Hits keep on coming for TX civil commitment program

Between a new state audit generating unfavorable stories like these:

• Houston Chronicle: Scathing audit paints sex offender agency in disarray
• Austin Statesman: Audit finds oversight problems in sex-offender agency

and the fact that the judge hearing all the state's civil commitment cases, Judge Michael Seiler, appears irreparably biased, perhaps it's time for the state to abandon the civil commitment program altogether or at least reinstate control over the cases to local judges, perhaps managed through local probation offices. Clearly what's happening now is not working.

The program's been a hot mess since I first became aware of it and, while the former executive director Allison Taylor was recently scapegoated out the door, IMO the Lege created most of the problems by crafting an unworkable system then handing control over it to a judge whose personal biases make him unsuited to preside over the cases. (I say his "biases" are the problem but, perhaps more to the point, really it's Seiler's inability to control his mouth that's at issue. The scandal isn't that a judge thinks such things, it's the fact that he voices such opinions in public settings that makes the State Commission on Judicial Conduct unhappy).

Now, as the Houston Chronicle summarized the auditors' report, we learn additional critiques that more directly implicate past management, though in the context of an inherently insular and dysfunctional system. "The agency responsible for overseeing the state's civil commitment program for violent sex offenders awarded most of its contracts without competitive bidding, did not keep appropriate financial records and failed to monitor - or even plan for - the treatment of the men under its supervision." Add to this the fact that it's basically impossible for the agency to find free-world housing for its charges thanks to NIMBY backlashes wherever they try to place them.

Basically, nothing works at all in Texas' civil commitment system. Supervision and programming are ineffectual, finances are unaccountable, housing is non-existent (leaving the state at the mercy of vendors), the sole judge given authority over the cases is routinely recused for personal bias, and the hits just keep on coming. And all this so the state can continue to punish a few hundred people who've already discharged their complete criminal sentences under the law. Grits hasn't dug into this jumbled mess deeply enough to suggest what the immediate fixes are, besides disempowering Judge Seiler and sending the cases back to local judges. But the status quo is untenable.

One suspects the key measures will be filed by Senate Criminal Justice Chairman John Whitmire, who made a game attempt to exercise oversight during the interim as the agency's situation deteriorated. But flaws in the civil commitment program are embedded in its statutory design, not driven by personalities, even Allison Taylor's or Judge Seiler's. Meaningful solutions - whether reforming the system or ending it - can really only happen while the Legislature is in session. By the end of  May, we'll see what they do.

TX Court of Criminal Appeals okays 'trial by polygraph'

The Texas Court of Criminal Appeals continues to struggle with how to handle junk science, issuing (at least) its second 5-4 opinion in the last year (Ex Parte Robbins is the other I have in mind) allowing courts to rely on known junk science, this time reversing the lower court to proactively affirm the use of polygraphs as a basis for revoking sex offenders' probation. Chuck Lindell at the Austin Statesman gives the only MSM account I've see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment. Other than the polygraph, "appellant was halfway through his treatment plan and had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program," according to Judge Cathy Cochran's dissent. Moreover, "his therapist testified that the polygraph results were the only reason Leonard was discharged from treatment." Lindell explains the import of the decision:

In a 5-4 decision Wednesday, the Court of Criminal Appeals upheld Leonard's probation and prison term, saying the polygraph results were admissible in court because the information formed the basis of the therapist's expert opinion.

"Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field," said Judge Lawrence Meyers, writing for the majority.

"Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added.

The majority reaffirmed that polygraph results are always inadmissible before a jury.

But there is less danger of undue influence if the information is revealed during revocation hearings because there is no jury and because the judge "is not determining guilt of the original offense," Meyers wrote.

But Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."

Leonard was sent to prison based solely on the failed polygraphs, Cochran wrote, despite numerous scientific studies and reports that have cast doubt on the accuracy of the tests.

"No court should admit or consider scientifically unreliable evidence," Cochran wrote, adding that Leonard experienced "not only ‘revocation by polygraph' but also ‘revocation by an expert's reliance on unreliable science.' "

The 11th Court of Appeals had reversed the trial judge's back-door theory for admitting inadmissible evidence, calling this "trial by polygraph," and that's exactly right. The Statesman headline says polygraph evidence will be allowed in a "limited" way, but Cochran's more accurate when she decries the "steep and slippery slope" down which the opinion launches the court's jurisprudence: The harm from allowing unreliable evidence as the sole basis for incarceration decisions isn't mitigated because the probation officer and/or the court deferred their evaluation to a therapist. Hokum is hokum, no matter who relies on it.

If it were one piece of evidence among a panoply resulting from an investigation, that's one thing (you'll sometimes see polygraphs used in actual innocence cases that way, particularly out of Dallas). However, as Cochran wrote, "Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence." Or at least that was the case until yesterday. Now, probationers can be revoked based on testimony from experts who base their conclusions exclusively on unreliable evidence.

Bottom line, because we're talking about sex offenders, the courts are willing to bend over backward to maximize punitive sanctions, even to the point of allowing pseudoscience to dictate sentencing decisions, as in this case. But now that the precedent has been set, you can be sure prosecutors will get more creative about probation conditions that defer polygraph use to some third party so it will be admissible when it otherwise wouldn't be. Consider the implications, for example, of using polygraphs vis a vis treatment programs associated with DWI convictions: If that happened, this decision could balloon quite quickly into a big deal affecting a lot of cases.

See Judge Meyers opinion (joined by Keller, Hervey, Keasler and Alcala) and Judge Cochran's dissent (joined by Price, Womack and Johnson). I'm particularly disappointed to see Judge Alcala was the critical swing vote for Keller and Co. on the opinion. There are a ton of junk science issues looming before criminal courts in the wake of the National Academy of Sciences reevaluation of forensics, so this blasé attitude toward relying on junk science bodes particularly ill at this historical juncture.

Bad, bad opinion. So bad maybe the Lege should act next year to say that polygraph tests can't be the sole basis for probation revocation, whether they're administered by law enforcement or a therapist at the direction of the court.

Deregistration for first-time, low-level sex offenders may become reality in 2011

James Cannon at the Midland Reporter-Telegram has a nice little scoop on proposed protocols to be considered later this month by the state Council on Sex Offender Treatment to facilitate deregistration of low-risk offenders from the list ("Texas in final stages to allow some sex offenders to deregister from list," Feb. 6):

Texas is in the final stages of implementing a new program that will allow some sex offenders to deregister from the lifetime list, after an, as of yet, unspecified amount of time and counseling.

The Council on Sex Offender Treatment will meet Feb. 26 to discuss the final stages of establishing guidelines and protocol to evaluate low-level sex offenders. Once the training for the counselors are in place, a spokesperson said, within months, evaluation specialists will begin seeing potential candidates.

"This is a more common sense approach, we have to balance public safety with a limited amount of funds to ensure the maximum amount of public safety," said Allison Taylor, executive director for the Council on Sex Offender Treatment.

She said about 100 new names a week are added to the sex offenders list and database, and the cost of monitoring and managing the system are becoming untenable.

Taylor said the new program will allow deregistration evaluation specialists to categorize those convicted into risk-levels. By placing offenders in risk levels, she said, the government will be able to monitor those that need it the most, rather than spreading out the limited amount of resources on all offenders equally.

"Do we really need to monitor the 19-year-old convicted of having sex with his underage girlfriend the same way we would monitor a 40-year-old serial rapist, pedophile or murder, for instance," she asked. "We need to target predators and not kids caught in the criminal justice system because of the age of consent."

Here's a little more background on the legislation authorizing the new rules from the agency's website:

During the 79th Regular session of the Texas Legislature, two companion bills became law which potentially impact deregistration of some sex offenders in Texas. First, H.B. 867 amended Chapter 62, Code of Criminal Procedure, by adding Subchapter I, Art. 62.401 et seq., thereby creating a potential deregistration exemption for certain non-aggravated first-time sex offenders, after those offenders have been registered for a minimum of ten (10) years. This delayed exemption is limited to those sex offenders which currently require lifetime registration under Texas law, but who are only subjected to a ten (10) year registration requirement under Federal law.

The five specific penal code offenses which are subject to deregistration under Art. 62.404 are: Indecency with a Child (Section 21.11(a)(1); Promotion and Distribution of Child Pornography (Section 43.26); Burglary with Intent (Section 30.02); Sexual Performance of a Child (Section 43.25); and Compelling Prostitution of a Child under 17 (Section 43.05(a)(2).

Here's an official summary (pdf) about the process. According to that document, the agency:

has developed a protocol for the deregistration process that utilizes research supported risk assessment instruments. The Council will soon begin training qualified Licensed Sex Offender Treatment Providers who want to become Deregistration Evaluation Specialists. These Specialists will be the professionals who are qualified to conduct the deregistration evaluations that could potentially provide a Registered Sex Offender with an opportunity to seek relief from the court regarding his or her obligation to register. The training for the Deregistration Evaluation Specialists will be conducted in the upcoming months.

The deregistration option will apply to the following offenses:

• Compelling prostitution
• Compelling prostitution (victim under 17 years old)
• Indecent exposure (two or more convictions)
• Unlawful restraint (victim under 17 years old)
• Indecency with a child by exposure
• Possession or promotion of child pornography
• Online solicitation of a minor
• Sexual performance of a child
• Indecency with a child (victim 13 to 17 years old)
• Any attempts, conspiracies, and solicitations of any of the above listed.

However, applicants must also meet these additional criteria:

• The sex offender must not being convicted of any offense for which imprisonment for more than 1 year may be imposed during the required registration period;
• The sex offender must not have been convicted of any sex offense including misdemeanors during the required registration period;
• The sex offender must have successfully completed sex offender treatment as defined in 22 Texas Administrative Code, Section 810.2(b)(29); and
• The sex offender must have successfully completed any periods of supervised release, probation, and parole. Any revocation disqualifies the offender.

Given that the legislation authorizing deregistration passed in 2007, the Council on Sex Offender Treatment has taken their own sweet time about implementing it, but I'm glad they're doing so now.