Juvenile Sex Offenders: Locked Up for Life?

Medical experts raise questions about indefinite civil commitment for troubled youths

At 21, Thomas Simmons has spent nearly half his life in confinement.

When he was 13, Simmons was sent to a juvenile detention center for raping and sexually abusing a younger relative over a period of years.  When he was 17, Simmons became the youngest person indefinitely committed to South Carolina’s adult violent sex offender treatment program, according to court testimony.

The government initially placed Simmons in a restricted wing and assigned a staff member to stay with him to protect him from the other residents, many of them middle-aged child molesters, a program psychologist testified earlier this year.

Four years after his civil commitment, Simmons is asking the South Carolina Supreme Court to order his release. Though experts for the state Attorney General’s Office say Simmons is still dangerous, a psychologist at the sex offender commitment center testified at a court hearing earlier this year that Simmons has not shown signs of sexually violent behavior since before he was 13, and should be released.

“Thomas was at best 11 years old when he committed his crime; he was a child,” said Brana Williams, Simmons’s attorney.

“And now he may be locked up for the rest of his life. This is why they say you should not get life without parole when you’re that young. You’re not who you’re going to be.”

At least 10 states allow some form of juvenile sex offender civil commitment, according to research compiled by the Defender Association of Philadelphia.  In four of those states,  at least 52 adults—not including Simmons—are currently indefinitely committed as sex offenders as a result of crimes they committed when they were juveniles, state departments of corrections and mental health said in response to inquiries from JJIE.

The six other states either do not track such commitments or did not respond to requests for information in time for publication.

Worst of the Worst’

The juvenile offenders are described by prosecutors as the “worst of the worst”—those likely to commit another sex crime and therefore too dangerous to release.

But some mental health experts who specialize in the treatment and risk assessment of juvenile sex offenders say civil commitments raise troubling questions. In many cases, these experts say they cannot reliably predict whether a young person who has committed a sex crime will grow up to become a dangerous sex offender.

“If someone says I want to protect the public from the very small number of individuals who are highly dangerous, but I don’t want to put children in institutions for things they might have done, the reality is you cannot have it both ways,” said Mark Chaffin, a director at the Center for Child Abuse and Neglect at the University of Oklahoma Heath Sciences Center.

“A very small number of kids are really likely to do horrible things,” Chaffin added in an interview with JJIE. “If you want to protect the public, the price you pay is that you will harm probably a larger number of children who are not going to commit crimes.

“That’s what no one really wants to face.”

In a series of cases over the last eight years, the Supreme Court has signaled a shift in how the law treats underage criminals.

In 2005, the Court banned mandatory death penalty for juveniles in Roper v  Simmons[s1]  . Five years later, in Graham v. Florida[s2] , the Court barred mandatory life without parole sentences for juveniles who were not convicted of murder; and in June this year[s3]  it ruled that all mandatory life without parole sentences for juveniles violated Constitutional protections against “cruel and unusual punishment.”

The justices’ decisions were based in part on briefs from medical experts arguing that juveniles’ underdeveloped brains, immaturity and impulsiveness made them less culpable for their actions.  Because of that immaturity, the Court wrote in 2005, “juvenile offenders cannot with reliability be classified among the worst offenders.”

Mandatory Registration

At the same time, many states have moved in the opposite direction when it comes to young sex offenders: they have applied to juveniles many punishments once reserved for adult sex offenders, including mandatory registration on public registries and, in rare cases, potentially permanent civil commitment.

Though the commitment process varies from state to state, a young person who commits a sex offense is often sent to a residential treatment center for juveniles.  As with adults finishing a prison term, when a juvenile is nearing release from confinement, usually because he or she is too old for the juvenile system, the government can ask a court to issue a civil commitment order to a center for sexually violent predators.

Prosecutors, looking at the sex crime and the offender’s subsequent behavior, typically must show that an offender committed certain types of violent sex crimes and has a mental illness or abnormality that makes it likely they will do so again. Though commitment decisions typically are reviewed every year, release from sex offender centers is rare.

The Supreme Court has said that adult sex offender civil commitment is constitutional, in part because it is not considered a criminal punishment.  The fact that sex offender commitments are a civil process subject to periodic review makes it difficult to challenge juvenile commitments on constitutional grounds, according to Nicole Pittman, a Soros Senior Justice Advocacy Fellow with Human Rights Watch.

However, Pittman noted that the Ohio Supreme Court, relying on the Simmons and Graham cases, recently found that mandatory lifetime registration for juvenile sex offenders violates the constitutional ban on cruel and unusual punishment.

Nearly 10,000 juveniles were arrested in 2010 for rape and other sex offenses, according to the FBI, mostly for crimes against other minors.

Numerous studies have shown that about 10 percent of them will be rearrested for another sex crime—a lower recidivism rate than for most other juvenile crimes and for adult sex offenders.

Civil commitment cases present challenging problems for prosecutors and mental health experts, who must try to separate the truly dangerous young criminals from the much larger number who will probably never commit another sex crime.

Unlike adult sex offenders, juveniles tend to be impulsive, experimental and prone to risk-taking, said Robert Prentky, a professor at Farleigh Dickinson University who specializes in risk assessment of juvenile offenders.

Risk of Re-Offending?

Since juveniles’ brains are still developing, their risk of re-offending can change quickly as they age, Prentky said.

Chaffin, of the Health Sciences Center in Oklahoma, said that in some cases it will be obvious to anyone that a young person is dangerous.  But he said that many juveniles, because of their age, do not have a significant pattern of deviant sexual behavior and often have not had time to develop a stable sexual proclivity, making it difficult to say who will reoffend.

“Evaluating risk in juveniles is extraordinarily complex and difficult, much more so than risk assessment of adult offenders,” said Prentky, who developed one of the commonly used juvenile sex offender assessment tools.   “It’s a whole different ball game entirely.”

He continued:  “The very fact that you’re dealing with 15 or 16-year-olds, or even younger (juveniles), means that all aspects of their development are in flux.”

Though researchers have identified known recidivism risk factors, many experts say the prediction models used on adult sex offenders don’t accurately forecast which children will go on to become repeat sex offenders and which will grow out of it.

“The tests that we have to predict recidivism for juveniles just really don’t work at the level they need to work,” said Richard Wollert, a psychologist in Vancouver, Canada who specializes in sex offender assessments.  “I think it is impossible to answer the question that the court poses in these cases unless there is some extraordinary evidence of mental abnormality.”

Finding Treatment

Those differences with adults mean that many of the policies designed for adult sex offenders may not be right for juveniles, said Maia Christopher, the director of the Association for the Treatment of Sexual Abusers.

Compared to adults, juveniles are both more amenable to treatment and less likely to persist in deviant behavior, she said.

And some practitioners question whether civil commitment is ever appropriate for someone who committed a crime when they were underage.

“There are interventions that should never be used on juveniles and civil commitment is one of them,” said Elizabeth Letourneau a professor at the School of Public Health at Johns Hopkins University.

“Something that you do as a child of eleven, twelve, or thirteen rarely predicts what you’re going to do as someone age 21,” she said.

Letourneau, who was also an expert witness for Thomas Simmons at a recent court hearing, said home-based treatment is effective in treating most juvenile offenders.

Other experts contacted agree that once someone is committed, it becomes difficult to know when to release them.

“When you have someone in the system since they’re 12, and then they’re civilly committed, there are not many people who will say that that person is going to get out,” said Pittman. “We have institutionalized children so badly that they can’t go somewhere else.”

Others see no better alternative and say they are able to identify the few juveniles who are too high risk to release.

“The number one tenet in sex offender treatment is ‘no more victims’,” said Vito DonGiovanni, the former director of Pennsylvania’s sex offender treatment center.

A small number of juvenile sex offenders are referred for potential commitment, and an even smaller number have been committed.

The Case of Pennsylvania

In Pennsylvania, the only state with a civil commitment program solely for sex offenders aging out of the juvenile justice system, more than 180 commitment assessments have been completed since 2004, said Meghan Dade, director of the state’s Sexual Offenders Assessment Board.

Of those, the state committed 39 people; one has been released because he no longer met the criteria for commitment, Dade said.

In Washington, 31 juveniles were recommended for commitment between 1990 and 2003, about one percent of juvenile sex offenders placed on parole, according to the Washington State Institute for Public Policy.   Of those, six were initially committed; another four were later committed after their initial release.

“There are some juveniles who have committed crimes that foretell of a spectacular risk of future predatory behaviors,” said Paul Stern, a prosecutor in Everett, Wash., who has handled several juvenile civil commitment cases. “If we are skilled at identifying those individuals, then sexual predator laws that apply to that very, very small population are appropriate.”

Added Stern: “The risk or the dangerousness is not unique to adults and foreign to those under 18.  A 17 year old can be just as dangerous as a 21 year old.”

DonGiovanni, the former director of Pennsylvania’s sex offender treatment center, said that researchers were only now “on the cusp” of understanding how to best deal with dangerous young offenders. But, he said, commitment was the best option for those in Pennsylvania’s program.

“Some of these guys, it gives you chills.  I’m happy for society that they’re getting the treatment they need and not out offending against some little kid,” he said.

In the Thomas Simmons case, according to court briefs, Simmons raped a younger male relative and forced him to have oral sex at least five times over a period of three years, when his relative was between six and nine years old.  At one point, Simmons choked the relative until he was unconscious, according to the briefs.

Simmons was sent to a juvenile sex offender facility when he was 13.  At the time, according to Don Stewart, a retired professor who has mentored Simmons, he was manipulative and aggressive and did not acknowledge that he had done something wrong.

‘Sexual Sadism’

When Simmons was 17, a court-appointed psychologist diagnosed him with “sexual sadism,” but said that he should not be committed to the adult violent sex offender program, according to court testimony.  The state Attorney General’s Office argued that he belonged in program, and a jury agreed.

The Attorney General’s office and the state Department of Mental Health declined to comment on the case.  But, according to court filings, while in a juvenile facility, Simmons had 30 disciplinary infractions, including fashioning a weapon, and allegedly became angry when he was told he would have to pay restitution to his victim.

At the time of his commitment, Simmons had fantasies about rape and other sexual violence, the brief says.

Since 2010, Simmons has had three hearings to determine whether he should remain committed.  A jury voted against release once and twice deadlocked, according to court papers.

Dr. William Mulbry, a forensic psychiatrist, testified for the Attorney General’s Office earlier this year that Simmons had not been adequately treated for sexual sadism and remained a threat to the public.  He said Simmons lacked empathy and insight into his mental problems.

But other psychologists have questioned Simmons’ diagnosis as a sexual sadist and said he does not belong in the commitment program.

Thomas Victor Martin, the former chief psychiatrist at the South Carolina sexually violent predator program, testified earlier this year that giving a juvenile a diagnosis like sexual sadism was “rather reckless.”  He said Simmons should be released.

Since 2010, psychologists at the sexually violent predator program also have recommended releasing Simmons, saying he is unlikely to commit more violent sex crimes, according to court testimony.  The program’s acting clinical director testified that exposing Simmons to sexually deviant fantasies as part of continued treatment could be harmful.

Simmons is now asking the South Carolina Supreme Court to order his release, arguing that his confinement violates his constitutional rights.

Both the Attorney General’s Office and the Department of Mental Health say that a judge or jury should resolve the dispute between the two agencies.

Simmons’s mother, along with mentor Don Stewart, maintain that the youth wants to go to college or join the military if he’s released.  Stewart said Simmons asked for forgiveness for his crime and wanted to move on with his life.

“That was him when he was 10 or 12 years old,” Stewart said.  “People change over time.  He has grown up so much.  He has served his time.”

Scott Michels is a New York City-based lawyer and a freelance writer for The Crime Report. This story was jointly commissioned by The Crime Report and the Juvenile Justice Information Exchange. Michels welcomes comments from readers.

For Kids in Juvenile Detention, Creating Hope Through Writing and Art

For the better part of the last two decades, The Beat Within has been committed to a mission of providing incarcerated youth with a forum where they can write (and draw) about the things that matter most to them, explore how they have lost connection with those things they value, and consider how they might re-connect to positive situations in their lives through the power of the written word.

This is a program that started small, in the Bay Area, with a commitment to provide detained kids between the ages of 11 to 18 with a safe space to share their ideas and experiences while promoting literacy, self-expression, some critical thinking skills, and healthy, supportive relationships with adults and their community.

That modest local effort has grown into a nationwide program that touches the lives of more than 5,000 youth in detention. Today, you can find weekly Beat workshops going on in 12 California county juvenile halls, from Alameda to San Diego. We are partnering with universities from U.C. Berkeley to the University of Hawaii. Meanwhile, the workshop model for The Beat is being replicated in Arizona, Texas, Alabama, New Mexico, Hawaii, Oregon, Washington, D.C., and, thanks to the JJIE, Georgia.

This is a broad program, one that is committed to providing aftercare for our youth and engagement and partnering with local community-based organizations that can provide job training, mentoring, peer-support, psycho-social support services, individual and group mental health counseling.

But it is the workshops that are the heart of what The Beat Within is all about. To encourage the kids to write and to draw, we begin with a conversation about issues affecting them and how they can make connections between their personal life and the larger community.

Our volunteers package up all of these writings and artwork and submit them for publication in The Beat’s bi-weekly magazine. Every kid who writes receives feedback on their work. When the issue comes out, well, even the young people who might have been suspicious and even hostile applaud when they listen to each other’s writings during the workshops, as well as when they are reading the many entries featured in each issue.

We encourage, through the power of the pencil and paper, for the writing and the art to come from the heart; and that they do!

During these difficult times, we want our contributors to use the art and writing as the light of hope and inspiration. Both channels are therapeutic, meditative, and provide a discipline.

Through art and writing, contributors find this forum as a safe place to reflect on their lives, their current state, as well as dream of a better future. Their work reveals the pride, the pain and insecurities, the fears, and the knowledge, that informs and gives us admirers of The Beat insight of what young people are truly dealing with at this moment in time.

The power of this work reaches many. The admiration from fellow Beat readers and contributors from Georgia, to Washington, D.C., to San Francisco and everywhere in between, gives immense satisfaction and empowerment to these young people, who often have very little self-worth. And thanks to The Beat’s publication, we have created a powerful community and support for these young people.

Often, we view The Beat Within publication as a history book of the week and a true resource guide. In this way, we learn from the direct source what is broken and needs to be addressed in the lives of our young contributors. That's empowering and powerful!

Through this process, The Beat seeks to reduce recidivism by providing youth with positive social means of expression as an alternative to violence and crime that lead them to their current situation. The Beat program does not pretend to solve the problems of youth violence in an economic recession where there are few jobs for young people, and virtually none for those who have left high school. But it can be a springboard for imagining new opportunities.

Programs to develop writing skills to advance a young person’s prospects are confined to the well educated or those judged to be more literate. Yet the Beat has found that the very act of writing (and drawing) improves the skills of those who may desire them the most, but lack opportunities to develop them.

Beyond its core activities, The Beat Within collaborates on projects to place incarcerated youths’ voices into a public forum. Since 2010, The Crime Report (a criminal justice website of the John Jay College of Criminal Justice in NYC) features the writings from The Beat each month, and San Francisco State University produced a video on The Beat Within’s workshops and history. Also,The Beat has partnered the last two years with Southern Exposure (SoEx), which is a San Francisco nonprofit visual arts organization that supports emerging artists and youth in a dynamic environment in which they can develop and present new work and ideas.

The SoEx Artists in Education Program and The Beat partnership provides youth with a consistent opportunity to share their artistic ideas and experiences in a safe space that encourages literacy and self-expression. SoEx offers artistic support through consistent weekly workshops in the San Francisco and Alameda County Juvenile Justice Center to build on acquired skills and ideas.

These young people in the San Francisco and Alameda County Juvenile Justice Centers make collaborative and individual artworks that are published in each issue of The Beat Within.

Juvenile Justice Aid Faces More Cuts in New Federal Spending Plans

the Capitol Building in Washington DCFederal funding for state and local juvenile justice programs seems likely to take another big hit as Congress continues to slash federal "discretionary" spending.

The Republican-controlled House committee that appropriates money for the Justice Department today issued its proposal for the fiscal year starting Oct. 1. It would cut juvenile justice funding to $209 million--a figure that stood at $424 million in fiscal year 2010.

Federal aid for juvenile justice already had fallen more than 50 percent to its lowest level in more than a decade, says the Coalition for Juvenile Justice, which represents state advisory committees in Washington, D.C. The coalition is asking Congress for $80 million for "formula grants" that helps states comply with mandates in a key 1974 juvenile crime law, such as separating juvenile and adult defendants in jail and keeping minor offenders out of custody.

House appropriators, rather than adding funds for those purposes, would cut them to $33 million.

Continuing such cuts may raise questions about whether states will continue to abide by the federal requirements, with relatively little money at stake, as some states have done regarding the federal sex offender registration law.

The Coalition for Juvenile Justice had sought $65 million for a longstanding federal "Title V Delinquency Prevention Program," but the House subcommittee voted to provide only $20 million.

The panel also proposed to eliminate  "Juvenile Accountability Block Grants" that the coalition wanted $30 million for, saying they are "used by states and localities to provide judges and other juvenile justice officials with a range of age/developmentally appropriate options to both hold youth accountable and get them back on track so they are less likely to re-offend."

The Obama administration asked Congress for $140 million for the three programs overall; the House panel would cut them to $53 million total.

Senate appropriators, led by Sen. Barbara Mikulski (D-MD), will be more supportive.

A press release from her appropriations subcommittee this week said the panel would support a total of $278 million for juvenile justice.  The final number is likely to  be somewhere in between the House and Senate figures, but that would represent a cut from the $263 million that juvenile justice programs are getting now.

The pending Congressional action represents something of retreat by Washington on the juvenile justice issue.

With reported juvenile crime down and legislators facing demands to pare federal spending across a wide range of areas, juvenile justice seemed like a likely target. It does not enjoy support comparable, for example, to federal programs on sex offenders and analysis of DNA evidence.

Even the COPS hiring program, never favored by House Republicans, got $40 million in the new budget proposal.

The Senate is likely to increase the total, but the plan indicates that at least some Republicans are willing to support a program that is identified with former President Bill Clinton, who created it in 1994.

Juvenile Justice Information Exchange is proud to feature content from The Crime Report (TCR), the nation’s only comprehensive news service covering the diverse challenges and issues of  criminal justice in the U.S. and abroad. TCR is dedicated to providing an independent, non-partisan marketplace of news and ideas for those who want more than the daily diet of crime headlines and political rhetoric.

Photo by C.E. Kent, via Flickr