Imprisoned for crimes they might commit
A controversial federal program to keep sexual predators locked up after their prison sentences end has resulted in just 15 commitments
BUTNER, N.C. — Inside the sprawling federal prison here is a place the government reserves for the worst of the worst — sexual predators too dangerous to be set free.
Six years ago, the federal government set out to indefinitely detain some of the nation’s most dangerous sex offenders, keeping them locked up even after their prison sentences had ended.
But despite years of effort, the government has so far won court approval for detaining just 15 men.
Far more often, men the U.S. Justice Department branded as “sexually dangerous” predators, remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.
Dozens of others are still waiting for their day in court. They remain in a prison unit where authorities and former detainees said explicit drawings of children are commonplace, but where few of the men have received any treatment for the disorders that put them there.
Despite that, neither the Justice Department nor other watchdog agencies have offered any public assessment of how well the federal civil commitment law works.
For this investigation, USA TODAY reviewed all 136 cases that have been brought to court, drawing on thousands of pages of legal filings and dozens of interviews with attorneys, psychologists and former detainees.
The outcomes documented by that review have raised questions about a system meant to control men too seriously ill to control themselves. A federal appeals court in Richmond, Va., has called delays in bringing the men to trial “troubling” and suggested that they could raise concerns about the detainees’ constitutional right to due process. And Rep. Jim Sensenbrenner, R-wis., one of the law’s key supporters, said, “There will be somebody who will have to answer” for them.
“We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime,” said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital in Baltimore. “If it’s going to be done, it has to be done in a just and fair manner.”
Many of the men the government sought to
detain have been found guilty of molesting children or brutal sexual assaults. One killed a woman. U.S. Bureau of Prisons psychologists certified that the men also suffer from mental abnormalities making them “sexually dangerous,” a determination that keeps them locked up while their cases are reviewed. By law, a federal judge must ultimately decide whether the government can prove the inmate is too dangerous to be released.
But in case after case, those determinations have come into question. In at least two cases, the government could not prove the men had committed crimes serious enough to justify committing them. Others had not been found guilty of a “handson” sex offense in decades. Some psychological assessments failed to fully account for men’s ages, a key factor when assessing risk.
A spokesman for the Bureau of Prisons, Chris Burke, said officials certify inmates as dangerous after “careful assessments by mental health professionals.”
Anthony Jimenez, a psychologist who ran the commitment system for the Bureau of Prisons in 2007 and 2008, said officials had little time to prepare when Congress instructed them to start sifting out the most dangerous offenders as part of a broader crackdown on sex crimes. Some prison psychologists they turned to had no experience doing those types of reviews, he said.
“It was rushed, and initially, I believe, quality probably suffered,” he said.
‘Totally haphazard and inconsistent’
Sean Francis was in prison for a series of graphic phone calls in 2008 when psychologists first considered committing him as sexually dangerous. On the phone, Francis had threatened to rape and murder female college students in three states, sometimes offering chilling details about whom they lived with or the car one woman drove, according to court records. He also had been accused of raping a college student years earlier, though he was not arrested and has never been charged with a sexual assault.
The prison officials who reviewed his case decided he didn’t meet the legal criteria for detention as a sexual predator, and he was released from prison. In 2009, Francis was arrested and sent back to prison for violating the terms of his probation, which prohibited him from viewing pornography.
His probation officer told prison officials, “I don’t see how your office could draw any conclusion other than civil commitment,” according to court records.
Psychologists looked at his case again and certified him as sexually dangerous.
Francis’ attorneys said they never understood what had changed. “It was totally haphazard and inconsistent,” one of Francis’ attorneys, Woody Webb, said. Whatever it was, it was enough that Francis was moved to Butner’s sex offender unit, where he said he passed the days sleeping late, crocheting and listening to an AM/FM radio.
“I don’t look in the mirror and say I’m proud of who I see,” Francis, now 33, said last month. “But I didn’t belong in there.”
In late January, two years after he arrived at Butner, a federal court agreed.
U.S. District Judge Terrence Boyle questioned in a written order whether the government could prove Francis had ever committed the “sexually violent conduct” the law requires as a prerequisite to detaining someone, and said the Justice Department hadn’t proved he was dangerous. The Justice Department has appealed.
Two weeks later, guards summoned Francis and another inmate over a loudspeaker, told them to collect their belongings and gave them bus tickets home. Francis took the bus to the New York City suburbs, where he moved in with his father and stepmother and found a job.
Francis said he’s trying to keep a low profile. He’s required to wear a GPS ankle bracelet, which he hides under his sock. Despite the federal government’s effort to detain him indefinitely as a “sexually dangerous person,” under New York law, he isn’t required to register as a sex offender.
“If it’s going to be done, it has to be done in a just and fair manner.” — Fred Berlin, director of Johns Hopkins Hospital’s Sexual Behaviors Consultation Unit
Never making it to trial
About 2,000 people a year end up in federal prison for sex crimes, but only the most dangerous qualify for commitment.
To successfully commit a person, government attorneys have to prove three things: First, that he molested a child or committed a violent sex crime; second, that he has a mental disorder; and third, that his illness means he will have “serious difficulty” refraining from new sex crimes if freed.
The last step is the hardest, in part because studies have repeatedly found that most sex offenders are never convicted of another sex crime.
In the 1980s, a devastating series of studies suggested that psychologists’ predictions about who was dangerous were no more reliable than a coin toss. So in the years that followed, researchers analyzed records on thousands of sex offenders, looking for the telltale markers that could identify groups of people most likely to re-offend. What they came up with is a lot like the system insurers use to figure out which types of people are most likely to have an accident.
Early on, Bureau of Prisons reviewers “just didn’t have the same expertise” as outside psychologists in making those assessments, said Amy Phenix, a California psychologist who helped train them. In some cases, outside experts — brought in to review the cases years later — concluded the inmates didn’t belong in Butner, she said. “There were differences of opinion, and in some cases it was left up to the U.S. attorney to make decisions about what to do.”
Still, even fellow detainees said they were surprised the day Andrew Galo walked out Butner’s front gate.
Galo had been in prison for taking sexually explicit photographs of his girlfriend’s 13-year-old daughter when the Justice Department declared him too dangerous to release; before that, he had spent time in prison in Pennsylvania for sexually abusing two nephews, according to court records. “Everybody was shocked. It was like, why are they letting him out?” said Philip Katon, who spent three years at Butner before the government dropped his case, too.
At least 40 of the 136 commitment cases the government has brought so far — nearly one in three — ended when the Justice Department simply dismissed them. Frequently, it did so years after the men’s criminal sentences had ended. In at least eight of those cases, court records show the government found other ways to keep the men locked up, but many of those convicted — including men with long track records of abusing children — simply went free.
The Justice Department would not comment on its reasons for dismissing particular cases. Spokesman Charles Miller said attorneys consider “the totality of the circumstances,” including the person’s “age, health status, change of circumstances, supervised release terms, family support and the opinions of all of the forensic experts.”
In at least some of the cases, however, Justice Department attorneys conceded in court they simply didn’t have enough evidence. Last year, for example, the department acknowledged that “a more detailed review” of its case against Wayne Hicks — who had then been detained since 2007 — showed that the government “will not be able to meet its burden.” The Justice Department dismissed the case; Hicks went to live at a Raleigh, N.C., homeless shelter.
In another case last year, the Justice Department dropped its effort to commit Joseph Edwards, who had been convicted of hitting a girl over the head with a rock, dragging her down an embankment by her hair and raping her. Three years after he was detained at Butner, a prison psychologist told prosecutors she didn’t think Edwards could be committed.
Six months later, the Justice Department dropped the case and let Edwards go.
Jimenez, the former head of the bureau’s certification review process, said officials consulted with lawyers before declaring someone dangerous, but ultimately based decisions on their own clinical judgments — even when they weren’t convinced the evaluations would hold up in court.
“It’s not a willy-nilly, ‘this guy looks like a bad guy’ process,” he said. “If we thought someone was really dangerous but there wasn’t a strong legal case, we might very well still push it for the public interest.
“Hopefully justice is served in the end,” he said.
On paper, Katon, too, seemed like a good candidate to be committed. Before he went to federal prison for lying about his criminal record on an application to buy a rifle, he had been found guilty of molesting a 26year-old disabled woman in Vermont. Before that, he had been convicted of molesting his then-girlfriend’s three children, and was accused of assaulting her cousin, according to court records. Past offenses alone cannot show whether someone is mentally ill or likely to commit new crimes but are often among the key considerations.
Katon arrived at Butner in 2008, months before he was supposed to be released; he said prison officials told him he was being moved there from a South Carolina prison as a steppingstone on his way back to Vermont. Two months later, he was certified as sexually dangerous. “It was actually scary to be there because you didn’t know if you were going to stay or if they were going to release you. It’s like everybody’s thrown into a hat and they pick some people out. It’s scary not knowing what they’re going to do with you,” he said.
His time at Butner ended as abruptly as it began. In August — after being detained for more than three years — the Justice Department dismissed its case against him and put him on a bus to Vermont, where he lives with his mother outside Burlington. He registered as a sex offender, but said he isn’t required to wear a GPS monitoring device or avoid contact with children, something other men released from Butner have been required to do. His probation officer has given him permission to go to Upstate New York sometimes to play bingo.
The Justice Department has never explained publicly why it dropped the case.
“I’ve changed a lot,” Katon said. His crimes “were just something that happened out of the blue, and will never happen again.”
Cases fall apart in court
The government’s determinations have fared little better before federal judges. Records show the Justice Department has lost more trials than it has won.
Its cases have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend.
In December, for example, a judge in Raleigh rejected the government’s attempts to commit Markis Revland. By law, the government can only commit someone who has molested a child or committed another violent sex crime. Revland’s criminal record, though extensive, didn’t seem to include either — he had been convicted on child pornography charges, and of public urination and indecent exposure. The government based its case instead in part on a staggering string of confessions Revland made during a prison-run treatment pro-
gram: 149 victims.
Such confessions are often suspect. Some sex offenders volunteer for treatment programs in part to escape danger from fellow inmates. Courts have said those who don’t admit to past crimes face the risk of being thrown out of the program.
Revland’s confessions were especially problematic. According to the latest census, only about 114 children live in Revland’s small Iowa town. Despite the shocking number of children he told psychologists he had abused, he had never been charged with sexual abuse. And many of the crimes he said he committed would have occurred when he was in state prison. Revland declined to be interviewed but testified he invented all 149 victims to satisfy his therapists because he feared he would be kicked out of the program and sent back to Leavenworth, Kan., where he said he had been violently attacked by other inmates.
Revland “would be the Charles Manson of child molesters if even a small portion of the 149 incidents had actually happened,” U.S. District Judge Bernard Friedman wrote in a December order freeing him. “And yet the government offered no evidence to independently verify that any of these incidents occurred or that any of them — even one — ever resulted in investigation or prosecution.”
Even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous.
Andrew Swarm was first diagnosed as a pedophile more than a decade ago. He collected child pornography on the Internet, and molested at least three young girls, according to court records. But Swarm also seemed to go out of his way to get caught. He gave one 10-year-old girl he fantasized about what appeared to be an explicit drawing of himself, knowing she would give it to her parents. After he inappropriately touched an 11-year-old, he gave her a note warning that “I want to kiss and touch you in ways that I shouldn’t. I need you to make sure I get help and don’t have the chance to do this,” according to court records.
Swarm said he agonized over his impulses. He tried to get treatment. He tried to get caught. He tried to castrate himself with rubber bands. “I don’t go out and molest children. I’ve never done that,” he said. “It was such a misery in the first place to have these feelings. It was a nightmare.”
The government certified him as sexually dangerous in 2007. At the time, he was serving a four-month sentence in prison for violating his probation by not telling his probation officer quickly enough that a friend had briefly left him alone with a young child, and that another girl had climbed onto his lap while he was visiting relatives before he shooed her off.
“There was no harm, no foul,” said the girl’s father, whom USA TODAY agreed not to name to protect his daughter’s privacy. He said he and his wife plan to ask Swarm’s probation officer whether they can resume visiting him. “I honestly don’t think he’s dangerous,” he said.
The judge who ultimately heard Swarm’s commitment case — nearly four years after he was detained — agreed and released him.
Delays that span years
More than 40 other men have been waiting a year or longer to find out what a federal court will do with them.
The cases have dragged on in part because the Bureau of Prisons typically waited until the final weeks of their sentences to certify most of the men as dangerous, effectively guaranteeing they would remain incarcerated months or years longer. Burke, the prison system spokesman, said the agency “intends for the process to be completed well in advance of an inmate’s scheduled release date.” Jimenez said the Bureau of Prisons’ policy was to make those decisions more than a year in advance so prisoners would know whether or not they are going home when their prison sentences end.
So far, the government has met that mark only once, though the three men it certified so far this year were closer to that goal. Since the law began, half of the men were certified within a week of when they were scheduled to be released, court records show. Fourteen were certified on the same day they were supposed to go home.
The hearings were delayed longer when a federal court in Raleigh ordered most of the cases be put on hold — sometimes before the men had been appointed lawyers — while legal challenges to the civil commitment law worked their way through courts. Lawyers for most of the detainees never challenged that decision. “It seemed like it had a low likelihood of success,” said Eric Brignac, an attorney with the Federal Public Defender’s office in Raleigh.
One of those challenges, brought on behalf of a man named Graydon Comstock and four others, reached the U.S. Supreme Court in 2010. The justices upheld the law, finding that Congress “has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose.” Their decision came 3½ years after Comstock — who had been convicted of possessing child pornography, and who had confessed to patronizing child prostitutes while working overseas — was first locked up as sexually dangerous in November 2006. It wasn’t until then that the Justice Department and lawyers appointed to represent the five men started hiring experts to scrutinize the cases in anticipation of trials. That process took another year.
“Things take time,” said former U.S. attorney George Holding. “These men are accused of being a threat to society, and the system has to play itself out.”
It was November 2011 before a judge reviewed Comstock’s case. By then, Com- stock was 69 and had already suffered from prostate cancer, a heart attack and a stroke. His hearing in a federal courtroom in Raleigh lasted two days; when it was over, Judge Friedman concluded the government couldn’t show he was dangerous and released him. Comstock moved in with his sister, a college English instructor, in Arkansas. Now, mainly, he tries not to be noticed.
“When I heard about this law, I assumed it was for the most dangerous people, and I assumed it wasn’t me,” Comstock said. “I said I wouldn’t be convicted, and I wasn’t. But it took six years to get there.”
Courts, too, have expressed growing frustration at the delays.
“They’re in it for four years and change,” Judge Boyle complained last year during one court hearing. “There’s no horizon. It’s just darkness.”
The federal court in Raleigh sped up the process this year, scheduling more cases for hearings. But there are still at least 26 men waiting for their cases to be decided who have now been locked up an additional three years by the civil commitment program. One man, Thomas Matherly, has awaited a trial since 2006; it’s now scheduled for later this month. The delays have been so significant, at least two of the 15 men the government successfully committed have already gone home.
Miller said the Justice Department is “satisfied with the way these cases are now being expedited.”
Though ostensibly locked up because they are mentally ill and in need of treatment, only a handful have enrolled in Butner’s treatment program for sex offenders. Their lawyers urged them not to, because anything they tell their psychologists is likely to be used against them at trial.
That means those who are being released are going home with little help preparing for life outside prison. A few of the detainees found jobs within the prison: cooking, cleaning or working at a factory that makes eyeglasses for inmates, said another former detainee, Jeffrey Neuhauser. One detainee briefly taught a GED program.
‘I don’t think he can change’
At least nine of the men who were let go without being committed have been convicted of new crimes or have violated probation. Two were found guilty of felonies; another has agreed to plead guilty to a felony later this month.
Among them, Jay Abregana stands out. His record was already sordid when the government certified him as sexually dangerous — he had been convicted of mailing pictures of himself having oral sex with a teenage boy and of exposing himself to a 12-year-old in a movie theater. In prison, he was kicked out of a sex offender treatment program after he performed oral sex on five inmates. When he got out, he violated his probation by having “sexual contact” with a 17-year-old in a shopping mall bathroom, and using the Internet to reach out to three other boys, one just 10.
Psychologists certified that Abregana was sexually dangerous in 2007. In 2008, a federal judge ordered the government to release him, concluding the Justice Department couldn’t prove his attraction to boys who had reached puberty was a sufficiently serious mental disorder, or that he would have “serious difficulty” not re-offending.
Abregana had been free for less than two years when he introduced himself to a 12year-old boy he met at a video game store. Abregana bought the boy gifts in exchange for sex, according to court records and the boy’s mother, whom USA TODAY agreed not to name to protect her son’s privacy. He also
Sprawling prison houses “sexually dangerous”: Guards have reported confiscating drawings of naked children by inmates inside the sex offenders’ unit at Butner (N.C.) Federal Correctional Complex.
recorded the abuse.
The boy’s mother said she suspected something was wrong. One afternoon, she said, she found her son with a cellphone, something the single mother of five couldn’t afford to buy him. Then she said she intercepted a text message from “Jay,” asking her son to call before coming over. “Why?” she wrote back. Abregana wrote that his brother had just gotten out of jail, she said. Abregana’s identical twin brother, Jed, has a sordid record of his own; he was convicted of sexual assault and spent time in federal prison for viewing child pornography. But the government had not certified him as sexually dangerous.
At first, the boy denied anything had happened. But the next morning, he came to her in tears and told her the truth, his mother said. She called the police. Abregana pleaded guilty last year and was sentenced to 20 years in state prison.
“I’m a firm believer that people can change,” the mother said. “But I don’t think he can change.”
Now, she worries about her son, who’s 13, in therapy and still gets teased about what happened by classmates and siblings. And she worries about Abregana, and whether 20 years in prison will be long enough to stop him from hurting someone else.