Why Texas' civil commitment program was found unconstitutional

After Nancy Bunin did such a great job of analyzing Texas' sex-offender civil commitment legislation this spring, I asked her to author a guest post explaining the import of a recent, widely publicized ruling declaring the program unconstitutional and releasing the first Texas sex offender ever from civil commitment restrictions. Here's what she wrote. Thanks Nancy for agreeing to do this. UPDATE: An appellate court overturned part of this ruling but "did not address Reiter's issues with the legality of the civil commitment program."

Recently the Honorable P.K Reiter made headlines by finding Chapter 841 of the Texas Health and Safety Code unconstitutional. On Monday, December 14, Judge Reiter agreed with Defense Counsel Bill Marshall’s conclusion that the involuntary commitment of Alonzo May under the recently amended law was punitive and a denial of the man’s due process rights under both Texas and U.S.

(May was previously ordered into outpatient treatment as a repeat sex offender)

Earlier this year I submitted an article contemplating the proposed changes pending in the 84th Texas Legislature concerning amendment of the Texas Health & Safety Code Chapter 841, the law providing for the civil commitment of repeat sex offenders. Unfortunately, though extensive changes in the law put into effect on June 17, 2015, the law is still problematic. The new laws failed to adopt many suggestions, calculated to address many of the significant problems with the civil commitment program, offered by attorneys that represent men in civil commitment.

The civil commitment law was enacted in 1999 and approximately 400 men have been committed. Approximately one-half of those men have been sent back to prison for technical rule violations (not new offenses). No man has ever been allowed to complete the program, been recommended for release by the TCCO and then released by the court.

Either late last year or early this year, Avalon and GEO (the companies who operated the half-way houses where the vast majority of men in civil commitment were confined) informed the State that they would not renew the contracts pursuant to which they housed men in civil commitment. The State's solution was to contract with Correct Care Recovery Solutions to house all of the men in a vacant private prison.

When the law was amended this summer the outpatient program was changed to inpatient program. In July, employees from TCCO made presentations to the men living in halfway houses in Austin, Dallas, El Paso, Fort Worth, and Houston. They were given a copy of the new statute and told they could either sign an agreement to voluntarily be placed in the new inpatient program or they would have a “Due Process” hearing in Montgomery County District Court.

Men previously ordered into outpatient treatment were suddenly being asked to sign a legal document with no legal advice and no details about the new program. They were told the outpatient program no longer existed and they would be moved to a facility in Littlefield, Texas. They did not know who would provide treatment and they did not know whether they would receive a treatment level equal to that which they had achieved in the outpatient program. The men have been placed in a tiered program, with Tier 1, the lowest tier, being in total confinement in the Littlefield facility and Tier 5, the highest tier, (labeled “aftercare”) being permitted to live outside the facility.

The law requires State Counsel for Offenders, a division of the Board of the Texas Department of Criminal Justice, to represent indigent persons in civil commitment proceedings. On its own, SCFO decided that “civil commitment proceedings” is defined solely as the civil commitment trial, biennial reviews and petitions for release. The decision was made at SCFO that they WOULD NOT represent these men in the “Due Process” hearings. As the majority of civilly committed men are indigent and were not helped by SCFO, they had no legal representation during the “Due Process” hearings or to determine whether to sign the agreement.

I observed several hearings of unrepresented men. All requested an attorney, a request that was ignored by the assigned judge. In one case, the assistant attorney general argued the man did not need an attorney because he went to the law library on a regular basis.

Enter Bill Marshall, former SCFO attorney, who continues to represent many men in civil commitment as a private attorney. During the fall months of 2015, Marshall and at least three other private attorneys represented some men in these hearings. It is my belief that Marshall represented more men than any other attorney. While I do not think Bill meant to represent everyone on a pro bono basis, it is my belief that he agreed to reasonable fees and offered very generous payment plans.

In September it was announced the “Tiered Treatment Program” would be at the former private prison that is now owned and operated by the Correct Care Recovery Solutions in Littlefield, Texas, approximately 40 miles northwest of Lubbock, Texas.

Correct Care Recovery Solutions also provides the treatment to the “residents” of the facility (formerly the Bill Clayton Detention Center and now known as the Texas Civil Commitment Center).

At the time a handful of men were living or working outside facilities operated under contract with the State. No effort was made to assess whether other individual patients, many of them having made significant progress through years of treatment, should be housed in a less-restrictive setting. The decision appears to be primarily a financial one – the TCCO did not have the money or contracts for supervised, community-based housing.

TCCO violated the patients’ civil rights by summarily placing the patients in the new inpatient program when the men were committed under the original outpatient program. To place these men in a locked facility after they had been living in half way houses, and in some cases working in the community, denied the men liberty with out due process of law.

A few men that demonstrated exceptional progress in the outpatient program, and in some cases had completed the therapeutic portion of the program, were informed by TCCO that if they signed the agreement, they would be allowed to live independently. If those lucky few did not agree to go into the new Tiered Inpatient program, they were threatened that they would have to go to Littlefield until employees with Texas DPS Sex Offender Registration could process their new addresses. This put some of the men’s jobs in jeopardy and employment is the cornerstone of independent living and important for progress through the program.

I assisted Bill Marshall in one “Due Process” hearing. Bill’s client had been in treatment for six years. He had been assigned to a half way house in a city that was in close proximity to highly supportive and extensive family members. His treatment provider and two case managers testified that he was doing well in the program and that family support was important to his progress. We even presented an employment counselor that was helping him find employment and his minister that said our client served as an excellent example to the rest of the men in the program. None of this support would be available to the client in Littlefield. The State offered no evidence of what treatment or opportunities would be offered in the new inpatient program.

In that case, the assigned judge issued a modified order allowing TCCO to place our client in Inpatient Treatment. So our client is now housed over 800 miles away without the support of his long trusted treatment provider, family, minister, or employment assistance.

Although Judge Michael T. Seiler is the presiding judge of the 435th Judicial District Court in Montgomery County, other visiting judges were assigned to assist with the monumental task of sitting in on approximately one hundred “Due Process” hearings. At least five cases were assigned to Judge Reiter. At their initial hearing all five of the men were unrepresented. Because the State offered no evidence of the new inpatient program, Judge Reiter decided the State had not carried its burden of proving that the men would benefit from the new inpatient program and refused to order the men into the new program.

The State asked Judge Reiter to reconsider based on new documentary evidence and new testimony they would offer at a hearing. A new hearing took place on December 8. The State brought a former executive director of Council of Sex Offender Treatment (CSOT) to testify regarding the differences between the outpatient and inpatient programs and the clinical director of the TCCC to testify about the advantages of inpatient treatment program. The evidence indicated to Marshall (and seemingly to Judge Reiter) that the only significant differences between the two programs were: the inpatient program offered more hours of treatment per week; the men would not be allowed to leave the TCCO under unusual circumstances and then only under guard; and, the TCCO was actually a prison with prison environment rather than a half-way house. The clinical director agreed that there exists a difference of opinion among experts in the field of sex offender treatment about whether inpatient or outpatient treatment was preferable.

One option the State asked Judge Reiter to consider was ordering Mr. May to simply continue his outpatient treatment in the Littlefield facility. This option flew in the face of the testimony that the outpatient program no longer existed.

Among the evidence offered by Attorney Marshall was an aerial photograph of the Littlefield facility. Judge Reiter noted that the facility was surrounded by a high double fence topped with razor wire. There was little doubt that this was not an outpatient residential facility. In fact it was reported that Judge Reiter remarked Littlefield resembled a concentration camp!

The United States Supreme Court has held that civil commitment of sex offenders after they have discharged their prison sentence is only constitutional as long as the purpose of the scheme is therapeutic. If the purpose of the program is to extend the punishment of the sex offender then the program is unconstitutional.

Judge Reiter was the first judge to preside over civil commitment trials. He served as a visiting judge on over 70 civil commitment trials after he took senior status. He has observed a process that has grown far beyond the original intent of the statute that was to commit a small but dangerous group of individuals. He has observed that in the early years of the program, civilly committed men lived in private housing but were required to attend treatment after release from prison. He observed a program that required men to leave their homes and live in State contracted halfway houses and jails. Then he observed the program require these same men to move into a prison in a very remote part of Texas far from community and family support.

Judge Reiter reached the correct conclusion of law in Alonzo May’s case. There are nearly 200 men at the Littlefield facility that were committed to outpatient treatment. Those with income are required to pay for their confinement, treatment and their required GPS ankle monitors (yes they have to wear the GPS monitors inside the prison). Not even prisoners held in TDCJ are required to wear ankle monitors or pay for the cost of their housing.

The few men that live in transitional housing outside of Littlefield are under constant threat of being sent to confinement. Men are required to pay up to 33% percent of their income for therapy and ankle monitors. This assessment was made AFTER TCCO approved the men’s’ budget plans that allowed them to live independently.

Apparently TCCO provides no assistance to men who have been housed in civil commitment to secure or support themselves in independent housing.

The State still holds men in civil commitment that have completed treatment and who are no longer likely to commit predatory acts of sexual violence. The State offers far too little assistance to men to release them from commitment. The statute still puts an onerous burden on the civilly committed man to show why he should be released, rather than have the state show why they can still hold him.

(There is late breaking news that the State continues to oppose Mr. May’s release and that his liberty is in jeopardy despite Judge Reiter’s ruling.)

For nearly a year, legal advocates have offered to explain the constitutional deficiencies in the civil commitment program to Sen. John Whitmire and the TCCO Director in hopes that deserved men will be released and the men held in commitment will be treated humanely.

Now would be a good time for them to seriously reconsider the assistance offered to them.

Nancy Bunin is an associate at Habern, O’Neil & Associates in Houston, Texas. She has defended men in civil commitment trials, biennial reviews, appeals, and in criminal prosecutions of civil commitment rule violations. She is co-chair of the Texas Criminal Defense Lawyers Association, Committee on Corrections and Parole. She wishes to express her appreciation to William Marshall, William Habern, Nicolas Hughes, and Alex Bunin for their contributions to this post.