Texas Finds Out-Patient Treatment More Effective than Indefinite Detention

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Former President George W. Bush in July 2006 signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). A disturbing byproduct of the Walsh Act is the authorization given to the federal government to indefinitely detain any sex offender after completion of his prison sentence, if a Department of Justice attorney certifies and establishes by clear and convincing evidence that he is a “sexually dangerous person” who poses a threat to the safety of the free community. If the offender is certified for what is called “civil commitment,” chances are he will be sent to the Commitment and Treatment Program at the Federal Correctional Institution in Butner, North Carolina.


The civil commitment provisions of the Walsh Act are codified in 18 U.S.C. § 4248. There are two critical elements associated with Walsh Act civil commitments as set forth in 18 U.S.C. § 4247: first, an offender is deemed sexually dangerous if he has “engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others;” and, second, the offender is sexually dangerous to others if he “suffers from a serious mental illness, abnormality, or disorder” to the extent that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.


Put simply, an individual can be punished through civil commitment not for any crime he has committed but for crimes he may commit. This is a dangerous response to media inflamed hype over sexual predation.


This past March, USA Today reported that approximately 2,000 inmates convicted of sex offenses are committed to the U.S. Bureau of Prisons each year, many of these sex offenders are eligible for “sexually dangerous” certification.

USA Today found that since the Walsh Act became effective, 136 offenders were designated as “sexually dangerous” by the Bureau. That’s approximately 20 designations a year.

Through March of this year, USA Today’s investigation determined 15 “sexual predators” have been “Adam Walshed.” This process means that federal prison authorities, primarily through the Bureau’s own mental health “experts,” determined that 15 sex offenders were “sexually dangerous” and reported this information to the U.S. Justice Department prior to those offenders being released from custody. Either Justice Department attorneys or the Director of the Bureau of Prisons initiated civil commitment proceedings in the federal district court where the offender was confined. The district court conducted evidentiary hearings at which DOJ attorneys proved by clear and convincing evidence that the 15 offenders were in fact sexually dangerous. DOJ attorneys met their burden of proof requirement almost always through the testimony of Bureau mental health experts, while attorneys representing the offenders defended their clients with experts who testified the offenders were not “sexually dangerous.” After reviewing the evidence, the courts made determination that these 15 individuals were “sexual dangerous” and ordered them to be indefinitely confined until they are “no longer sexually dangerous to others.”


This past July the Fourth Circuit Court of Appeals, in the case of Sean Robert Francis, discussed in fact-specific detail of how easy it is for a sex offender to be ensnared by the Walsh Act. While the district court refused to “Adam Walsh” Francis, and the Fourth Circuit upheld that order, the Francis case is illustrative of the process of how sex offenders in federal custody can be “Adam Walshed.


“Francis was first arrested in 1998 at the age of 20 after he placed two threatening telephone calls to randomly-selected telephone numbers. In both telephone calls, Francis threatened to rape women who answered the telephone. Francis was convicted in a New York state court on two counts of aggravated harassment and was sentenced to a term of three years’ probation.


“Shortly after his conviction, Francis pleaded guilty to violating the terms of his probation for failing to participate in sex offender treatment, lying to his probation officer, and failing to report to his probation officer as directed. The state court imposed a sentence placing Francis on continued probation.


“In November 1999, Francis pleaded guilty to federal charges, including eight counts of making threatening interstate communications in violation of 18 U.S.C. § 875(c). These charges arose after Francis placed more than 100 telephone calls to women in several states. In these calls, Francis often asked the women about their sexual behavior, demanded that they masturbate, described any personal information he knew about them, stated that he had been watching them, threatened to harm them if they contacted the police or did not do as he directed, and threatened to rape or kill them. Francis was convicted and sentenced to a term of 22 months’ imprisonment and to a three-year term of supervised release.

“Based on these federal convictions, Francis’ probation resulting from the New York state convictions was revoked and, following that revocation, he received an additional sentence of six months’ imprisonment. Francis was released from incarceration in July 2001.


“In December 2001, a female college student, ‘Emily,’ accused Francis of rape. During the investigation conducted by a local police department, Francis stated that he had engaged in consensual sexual intercourse with ‘Emily.’ Francis was not arrested, and the police did not file charges in connection with this incident.


“Later in December 2001, Francis’ supervised release was revoked after he admitted to making about 50 threatening telephone calls similar in content to the previous calls for which he had been convicted. Based on this violation of the conditions of his supervised release, Francis was sentenced to a term of 24 months in prison. He was released in September 2003.


“Within three weeks after his release, Francis began making similar threatening telephone calls. As a result, in December 2003, Francis was charged with 26 counts of making interstate threatening communications …, and four counts of intimidating and threatening a victim … Francis was convicted and sentenced to a term of 70 months’ imprisonment and to a three-year term of supervised release.


“Before Francis’ release from prison on January 12, 2009, a BOP review panel determined, based on mental health evaluations completed while Francis was still incarcerated, that Francis did not meet the criteria of a sexually dangerous person under the [Walsh] Act. Upon his release Francis was not required to register as a sex offender.


“Francis’ term of supervised release included many requirements and conditions, including that to submit to periodic polygraph examinations. During one such examination in 2009, Francis described numerous sexual acts, for which he had not been arrested or charged, in which he claimed to have sexually assaulted or raped 27 victims. Francis later denied committing any of these acts.


“In September 2009, more than seven months after his release from prison, Francis’ supervised release term was revoked based on three violations unrelated to placing threatening telephone calls. The first violation occurred when a probation officer visiting Francis in his home observed that Francis had rented a pornographic movie. Francis admitted to the probation officer that he had viewed six pornographic movies.


“The second violation occurred after Francis stated during a polygraph examination that he had engaged in sexual relations with two women he had met on the internet. When Francis refused to identify the women, he violated the condition of his probation requiring that he provide requested information to his probation officer. As a result of committing these violations, Francis was expelled from a mandatory sex offender treatment program. This expulsion constituted the third violation of the terms of his supervised release.


“Based on his commission of these three violations, Francis was sentenced to serve a term of six months’ imprisonment and a 12-month term of supervised release …”


Francis was scheduled for release from prison in February 2010. DOJ attorneys, however, filed a Walsh certificate in the federal district court. The government alleged in its petition that prison mental health personnel had made a “preliminary determination” that Francis was a “sexually dangerous person” within the meaning of the Walsh Act. The Walsh petition effectively blocked Francis’ release until the court could conduct a mandatory evidentiary hearing.


At the hearing Francis testified about his lengthy history of making threatening telephone calls to women which began at age thirteen. Four forensic psychologists—two for the government and two for Francis—testified at the hearing. One of the government’s experts stated that Francis was “one of the most prolific sex offenders” he had ever evaluated. Both of Francis’ experts testified that he was not “sexually dangerous” within the meaning of the Walsh Act. The government’s experts, however, stated that the chances of Francis re-offending were between the range of 30 and 59.7 percent. The district court concluded that while Francis may have suffered from “a serious mental disorder,” that alone did not mean he could not refrain “from sexually violent conduct if he were released from custody.”


By the time the court made this ruling Francis had spent two years at Butner. According to the USA Today report, two weeks after the district court ruling, guards at the Butner facility summoned Francis and told him to collect his personal belongings. He was given a bus ticket to New York City where he moved into suburban home with his father and stepmother. He found a job and maintains a low profile. While he was not required to register as a sex offender under New York law, he must wear a GPS ankle bracelet that monitors his movements.


The government appealed, and in rejecting that appeal and upholding the district court’s finding, the appeals court pointed out that an Adam Walsh determination of sexual dangerousness involves a two-step analysis. First, the district court must determine whether the offender “had engaged or attempted to engage in sexually violent conduct or child molestation; and, second, whether the offender is “sexually dangerous to others.” The second step analysis has two elements: 1) whether the offender “suffers from a serious mental disorder, abnormality, or disorder; and 2) whether as a result of that condition the offender “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”


The Fourth Circuit held that the government did not prove these three elements in the Francis case by “clear and convincing evidence” (state of mind that involves a firm belief or conviction, without hesitancy, about the truth of a matter).


Besides being an affront to civil liberties, civil commitment of “sexual predators,” as these offenders are commonly referred to, is also an expensive proposition for cash-strapped state and federal budgets. The New York Times reported in 2007 that it cost five times as much to keep a sex offender in a civil commitment setting than it does in a prison setting. More significantly is the fact that child sexual abuse has been declining in this country since 1990. The National Child Abuse and Neglect Data System of the University of New Hampshire reported a 40 percent decline of such cases between 1991 and 1999. The U.S. Department of Justice put the decline rate at 56 percent during that same period while the FBI’s Uniform Crime Reports and the National Crime Victimization Survey reported a 67 percent decline in sexual assaults of teenagers between 1998 and 2004.


Declining sexual assaults, the prohibitive costs associated with civil commitments, and the lack of success in civil commitments prompted the State of Texas to chart a different course than the Adam Walsh process. The Department of State Health Services explains:


“Across the nation states are dealing with sexually violent predators in an increasingly conservative manner by committing the SVP to inpatient treatment. The implementation of the outpatient civil commitment program in Texas is the first innovative type of civil commitment in the United States. The outpatient sexually violent predator program may appear to be a precarious endeavor to States [as well as the Federal government] who have committed millions of dollars to inpatient programs. The belief being these SVPs could not be contained and reside in communities without committing a new offense. However, to date [April 2010] the Texas outpatient program has shown the most success in the treatment of SVPs while maintaining the highest-level of community safety.


“There are a few similarities between Texas and other states civil commitment programs. First, sex offenders are assessed by the state and only the most predatory are referred to trial for civil commitment. Second, a trial is conducted and if the sexually violent predator is committed by judicial order, the SVPs remain in the outpatient program until their behavioral abnormality is changed to the extent that the SVP is no longer likely to engage in predatory acts of sexual violence.

“There is a significant difference between the Texas program and programs in other states. In other states, the civilly committed sex offender is placed in a locked, secure residential facility and can choose not to participate in sex offender treatment. In Texas, civilly committed SVPs are allowed to transition back into the community where they are mandated to actively participate and comply with intensive outpatient sex offender treatment and supervision.


“Sexually violent predators are civilly committed to protect the citizens of Texas and a paradoxical effect is that the outpatient program may do more to ensure public safety. Consider some of the inherent benefits that an outpatient sex offender treatment program has over a residential sex offender treatment program.


“The success rate for offenders treated in an inpatient setting [such as Butner] is about half of that for offenders treated in an outpatient setting. Consider the following percentage of treatment refusers: California’s 368 SVPs (80% refuse treatment), Wisconsin’s 232 SVPs (75% refuse treatment, and Florida’s 450 SVPs (70% refuse treatment). David Cuppenheimer, the Director of the Sex Offender Treatment Program at MCI-Norfolk reported that attorney’s routinely advise their clients to refuse treatment and avoid disclosure, which inhibits treatment. The prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs for this population are very long term and the treatment for this population are very different than the traditional treatment modalities. Therefore a civil commitment procedure for the long term care and treatment of the sexually violent predator is found to be necessary by this legislature [Kansas]. Use of an outpatient program, in which treatment is mandated in Texas, can potentially provide for more long-term community safety than inpatient programs.


“Treatment programs made in an inpatient setting does not readily transfer to the community because the client does not have to develop internal controls (i.e. identifying triggers and deviant behaviors to stop these prior to the act) due to the intensive external controls (i.e. locked facility, security, etc.) in place. Inpatient clients do not have to contend with the ‘normal’ stresses of the free world, the availability of alcohol and drugs, and the inadvertent contact with potential victims. Clients that do not choose to participate in the inpatient treatment setting still have the obstacle of applying this in the community. Eventually, these sex offenders will be released back to the community and other states must confront the issues that Texas deals with directly throughout the offender’s treatment.


“The outpatient program also has the advantages of maintaining the highest level of protection available in the community while protecting the civil rights of the client through a restrictive transition and assimilation back into the community.”

Indefinite detention of potential sex offenders through the federal Adam Walsh Act, or similar state statutes, is not the solution. It provides for lock down, inpatient treatment in a mental health facility which is virtually identical to the inpatient treatment offered in the prison setting. Beyond its ineffectiveness and staggering costs, Adam Walsh programs offend the historical penal objectives of punishment for crimes committed, not for crimes are likely to be committed. Sean Francis lost two years of his life because the Bureau of Prisons and Department of Justice “got it wrong.” We simply should not lock people up because they are a perceived threat. Lock up should be exclusively reserved for those who have been found guilty of crimes committed.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization