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.

Texas' civil-commitment program still flailing; violating its conditions no longer a crime

Despite all the changes to Texas' sex-offender civil commitment process this spring, most of which were necessary to comply with various court decisions, the program continues to look like a hot mess.

The state is still working out kinks in its revised program at the recently un-shuttered prison unit in Littlefield, where dozens of offenders have been moved. But to the extent that change solved any problems, it has also created new ones. Reported the Houston Chronicle (Sept. 27):

Since Sept. 1, as part of reforms to Texas' nearly 16-year-old program, from which no one had never graduated to freedom, the state has moved more than 180 offenders from halfway houses in Houston, Dallas, Fort Worth, El Paso and Austin to a re-purposed private prison in Littlefield, about 40 miles northwest of Lubbock. Even as it's getting started, substantive questions loom about whether the new program can be as effective as envisioned.

In relatively short order, officials concede the program struggled for months to find a site where it could operate, creating a new regimen program that will withstand mounting legal challenges. Officials' latest difficulties include how to provide effective mental health and therapy services, as well as jobs and resettlement programs, in a remote community in West Texas where those opportunities are mostly non-existent.

Most of all, the therapeutic program that's housed in a former prison, must not be a prison.

Littlefiled is in the middle of nowhere, so the chances of those sorts of treatment or reentry services cropping up there are slim and none.

In related news, recently Texas' Eighth Court of Appeals ruled that, based on new amendments to the law passed this spring, it is no longer a crime in Texas to fail to follow complete treatment under a sex-offender civil commitment plan. Moreover, the changes in the law are retroactive for all cases which have not resulted in a final conviction. In that case, the 8th Court of Appeals overturned a life sentence assessed for violating civil-commitment rules. And it probably won't be the last time that happens.

No room at the inn: Proposed Lege reforms won't solve civil-commitment housing SNAFU

The crisis over Texas' dysfunctional sex offender civil commitment program deepened this week, reported the Houston Chronicle's Mike Ward and Anita Hassan (April 25), and, though legislation is in the works to modify the process, "Even if the reforms are approved, the housing crisis will remain." Until then:

Faced with a worsening housing shortage and no prospect of a quick solution, officials quietly have started putting together "home plans" for most of the state's 185 sex offenders deemed too dangerous to live unsupervised in society.

So critical is the housing problem, officials said, that a two-time child molester freed from prison on Friday had to be temporarily placed in an already-full Houston halfway house after nearly 100 nursing homes refused to take the man, who is confined to a wheelchair and is developmentally disabled. State officials said he would not return home because several of his immediate family members also are sex offenders.

"We have no places to put the ones that are coming out of prison, and we have no place for the 185 who are in halfway houses and have to be out in August," said Marsha McLane, executive director of the Office of Violent Sex Offender Management that oversees Texas' civil-commitment program for repeat sex predators. "I would say we have a crisis on our hands."

Should the agency eventually implement the "home plans," the men would be sent back to live in their communities under supervision, required to wear ankle monitors to track their movements 24 hours a day. Caseworkers would check in on them each day.

These "civil commitment" programs are floundering all over the country. Wrote Ward and Hassan:

Texas is one of several states with a civil commitment program in limbo. Minnesota lawmakers are scurrying to make reforms to that state's civil commitment program under the threat of a court ruling that legal experts say could place it under federal control or shutter it altogether.

Last fall, the Missouri Attorney General's Office halted civil commitment trials in the Show Me State for six months while it prepared to fight a class-action federal lawsuit claiming the program is unconstitutional. That trial is set for later this year.

Just this week headlines from Kansas and Missouri iterated that point:

• Kansas faces criticism for cost of sex offender program
• Class action lawsuit begins over Missouri's treatment of sexually violent predators
• Missouri's SORTS program looks a lot like prison

Whitmire's bill passed the Senate but, according to the Chron, the bill "faces a less-than-certain future in the House, partly because of its estimated $13 million cost, roughly twice the current budget" and partly because of how late we are in session, though as a Senate bill already in the House the legislation is pretty far along in the scheme of things. (Right now it needs a committee referral.) The status quo - with the only judge in the state authorized to hear the cases routinely disqualified for bias - cannot stand. I'd be surprised if some version of the bill doesn't pass.

Regardless, everyone acknowledges that alone won't fix the housing problem nor stop NIMBYs from opposing and thwarting every possible, viable option. So then what?

RELATED: Analyzing legislation to reform Texas' sex-offender civil commitment program

On 'Cops in Lab Coats,' the pitfalls of basing police practices on Jonah Hill, Wallace Jefferson for SCOTUS(?) and other stories

Before the day's family festivities begin, here are a few items which deserve Grits readers' attention but haven't made it into independent posts:

The case for raising the age of criminal culpability based on Pearland ISD cops mimicking Jonah Hill movies
Dan Solomon at Texas Monthly described an 8-month undercover sting at Pearland ISD and the episode's idiotic if inescapable similarities to the 21 Jump Street franchise, comparisons to which consumed national media coverage about the event. Playing the killjoy, Solomon framed the issue in terms of Texas' "raise the age" debate, declaring: "It’s frightening that a high school junior who hasn’t committed a violent crime (none of the charges in the sting are for violent crimes), might find himself or herself facing time in an adult facility designed to imprison violent criminals. And that prospect is only thrown into relief when we’re all laughing about Channing Tatum and Jonah Hill."

No room at the inn for civil commitment offenders
As the state struggles to find housing for civilly committed sex offenders, the Texas Senate Criminal Justice Committee prepares to hear legislation on Tuesday, elaborated in detail by guest blogger Nancy Bunin in this Grits post, to revamp the program. Jefferson County Commissioners blocked using a facility in Beaumont. Even the private prison companies don't want them. The Geo Group "said in a statement that its mission 'no longer aligns' with housing" this cohort.

Casey: Wallace Jefferson for SCOTUS
Long-time columnist Rick Casey poked his head up out of retirement to suggest a potential dark horse nominee for US Supreme Court, should there be another opening: Former Texas Supreme Court Chief Justice Wallace Jefferson, who Casey rightly speculated is somebody who could actually be confirmed by the Republican-controlled US Senate. Rick Perry has already named Jefferson twice to Texas' high civil court, first as a Texas Supreme Court Justice, then as its Chief Justice. So it's intriguing to imagine that Barack Obama might consider a high-profile Rick Perry appointee for SCOTUS. Indeed, while a longshot, it's not entirely outside the realm of possibility that Jefferson could ascend to the court with either man as president. Where do I get my "Wallace Jefferson for SCOTUS" bumper sticker?

Justice Kennedy: Corrections system misunderstood, broken
Speaking of SCOTUS, when asked this week about prison overcrowding while testifying before a congressional budget subcommittee, Justice Anthony Kennedy took the opportunity to expound on prison policy, declaring, “The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government.” “In many respects, I think it’s broken,” lamented the 78-year old Reagan appointee.

'Cops in Lab Coats'
According to this press release, "University of Houston Law Center (UHLC) Professor Sandra Guerra Thompson argues in her released new book. 'Cops in Lab Coats, Curbing Wrongful Convictions through Independent Forensic Laboratories' is published by Carolina Academic Press."

Of glitter bombs and bathroom blues
The Texas Tribune provides balanced coverage of an unbalanced issue: Legislation to criminalize using the wrong restroom, honing in on Rep. Debbie Riddle's legislation highlighted by Grits back in February. The story doesn't mention it, but there's little doubt these bills were the proximate cause of the representatives' district office receiving a "glitter bomb" last month. Her bills have been referred to the State Affairs Committee which is chaired by Byron Cook, a notably open minded Republican when it comes to civil rights for gay people. Grits continues to believe that, if Riddle's bill criminalizing business owners who let someone use the "wrong" restroom were to pass, it would foster the unintended but entirely predictable consequence of rapidly promoting unisex bathrooms to avoid civil or criminal liability. This one's a "be careful what you ask for" moment. I'm not sure everybody has thought this through.

More arrests over faked police training
Arrests warrants for the Hill County Sheriff and three of his employees were issued recently alleging they falsified training records based on an investigation by the Texas Commission on Law Enforcement, adding to a growing list. Grits' belief is that these cases argue for the sort of independent prosecution of police misconduct (by the AG or a special prosecutor) discussed in Reps. Dutton's and Reynold's bills recently at the Lege. Local prosecutors have strong disincentives not to prosecute cases where faked training may endanger the credentials of large numbers of officers in a department - the same folks who are witnesses in all their cases and who they work with every day. In cases like these, it makes more sense to separate that function from local politics.

Analyzing legislation to reform Texas sex-offender civil commitment program.

When Senate Criminal Justice Committee Chairman John Whitmire filed SB 746 revamping Texas' civil commitment program aimed at sexually violent predators, Grits tried in vain to grok the ins and outs of all the changes and their import from the text and quickly found it made my head hurt. So I emailed Nancy Bunin - an attorney in Houston who works on these cases and who has been involved with advocating for reforming the program - asking her to explain what the bill did, how it addressed the problems reported extensively in the Houston Chronicle and elsewhere, and what remains to be done. She graciously replied today with a detailed and candid response. I'm immensely grateful for her taking the time. Find her analysis below the jump.

Sex offenders charged with phony crimes to clear space on supervision rolls

Last weekend the Houston Chronicle published a followup story (Feb. 15) on the Office of Violent Sex Offender Management and Texas' dysfunctional civil commitment program. The article opened:

The state of Texas routinely sent sex offenders back to prison as new arrivals entered its civil commitment program, lacking funds to accommodate all of those being confined for what is supposed to be ongoing treatment.

While the U.S. Supreme Court has sanctioned civil commitment in Texas and 19 other states as long as it is therapeutic and not punitive, some legal scholars say Texas' program has been run to keep sex offenders in custody indefinitely.

Their constitutional concerns now have been bolstered by state records and interviews that suggest the agency charged with overseeing the civil commitment program, the Office of Violent Sex Offender Management, created a revolving door to avoid a shortage of bedspace, often using minor rule infractions as grounds to send its charges back to prison, sometimes for life.

Sen. John Whitmire, chairman of the Senate Criminal Justice Committee, now is calling for a review of all cases in which program participants, who already had completed their criminal sentences, were sent back to prison for breaking program rules.

"There's no question to me that they revoked more people when they ran out of beds, so they could continue committing people to the program," said Whitmire, who has spearheaded calls to reform the Office of Violent Sex Offender Management. "That's absolutely not the way this program was supposed to work."

The new agency head "has ordered the practice of criminally charging the offenders for minor technical violations stopped, and she is reviewing every case before it is referred to prosecutors," reported Mike Ward and Anita Hassan. The chart at right demonstrates how the number of convictions closely matched the number needed to bring their caseloads down to the levels funded by the Legislature.

Nothing excuses bureaucrats for charging people with phony crimes so that, for their own convenience, they can send them back to prison for minor rules violations. But it's true the agency finds itself between a legislatively created rock and a hard place. The Lege required that, "Under a 2005 change in the law [that] all of the committed offenders must live in jails, halfway houses or supervised apartments under contract with, or approved by, the Office of Violent Sex Offender Management." But "supervised apartments" face constant NIMBY backlash and halfway houses and jails aren't viable options.

The article ended with Sen. John Whitmire wondering aloud, "What do you do with them if you have no bed for them to go to? ... You can't send them back to prison because they have completed their sentence," he pointed out, "No one wants them released to the street. But if there are no beds available, where do they go?"

That's the question, isn't it? Being tough on crime is expensive and, eventually, politicians must either budget sufficiently for their policies or back away from them. Texas has reached precisely that point when it comes to the sex offender civil commitment program. Time to fish or cut bait.

MORE: At yesterday's Senate Finance hearing these issues were prominently raised. Again from Ward and Hassan:

Marsha McLane, executive director of the Office of Violent Sex Offender Management since last May, warned lawmakers: "We have no space for anyone else. Unfortunately, the only option may be that we have to go to the street with any new offenders."

McLane said two sex offenders finishing their criminal sentences are due to arrive in the program in the next week, and more than a dozen more are to enter the program by the end of August. All beds are now full, she said, and the state must find another 140 beds by August because two halfway houses have notified the agency they no longer will house the offenders.

"We've got a crisis on our hands," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, a member of the Finance committee. "This is as big a screw-up as I've seen in all my years up here." ...

McLane said a bidding process for housing twice yielded nothing last year. And a statewide search of closed state youth lockups and adult prisons, even other empty state facilities, so far has come up empty.

"I've looked at 130 sites. Nothing is available," McLane told the House committee, noting that most communities do not want the convicted sex offenders moving in.

AND MORE: From the Texas Tribune.

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.

Recusals of civil-commitment judge call process into question

The lone Texas judge in charge of "civil commitment" of sex offenders has been removed from eight cases recently over prejudicial comments, probably with more to come, reported the Conroe Courier (Dec. 24).

The recusal of a Montgomery County district court judge has been granted in at least eight civil commitment cases since September, according to records at the District Clerk’s office.
Judge Michael Seiler presides over the 435th state District Court — Texas’ only court responsible for handling civil commitment cases of sexually violent predators. Seiler was dismissed from six cases Dec. 11 by Senior Judge Ned Dean for either reasonably questionable impartiality or a personal bias against the subject matter or a party involved in the respective cases, records show.

There are more recusal motions pending, while those already granted call into question whether Seiler can objectively preside over the roughly 50 civil commitment cases heard in the court annually.

At issue are a series of of speeches he gave to Tea Party and Republican groups in which he suggested eliminating jury trials for sex offenders and opined that castration would only work to deter sex offenders if it occurred at neck level. He adopted a campaign slogan dubbing himself "a prosecutor to judge the predators" in the GOP primary in Montgomery County, making no apologies for his one-sided approach to judging these cases.

The surprise here isn't so much that a judge holds these views but that he's thick enough to voice them repeatedly in public forums where eventually, inevitably, somebody stuck a video on YouTube. Talk about your unforced errors; that's pretty brazen!

The question becomes, if the only judge in the state hearing civil commitment cases can't be impartial and is routinely recused, how long is the situation sustainable where all those cases are funneled through his court?  With the Legislature convening in a month, might they decide to upend the scenario, perhaps shifting civil commitment proceedings back to their county of origination instead of sending them all to Judge Roy Bean Seiler over in Montgomery County, where apparently they'll be distributed among visiting judges for the foreseeable future?

The whole civil commitment program has been a hot mess from the get-go. But capped off with this news, in 2014 its disgrace reached new depths.

Crime lab misconduct, sex-offender residency, parole successses, and other stories

Hope you enjoyed a Happy Independence Day, Grits readers. Here are several items that didn't make it into independent posts last week but merit your attention:

Houston crime lab misconduct not caught by internal procedures
The Houston Chronicle reported (June 25) that Peter Lentz, the Houston crime lab tech accused of lying, improper procedure and tampering with an official record, was not identified by internal protocols but because, in February, he admitted the wrongdoing to two coworkers over drinks in a bar. MORE: From Paul Kennedy.

Texas civil commitment program melting down
The state's civil commitment program for sex offenders is imploding. The state plans to begin housing sex offenders in secure lockups because a halfway-house vendor is dropping its contract, citing public stigma and inadequate compensation. An attorney at the Harris County public defender told the Houston Chronicle that housing civil-commitment offenders in secure lockups is "clearly illegal." After all, they've already served their criminal sentences and are legally supposed to be undergoing outpatient treatment. Look for significant action on this topic next session, probably led by Sen. John Whitmire and Rep. Sylvester Turner.

'Getting Life': Michael Morton Memoir
Michael Morton has just published a memoir about his false conviction and imprisonment for the murder of his wife and the dramatic events surrounding his nationally publicized exoneration. See the Statesman's coverage.

Higher parole rate, fewer revocations account for leveling of Texas' prison pop
Insiders know that, despite the attention paid to Texas' 2007 probation reforms, the parole side has been the main reason Texas' prison population has leveled off and even modestly declined in recent years. Why? Via YourHouston News, Texas parole commissioner Lynn Ruzicka said new programming has facilitated higher parole rates for eligible inmates and lower revocation rates for parolees. For example, "Out of the inmates up for parole, 27-28 percent were released in 2001 while the current release rate hovers around 35 percent ... A 2 percent increase in approvals translates into approximately 1,500 additional parole releases per year and an annual savings of almost $26 million, a 2010 report by the Center for Effective Justice showed." Ruzicka specifically said, “The release rate is going up because of the programs we have.” Further, "parole revocation rates for parolees with active cases fell from 12.2 percent in 2001 to 8.2 percent in 2010, according to the Texas Department of Criminal Justice."

A lawyerly protest: Handing out cards
You don't see this every day:

More than a dozen of the city's best criminal defense lawyers converged Friday on the 11th floor of Houston's criminal courthouse to meet defendants and hand out bright yellow 3-by-5 cards explaining their constitutional rights.

It was part of a protest by the Harris County Criminal Lawyers Association against the way Michael Fields, a misdemeanor judge, handles initial appearances in his court.

"What he's doing is unethical, it's unconstitutional and it's illegal," HCCLA president Carmen Roe said after passing out several fliers. "When he starts trampling on the rights of defendants, that's when we get involved." ...

"We believe he's coercing defendants to either waive their right to a lawyer or enter a plea of guilty without their lawyer being present," said JoAnne Musick, a past president of HCCLA who was handing out fliers. "We've had complaints from people who asked for a lawyer and instead he handed them plea papers and had them enter a plea of guilty."

The judge, who denied any improprieties, said he changed his arraignment procedure earlier this year, a move that has generated the controversy. The Republican jurist has held the bench since being elected in 1998.

Paul Kennedy has called Judge Fields a "bully in a robe." Scott Greenfield provides more suitably outraged commentary.

Are compromised Van Zandt locks in other jails?
The Tyler Morning Telegraph posed the same question Grits asked in the wake of news about inmates compromising the locks at the Van Zandt County Jail: "Are the faulty locks in the Van Zandt County Jail in other jails?" For now, claims the paper, the surprising answer appears to be "no." "Executive Director of the Texas Commission on Jail Standards Brandon Wood said that as of now, the manufacturer does not seem to have that lock model in any other Texas jails, but they are still taking more time to confirm that, and see about locks in other states."

Wood said there are about three main manufacturers that make lock systems for jails in the state, but the company that made the flawed locks was not one of them.

“The type of lock that was installed, although it is comparable according to the manufacturers specifications to locks that are typically seen in Texas county jails, this was the first time we’d seen this manufacturer in the state,” Wood said.

Wood said even though the company was new, the locks it made met state standards.

For security reasons, Ray requested not to reveal the lock manufacturer’s name. Keeping that information away from inmates could stop them from trying to manipulate similar locks.

However, the locks with the faulty pieces seem to only be in one batch of one specific model. It doesn’t look like the manufacturer has locks from that bad batch anywhere else.

“We do not believe that any of those locks are in any other county jails, however we have issued a technical assistance memorandum and notification to the sheriffs to conduct a walkthrough of their own facilities and determine if they have any of those locks,” Wood said.

As every jail in Texas investigates its own locking system, the manufacturer in question is looking into any locks it has installed in other states.

They ought to publish the manufacturer's name. It's going to eventually come out, anyway.

Alleged civil service cheats indicted in Cameron County
Reported AP, "Eleven former and potential South Texas sheriff's deputies have been indicted in a civil service exam cheating scandal involving a cellphone image of the test."

Private prison focus: Immigration
The blog Texas Prison Bidness highlights documented troubles at five "criminal alien requirement" prisons in Texas covered in an ACLU report released earlier this month:

• Reeves County Detention Center
• Eden Detention Center
• Willacy County Correctional Center
• Big Spring Correctional Center
• Giles W. Dalby Correctional Facility

Forensics a 'decades-long experiment' sans scientific method
At Slate, Mark Joseph Stern picks up the meme that much forensic science isn't actually science, an uncomfortable fact made irrefutable by the 2009 National Academy of Sciences report calling for the application of the scientific method in forensic fields. He argues that, "Far from an infallible science, forensics is a decades-long experiment in which undertrained lab workers jettison the scientific method in favor of speedy results that fit prosecutors’ hunches."

Catch 22 on civil commitment housing: 'Outpatient treatment' a cruel farce

There have recently been a spate of stories about housing for "civilly committed" sex offenders, people who've completed their sentences but been kept under supervision through civil proceedings, culminating in the resignation of the board chair at Texas' Office of Violent Sex Offender Management. But until yesterday's Houston Chronicle article ("For sex offenders who've completed their sentences, 'the only way out appears to be to die'," April 26), the focus of discussion had been on demonizing the agency for housing too many such offenders in a handful of neighborhoods. The real problem, though, is the failed, underlying policy which fails to acknowledge that a) these folks must live somewhere and b) public safety is poorly served by ostracizing ex-offenders instead of promoting reintegration. The article opened:

As criminals go, these few hundred men officially are labeled the worst of the worst, offenders whose past sexual crimes have branded them as such pariahs that the state has decided to keep them confined in jails and halfway houses and run-down boarding homes across Texas at taxpayer expense, even though they long ago completed their prison sentences.

They were the unknown, until a month ago when the little-known agency that supervises them - the Office of Violent Sex Offender Management - relocated more than two dozen into the Acres Homes neighborhood in north Houston, without any advance public notice, causing controversy and alarm.

A few days later, disclosure of the agency's plan to build a center in rural Liberty County to house perhaps more than 100 offenders there brought immediate local opposition.

But legal experts, former employees and legislators now suggest that the biggest controversy may involve the program itself: Why outpatient treatment supposedly intended to transition offenders out of confinement once they complete rehabilitation programs, never has.

Not one. Not in 15 years.

"The only way out appears to be to die," said Nicolas Hughes, a Harris County assistant public defender who has represented several offenders in the program. "That's not how it's supposed to work. In that regard, it's clearly not constitutional. These people are just being kept locked up."

Proponents of civil commitment programs for sex offenders insist it is legal, pointing to a string of court decisions upholding its strict rules.

While none of the civilly committed offenders ever have been discharged, Allison Taylor, the program's executive director, has said repeatedly that none of the offenders in the program ever have been charged with committing another sexually violent act. "That, to me, is success," she told the Houston Chronicle in 2012.

Taylor, who did not respond to calls for comment, recently has taken official leave, as has program manager Deborah Morgan. Their subordinates now are managing day-to-day operations.

Chairman John Whitmire of the Senate Criminal Justice Committee recently announced he'll hold hearings to evaluate the agency's housing policies, calling agency management "out of control" and questioning whether the program is "even needed anymore, considering that prison sentences for sexual predators have been increased in the past decade." Unless the committee can identify solutions, though, all the "oversight" in the world won't change the situation. It probably just needs to be scrapped.

As several critics said in the article, the whole "outpatient treatment" model for Texas' civil commitment  program is basically a farce. A former case manager for the agency "came to the conclusion that the rules were designed to send the offenders back to prison, not allow them to successfully complete their treatment." And though civilly committed offenders are supposed to be reevaluated every two years, a former attorney at the State Counsel for Offenders told the paper, "My concern is that the regulating agency is so biased against these guys they don't give them a fair evaluation." That seems to be what's really going on.

Honestly, I don't know why anyone would ever agree to serve on the agency's board. Nothing they do will prevent them from being scapegoated by politicians and/or neighborhood groups, even if they ensure every offender under their charge never commits another sex offense. Nobody wants these folks housed in their zip code, even individually, much less en masse. Yet, they've completed their prison sentences and must live somewhere. It's a classic Catch-22: There's no viable solution that can please the agency's critics. You couldn't pay me enough to do Allison Taylor's job.

MORE: Embattled agency chief retains attorney who thinks civil commitment program is unconstitutional. AND MORE: State may fire agency director.