As politicians push for a showy but meaningless expansion of civil-commitment laws, the state refuses to implement a parole program for sex offenders that actually works
BY DAVID S. BERNSTEIN
AT FIRST GLANCE, last week’s trial of Paul J. Leahy wouldn’t seem to have much to do with sex-offender laws. Leahy attacked and killed 30-year-old Alexandra Zapp in a Route 24 Burger King restroom in July 2002, in what appears to have been a robbery gone awry. Not even the prosecutor suggested a sexual component to the assault.
But in their well-intentioned efforts to place blame and prevent future tragedies, Zapp’s family and friends have focused on the state’s unsuccessful attempt in 2001 to label Leahy a "sexually dangerous person" and to lock him up indefinitely under the state’s civil-commitment law. Their mission, through the Ally Foundation, has been to close the "loophole" that made Leahy ineligible for commitment; the trial has provided new momentum for the bill, which appears likely to become law. Last week, both Senate president Robert Travaglini and House Speaker Tom Finneran said that they expect votes on the bill to take place soon.
However, this proposal would be yet another meaningless and expensive showpiece, one that would probably have done nothing to prevent Zapp’s death. Meanwhile, the state refuses to implement a relatively inexpensive, ready-to-roll intensive parole program that actually does prevent sex offenders from re-offending — and might even have saved Zapp.
This is all, unfortunately, business as usual. "We have to be careful not to make broad, sweeping laws in reaction to individual events," says Elyse Clawson, executive director of the Crime and Justice Institute in Boston. And yet, here we go again.
CIVIL COMMITMENT keeps sexually dangerous persons locked away at the Massachusetts Treatment Center, in Bridgewater, until they can prove they’re no longer dangerous — in practice, a potential life sentence. (Nationwide, of some 1500 sex offenders locked up under civil-commitment laws since 1990, all but 86 were still confined as of mid 2002, according to the National Association of State Mental Health Program Directors.)
Prior to Zapp’s murder, Leahy was ineligible for civil commitment; enticing a minor, the offense for which he had most recently been convicted — he asked a 13-year-old girl for a blowjob — is not on the civil-commitment-eligibility list. The proposed bill would add it, along with a host of other sex-related crimes, such as possession of child pornography and "open and gross lewdness and lascivious behavior." "The number of people eligible would skyrocket," says Stan Goldman, director of mental-health litigation for the state Committee for Public Counsel Services.
In addition, the bill would make a prisoner facing release eligible if any of his prior convictions — no matter how old — qualify; this would have let the state cite Leahy’s 1985 aggravated-rape conviction (a qualifying crime) as grounds to seek commitment regardless of whether his latest offense was on the list. "We shouldn’t have this particular loophole," says Middlesex County district attorney Martha Coakley.
Boston media have repeatedly parroted this line. "The same legal loophole that kept [prosecutors] from sending Zapp’s killer, Paul J. Leahy, to a treatment center, is preventing them from getting others like him off the streets," read a Herald story published two days after Leahy’s conviction. And on Monday, the paper editorialized in favor of expanding the law so that offenders like Leahy could be locked up indefinitely.
But these are not loopholes; they are limits on the already dubious notion of locking people up indefinitely after they have served their sentences. The US Supreme Court has ruled that this can be justified only for sex offenders with mental abnormalities (indeed, the Massachusetts statute defines a sexually dangerous person as someone who "suffers from a mental abnormality or personality disorder that makes the person likely to engage in sexual offenses if not confined to a secure facility"). In 2000, Leahy got high with a 13-year-old girl and pressured her for oral sex, which she declined. That’s creepy, crass, and criminal behavior, to be sure, but it’s not on a par with the kind of violent, predatory sexual behavior that currently lands offenders in the Massachusetts Treatment Center, and it’s not a clear indication of mental abnormality. Other offenses that the bill would add are even more remote from signaling mental illness — like sharing the earnings of a minor prostitute. "No clinician would say that pimping is done because of mental abnormality," Goldman says. "It’s done for money."
"Some of the categories are not indicative of a mental defect," warns Marylou Sudders, president of the Massachusetts Society for Prevention of Cruelty to Children and former commissioner of the state’s Department of Mental Health. Sudders supports the general idea behind the bill, but warns that "if you cast the net too broadly, you run the risk of challenging the constitutionality, and then you can end up with nothing."
The truth is that those who favor civil commitment don’t think in constitutionally acceptable terms. "We do not believe there are treatment programs that are effective" for sex offenders, says Lieutenant Governor Kerry Healey. When asked how that gibes with the Supreme Court’s implication (in Kansas v. Hendricks and Seling v. Young) that civil-commitment programs must treat offenders unless their specific illness is deemed untreatable, she says, "I think as long as you are making the best known treatment available, it’s constitutional" even though, in her opinion, that treatment is meaningless. During the gubernatorial race, literature put out by the Romney-Healey campaign proposed "locking [sex offenders] up for life" by "expediting the civil commitment procedure" — a clearly unconstitutional idea that this bill fits right in with.
One more frightening notion lurks within the bill. Remember, the crime that this bill "could have prevented," according to its proponents, was not a sex offense. But that doesn’t seem to matter to anyone. Clearly, people feel that since Leahy was a bad guy, society should have found a way to lock him away so he couldn’t do more bad things.
Locking people up for crimes they might commit in the future is the stuff of science-fiction movies, not a civilized society. Apparently, however, many people find the idea attractive.
IN FACT, the "loophole" that left Leahy uncommitted was an eight-year gap between the elimination of Massachusetts’s old civil-commitment law in 1991 and the passing of a new one in 1999. Leahy’s rape sentence ended in 1998, at which time no commitment law existed. The bill’s proponents — primarily district attorneys — want to apply the new law retroactively to those who slipped through that window.
So the new bill’s targets are exceptionally dangerous sex offenders released from a Massachusetts prison between four and 12 years ago, who have not seriously re-offended, but who get caught committing a lesser crime.
To give DAs a shot at petitioning for commitment in that rare situation (and actually committing a tiny percentage of them — they currently win fewer than one of every 10 petitions), the bill would make thousands of people newly eligible for civil commitment. Currently, the state’s district attorneys file about seven civil-commitment petitions a month, or roughly one for every seven sex offenders released from prison. Goldman predicts that the legislation would lead to expensive, court-clogging commitment procedures with little to show for it.
If district attorneys did somehow manage to commit more ex-offenders, the state would quickly need to start building new — and very expensive — treatment facilities. The Massachusetts Treatment Center, with 187 beds, is currently near capacity, and it’s rare for anyone to leave.
"We would not hesitate to build the appropriate facilities if we need to," says Healey. "But we don’t expect a large uptick in people being civilly committed."
That last comment is echoed by Coakley, who also strongly supports the bill. "I think in the past we’ve shown we can use our discretion," she says. "This will not open the floodgates." This rule would allow the state to act in "the exceptional case," she adds.
But that’s exactly what makes the energy directed toward this bill — Healey, Coakley, Plymouth DA Timothy Cruz, and others have testified for it — look a lot like pointless showboating.
IT COSTS about $100,000 per year to house each committed sex offender. (It’s so expensive because, constitutionally and by state law, the Massachusetts Treatment Center must provide the treatment that top officials believe is useless.) For the cost of committing just a few of them, the state could implement a proven, effective program that actually reduces recidivism. It’s called Intensive Parole for Sex Offenders (IPSO), and the Parole Board has run it as a pilot program in its Framingham regional office since 1996. In those seven years, 121 released sex offenders have been assigned to IPSO, and not one has been charged with a sex offense while in the program.
IPSO uses specially trained supervisors who conduct at least two in-person visits a week. Curfews, electronic monitoring, travel restrictions (including a ban on night driving), daily logs, drug testing, polygraph examinations, and treatment participation are all mandatory. Leahy would never have been able to get his late-night rest-stop job had he been assigned to IPSO.
Constant sharing of information among the parole officers, therapists, and polygraphers helps the IPSO team step in long before recidivism occurs. "It’s like an alcoholic; the lapse doesn’t occur when he picks up the bottle, but through choices he made that led into that cycle," says Greg Doucette, one of the two IPSO supervisors. "We can intervene in that cycle and try to stop it, or if necessary take him off the streets."
Doucette tells of one IPSO parolee whose therapist reported him "just sitting like a bump on a log," rather than participating in treatment. The parole officer, through a combination of pep talks and threats of sending him back to prison, got the offender to become more active. He has since progressed extremely well, Doucette says.
In other cases, polygraph testing has revealed off-limits behavior, as with a man who claimed his phone-company job consisted only of supervised repair work on telephone poles. The lie detector revealed that he occasionally worked inside of homes, unsupervised. The parolee had to change jobs immediately.
"Intensive parole has the greatest chance of ensuring the public safety, and success for the ex-offender," says Sudders. "IPSO has been an effective model."
Unfortunately, IPSO has remained confined to Framingham. For several years, State Senator Cynthia Stone Creem of Newton and State Representative Patricia Jehlen of Somerville have introduced bills to expand the program throughout the state. The Parole Board, in a 1999 report, estimated that it could run IPSO statewide for a total of $1.7 million a year. After that year’s bill proved a nonstarter, Creem and Jehlen asked for $305,000 in the 2002 budget for a modified version. They were shot down again.
"If we can get people to work and pay taxes instead of soaking up the taxpayers’ money in prison, and keep people safe at the same time, why aren’t we doing it?" Jehlen asks.
Healey won’t answer that, and in fact avoids discussing IPSO. When asked about it, she instead talks about her Commission on Criminal Justice Innovation, which, she says, "is looking at post-release supervision generally." Parole Board chair Maureen Walsh, co-chair of the commission’s subcommittee on re-entry and post-release supervision, hopes to advocate for IPSO or something like it. The commission meets for the second time this week and plans to reveal its findings next February (at a symposium sponsored by the Ally Foundation).
Meanwhile, the IPSO pilot is in serious danger. Although Healey says that "the primary responsibility of government is to protect society" and "We think that monitoring is the only way we would like sex offenders released," the Parole Board’s budget was slashed by 10 percent this year. A victim-advocate element of the IPSO program will be shut down this month when an outside grant runs out. The board cannot afford to recertify its three trained polygraphers, Walsh says, so she will have to discontinue that critical component in a few months as well.
The tragic irony is that IPSO is going under just as it is has a chance to do the most good. Until recently, relatively few sex offenders were put on parole, because parole boards hate to release them.
In 1999, however, a new state law enabled judges to add lifetime parole supervision to the sentences of dangerous sex offenders. Ideally, Walsh says, all offenders given lifetime parole would start in an IPSO unit, and move to regular parole units when deemed ready.
Walsh says that $1.7 million, the estimate first floated in 1999, would still pay for a statewide IPSO program. It would absolutely prevent future offenses. That, apparently, is not a high priority.
David S. Bernstein can be reached at dbernstein[a]phx.com