San Antonio Express-News (Sunday)
No way out seen for sex offenders in Texas program
Texas’ civil commitment program for sexually violent offenders has earned a reputation as an unforgiving place. Much of that is by design.
Each of the 378 men in it has already served his full prison term, some 20 years or longer. But after their sentences were up, Texas evaluated them as too likely to re-offend, and they were ordered to be locked up indefinitely until ready to rejoin the free world. Their average age is near 60.
The program’s sole facility, a collection of low buildings and temporary trailers, sits amid fields on the outskirts of the rural Panhandle community of Littlefield. The facility is surrounded by two razorwire-topped fences. Buildings are locked and outfitted with security cameras. Even so, many residents must wear GPS ankle monitors.
The Texas Civil Commitment Office is tasked with striking a difficult balance,
protecting the public while providing the men a clear path to rejoin society. But five years after lawmakers overhauled the program, a chorus of critics contends the state still hasn’t gotten it right.
Post-prison commitment, which applies only to sex offenders, is constitutional because it is considered treatment, not additional punishment. Yet former staff therapists say Littlefield’s version of therapy too often fails on purpose.
Even men who have completed their treatment continue to be held, they say. Counselors say their recommendations for advancement were regularly disregarded.
“Every time we as therapists felt someone was ready to go, to move into the community, the administrative side came back with more requirements, to hold them longer,” said one. (The therapist asked not to be named because of ongoing work for the state.)
Of the 552 men who’ve entered the program, 10 have been sprung — the same number who have died in secured nursing homes before they were released. Two of the 10 were let out only after winning court battles on their own.
Over the past year, the cost of commitment has been especially acute. Seven Littlefield residents have died of complications related to COVID-19 — a rate 10 times higher than that for Texas prisoners.
Two months ago, an Austin attorney filed a class-action lawsuit contending that residents were being kept locked up with no clear way out. The program is little more than “a ‘therapeutic hamster wheel,’ where patients are forced to retread the same ground and therapeutic modalities for years without hope of actual progress,” the suit stated.
Residents, their families and attorneys say they have puzzled over why the commitment program seems to work so hard to keep the men locked up. For some administrators, say advocates, the reason may be too personal.
‘Nobody progresses?’
In 2014, Hearst Newspapers published a series of articles exposing how dysfunctional the Texas sexually violent predator program had become. Although it was billed as treatment, no offender had successfully exited it. Many had mental illnesses leading them to violate rules they couldn’t grasp, sending almost half back to prison.
Legislators overhauled it the next year, renaming it and adding more treatment and legal protections. Today, among the 20 states with sexually violent predator civil commitment programs, Texas has relatively few participants when compared with its population, according to the Sex Offender Civil Commitment Program Network.
Officials say that’s because the selection process identifies only truly dangerous offenders. Prior to his scheduled release from prison, an offender convicted of repeat violent sex offenses is evaluated by a seven-member panel for a “behavioral abnormality” that makes him likely to re-offend. Prosecutors must then convince a jury. About 30 men are committed every year.
Civil commitment costs about twice as much as prison. Because far more men are admitted than released, the program’s budget has tripled since 2014, to about $20 million.
While at Littlefield, the men work to advance through a five-tier treatment program. Tier 5s are considered safe enough to live in the community.
During the surge of coronavirus cases in the fall and early winter, however, “everything stopped,” said Jennifer Williams, whose son was committed in 2018. “They can’t use the phone or microwave, no therapy.”
It was the latest blow to a program seemingly designed to hinder advancement, four former therapists said in interviews. All described instances in which their clinical judgments were discarded by administrators seemingly intent on keeping residents locked up as long as possible.
Shane Bowyer, who quit in frustration in 2019, estimated his recommendation that a resident advance or move to community living had been overridden 20 times. “The majority of our therapy was how to cope with how irrationally they were being treated,” he said.
“It seems that some of these people are completing the therapy and they’re still not getting out,” said Bruce Anton, a Dallas attorney. In 2017, he said he was contacted by the family of a Tier 4 resident who had earned an evaluation concluding he no longer posed a risk.
But the agency “still found reason to reject his release,” Anton said. The man was freed in 2019 after the family hired another doctor who agreed with the no-risk assessment.
During a 2018 trial in which a resident claimed he was being unlawfully held, U.S. District Judge Sam Sparks pressed a Littlefield official about the program’s low release rate. “So are y’all just doing a terrible job, or nobody progresses?”
The program manager explained that, with the stakes of a re-offense so high, treatment was considered long-term. Recommendations for residents to move into the community were made by a team of therapists and case managers, she said, with the final decision belonging to Executive Director Marsha McLane.
“Marsha is where the buck stops,” added William Marshall, a Houston attorney who has represented several residents. “If she doesn’t want a resident released, it doesn’t matter what the treatment provider recommends.”
Her desire to keep the men at Littlefield, therapist Bowyer added, “seems to be largely personal bias.”
Backgrounds draw questions
Bias is difficult to prove, but at least two people in positions of authority in the civil commitment program have personal backgrounds that advocates said raise questions about their ability to make objective judgments.
McLane was married to a sex offender. According to Williamson County court records, her husband was charged with indecency with a child in 1996. He was sentenced to 10 years of deferred adjudication and ordered to attend treatment. But after allegedly exposing himself to two children in 2004, he was sentenced to six years in prison.
McLane stopped living with him in 1996, records show. Their divorce was finalized in 2004 after 20 years of marriage and two children.
“I think it’s very relevant,” said Mary Sue Molnar, director of Texas Voices for Reason and Justice, which supports people on the sex offender registry. “It seems odd that she had a bad relationship with someone on the registry and now is in charge of whether a person remains in civil commitment.” McLane at least should have disclosed her history before taking the position, she said.
Marshall agreed. “I would have liked to have had the chance to ask her about it” in depositions for his lawsuits against the agency, he said.
McLane said her ex-husband’s behavior had no influence on her work. “His actions, having occurred almost 25 years ago, have no bearing on my duties or decision-making today,” she wrote in an email.
TCCO’s deputy director, Jessica Marsh, added that while McLane has the final say on who is released from Littlefield, she relies on recommendations from a team that performs a comprehensive evaluation. McLane has not rejected any final recommendation that had gone through the full review process, Marsh said.
It’s unclear who knew of McLane’s personal history when she was hired to lead the agency. But Sen. John Whitmire, D-Houston, who led the effort to overhaul the program, said he considered it irrelevant.
“He believes Marsha does a good job and does not believe that something that happened 30 years ago impacts her ability to do her job,” spokeswoman Lara Wendler said in a email. Whitmire was confident the program is operating as intended, balancing “public safety with treating the client to prepare for successful reintroduction into the community,” she added.
McLane also has the support of her bosses. TCCO’s board recently voted to raise her salary to $207,000.
Yet advocates, attorneys and former treatment providers noted the panel has its own apparent leanings. Even though Littlefield is considered a therapeutic facility, none of the five governor-appointed positions is occupied by a treatment expert. Three are current or former prosecutors; one is a police chief.
The sole civilian is victims advocate Rona Stratton Gouyton, whose sister was murdered in 1981. After serving his sentence, the killer, Wesley Miller, was committed as a sexually violent predator when Gouyton lobbied lawmakers to expand the law to include offenders whose crimes may not have been prosecuted as sexual offenses but had sexual intent.
Miller, now 58, remains in Littlefield, the facility overseen by his victim’s sister. “It just seems the cards are stacked,” said Molnar of Texas Voices for Reason and Justice.
Gouyton said her family’s tragedy, as well as her work advocating for victims of sexual assault, brought important and necessary perspective to the civil commitment agency. “I take my role as a board member very seriously and would not allow my personal history to impact my decision-making,” she said in a written statement.
Confining or curing
The civil commitment program has been sued often, with the vast majority of challenges being turned away. But a series of connected lawsuits already has had unusual early successes.
Jonathan Hitt’s crimes were shocking. In 1999, Hitt, then known as Father Jeremiah, was sentenced to 10 years in prison for molesting a child at a Central Texas monastery. A decade later, he was placed in the Sexually Violent Predator program.
At the time, Texas’ version included intensively supervised outpatient programs. Hitt thrived, according to legal filings. He moved to a halfway house near Austin and worked at a downtown restaurant. By 2014, he had enough money to buy property and a trailer.
When the SVP program was overhauled, Hitt was told that he could remain an outpatient, according to court filings. In late 2015, he had started a relationship with a woman.
It wasn’t forbidden — she was a consenting adult — but Hitt’s supervisors accused him of not keeping them informed. After failing a polygraph, he was surrounded by police and taken to jail. Days later, he was moved 400 miles away to Littlefield.
Still, Hitt remained confident he’d be out soon. He was labeled Tier 4, the final stage before community living. A therapist recommended he return to Austin, according to court documents.
Yet with no sign that administrators would release him, in 2017 he sued, claiming that by summarily relocking him up, TCCO had effectively revoked his years of treatment gains. Despite the long odds — Hitt filed his federal lawsuit without an attorney — in April 2019 a judge agreed he had been wrongly denied a hearing. The case is pending.
Hitt has since filed a second lawsuit. It alleges that despite Hitt being a Tier 4 on the verge of re-entering the community, McLane later personally ordered him demoted to a Tier 2 in retaliation for his first lawsuit, guaranteeing additional years at Littlefield. In court filings, McLane has denied it. But Hitt remains there today, five years after arriving.
Now represented by Austin attorney David Gonzalez, Hitt recently asked that the lawsuit be converted to a class action, to include other Littlefield residents languishing in the program for no therapeutic reason. “TCCO is treating to confine, rather than treating to cure,” it said.
“If Hitt has not — and cannot — make it out (of the program), no one will. Rather, Hitt and the other plaintiff patients have been left to die.”