society and law enforcement track and monitor sex offenders. However, sex offender laws and restrictions have failed in keep-ing society safe and preventing recidivism. Instead, they have weakened constitutional protections and put us all at risk. These laws have been supported by misinformation and a public hysteria about rates of recidivism and the threat these offenders pose to society. Indeed, sex offenders have the lowest rate of recidivism among criminal offenders.
THE HISTORY OF SEX OFFENDER LAWS
The criminal acts that instigated public outrage and fear against these offenders.
On July 27th, 1981 Adam Walsh was in a Southern Florida Sears when he was abducted right under the noses of his parents. About two weeks later Adam’s head was found by fisherman in a local canal. The case remained a mystery for close to thirty years. However, convicted serial killer Otis Toole confessed to the murder and the case was closed. Toole was never convicted of the murder of Walsh and died in prison in 1996. (time.com)
In October of 1989 an 11 year old farm boy named Jacob Wetterling from a rural Minneso-ta road. His death would remain unsolved for the next 27 years. However, in 2016 convicted sex offender Danny Heinrich admitted that he abducted, sexually assaulted and then killed the 11 year old. Shooting him in the head twice. For years Heinrich was a person of interest and denied com-mitting the crime. However, after being charged with federal child pornography violations in 2016 Heinrich struck a plea deal. He would be kept in a safe federal prison to do his time and in return he would accept responsibility for the murder of Jacob and lead police to the body. Heinrich, under the terms of the plea deal, would not be charged with the crime. (washingtonpost.com)
On October 1st, 1993 twelve year old Polly Klass was enjoying a slumber party with friends in her home. Her mother and brother were sleeping just down the hall. Convicted sex of-fender Richard Allan Davis entered Polly’s room and abducted her at knife point. Davis had just been released on parole three months earlier for an attack against a woman. While it was never proven that Davis sexually assaulted Polly he did admit to killing her and dumping her body. (nytimes.com)
In July of 1994 seven year old Megan Kanka went missing from her New Jersey home. About twenty four hours later her body was found dumped in a park near her home. She had been sexually assaulted and murdered by 33 year old Jesse Timmendequas. (time.com) This was not the first time Timmendequas had sexually assaulted children. He had two prior convictions for the sexual assault of girls aged five and seven. (time.com) With Megan, Timmendequas lured her to his home to see a new puppy. He lived right next door to the Kanka family. After her death of their daughter Megan’s family said that, had they knew a sex offender lived next door to them, Megan never would have been allowed to play outside alone.
B. The response of legislators that has resulted in the current laws.
Prior to 1994 and the death of Megan Kanka only a few states mandated that those convict-ed of sexual offenses register their addresses with the local police. (justice.gov) Furthermore, that registration was for law enforcement only and the penalties for non compliance were minor. Me-gan’s death changed all of that and sparked a nationwide outcry. States started to mandate that sex offenders register their addresses with law enforcement. However, the federal government soon got involved which really put teeth and uniformity into these laws.
In 1994 Congress passed the Jacob Wetterling Crimes Against Children and Sexually Vio-lent Predator Act. This was the first federal law addressing sex offenders and it was comprehen-sive. This statute established standards mandating that all states maintain a sex offender registry. This registry was not publicly available, it was for law enforcement only. The act further estab-lished a class of sexual offenders known as “sexually violent predators.” The act also mandated that sex offenders verify their addresses annually unless they were designated as sexually violent predators. For them the address verification was every 90 days. The Wetterling Act further set time limits for registration. Ten years for all offenders except sexually violent offenders, lifetime regis-tration for them.
This would not be the last federal law passed regulating sex offenders. Two years later in 1996 Congress would formally enact Megan’s Law. This law, on the federal level, amended the Wetterling Act and mandated public notification of information related to sexual offenders when it was needed to protect the public. Such information included the name and address of the offender as well as the offenders picture. The federal version of Megan’s Law also allowed information states had collected for registration purposes to be released to the public. It was truly this law that began the public sex offender notification system we have in place to this day.
Also in 1996 Congress passed the Pam Lychner Sexual Offender Tracking and Identifica-tion Act. This act created a database on sexual offenders available only to law enforcement and maintained by the FBI. This is very similar to NCIC or the national crime and information comput-er, a depository for all criminal records in the country maintained by the FBI. The only difference is that this national depository dealt only with sex offenders. The Lyncher Act also mandated states to transmit to the FBI the information of those convicted of sexual offenses and allowed the FBI to disseminate that information to those conducting federal background checks.
In addition to registration and notification laws many communities decided to enact even more regulations and laws designed to regulate sex offenders. It has been estimated that at least 30 states and many communities have passed residence restriction laws on sex offenders. (csom.org) These laws essentially ban sex offenders from living in many locations. Because many of these laws mandate that a convicted sex offender not live with in 1000-2500 feet of any place children congregate, these laws have effectively banished sex offenders from certain cities. (abajournel.com)
Lawmakers in some states also enacted civil commitment statutes in response to the above mentioned crimes. These laws were sold as a measure of last resort for the “worst of the worst” of sexual offenders. Civil commitment allows, after a finding that a sex offender has a mental illness, abnormality or disorder, and that disorder makes the offender dangerous and likely to re-offend, the offender can be committed for care and treatment indefinitely. Kansas v. Hendricks, 521 U.S. 346 (1997). To date twenty states and the federal government have statutes allowing for the civil commitment of sex offenders. (atsa.com)
On July 27th, 2006 President George W. Bush signed the Adam Walsh Child Protection and Safety Act. This sweeping law intensified already existing laws regulating sex offenders. This law expanded the definition of who is considered a sexual offender. It also greatly increased federal penalties for crimes against children. The bill altered the nation wide system of sex offender regis-tration. Making registration longer and designating additional offenders for sex offender registra-tion. This act also established a federal civil commitment scheme for federal sex offenders in the custody of the Federal Bureau of Prisons. (georgebush-whitehouse.archives.gov)
C. Who these laws apply to.
These laws only apply to those who are sexual offenders. A sexual offender is one who is convicted of a sex offense. A sex offense is, at least according to federal law, a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor; a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18. (34 U.S.C.A. § 20911).
THE LEGAL DECISIONS REGARDING THESE LAWS AND CONSTITUTIONAL CHALLENGES:
A. Challenges to the sex offender registry and the legal result.
These laws represented a new and frightening attempt by legislators to keep society and children in general safe. They imposed severe restrictions on a small group of criminal offender’s that, arguably, imposed indefinite punishment, shaming and banishment. Such restrictions did not apply and had never been implemented against any other type of criminal offender’s. They would not simply be accepted without legal challenge.
The first case to challenge sex offender registration was Smith v. Doe, 538 U.S. 84 (2003). This case tested the retroactive nature of sex offender registration. The plaintiffs argued that retro-active application of sex offender registration violated the Ex Post Facto clause of the Constitution arguing that sex offender registration was punitive. Id. The plaintiffs in this case had been convict-ed of sexual offenses before the act went into effect.
However, the Supreme Court disagreed. In a 6-3 decision the high court held that sex of-fender registrations is merely regulatory and not punitive. Therefore, the Ex Post Facto argument could not succeed. This ruling cleared the way for retroactive application of sex offender registries. Id.
The disclosure of a sex offenders personal information, such as address and picture, after release from prison also was addressed by the Supreme Court. In Connecticut Department of Pub-lic Safety v. Doe, 538 U.S. 1 (2003) the court dealt with the issue of a state making a sex offenders information available to the public on a website. The petitioner in this case argued that the Connect-icut law allowing the dissemination of such information violated the Fourteenth Amendments Due Process Clause. The petitioner argued that Due Process required a hearing before being placed on a public registry. Id.
In a unanimous decision the Supreme Court held that Due Process is not implicated here because there is no liberty interest at stake. Id. Simply an injury to one’s reputation. Furthermore, this was simply a sharing of information that was already public and any process the petitioner was due he got during his criminal trial before a finding of guilt. Id.
B. Challenges to residency restrictions and the legal result.
With residency restrictions came a form of modern day banishment. Those who were con-victed of sexual offenses, in close to thirty states and multiple cities, were excluded from being an-ywhere near where children congregated. (csom.org) Often 1500 to 2500 feet. This in effect ban-ished most sex offenders from many cities. They were unable to find employment or even housing. In a disturbing and public case that showed just how horrible these laws impacted offenders, many Florida sex offenders were forced to live under a bridge due to the severe residency restrictions in place in Miami. (reuters.com).
Initially, many jurisdictions simply turned a blind eye to this form of modern day banish-ment. The Supreme Court has never weighed in on it. However, the courts may be willing to ig-nore this modern day banishment no longer. In New York , California and Massachusetts the states high courts have struck down sex offender residency restrictions as unconstitutional. Recog-nizing the fact that offenders essentially cannot find a home and are banished by these laws the courts are beginning to rule that residency restrictions are unconstitutional.(bostonglobe.com),( usatoday.com ), (latimes.com)
C. Challenges to the multiple terms and conditions placed on paroled sex offenders as well as offenders on probation and the legal result.
Sex offenders sentenced to a term of imprisonment almost always have a term of probation, supervised release or parole after their incarceration is complete. Many times these post-incarceration supervision terms have rules that are tailored to an offenders behavior. If the offender breaks the rules they can be returned to prison. For a sex offender the terms and conditions are of-ten suffocating. Often resulting in return to prison as it is almost impossible to comply with them all and officers often have an easy time finding a reason to violate an offender.
Often sex offenders are mandated to wear a G.P.S. tracking device for the duration of their supervision. They are also subject to sex offender treatment including polygraph tests and Penile Plethysmography tests, which measure the size of an offenders penis while he watches images on a T.V. (txnp.uscourts.gov) Both tests have been debunked by science and are not admissible in court, however, they are used in sex offender treatment programs sex offenders are ordered into after their release. (nydailynews.com) Sex offenders are also subjected to “full disclosure poly-graph tests.” These tests mandate an offender report all the offenses he has ever committed even if he has never been caught for such offenses. Furthermore, the offender is mandated to sign a waiver allowing the disclosure of information to law enforcement. It is basically a catch 22. Refusal to par-ticipate in treatment and full disclosure polygraphs means a return to prison, however, participating means the possibility of new charges.
Courts have upheld most of the terms and conditions applied to sex offenders during their post-incarceration supervision. See United States v. York, 357 F.3d 14, 19 (1st Cir. 2004), United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), United States v. Dotson, 324 F.3d 256 (4th Cir. 2003). However, the courts have put the breaks on full disclosure polygraph tests, at least to a point. In a major victory for the constitution and sex offenders federal courts have held that forcing sex offenders to reveal crimes that they have not been caught for in a treatment program violates the Fifth Amendment. See United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016), United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005).
SEX OFFENDER REGISTRATION:
A. Why these laws are unconstitutional and punitive.
Nobody will argue that sex offenders commit ugly and despicable crimes that harm their victims for a lifetime. However, unless we are going to sentence an offender to a term of life in prison without parole….they are going to get out. Once they complete their sentence, regardless of how ugly and disgusting their crime may have been, we as a society cannot simply banish and shame them like leapers. It makes us no worse then the offender, more importantly it is unconstitu-tional makes society less safe instead of safer.
When these laws were first enacted they passed constitutional muster because they were “regulatory” in nature and not punitive. See Kansas v. Hendricks, 521 U.S. 346 (1997) However, a close look at the reality of what these laws have caused can no longer sway an honest finder of fact that this is still the case. Indeed, it may be time for such a look as it has been close to twenty years since sex offender registration and notification has been looked at by the Supreme Court.
Today registration and notification has caused countless cases of harassment by the public. Furthermore, because this information is public, offenders are often denied job opportunities since a simple online check can reveal a past they have already paid the price for. This impacts housing as well. In jurisdictions where there are no residency restrictions, or where such restrictions have been struck down, the same internet search will almost certainly halt and ex offenders chances of finding a home. In essence, these laws have ensured that these offenders always and forever will continue to pay for their crimes. Some may be alright with that, and an argument could likely be made that sex offenders deserve that, however, if we are going to let them out we cant continue to punish them. Like it or not, their sentence had an END date.
We also lump together all sex offenders and place them all on a public registry. However, not all sex offenders are dangerous and their crimes are not equal. If we place a teenager who had sex with his underage girlfriend on the registry next to someone who broke into a home and raped a woman, is that fair? Do they both represent the same threat? Of course not, yet they are treated the same, placed on a public registry.
Sex offender registration and notification also can make us less safe. The vast majority of sex offenses are not committed by a random stranger, like the cases cited above, they are committed by a family member or close friend. Furthermore, if a parent is simply focusing on the offenders they see on a web site they are not paying any attention to the other threats their child may be fac-ing. Also we have to think about the vast resources that law enforcement needs to actually enforce these laws and check up on these offenders. In the age of shrinking budgets and cuts our police simply do not have the resources to enforce these laws anymore. We also have to realize that if we banish and shame people we are hindering if not completely preventing rehabilitation. (aclu-nj.org) Also, in a shocking study in 2008 by the justice department it was found that Megan’s Law, de-spite its popularity, had no effect in keeping children safe…..yet we continue to waste millions en-forcing it.(washingtontimes.com)
SEX OFFENDER RESIDENCE RESTRICTIONS:
A. The current state of these laws.
The latest trend in sex offense laws has been to banish them from anyplace children con-gregate. This is often a 1000-2500 feet buffer zone. However, because it is often difficult to find a place in a city that is 2500 feet away from a school or playground or park these regulations can ef-fectively ban offenders from living in an entire city.
Initially these laws were upheld as constitutional like all the other regulations dealing with sex offenders. Almost all states upheld them on first glance as well. (npr.org) However in recent years the tide on these banishment laws has turned. Massachusetts, New York and California have struck these restrictions down as unconstitutional. Increasingly, state and federal courts are striking down these modern day banishment laws.
B. Why these laws are unconstitutional
In the United States we cannot simply banish people we do not like. If we do we set a dangerous precedent that could be used to exclude any criminal offender that the community does not want around. Not to mention that residency restrictions that impede an offender’s ability to have a home anywhere in their city of residence infringes on a person’s constitutionally protected right to life and liberty under the Due Process Clause and imposes punishment retroactively in vio-lation of the Ex Post Facto Clause of the United States Constitution. As the U.S. Court of Appeals for the Sixth Circuit recently explained when striking down Michigan’s new and draconian sex offender scheme, these laws:
“brand registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone re-strictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.” (freep.com)
A brief history of civil commitment including the jurisdictions that use it.
In 1994 Kansas established the Sexually Violent Predator Act. Its intention was to detain certain sex offenders, after their sentences ended, who were deemed mentally unstable and likely to re-offend. The commitment was for care and treatment and it was indefinite. The first candidate chosen for this commitment was Leroy Hendricks. Hendricks had a long history of molesting chil-dren. Indeed, Hendricks testified that he could not control the urge to molest children when he got stressed out. Kansas v. Hendricks, 521 U.S. 346 (1997)
Hendricks was committed as a sexually violent predator under the act. He brought multiple challenges to the law, including that the law violated the Due Process, Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. Id. In rejecting his arguments the Supreme Court held that the commitment scheme was clearly civil in nature as its stated purpose is for care and treatment. Id. Once an offender can demonstrate that they are no longer mentally ill or a danger to society at large, they must be released. Because the civil commitment scheme was ruled as a civil and regulatory law constitutional protections against Double Jeopardy and Ex Post Facto laws did not apply. Also, the court found that the act provided adequate Due Process protections for those detained as sexual predators. However, in an important footnote Justice Kennedy said that if civil commitment were to be used for retribution or deterrence, which is the job of the criminal justice system, civil commitment would no longer be constitutional. Id.
Shortly after Hendricks was decided the Kansas civil commitment program was at the Su-preme Court again. This time it was being challenged on the grounds that the prior ruling in Kan-sas v. Hendricks mandated a complete lack of ability to control one’s behavior before one could be committed. The Supreme Court ruled that its prior decision in Hendricks does not require a “com-plete” lack of control over one’s behavior. Rather, it must only be shown that a defendant has a current mental illness or disorder that makes it “difficult if not impossible” to control one’s behav-ior. Kansas v. Crane, 534 U.S. 407 (2002) These two cases, Hendricks and Crane, have set the framework for modern day civil commitment of sex offenders in the United States.
B. The state of civil commitment today.
Today twenty states and the federal government have sex offender civil commitment pro-grams today. These programs are costly, costing tax payers multiple millions of dollars per year. The sad reality of these programs is that, while the states claim they are for treatment, and while the Supreme Court’s decision in Hendricks mandates that offenders be released when they no longer pose a danger, rarely anybody ever leaves. Instead civil commitment has become a life sentence for offenders who have already served their sentence in full. It is a place of no hope, a legal purgatory. Furthermore, even though these offenders are now patients and not inmates they are often held in prison like conditions if not actual prisons themselves. The federal civil commitment program is at a federal prison in Butner, N.C. and the patients who are civilly committed are mandated to dress the same as inmates, follow the same rules and even mingle and associate with convicted inmates. Therefore, the federal civil commitment program, like many of the states, is civil in name only.
Recently, federal judges in Minnesota and Missouri have found the state civil commitment programs to be unconstitutional, draconian and punitive. They have recognized it for what it is, not treatment but life imprisonment. Unfortunately, those holdings were overturned at the appellate lev-el and the Supreme Court has declined to hear the cases. So yet again, a system that is nothing more than a life sentence under the guise of mental health treatment is allowed to destroy the lives of men who have served their criminal sentence in full.
So draconian and disgusting is civil commitment that many countries refuse to extradite sexual offenders back to the U.S. Indeed, the United Kingdom is among them. Sex offenders who make it to the F.B.I. most wanted list cannot even be returned to the U.S. unless the U.K. is as-sured that the offender will not face civil commitment after his sentence ends. Civil commitment has been called a “human rights abuse” by the U.K. Supreme Court. Civil commitment is truly a sad footnote in American history.
C. The Future of Civil Commitment.
Politicians do not get elected and re-elected by advocating get soft on crime tactics. They have an even worse chance of remaining in office if they sponsor or support any bill that could make the life of a sex offender easier. So, there is no help coming from politicians unless it is forced on them by the courts. The problem there is that the courts have long ago turned a blind eye to sex offenders. We now have 20 years of data since Kansas v. Hendricks was decided. We now know that, while laws like registration of sex offenders and civil commitment were intentioned as “non punitive” and “regulatory” they have been implemented in a manner that can no longer be mistaken for anything but punitive.
Sadly, the courts simply do not seem to care or want to enter this debate. Surprising con-sidering federal judges are appointed for life. You would think they would be inclined the shake things up with a lifetime tenure…..but they are not in most cases. The simple fact of the matter is that for anything to change about civil commitment it will have to come from the U.S. Supreme Court and when they will decide to address what we all know is true about these programs is any-one’s guess. But most likely we will have to have a courageous appeals court strikes civil commit-ment down as unconstitutional first.
SORNA ( SEX OFFENDER REGISTRATION AND NOTIFICATION) AND THE AD-AM WALSH ACT:
What is SORNA and the Adam Walsh act?
In 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This act was a sweeping new bill targeting sex offenders and specifically those offend-ers who prey on children. This bill did a few things. It expanded the definition of the term sex of-fender by expanding the offenses that qualify as sexual offenses. The act also established a federal civil commitment program operated by the federal bureau of prisons. This program applies to those offenders who are in federal custody. The Walsh Act also made it a federal crime for an offender to not register as a sex offender.
The Walsh act also created SORNA which is the sex offender registry and notification act. SORNA mandates minimum standards for sex offender registration and notification in the United States. (smart.gov) The purpose of this was to close the many loopholes within the patchwork of state systems. SORNA also expanded sex offender registration to federal recognized Indian lands. (smart.gov) This act also mandated longer registration times for sex offenders, setting up a tier sys-tem. The act also mandated that juvenile sex offenders register. (smart.gov)
B. How have these laws changed sex offender laws in the United States?
SORNA has truly changed the game when it comes to sex offender registration. By making failure to register a federal offense this law has taken an issue that is historically a state issue and making it a federal one. This law has attempted to remove the power of the states when it comes to sex offender registries and notification. The act has also forced a tier system of registration on the states and required juveniles, whose records are historically sealed, onto a registry, sometimes for life. The registration requirements are worse than anything before it. In sum, SORNA has federal-ized sex offender registration, enhanced registration offenses and requirements and increased pen-alties for not complying.
THE PENDULUM SWINGS:
A. The states revolt against SORNA
While SORNA might be the most sweeping and draconian registration scheme in history, that does not mean it has been implemented. SORNA has been found to be offensive and draconi-an not only to the offenders it applies to but to many states as well. As of today, only 18 of 50 states have fully complied with SORNA and the law has been in effect for over 10 years now. This is not an accident. The costs alone of implementing SORNA are high and in times of fiscal restraint many states have realized that the cost of non-compliance outweighs the cost of implementation. States that refuse to comply will lose 10 percent of federal grant money for law enforcement. How-ever, it’s a small amount compared to the cost of implementing SORNA. For example, as of 2009 it would cost California ( a non-compliance state ) over 59 million dollars to implement SORNA. If they refuse to implement it, as they have, they would lose only 2 million dollars. So, from a dollars and sense point it’s an easy decision for the majority of the states. (justicepolicy.org)
There are additional problems that have prevented implementation as well. Some state su-preme courts have found SORNA unconstitutional and struck it down in full or in part as Cruel and Unusual as well as an Ex Post Facto violation.(cleveland.com) (dailycaller.com). In a major decision by the Pennsylvania Supreme Court the court held that SORNA violates the federal and state constitutions. The court held that sex offender registration is now punitive. As such it violates the Ex Post Facto clause of the constitution. This was a major ruling, the first of its kind to hold registration as punitive. This could cause other courts to make similar rulings not that the Pennsyl-vania Supreme Court has taken this brave step. In sum, the future of registries could be thrown into doubt of this starts a chain reaction. The ruling has been appealed to the U.S. Supreme Court and it would be helpful if they take the case to, hopefully, reclassify sex offender registration as what it truly is, punitive.
So, while SORNA is certainly sweeping and comprehensive it is not nearly as useful as intentioned as the majority of state have refused to even implement it.
B. How residency restrictions are increasingly being struck down by state courts as uncon-stitutional.
We are beginning to see the courts signal that their patients with residency restrictions and banishment laws are about at an end. In recent months and years state courts and supreme courts are increasingly striking these laws down as unconstitutional. Recognizing that a sex offender was prohibited from living in over 96 percent of San Diego the California Supreme Court said enough was enough. In California residency restrictions are essentially over and sex offenders can now live near parks and schools. (nypost.com) Other states are now following suit as residency re-strictions have recently been struck down in their entirety in New York and Massachusetts.
C. Packingham v. North Carolina, 582 U.S. ___ (2017) and how the Supreme Court may be singling that enough is enough.
In an attempt the harass sex offenders even more, North Carolina passed a law that essen-tially prohibited sex offenders from accessing social media websites under the rationale that this gives them access to children. However, the Supreme Court had had enough. In a rare unanimous ruling the court held that the broad social media ban violated the First Amendment of the Constitu-tion. Justice Kennedy writing for the court said “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. By prohibiting sex offenders from using those websites, North Caroli-na with one broad stroke bars access to what for many are the principal sources for knowing cur-rent events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
This was a rare win for sex offenders at the high court. However, more and more we are starting to see state and federal courts take aim at what has clearly become an oppressive and puni-tive system of laws intended to punish sex offenders well past the completion of their prison sen-tences. We can only hope that the Supreme Court will choose to take up more sex offender cases soon and change the precedents they have set that has caused all the harm to men who have com-pleted their time and damage to our constitutional rights.
WHY THESE LAWS MAKE ABSOLUTELY NO SENSE:
This paper has detailed and discussed the specific laws dealing with sex offenders and ar-gued against these laws. However, we have not yet discussed possibly the largest reason these laws are not needed. The science and studies that have been done addressing sex offender recidi-vism rates have conclusively shown that sex offenders have a lower rate of recidivism than any other type of criminal offender. Indeed, the U.S. Department of Justice did a study to find out just how likely it is that sex offenders will reoffend. The results were striking. A 2014 DOJ report found that the rate of re-offense for sex offenders was about 5 percent over ten years. It was higher as time went on. For example, the rate of re-offense was 27 percent over 20 years. This is a far cry from the 80 percent recidivism rate the Supreme Court has cited to allow laws like sex offender registration and civil commitment law to remain. Indeed, there is much debate on this point and many claim the Supreme Court simply upheld these laws based on nothing more than bad science and the myth of astronomical recidivism rates. ( nytimes.com )
The policies and laws that have been intended to make us all safer against the threat of sex-ual offenders has failed. These laws have limited the rights of a select group of people, thus threat-ening the rights of us all. Of equal concern is that the courts have, for over twenty years, turned a blind eye to the systematic striping of constitutional rights from American citizens based on their classification as a sexual offender. Indeed, our Supreme Court has saved almost all sex offender laws by terming them “regulatory measures” and not punishment. With over two decades of expe-rience with these laws we can now say that this is not true.
The legal field is one that is founded on the bedrock principle of ethics and equal justice for all. When we ignore the rights of a group of people we do not like and even support the removal of constitutional rights from people we do not like the legal profession and the courts lose credibility. The legal profession and the courts lose their credibility that they are fair and impartial, they lose their credibility that officers of the court and judges are ethical and that they will uphold the consti-tution of the United States. These laws call into question the credibility of our courts as a whole and of our Supreme Court, which has saved these laws and allowed them in particular.
As a whole this study has shown me that the principles that the United States stands for are mostly an illusion. It sounds good on paper but if our society does not like someone enough or a certain group of people enough, the legal system will find a way to justify taking their rights and their freedom and making their life as unpleased as it can. This study has shown me to truly fear our government and not to trust the court system. When this nation passes laws that the rest of the civilized world considers human rights violations there is something very, very wrong going on. With that said, this study has also given me a certain amount of hope. I have found that many courts have started to reexamine these laws and start to mandate change. However, until we see that from our Supreme Court none of it really matters.
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)
Kansas v. Hendricks, 521 U.S. 346, (1997)
https://www.washingtonpost.com/news/true-crime/wp/2016/09/06/danny-heinrich-admits-he- abducted-and-killed-jacob-wetterling-ending-a-27-year-old-mystery/? utm_term=.fb6d80d959a1
Smith v. Doe, 538 U.S. 84 (2003)
United States v. York, 357 F.3d 14, 19 (1st Cir. 2004),
United States v. Johnson, 446 F.3d 272 (2d Cir. 2006),
United States v. Dotson, 324 F.3d 256 (4th Cir. 2003)
United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016)
United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)
34 U.S.C.A. § 20911
Oct 5th, 2020
By Sean R. Francis, M.S.
President, Justice Solutions of America
In what is sure to be one of many cases asking the federal courts to clarify the scope of the First Step Act (FSA), the U.S. District Court for the District of Utah has found that the FSA allows judicial relief for stacked sentences.
Mandatory minimums led to a 55-year sentence for 20-year-old Kepa Maumau. After the FSA was passed Maumau sought relief from the district court. In determining that the court had the authority to grant relief the court noted that before the FSA an offender would need the Director of the Bureau of Prisons to motion the court seeking a sentence reduction or compassionate release.
However, with passage of the FSA this was no longer the case. The BOP now has nothing to do with it and an offender is free to seek relief directly from the district court. https://www.criminallegalnews.org/news/2020/mar/18/utah-district-court-finds-first-step-act-gives-court-authority-reduce-stacked-55-year-924c-sentence/
Maumau argued that the U.S. Sentencing Guidelines allows “…..relief when, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling
reason….” He further argued that “the catch-all provision that limits relief to grounds identified by the Director is inconsistent with the law as outlined in the First Step Act.”
Finding now new policy statement or authority to the contrary the court held that “ this court joins the majority of other district courts that have addressed this issue in concluding that it has discretion to provide [the defendant] with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an ‘extraordinary and compelling reason’ to reduce a sentence.” U.S. v. Maumau, 2020 U.S. Dist. LEXIS 28392 ( D. Utah 2020)
The court also rejected the government’s argument that compassionate release is only for the old and frail who are suffering medical issues. Therefore, it would appear that the First Step Act could potentially become a vehicle for many offenders who have suffered under the weight of draconian federal sentencing policies to get some much needed relief.
Mar 30th, 2020Mar 30th, 2020
See our blog to read the memorandum. Contact us today so we can work to secure the early release of your loved one.
Mar 29th, 2020
By Sean R. Francis, M.S.
President, Justice Solutions of America, Inc.
The COVID-19 pandemic seems to have caught the entire world off guard but nowhere is that more apparent than in our nation’s jails and prisons. Indeed, the recent outbreak has placed a number of measures, once considered unthinkable, on the table in an attempt to halt the virus’ spread inside secure institutions. This blog will explore exactly what is being done and what measures are being considered.
Because of the highly contagious nature of COVID-19, many cities and states are reducing admissions to county jails and preventing the constant recycling of people as they come in and out of jails. https://www.prisonpolicy.org/virusresponse.html
Police are accomplishing this by simply citing low-level offenders instead of arresting them. Other cities have stopped responding to non – violent, low-level crimes. Some states have halted vehicle inspections. https://www.inquirer.com/health/coronavirus/live/coronavirus-covid19-philadelphia-pennsylvania-new-jersey-confirmed-case-updates-news-20200317.html, https://www.wtvr.com/news/coronavirus/virginia-state-police-will-stop-motor-vehicle-inspection-enforcement-over-covid-19-outbreak
Additionally, in recognition of the significant challenge COVID-19 poses to the community at large, but to an incarcerated community specifically, prosecutors in some states and cities have begun dismissing low-level offenses such as drug, prostitution and trespassing charges. https://www.prisonpolicy.org/virusresponse.html
In another measure to combat COVID-19 multiple states around the country are actively considering releasing non-violent offenders rather than keeping them incarcerated and some have already begun to do so. This is unheard of in recent times. https://www.mercurynews.com/2020/03/19/bay-area-courts-authorities-ramp-up-release-of-inmates-to-stem-covid-19-risks-in-jails/
COVID – 19 also means life will also become more difficult for many offenders in our nation’s prisons. Personal, conjugal and legal visits have been almost completely halted. Therefore, those that are left behind bars will face a greater challenge in maintaining ties to the community, a proven tool to reduce recidivism. They will also lose access to their attorneys which will prevent many from mounting an adequate defense and raise significant constitutional issues.
As if this were not enough, many prisons have completely halted transfers and refused to admit new offenders into their institutions. Thus, sentenced offenders in county jail, a miserable place to be under any circumstances, will be held there indefinitely for the time being.
Also, many prisons have suspended most inmate movement and greatly reduced such essential programing services like recreation and education. Therefore, our nation’s prisons, a dangerous place on any given day, could become a powder keg as inmates with years to serve now have nothing to do but sit in their housing units and stare at the walls. Some prison wardens have openly voiced concern about the prospect of riots and losing control of their institutions. https://abcnews.go.com/Health/fearing-outbreaks-riots-nations-prison-jail-wardens-scramble/story?id=69676840
COVID -19 presents a significant challenge to us all but nowhere is that more apparent than in our nation’s prisons. If you have a loved one who is incarcerated contact us today to see what we can do to help and ensure their safety.Mar 23rd, 2020
By Sean R. Francis, MS
President, Justice Solutions of America, Inc.
COVID-19 has quickly become a worldwide pandemic and has plunged the United States into a national emergency not seen in recent times. According to the CDC the virus is spread through person to person transmission. Generally, this is recognized as people who are “in close contact with each other.” The CDC considers the virus “highly contagious.” https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html
In light of this, it is obvious that our nation’s prisons are potential breeding grounds for this virus to spread like wildfire. Therefore, it is important to understand what measures are being taken to address this. The Federal Bureau of Prisons, with 175,406 inmates, is among the largest prison systems in the world and is a good place to start.
While the BOP has taken some steps to slow the spread of the virus, like halting visitation and inmate transfers, by all accounts they are woefully unprepared for COVID-19 and do not seem to be rising to the occasion.
On March 11th ABC News reported that, while state prison systems were preparing for the worst, the BOP “ doesn’t have the ability to order more cleaning supplies and doesn’t have enough wipes to sanitize the inmate transport buses. The source also said there aren’t enough N95 masks to cover half the staff, adding that most are of small size.” https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providing-significant/story?id=69433690
Additionally, BOP staff were quoted saying that “there are currently more questions than answers.” BOP refused to provide ABC news with guidance on what they were doing citing the fluid nature of the virus. https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providing-significant/story?id=69433690
One week later it appears that the COVID – 19 concerns among BOP staff are far from resolved. According to a CBS News story published on March 18th, several BOP staff members are quoted as saying that “their lives are in danger” and that “the agency is in chaos.” https://www.cbsnews.com/news/coronavirus-prison-federal-employees-say-conflicting-orders-putting-lives-at-risk-2020-03-18/
Indeed, some BOP staff have started to test positive for COVID – 19. Therefore, it is simply a matter of time until the staff infects the inmates (if they haven’t done so already) and there is a real crisis in federal institutions across the nation.
Contact Federal Prison Consultants today to learn how we can help your family and your loved one incarcerated in the BOP navigate through this crisis safely.
Mar 22nd, 2020
THE FIRST STEP ACT – What it is and why it is important – Part One – Good Conduct Time and Earned Time Credits
By Sean R. Francis
This is part one of a series of blog posts that will breakdown and explain the First Step Act and how it applies to federal offenders.
On December 21, 2018, President Trump signed the First Step Act (FSA) into law. https://www.bop.gov/inmates/fsa/faq.jsp This piece of legislation is one of the largest measures seeking to reform the federal criminal justice system in decades. After years of “lock em up, and throw away the key” policies, such as the Prison Litigation and Reform Act (PLRA), and the Violent Crime Control and Law Enforcement Act of 1994, it appears the pendulum may be swinging the other way.
If you or a loved one are incarcerated in the Bureau of Prisons or are facing federal criminal charges it is vital that you understand what this act is and how it can potentially help. It is important to understand that the First Step Act applies to federal offenders only. If you or a loved one have been convicted in state court and sentenced to state prison the First Step Act cannot help you. So, let’s discuss what the First Step Act does:
Good Conduct Time-
Prior to the FSA, the Bureau of Prisons ( BOP) policy stated that “inmates earned up to 54 days of good conduct time for each year served and, in accordance with 18 USC 3624(b), the BOP pro-rated the amount of good conduct time earned for the final year of service of sentence.” https://www.bop.gov/inmates/fsa/faq.jsp#fsa_applicability
However, the BOP has a history of being very creative with math and, in reality, inmates have historically received only 47 days of good conduct credit, not 54 days. “The BOP interprets good time credits of “up to 54 days at the end of each year of the prisoner’s term of imprisonment” in 18 U.S.C. § 3624(b) to mean 47 days for every year of the term of imprisonment.https://www.ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2016/slideshow_BOP.pdf ; see also https://famm.org/wp-content/uploads/faq-federal-good-time-credit.pdf
However, under the FSA the offender would get 54 days for each year of their sentence. Therefore, an offender sentenced to ten (10) years will now earn 540 days of good conduct time. The inmate will be credited, if they maintain clear conduct, with 54 days for each year of their sentence. Prior to the FSA, the inmate would only earn 399.5 days of good conduct time credit on a ten – year sentence. Clearly, this is a game-changer!
This provision of the act is retroactive for any offender sentenced after November 1, 1987. According to the BOP and other sources, this change in the application of good time has resulted in over 3,100 prison sentences being shortened and offenders sent home early and it’s just the beginning. https://www.aclu.org/news/smart-justice/the-first-step-act-was-exactly-that-a-first-step-what-comes-next/
Earned Time Credits for Programing
The FSA has also sweetened the pot for inmates who wish to better themselves through programming. Before the FSA all programing would do is earn you brownie points with the unit team and hopefully pay off when it is time for you to be considered for halfway house.
However, programing now has some real incentives. An inmate may earn time credits for completion of Evidence-Based Recidivism Reducing Programs and/or Productive Activities if they were not convicted of a non-qualifying offense.” There is a lot to unpack here, so let’s get started.
First, the BOP has not yet identified exactly what programs will qualify as “recidivism reducing programs/productive activities.” Rather the BOP simply states that “The BOP will identify approved programs and activities in the near future.” Also, if you participate in any programming, even the approved programming BOP promises to soon identify, during pre-trial detention, it will not count towards additional earn time credits.
Additionally, earn time credits will not be available for everyone. The BOP has identified a list of “disqualifying offenses”. If an offender has a conviction for a disqualifying offense’s they may not earn the additional earn time credits and be eligible for additional time off their sentence. You can find the list of disqualifying offenses by clicking on the link below.
It is important to understand that “participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the First Step Act”, not must lead.
Therefore, additional time credits earned through programming can result in either an additional halfway house time or a 12-month sentence reduction. However, it is not assured. While it is very early and we do not know how this will play out yet, it is important to remember that the BOP has a history of using any desecration they are given to give inmates less than they may be entitled to.
The First Step Act has expanded a good time, impacting nearly every federal inmate. No longer will the BOP be able to pro-rate the 54 days a year an offender is entitled to if they maintain clear conduct. From this point on it is 54 days for every year an offender is sentenced.
Also, offenders can earn additional credits towards additional placement in pre-release custody (halfway house) and/or up-to a 12-month sentence reduction. However, it appears that the BOP has desecration on what it awards offenders and there is a laundry list of offenses that, if an inmate is convicted of, disqualifies them from even being eligible for the additional earned time credits. Currently, it is too early to tell how the newly earned time credits will play out and how the BOP will implement this aspect of the FSA.
Please check back with us to learn more about how the First Step Act will affect you or your loved ones.
Mar 11th, 2020