Prisons and Policing: Beyond the Carceral Logic of Civil Commitment in the USA
PARADIGM CHANGES, 20 Nov 2017
Systemic Challenges and Alternative Visions
10 Nov 2017 – A key component of the current system is its reliance on imprisonment as a response to behaviors and populations which are understood as sources of actual or potential harm. Unfortunately and unsurprisingly, this carceral response seems to multiply and perpetuate harm rather than reducing it. As we envision a path towards a next system in which communities are able to flourish instead of being torn apart, it is imperative to tackle the question of harm, and dismantle the instincts that lead us too often to reinforce its logic through the very measures we take to respond to it. In this essay for The Next System Project, Erica Meiners and Toshio Meronek rise to this demand by challenging the way our current system, behind the walls of “civil commitment” facilities, perpetuates the carceral logic of harm in its response to the sexual abuse of children, and ask us to imagine what principles would truly underly a system in which “there are no more victims.” As they write, “While perhaps not intuitive, asking the hardest questions first—like what to do with society’s so-called ‘worst of the worst’—might be the best place to start building structures that achieve real justice rather than continue to inflict administrative violence.”
Over the last few years, calls for prison and policing reform have surfaced in diverse arenas. As #BlackLivesMatter telegraphed the racialized violence of policing, presidential hopeful Hillary Clinton was compelled to explain her role in the passage of the “tough on crime” 1994 Violent Crime Control and Law Enforcement Act that helped build the world’s largest carceral, or punitive state. Criminal justice reform is in the air. Republican New Gingrich argued for (some) sentencing reform while Barack Obama became the first sitting President to visit a federal prison.
Yet, if history teaches us anything, reforms—to release the “non violent” offenders, to recruit more women to be police officers, to create prisons expressly for juveniles or the mentally ill, or to install surveillance cameras on police cars—often expand, not contract, our prison nation. These reforms also suggest that with these tweaks current institutions could function as the basis for a fair and just world. Yet we know that our expanding “law and order” systems—longer sentences, enhanced criminalization, super maximum prisons—have never produced public safety for all, though many of us accept them as the only mechanisms available.
For many, this abolition politics, or shrinking and transforming the carceral sphere seems daunting. How to imagine public safety outside of policing? How to feel safe without prisons or surveillance cameras or public sex offender registries?
Building alternatives to address interpersonal harm, creating mechanisms to hold people who harm accountable, and dismantling the world’s largest prison and policing nation, will not be achieved by tinkering around the edges. Even if all the “nons,” or those with non-sexual, non-violent and non-serious convictions, were released, the US would still harbor a massive prison system that reproduces the harm it purports to deter, and would still lock up society’s most marginalized.
We know that our expanding “law and order” systems—longer sentences, enhanced criminalization, super maximum prisons—have never produced public safety for all, though many of us accept them as the only mechanisms available.
While perhaps not intuitive, asking the hardest questions first—like what to do with society’s so-called “worst of the worst”—might be the best place to start building structures that reduce or eliminate harm and create accountability, rather than continue to inflict administrative violence.
Just as body cameras haven’t eliminated police brutality, the increasingly complex web of post-conviction punishments for those convicted of sex offenses have neither reduced nor deterred child sexual violence. A deep, thoughtful look at society’s handling of those convicted for harming children, who have been “assessed” as persistent risks to themselves and people living outside prison walls, might generate positive ways of dealing with forms of harm considered as “less severe.”
Perhaps the least well-known—and most problematic—carceral response to addressing people marked as the worst of the worst is the post-prison system for people with sex offense convictions called “civil commitment.” Those confined in civil commitment are often in limbo for years, sometimes decades, with indefinite sentences in which state officials decide, often arbitrarily and inconsistently, the point at which someone is no longer a danger to the public. With treatment tactics considered by many people in and out of the medical field as torturous and ineffective, these facilities often have high turnover rate for medical staff, as evidenced by high vacancy rates for well-paying jobs, as well as complaints from people in civil commitment facilities who desire treatment but don’t have consistent access (or in some cases, no access at all, only waitlists). Civil commitment is undoubtedly a place in desperate need of new imaginations of justice.
Addressing the “worst of the worst” requires seriously grappling with sexual violence that targets some of our nation’s most vulnerable. What really works to reduce or eliminate sexual violence? Yes, many of the people interviewed for this piece caused extreme harm to others. Yet, the system meant to correct those harms has worked to generate more injury, and left unexcavated the question of how we reduce and eliminate sexual violence against those most susceptible to that violence, such as children. Fortunately, there are people working together on blueprints for better—if imperfect and messy—practices of accountability and transformation.
Just as body cameras haven’t eliminated police brutality, the increasingly complex web of post-conviction punishments for those convicted of sex offenses have neither reduced nor deterred child sexual violence.
What does society do with the population considered the least human after they’ve been punished? As criticisms of the prison industrial complex grow, our definitions for “treatment” and “rehabilitation” within the complex demand investigation. “The most unpopular civil rights issue of our time,” as a therapist who has worked with both civilly committed men and their victims called it, could be the catalyst to explode one of the least visible cornerstones of the US justice system.
In 1990 Washington State passed the first civil commitment law allowing the state to confine people whom they designated as “sexually dangerous predators” (SVPs) for an undetermined length of time. Under this scheme, a SVP is not undergoing “punishment,” per se, as they have already served their prison sentences. Instead, they are diagnosed with a medical condition for which they receive needed treatment are held in a hospital. Currently, approximately 5,400 people are being held in civil commitment hospitals across the US, a number that has doubled since the previous decade.
At almost quadruple the cost of incarcerating a person in a state prison, civil commitment is supposed to ensure access to treatment and prepare people for release. And yet, in the 26 years since its inception, there is no evidence to show that civil commitment “works.” Statistics do not point to a reduction in the number of sex offenses, or lower “recidivism rates,” which measure the chances that someone will end up back in the system, for people in Washington and the 19 other states that use civil commitment, as compared to the 30 states where there are no civil commitment laws.
If, like universities, the success of civil commitment centers were based on their graduation rate, the privately owned Liberty Healthcare Corporation deserves immediate de-accreditation for its operation of Illinois’ Rushville Treatment and Detention Center (TDC). As of May 2016, only 83 people have been released from the state’s civil commitment program out of hundreds, according to Marianne Manko, a spokesperson for the Illinois Department of Human Services, although these numbers are disputed by a local advocacy organization that is organizing to raise the visibility of civil commitment in Illinois.
In the 26 years since its inception, there is no evidence to show that civil commitment “works.”
Formerly a prison for juveniles, the Rushville TDC was renovated and expanded and opened in 2006; as of 2015, it held 545 of Illinois’s designated SVPs. All are classified by the state as men, 47% are between the ages of 46 and 60, and 61% of the population is white; 34% are African-American, and 3% (or 18 people) are identified as Hispanic.
Some, like Steve, age 56, refuse to comply with the five-stage treatment plan that is outlined in the Resident Handbook: 1. Assessment; 2. Accepting Responsibility; 3. Self Application; 4. Incorporation; 5. Transition. In 1999, Steve was convicted of criminal sexual assault and aggravated criminal sexual abuse. After spending ten years in what he described as an effective treatment program for people convicted of sex offenses at Big Muddy Prison in Illinois, Steve had his pre-release evaluation, which is mandatory according to the Illinois Department of Corrections.
During his interview, Steve admitted that he had come to terms with being gay, which had been a lifelong struggle in part because his religion, Christianity, espouses anti-gay views. Steve told the interviewer that because of this, he would not act on his “gay desires.” The evaluator concluded that this made Steve potentially more dangerous to the public, since he would have no outlet for his sexual desires if his religion wouldn’t “allow” him to have sex with other men.
With an initial diagnosis of “hebephilia,” or an attraction to early adolescents, Steve was recommended for a civil commitment hearing. Steve’s lawyer challenged the diagnosis, which is a controversial category that as of yet is not included in the Diagnostic and Statistical Manual of Mental Disorders (DSM)—the gold standard for classifying psychiatric disorders. (The term seems especially contestable given what constitutes “normal” in our society: where youths are most often sexually abused by family members who will never face consequences; there’s a preponderance of “Barely Legal” pornography; and the many websites, ostensibly created by and for adults, with clocks that count down the seconds till underage celebrities turn 18.)
When it came time for a “Frye Hearing,” one that explores the scientific validity of a diagnosis, the state shifted and said Steve did not suffer from hebephilia, but rather from anti-social personality disorder. Additionally, an Illinois court diagnosed him with another disorder that basically says he’s turned on by “non-consensual force,” a diagnosis only used in the SVP community that was recently successfully challenged in New York state court. Although the state concluded he didn’t force his victims into sex, the fact that they were underage meant they couldn’t consent. That was enough to keep him a ward of the state.
When Steve arrived at Rushville, he was told that his previous decade in treatment at Big Muddy Correctional Center didn’t count. Worse, according to Steve: The first step in the new treatment program at Rushville would be an “Aversion Test.” Steve would be shown “deviant porn.” If he attempted to use any mental intervention tricks to fight arousal, he would automatically fail. As Steve explained, he’d spent ten years at Big Muddy learning to intervene in his deviant thoughts, and he would not allow that to be undone for the sake of Rushville’s test. That would be, he analogized, like “forcing an alcoholic in recovery to drink.”
On principle, Steve is not opposed to treatment. “Treatment is like chemotherapy,” he says—not enjoyable, but potentially helpful. He just doesn’t want to have to start over from the beginning. And given the outcome of his earlier pre-release evaluation, he worries that if he consents to participate in treatment at Rushville, any disclosures he makes during treatment, or even the fact he even consents to treatment, could be used against him in a future hearing.
Approaching seven years in Rushville, Steve’s next civil commitment hearing may happen sometime in 2017, with representation by a public defender. Given the massive caseloads of most public defenders and the difficulty in finding lawyers who have specialized knowledge of the law around cases like Steve’s, along with the state’s dismal record of treating and releasing people, he may remain in Rushville for years to come.
Among the most invasive and scientifically contentious tests widely used to determine whether or not a registrant is ready to re-enter society is also one of the most infamous: the penile plethysmograph (PPG for short), also known as phallometry. The test was originally developed in the 1950s to combat the scourge of homosexuality, by a Czech scientist tasked by his government to determine the sexual orientation of suspected homosexuals.
A typical PPG test goes like this: you’re shown images, sometimes videos, of things that are not supposed to turn you on, such as kiddie porn. An instrument placed on your penis measures the size of your member during the show. Get a hard-on, the test’s logic goes, and you might just be a menace to society.
The test’s reliability is flimsy—to the point that in the US judges aren’t allowed to use it to assess guilt in criminal cases. Floridian Douglas Carlin, upon release from civil commitment, told the New York Times his strategy for beating the test: “I just stared at a shelf of cleaning products and read the labels.”
Other critics view it as something that ought to be relegated to science fiction. A California court likened the test to something out of George Orwell’s 1984; writer and trans activist Andrea James compares its use in predicting sex offense recividism to “future crime” described by Philip K. Dick in The Minority Report.
As early as the 1980s, Dr. Robert M. Stein, then Director of the Psychophysiological lab at the Sexual Behavior Clinic in New York City had assessed the test as only useful to measure penile impotence. “Plethysmograph data is totally useless for determining guilt or innocence regarding deviant sexual acts,” he wrote. “It would be like using a personality test to convict someone of burglary.”
In 2006, a California court ruled that the so-called “peter meter” didn’t improve public safety, and went even further, calling it “an unreasonable and unnecessary deprivation of liberty,” after a man convicted of child porn possession sued against having to undergo it as part of his probation.
Why, then, is it still used within civil commitment? In large part because civil commitment is governmentally classed as a “therapeutic,” not criminal justice, domain. Only, in this case, therapy apparently translates into a “pay-it-forward” system of harm that has not impacted the original harms it is supposedly set up to end. From this lens, it is hard to see civil commitment as anything other than a barely cloaked extension of the carceral state—an extralegal “prison” in which people classified as dangerous are exposed to administrative violence, with this violence then justified as a way to supposedly prevent future harms.
Even more widely used—and accepted by court systems as valid—are psychological tests such as Static 99r (introduced in 1999 as the Static 99). “The most widely used sex offender risk assessment instrument in the world,” its creators claim, is based on ten mostly yes-or-no questions, which are supposed to determine whether someone is a low, moderate-low, moderate-high, or high risk for committing violence.
Static 99’s final question, #10, asks whether an individual had “any male victims.” Having “male victims is correlated with measures of sexual deviance and is seen as an indication of increased sexual deviance.” according to a 1998 paper co-authored by Canadian researchers R. Karl Hanson and M.T. Bussière, who surveyed research on people with sex offenses and recidivism rates to conclude that people who have male victims (children or adult) recidivate at a higher rate than those with female victims. Given that nearly all of the people who are serving time for crimes of a sexual nature are men, question ten is unabashedly anti-homosexual. If your answer is yes, you are considered a higher risk than registrants whose alleged victims are female.
It is hard to see civil commitment as anything other than a barely cloaked extension of the carceral state.
Static 99’s youth counterpart, the Juvenile Sex Offender Assessment Protocol (JSOAP) is also problematic, even if it doesn’t explicitly mention same-sex misconduct. Much of JSOAP’s 30-point evaluation revolves around “antisocial behaviors,” such as theft, “angry outbursts,” running away, or stability of caregivers or parents. Effectively, the JSOAP then potentially contributes to locking up some of the most marginal youth—poor, queer, disabled—for circumstances outside of their control, including mental health issues or lack of cookie-cutter family structures. The test has been used as evidence for legislation such as the Adam Walsh Child Protection Act, which was signed into law by George W. Bush in 2006 and allows for children as young as 14 to remain on sex offender registries—for life.
In a multi-state study of the effectiveness of the JSOAP, forensic psychology expert Frank C. DiCataldo concluded that JSOAP had “not proved its mettle” for predicting recidivism.
Polygraphs are not admissible in court and no one—a plaintiff, defendant or a witness—can be legally forced to take a polygraph. Yet in the post-conviction world of people designated as sexually violent, these devices, and others with worse scientific provenance and credibility, proliferate. The American Psychological Association does not endorse the use of polygraphs and states “the most practical advice is to remain skeptical about any conclusion wrung from a polygraph.” A body of research also specifically flags that polygraphs are particularly ineffective for people convicted of sex offenses.
“When it comes to sex offenders, to what extent is” treatment, “at least within the US, rooted in the evidence? Unfortunately, not much,” writes Grant Duwe, a clinician who works with civilly committed individuals in Minnesota.
“Tinkering around the edges” does nothing to overhaul a system that apparently does more to harm than help.
Polygraphs, phallometry, the Static 99r—these and other tools are widely implemented across all 20 states with civil commitment programs. Countless resources fuel research, reformulations, and reinventions in a decades long quest for “a more perfect instrument.” Yet a technologically optimized peter-meter, or better and cheaper risk assessment tools for people in civil commitment, shouldn’t be our goal. This is exactly the “tinkering around the edges” that does nothing to overhaul a system that apparently does more to harm than help. We can’t quantify the number of sexual assaults that might have been avoided had those resources gone to harm reduction strategies, or minimizing the harmful consequences of a civil commitment system by replacing it with, for example, accessible mental health services; anti-poverty measures such as more employment opportunities; and sex education programs—just a few successful violence reduction strategies documented by the World Health Organization. What, on the other hand, do we know for sure? That the “corrections and rehabilitation” approaches used in the US are failing to end sexual violence.
Former resident and now community-based advocate Frank Juarez describes California’s Coalinga State Hospital as a “Sex Offender College.” While Frank thinks that approximately half the SVP population at Coalinga doesn’t need to be there, he also stresses that many of the residents need a form of treatment and the best results are achieved when people do not challenge the system.
“Whether you like it or not—this is what the state designed—a horrible process—but this is it. This is their best attempt to try to figure this out,” he says, suggesting that some residents are too quick to blame the facility. Yes, staff turnover is disruptive and some of the staff do bad things—as an example Frank noted that a staff member at Coalinga had sex with a resident,“completely outrageous,” and faced no real repercussions. But according to Frank, blaming the institution—that’s an excuse. “Why not take staff turnover as an opportunity to demonstrate your competence? If you are in a course and they change professors do you drop the class? No! Don’t blame environment—the only person that sent you there was you.”
California established its SVP law in 1995, but Coalinga State Hospital didn’t open for business until 2005. At full capacity with approximately 1,200 residents, Coalinga houses three different populations: Sexually Violent Persons, Mentally Disordered Offenders (those with mental health problems who are serving their parole time in a mental state hospital), and Penal 2684 Commitments (people who are in the Department of Corrections that are transferred to hospitals because they need psychiatric treatment but will likely return to prison). Housing approximately 850 SVPs, Coalinga does release people. As of 2009 the state had released 96 of the 558 people who were civilly committed. The outflow of SVPs has increased due to a recent federal court decree to move people with mental health issues out of prisons and into state hospitals.
Frank, a 61-year old Fresno resident, served 10 years in prison for a sexual offense, and four years and a day at Coalinga. After his release, he got active in a restorative justice community process specifically for people with convictions for sex offenses, also known as a COSA: “circles of support and accountability.” Through working with the COSA he realized he had something to share. He figured out how to exit Coalinga and live on the outside, and he addressed his desires that could be harmful to others, “For example, if I see a person who meets my victim profile… I know how to stop. I know how to take that feeling and dissipate it. It is not controlling my life.”
Now working as a “community release liaison,” he supports twenty people at Coalinga preparing to be released. Connecting people to housing and treatment after release, Frank sees one of his biggest contributions as something less tangible: helping men to change their mindset. “I am not a sex offender: I committed a sex offense. We are calling them ‘registrants.’ I am not my crime.”
Hired by a public defender, he generally works with “civil detainees,” or people before they are officially committed, in the “window of opportunity” before their civil commitment trial, to support people before they interact with evaluators. His clients range in age from their late 30s to early 70s, and he helps them formulate a release plan and works with them to show the evaluator how they have applied the knowledge they have learned in their treatment.
Yet Frank is very careful to point out that he is not coaching the men he is working with at Coalinga to lie to evaluators, or to misrepresent what they have done. He clearly sees himself as a key part of a new accountability process that is working to reduce harm. “I want to make sure there are no more victims. That is my job.”
It’s February 2016, and Mark is worried about his movie collection being confiscated. Rocky Horror Picture Show is “definitely a no-no,” Woodstock, We’re the Millers, and The Witness will probably be taken, and Jupiter Rising is up in the air, because it “has a scene of a woman coming out of a pool that showed her backside.”
Like many other residents at Larned State Hospital in Kansas, Mark purchased these movies under the existing set of rules, and now these rules have changed. What is on the new list that must go? “Anything with any sexual innuendos, any nudity—no matter how brief—and all video games that are rated ‘Mature.’” Now acceptable: kid stuff, Disney movies. Possess contraband movies and a resident could likely lose the “levels” they’ve gained—the steps they’ve passed toward, ultimately, release.
A state with a bill recently under consideration that would recommend people convicted of sex offenses pay to be castrated after they have completed their prison sentence, Kansas enacted civil commitment for SVPs in 1994. Most SVPs are housed in Larned State Hospital, which currently holds 260 people and has only released a handful since the program started.
56-year-old Mark Sherfey identifies as a white, gay man and has been a resident at Larned since 2011. Mark has harmed people. In 1983, he was convicted of second-degree murder, and after release from prison in 1995 he was convicted of four counts of aggravated sodomy and one count of exploitation of a minor who was 14 at the time.
Two weeks before his scheduled release date Mark was notified that he would be evaluated for civil commitment. He didn’t have enough money for a lawyer and his court-appointed criminal attorney wasn’t well-trained in civil law.
Diagnosed with “anti-social personality disorder” and “pedophilia,” Mark believes material he disclosed during the 18-month long Sex Offender Treatment Program he participated in while in Hutchinson Correctional Center (1997-1999) was used against him during his hearing. In particular, Mark thinks that the administrators of Hutchinson’s SOTP didn’t believe that he only had one victim. To retain access to his privileges, such as the ability to have books in his cell, he believed he had to disclose multiple victims. He argues that this was used against him in the hearing and assessment phases.
The Larned treatment program, according to Mark, is primarily based on activities and classes, and “if you don’t get 100% attendance you can’t go to the next phase.” Not everything in the program is bad; his most useful class is “Dialectic Behavioral Training,” but he thinks that almost everything they teach could be taught in a year. Most of hospital staff, the “privates,” are “all cool,” he reports, but he identifies that the “higher-ups” who are running the program seem to act as though “their job is to ensure that none of us get out.”
The Larned treatment plan includes a total of seven phases in program, says Mark, and he is currently in phase three. He finds the use of polygraphs to be excessive and punitive. To move from phase three to four requires residents to take a “victim polygraph” and a “sexual behavior polygraph”; once in stage four, he has heard that residents must take a polygraph every six months as “maintenance.”
Mark knows that few people leave Larned, even when he counts the 8 to 10 people who have died since he arrived in 2011. “There are people in wheelchairs and in diapers that can’t take care of themselves. They can’t walk and they are still in this program. It is ridiculous.” The staff want to keep their jobs, Mark says, and therefore have a vested interest in keeping people at Larned, but he also suggests that the structure of the system is at fault.
The final re-integration or transition stage—the last stage before getting out—gets “bottlenecked.” Mark says that people want to stay in this last transition phase because they might have a job, a cellphone, and a lot of freedom but they are also somewhat protected from the intense public persecution and scrutiny they might experience if they did not live in Larned.
When asked about condom access, the answer is quick: “Hell no.” Any kind of sexual activity is prohibited. If two people were found to be engaging in any kind of activity that could be construed as sexual, Mark reports that “the two would be written up, lose privileges, and they would probably lose their phase” or be “rolled back” in treatment. Engaging in sexual activity could be automatic grounds to transfer someone to the Issac Ray Building, which he reports as the “supermax” or “punitive wing of the hospital.”
As for the high turnover rate in staff, Mark reports having “at least” nine therapists since 2011. He reports that the “post-docs” he has worked with are often advocates and knowledgeable—but they are only there for at most a year.
“No one body in the world can be as perfect as this place is trying to get us be,” says Mark. “The bar is set so high that Christ could not make it.” The treatment and staff and administrators, he states, “could not live up to this program. Not even the judges that are sending us here could live up to this program. That is what is frustrating.”
These facilities are big business.
Angela de Rocha of the Kansas Department for Aging and Disability Services, reports that for Larned the year-to-date expenditure contract staffing for the LSH campus (including Larned Correctional Mental Health Facility, Larned Juvenile Correctional Mental Health Facility, Larned State Hospital) is $3.1 million. The 2016 A’viands food service contract for the LSH campus: $3.98 million.
These facilities are big business.
The FY 2015 expenditures for Rushville, according to Marianne Manko of the Illinois Department of Human Services, include $808,080 for the services of seven evaluators and approximately $6.5 million dollars to Liberty Healthcare to operate its treatment and condition release programs. Another private company, Wexford Health, received $4,469,466 to provide additional medical care. The cost of offering polygraphs in 2015: $15,000 to Wright Investigative Services.
Ken August, with California’s Department of State Hospitals, reports that millions of dollars from California’s state budget goes to private companies that support the Coalinga with building upkeep, food and temporary worker needs.
While many reformists lauded Hillary Clinton’s promise to stop accepting campaign contributions from private prison companies, for-profit contractors that make money from locking people up is hardly the root of the problem. And, it’s not just corporations that benefit from a system that is by-and-large government-run.
Take state employee salaries. In California, average yearly salaries hover around $300,000 for psychiatrists working at facilities such as Coalinga. Husband-and-wife psychiatrists Joginder Singh and Mohinder Kaur have been among the highest earners. Their base salaries, not including benefits or overtime, totaled $3.32 million between 2010-2013, according to state records. The highest-paid worker in the entire Department of State Hospitals was a psychiatrist at Coalinga, earning a base salary of $519,485.
Even with some of the highest-paying jobs in the state, Coalinga still has trouble retaining mental health staff—an issue that people in civil commitment consistently flag as a complaint. As of February 2016, 60 percent of highly lucrative Senior Psychiatrist positions at Coalinga were vacant, according to Ken August.
Administrators, staff, and private companies, have a “vested interest” in making sure people stay in treatment programs that may treat some, but most not at all, for as long as possible.
With this in mind, one concept appears to be extra-salient: Mark at Lerned’s assessment, that administrators, staff, and private companies, have a “vested interest” in making sure people stay in treatment programs that may treat some, but most not at all, for as long as possible. If the system ever did have the goal of a safer world, and rehabilitation of its wards, it has strayed from that goal beyond any recognition, assuming another primary objective straight out of Orwell: self-preservation, even at a high human cost.
Special Treatment Unit at Avenel
Thirty six-year-old Anthony D., or “Dix”, has been behind bars since he was 22. Housed at the Special Treatment Unit Annex (STU) for almost a year, he spent the twelve years in prison after a conviction for two counts of aggravated sexual assault and one count of attempted aggravated assault.
Over the phone Anthony doesn’t freely admit to guilt or innocence. Perhaps it is evasiveness, or simply survival—as his sentence is soon up for review. Or, perhaps the truth is complicated and ambiguous and doesn’t fall easily into neat boxes like guilty or innocent. The last version: In 2002 Anthony agreed to get drugs for a 15-year old and a 16-year old in exchange for sex, he says, and when he did not produce any drugs, the young women went to the police and reported being sexually assaulted. “I was initially offered 30 years. I was scared. I was 25 when I took this plea.” He took the deal because he was told, “If you go to trial, you could lose, you could get these sentences consecutively.” As young, African-American male who admits to agreeing to buy drugs and is subsequently accused by two young white females of sexual assault, in New Jersey in 2002, he thought his chances at trial were slim.
While in Avenel Prison, he says agreed to treatment and spent nine years in programs—classes with titles like “Deviant Arousal”, “Relapse Prevention,” and “Anger Management”—and he felt prepared to be released.
But on April 24, 2015, just a day before his scheduled release, he was assessed him for civil commitment. Because he pled guilty to attempted aggravated assault with a weapon (even though he says it was just an acceptance of a plea deal), his score on the Static 99r identified him as a possible risk.
His diagnosis? Other specified paraphelic disorder, other specified personality disorder and cannabis and alcohol disorder. Anthony admits he did drink a lot, but hasn’t in years, since before he was locked up.
The STU, he reports, is “like a prison.” It’s located next to Rahway State Prison, a grim-looking panopticon-style building used as a backdrop for movies like Malcolm X and Ocean’s Eleven. The civil commitment facility used to be the administrative segregation (akin to solitary confinement) building there. The Marshall Project reports that 428 people are confined to the STU and since its inception, approximately 15% of the total number of 579 people have been released. Residents are “locked down” on a consistent basis. His unit, he states, has decent officers but most of the time the officers “look at us like we are scum; we don’t need to be treated like humans.”
Lucielle, Anthony’s mother, believes her son is innocent and was framed by the police. Anthony was a “bright kid,” says Lucielle, who found a job after high school, and went to school to be a computer programmer. She is retiring this year, after 28 years working for the Department of Health, and she tries to visit him often. She is raising one of his two sons, who is now 14 years old. She didn’t know that Anthony could be civilly committed and was surprised when he ended up in the STU. She did scrape up funds to get Anthony a private attorney, but she said that this didn’t seem to help.
He is appealing his civil commitment, in part because if he does not he believes that he will be locked up for at least another ten years. The treatment at STU, he states, is forcing him to start over, and asking him to “forget everything I learned at Avenel.”
Anthony is 36 and has spent almost his entire adulthood behind bars. If released, is he likely to harm women?
Safer sex after The Prison?
Today, while upheld in Supreme Court decisions in 1997 and 2002, civil commitment for an SVP is being challenged in several states.
In 2015 alone: A Minnesota a state judge declared the program unconstitutional, describing it as ‘draconian,’ after activists, lawyers and journalists organized to highlight that no one designated as a sexually violent person has been released from the state’s treatment facilities. In Missouri, a state judge found the program constitutional, but not its application, as the state has not implemented release procedures for people held in its treatment facilities. In Washington, disability activists are raising the visibility of the over-representation of people with cognitive and behavioral disabilities in the state’s civil commitment facilities, where, due to funding cuts, dwindling services are offered and therefore few people are released. These challenges, however, seem to operate on the logic that the idea of civil commitment is sound, just not how it is implemented. And few of these challenges have called for any sort of substantial system overhaul or delved deeply into the treatment provided to SVPs.
One-size-fits-all risk assessments with questionable efficacy; high staff turnover; treatment that many experts conclude includes outdated and illegitimate practices and tools; the over-representation of certain populations (in particular, gay and bisexual men of color); treatment programs from which only a miniscule number graduate; the lucrative state contracts that incentivize keeping facilities open; multiple reasons point to a system so broken it can’t be fixed.
At the same time, we still live in a world where sexual violence persists and is normalized. For many, a variation on Margaret Thatcher’s “TINA” mantra emerges: No alternative exists except endless imprisonment.
But not all people that perpetrate sexual violence face accountability via traditional, state-supported methods like criminalization and civil commitment. Not only have some people purposefully restricted contact with these state-endorsed methods of addressing sexual violence—undocumented or kink/BDSM communities, for example, are less likely to engage police—but a growing global network recognizes that criminalization is not the pathway to reduce or end sexual violence. More resources for state institutions like prisons disappears or masks the original harm, and does not address sexual violence.
We still live in a world where sexual violence persists and is normalized. For many, a variation on Margaret Thatcher’s “TINA” mantra emerges: No alternative exists except endless imprisonment.
Often with a radical DIY ethic, many ad hoc and formal groups are building innovative responses to reduce, and end, sexual violence that do not involve augmenting the carceral state.
QUARREL describes itself as a group of Bay Area-based, anti-colonial, queer feminists that supports “the self-determination of survivors” using “harm reduction-inspired techniques in survivor-led actions” to transform our communities into safer spaces.
“Outside of the misogyny, racism and classism of the police state,” the group described one QUARREL action that dealt with man who had harmed several women: After multiple attempts to confront the man under more private circumstances went ignored, about 50 people showed up to the man’s workplace, presenting him with a statement saying he’d be isolated from some of the places and social circles he frequented:
We will be speaking with communities on campuses, in radical spaces, in collectives, and queer safe spaces, to let people know that you are not to participate in solidarity with women’s causes until we can reevaluate your pattern of abuse… If you refuse to abide by these guidelines or emotionally torment survivors of your abuse, we are prepared to take more serious, public action.
While QUARREL’s survivor-led direct action raises the visibility of sexual violence and engages bystanders in transforming cultures that naturalize oppression, other networks try different tools. Groups such as Creative Interventions (CR) offer examples of real people who have developed strategies to respond to harm and conflict, including sexual violence, without calling the police. Affiliated with CR, the StoryTelling and Organizing Project (STOP) offers audio, video and transcribed narratives of people who respond to violence in their communities without calling the police. With messy and imperfect examples, these detailed narratives offer a toolkit—the “how, why, where, when, and what” surrounding a conflict from a range of stakeholders—to enable varied audiences to build capacity to imagine and practice. If I don’t call the cops what can I do to help my pal who is getting beaten by her boyfriend?
Often with a radical DIY ethic, many ad hoc and formal groups are building innovative responses to reduce, and end, sexual violence that do not involve augmenting the carceral state.
In the US networks are forming. Just Beginnings, a new funding collaborative, articulates a theory of change that does not center (or even name) criminalization as a pathway to their goal: ending child sexual violence. While Just Beginnings does not expressly offer a critique of criminalization, the organizations and fellows they fund all model innovative responses to ending sexual violence that operate outside of our carceral state: storytelling, healing, public education, accessible and queer-affirming sexual health information, and more. QUARREL and STOP are both grassroots initiatives produced in communities, without state endorsement or resources, while the start of Just Beginnings, funded through high-profile philanthropic dollars, signals that a wider spectrum of political actors recognizes that safety, particularly child sexual safety, lies outside of the carceral state.
Beyond US borders, communities and governments support innovative approaches to reducing child sexual violence, before it happens, and without policing (or mandated reporting laws). In Germany the Prevention Project Dunkenfeld posts advertisements in public places that state “Do you like children in ways you shouldn’t?” Dunkenfeld provides free and confidential services in cities across Germany. Established in 2011, Dunkenfeld publicly encourages people to seek assistance if they feel they might harm children and sees open dialogue about desire and sexuality as part of a successful harm reduction strategy. Dunkenfeld is preventative, and argues that shame and stigma drive people away from the very support services and resources people need to reduce child sexual violence.
QUARREL, Prevention Project Dunkenfeld, Creative Interventions, the StoryTelling and Organizing Project and the projects funded by Just Beginnings are by no means the only examples of grassroots approaches to accountability or state-sponsored preventative strategies. Are these responses perfect? No. But they engage root causes of sexual violence, without enhancing resource-monopolizing responses, like policing and incarceration, that are largely unable to address sexual violence. The politic of prison abolition offers the challenge to visualize and invent alternatives. And if those alternatives happen to be messy and flawed, remember that so is the system they are intended to replace.
Reacting to harm with something other than more harm will require the obliteration of society’s deepest-held beliefs about what constitutes justice.
Reacting to harm with something other than more harm will require the obliteration of society’s deepest-held beliefs about what constitutes justice. For many, moving from retribution to transformation will require a revolutionary shift that breaks paradigms. Why not start with the hardest places: those framed as the “worst of the worst”? Perhaps working with those broken shards builds other networks of accountability that shape a world where, as Frank Juarez hopes, “there are no more victims”?
Toshio Meronek is a journalist focusing on politics, the Bay Area, disability, LGBT/queer issues, and prisons. He covers Silicon Valley for Truthout, and has also reported for Al Jazeera, In These Times, and The Nation. His work has appeared in several anthologies (most recently in Captive Genders: Trans Embodiment and the Prison Industrial Complex).
Erica Meiners is the Bernard J. Brommel Research Professor at Northeastern Illinois University, where she teaches in the departments of Gender and Women’s Studies, Education, and Justice Studies. She is the author of several books, including For the Children? Protecting Innocence in a Carceral State, and has published and lectured widely on issues related to gender and incarceration, the school-to-prison pipeline, and prison abolition. Meiners is also a co-founder of an alternative high school for formerly incarcerated men and women in Chicago, and is active locally on a range of efforts to challenge the carceral state.
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