Post-Conviction August 18-19, 2016 Wyndham Garden Austin TX Topic: Civil Commitment of Sexually Violent Predators

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1 Criminal Defense Lawyers Project Post-Conviction August 18-19, 2016 Wyndham Garden Austin TX Topic: Civil Commitment of Sexually Violent Predators Speaker: Nancy Bunin Habern, O'Neil, & Associates 501 Gale St Houston, TX phone fax Hill Meadow Dr :: Austin, Texas :: p :: f ::

2 Civil Commitment of Sex Offenders Nancy Bunin The Habern Law Firm 1221 Studewood #500 Houston, Texas Cell: Office: Civil Commitment of men with more than one sexually violent offense Texas Health and Safety Code chapter 841 Originally enacted by Acts 1999, 76 th Leg., Substantially amended in last legislative session Acts of 2015, 84 th Leg., ch. 845 (S.B. 746) BEFORE 2015 AMENDMENTS All CC Trials in Montgomery County District Court Judgments ordered men into outpatient treatment Sent back to prison for violating rules of civil commitment 170 men in civil commitment program 177 men back in prison for violating rules No one was ever successfully released from civil commitment At least 9 have died in commitment 1

3 TEXAS HEALTH & SAFETY CODE CHAPTER 841 The legislature finds that there is a small but extremely dangerous group of sexually violent predators that have a behavioral abnormality that is not amenable to traditional treatment and that makes them likely to repeat their predatory acts of sexual violence. The findings also note that present involuntary commitment provisions cannot adequately address this threat, and that a longterm supervision and treatment program for these SVPs is "necessary and in the interest of the state." What is a sexually violent predator A repeat sexual offender who suffers from a behavioral abnormality that makes the offender likely to engage in predatory acts of sexual violence Sexually violent offenses Continuous sexual abuse of young child or children; (a)(I): Indecency With a Child (sexual contact); : Sexual Assault; : Aggravated Sexual Assault; (a)(4): Aggravated Kidnapping (intent to sexually abuse or violate); : Burglary (if punishable under 30.02(d), i.e. premises was a habitation and was entered with intent to commit (or did commit or attempt to commit) a felony in 1-4, above; 2

4 Sexually violent offenses Murder or Capital Murder if the offense was committed with the intent to commit (or did commit or attempt to commit) a felony based on sexually motivated conduct. 8. Attempt, conspiracy, or solicitation to commit any offense in 1-7, above; 9. Offenses under prior state law with elements substantially like 1-8, above; and 10. Offenses under other state law, federal law, or the Uniform Code of Military Justice with elements substantially similar to 1-8, above (8). Repeat sexual offender Convicted of more than one sexually violent offense and a sentence is imposed for at least one of the offenses A single conviction on a multiple count indictment Includes deferred adjudications Includes cases where a person is adjudged not guilty by reason of insanity, (2015 amendment) and Includes juvenile adjudications of delinquent conduct constituting a sexually violent offense and resulting in commitment to the Texas Juvenile Justice Department. Behavioral Abnormality A congenital or acquired condition that, by affecting a person s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person. Only question the jury has to decide Does this person have a behavioral abnormality? Yes or No 3

5 How the civil commitment process begins 24 months before discharge, TDCJ must give notice to the Multidisciplinary Team of any person who may be a repeat sexually violent offender MDT evaluates the cases and determines whether person is a repeat sexual offender (60 days) and whether to do a behavioral abnormality assessment Person can refuse to speak to the assessor If MDT determines B.A. then case is sent to the Special Prosecution Unit and the attorney representing the state in the county of the last conviction for a sexually violent offense Consider possible advice for client going to prison If client can afford to get private sex offender treatment in prison, get it. Sign up for all treatment programs available, AA,NA, SOTP, Anger Management. Avoid disciplinary sanctions for sexual misconducts. If client is offered sex offender treatment, don t refuse. Understanding there may be unresolved offenses or problems of denial. If the MDT sends the assessor, an informed client can tell the assessor how they have progressed and why they wont reoffend or(client can refuse to speak to MDT) Civil Commitment Proceeding Client is sent to the state s expert. If client refuses to speak to the state s expert, he will not be allowed to present an expert to testify on his behalf Defense Attorney is not allowed to be present at the client s interview and the interview is not recorded The state s expert is seeking examples that portray the client is a psychopath, pedophile and/or has a paraphillia nos (rapist) Must go to trial within 270 days after the petition is served. Gives very little time for defense discovery. 4

6 Civil Commitment Trial Until July 2015, all trials held in the 435 th District Court of Montgomery County, Now trials are held in the court of the last conviction for sexually violent offense State and Respondent may request a jury trial State has burden to prove beyond a reasonable doubt State experts rely on hearsay as the basis of their opinion Defense never won a favorable jury verdict Defense only won the first civil commitment trial and one more after 2015 amendment changing trial venue Occasional hung jury and state may not decide to retry If a mistrial is declared, retrial must be within 90 days Seem to be more non suits since trials moved to county of last county of conviction for sexually violent offense Appeal of CC Trial Most clients are represented by Attorneys from State Counsel for Offenders due to indigency SCFO appeals nearly every case At least 3 men released from civil commitment because their case was reversed on appeal and SPU declined retrial Commitment Requirements (1) Reside where instructed by the office (2) Prohibit contact with victim (3) Participate in and comply with treatment and requirements imposed by the office (4) submit to tracking and refrain from tampering with tracking (5) Prohibited from leaving state without prior approval from the office Third felony to violate 1, 2, 4, or 5 And 3 is likely to be reinstated in next legislative session 5

7 Prior to June 17, Outpatient Treatment Reside in facility under contract with State Prohibit contact with a victim or potential victim Prohibit use of alcohol or controlled substance Participate in treatment(plethysmograph and polygraph Submit to tracking Obtain prior court permission before changing residence Abide by child safety zone Any other requirement of the judge Prior to September 2015 Treatment provider could discharge for failing to progress in treatment Treatment provider testified against client in criminal violation trial Over 107 rules of civil commitment Plus - Rules of housing facility Plus - Conditions of parole Impossible for a reasonable person to follow all the rules simultaneously 170 in treatment; 177 back in prison for rule violations Violate Rules of Civil Commitment - Prison Order shall strictly comply with the commitment requirements... Or will be charged with a Third degree Felony Client already has 2 felony convictions so that any rule violation can be enhanced to year punishment range 6

8 I shall not masturbate to deviant fantasies I agree to actively participate in and successfully complete OSVPTP( the treatment program) I will comply with ANY rule the Treatment Provider develops I shall be required to take polygraph exams. I understand that I may have to take polygraph exams until the Treatment Provider is satisfied with the results. I understand that an indication of deception on the polygraph might result in my unsuccessful discharge from treatment I agree to participate in the testing of sexually deviant arousal, while include a penile plethysmograph assessment I understand that if I fail to make progress in treatment, I may be terminated from the program I understand I must report any violations of the Treatment Plan to the Case Manager and the Treatment Provider I understand the Case Manager, Treatment Provider and others will communicate with law enforcement I agree not to tamper, alter, modify, obstruct or manipulate the Global Positioning equipment I shall abide by my pre-approved daily schedule time for time, destination to destination without deviation The scheduled activity has been pre-determined and declared by the case manager (2 weeks prior) I agree not to have relationships with people who do not support the behavior contract or civil commitment requirements (This can be the client s parent, spouse, or child, OVSOM can prohibit family contact) Very few released from treatment Until 2016, Not one man successfully discharged from treatment in 15 years- For sex offenders who complete their sentences, the only way out appears to die, Houston Chronicle, April 26, 2014 Statute provides that judge will conduct a biennial review to modify order or terminate supervision TCCO can authorize or client may petition for release. Only 3 men released by agreed order and those were not released until 2016 Trap for client-the court must deny an unauthorized petition w/o hearing if the client previously filed a petition that was either frivolous or unsuccessful 7

9 Constitutional Issues Hendricks v Kansas, 521 U.S. 346, 117 S.Ct. 2072, (1997). U.S Supreme court upheld Kansas civil commitment after considering issues of ex post facto applications, due process, separation of powers, and double jeopardy. Texas statute could be challenged-punitive in nature and not therapeutic In Re Fisher, 164 S.W.3d 637 (Tex. 2005) In upheld Texas Statute under the guise that it is outpatient treatment Challenge the lack of due process in the biennial review Writ of habeas corpus in criminal violation Rules are overbroad and vague, First amendment violations. Concerns Pre 2016 judgments that ordered men into Outpatient Treatment are now confined in a private prison in Littlefield, Texas for treatment. Approximately one half of the indigent men refused to voluntarily agree to inpatient treatment and hearings were held in fall 2015 without appointed counsel. One trial Judge held statute unconstitutional Reversed and remanded - IN RE COMMITMENT OF ALONZO MAY, NO CV (Tex. App. Beaumont July 28, 2016) Concerns Former outpatients forced to move away from positive factors: family support, jobs, treatment providers, medical care, religious support Too many men being held long past point of dangerousness Judges avoid hearings to release due to political considerations 8

10 Concerns After 16 years, only 3 men have been successfully released from the program. 395 men are currently civilly committed 221 are in the Texas Civil Commitment Center in Littlefield 5 have progressed to less restrictive housing (may not leave home without pre approval) 155 remain in prison 93% for rule violations 3 in county jails 10 State school/hospital, nursing home, supervised living At least 9 have died, at least 2 by suicide Possibilities of avoiding qualifying offenses Try to keep the plea agreement to one count Try for a lesser included offense: Sexual Assault > Assault or Indecent Exposure Indecency w/ child contact > I w/c by Exposure Aggravated Kidnapping > unlawful restraint, assault Get rid of intent to commit s.o. on burglary & murder Encourage clients to seek private treatment as soon as possible *Attempt to get agreement from District Attorney not to file civil commitment petition Interesting Resources Anita Hassan and Mike Ward, over 40 articles in the Houston Chronicle Caused investigation and change of staff at OVSOM Biennial Report Regarding the Office of Violent Sex Offender Management Texasvoices.org Advocacy group for families of individuals convicted of sex offenses 9