And then we have the Civil Commitment Threat!

Because of Our Constitution and Bill of Rights in this country you’re allowed to dislike, even outright hate a person or group, that is all well and good, you have that right under the Constitution. What you do not have is the right force your ideas on other individuals because of your dislike or fear of a group of people, this does not give you the right to take away their constitutional protections, as soon as you start doing that you are destroying the very fabric that this country was built on and you become as un-American as somebody burning an American flag or flying a plane into the World Trade Center. Think about if you want to retain your constitutional rights you have to fight to make sure that everyone keeps theirs, even the people that you dislike or hate.

One of the threats that people on the registry constantly live under is that if they make a mistake because of vague or overbroad laws, or if they are charged with the new sex crime because of their status as a registered citizen, even if those charges are false,  there is a high probability of the reconviction simply because of their registered citizen status. The second part of that fear is civil commitment and forced brainwashing by the state. 

If a person is order into a mental health program without due process to see if they are mentally Ill and in need of treatment or proof that treatment will help them then their rights under the 8th and 14th Amendment have been violated.   Under the 8th and 14th Ament. ,state may not show ” deliberate indifference” to inmates mental health needs. ” It was not appropriate for court to determine what treatment…. patient should receive at treatment center…” Cameron v. Tomes 783 F Supp 1511 (point: If the person is mental Ill and the crime happened because of that illness how was he criminally prosecuted for it.) (At the present time people who commit sex related crimes are not considered to be mental Ill. Yet after they have served their sentence they suddenly have a mental illness?) A person convicted of crimes deserve to be punished but this dose not give the state license to make prisoners objects of unguided behavior control experiments. Canterino v. Wilson 546 F Supp 174 . “the loss of liberty is more then a loss of freedom from confinement. while a conviction and sentence extinguish an individuals right to freedom from confinement…they do not authorize the state to classify him as mentally ill and subject him to involuntary psychiatric treatment without according him additional due process protection”. Vitek v. Jones 100 SCt 1254. The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. Cruzan v. Director Missouri Dept of Health 110 Sct. when a person is intentionally subjected to harsh conditions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment and a violation of the 8th Amendment (see Green v. Baron 662 F. Supp 1378) violating his First and 8th Amendment rights under the Federal Constitution. (if the state is forcing a person in to a involuntary psychiatric treatment to change his thinking Patterns is this constitutionally correct?) the “State dose not have the right to control the moral content of a person’s thoughts” ” This limitation on government is at the core of our constitutional values: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds”” Staney v. Geogia 89 S.Ct. @1243. State v. Nance 735 P2d 1271 Conclusions based on conjecture about dangereness are insufficient. Mater of Lucas 571 P2d 571 Determination whether a person is dangerous beyond a reasonable doubt must focus on his or her condition at time of the. . . hearing State v. Daulton 566 P2d, 555 State v. Alexander 554 P2d 524, State v. G 552 P2d5 7 4.

KNECHT V. GILLMAN 488 F2d 1136 any “” averse stimuli” constitutes cruel and unusual punishment unless written consent has been obtained from inmate specifying nature of treatment purpose risk and effects and advising inmate of his right to terminate consent” “Behavior modification by averse stimuli is “highly questionable technique” and that only a 20%to 50% success is claimed, That its use is really punishment worse than a controlled beatings. GREEN V. BARON 662 F Supp 1378 When a mental patient is intentionally subjected to harsh conditions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment. When the legislative body creates a classification such as they have done with the registry the courts are required to look at that legislative action at a heightened scrutiny Lipconib by and through DeFehr v. Simmons 962 F2d 1364 /2/6/Legislative classifications require HEIGHTENED SCRUTINY. There is also the fact that when the legislators based their decisions on presumptions and not facts then that law can be called in to question for its constitutionality. Procedure by presumption @1384 ^Stanley v. Illinois 92 SCt. 1208 note # 8 @ 1215 /3/9/ Presumption that distinguishes and burdens @ 1211 and if that law has a discriminatory purpose then we have these case sightings Roberts v. US Jaycees 104 SCt 3244 page 3253@ 625. Wayte v. US 105 SCt 1524 3/4 / 5 / 6 / 7 / 8 / 9 / massachusetts v. feeney 99SCt 2282 /10/ Discrminatory purpose. State v. Clark 630 P2d 8 105/6/7/8/9/ 10/ 11 / 12/note 12.  Pinder v. commissioners of Cambridge 821 F supp 376 (1993) Discrminatory purpose.

Our Constitution also “restricts governmental power by restraining arbitrary and potentily vindictive legislation” Weaver v. Graham 101 S.Ct. @ 960, 963- 964. The prohibitions on “bills of Attainder” in Art. I §§ 9-10 cl. prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct Landgraf v. usi film products 114 S.Ct @1497. These laws act as Bills of Attainders in violation of the State and Federal Constitutions.

If  treatment dose not give the person more chance for improvement then no treatment, or there is the possibility of the treatment doing mental or emotional harm or is likely to increase the chance of reoffence. Then the patient has been deprived of his liberty without sufficient cause and without due process. The fact that the treatment involves changeling the thinking patterns of those in the treatment (people that are not mentally ill) it is a violation of his First Amendment rights  Staney v. Geogia 394 US 557, 89 SCt 1243, Flanagan v. State 846 P2d 1053 as well as their associational ties Griswold V. Connecticut 85 SCt 1678. Healy v. James 92 SCt 2338

Ohlinger v. Watson  652 F.2d 775   Decided Nov. 12, 1980.

II. APPELLANTS HAVE A CONSTITUTIONAL RIGHT TO SUCH INDIVIDUAL TREATMENT AS WILL GIVE EACH OF THEM A REALISTIC OPPORTUNITY TO BE CURED OR TO IMPROVE HIS MENTAL CONDITION.

In holding that any treatment provided appellants is constitutionally adequate if that treatment is reasonable within the budget and time constraints imposed upon the prison, the trial court relied upon the standard articulated in Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977).

In Bowring, the petitioner had been convicted of robbery and attempted robbery and kidnapping. He was denied parole on the basis that, inter alia, results of his psychological evaluation indicated that he would not successfully complete a parole period. The basis of his complaint was that the State must provide him with psychological diagnosis and treatment in the hope that he may ultimately qualify for parole.

The Bowring court held that a person incarcerated for the commission of a crime is entitled to that psychological or psychiatric treatment which may be provided upon a reasonable cost and time basis, the essential test being one of medical necessity and not simply that which may be considered desirable. Id. at 47-48.

Bowring may be appropriate as a standard for providing psychiatric treatment to inmates who are incarcerated for criminal offenses. Incarceration under those circumstances is primarily for punitive purposes. Although rehabilitation may be desirable, it is not necessarily the primary function of such incarceration. Appellants, however, were not given indeterminate life sentences merely because they committed criminal offenses, but also because they possessed “a mental disturbance, delinquency or condition predisposing” them to the commission of sex offenses. (again the faults scepter of future dangerousness rears its ugly head even though it is proven that people on the registry have a re-offense rate of less than 1%.)

The State’s interest in indeterminate incarceration under ORS 137.111 is to provide for the rehabilitation of a sex offender who has disclosed a tendency to be a menace to society. Barnett v. Gladden, 237 Or. 76, 390 P.2d 614 (1964). See also, Jensen v. Gladden, 231 Or. 141, 146-47, 372 P.2d 183 (1962). Such rehabilitation “may be regarded as comprising the quid pro quo for a longer confinement but under different terms and conditions than a defendant would undergo” if sentenced under ORS 167.040. See Carter v. United States, 306 F.2d 283, 285 (D.C. Cir. 1962). See also, Standley v. United States, 318 F.2d 700 (9th Cir. 1963); United States ex rel. Sero v. Preiser, 372 F.Supp. 663 (S.D.N.Y.1974). Having chosen to incarcerate appellants on the basis of their mental illness, the State has determined that it no longer has an interest in punishing appellants, but rather in attempting to rehabilitate them.

The rehabilitative rationale is not only desirable, but it is constitutionally required. Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1961), strongly suggests that the State may not justify appellants’ extended sentence on the basis of mental illness without affording appropriate treatment. The Supreme Court of California has so interpreted Robinson. Indeed the State concedes that appellants are constitutionally entitled to treatment. The disagreement between the parties is solely over the level of treatment which is constitutionally required.

The district court held that “(a)ll that is required is that (appellants) be provided a reasonable level of treatment based upon a reasonable cost and time basis.” We do not agree.

Constitutionally adequate treatment is not that which must be provided to the general prison population, but that which must be provided to those committed for mental incapacity. “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1971).


Jackson and McNeil v. Director, Patuxent Institutions, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972)7 indicate that a person committed solely on the basis of his mental incapacity has a constitutional right to receive “such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition.” Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971) and 344 F.Supp. 373 (1972) aff’d. sub nom., Wyatt v. Aderbolt, 503 F.2d 1305 (5th Cir. 1974). See also Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974). Adequate and effective treatment is constitutionally required because, absent treatment, appellants could be held indefinitely as a result of their mental illness, while those convicted and sentenced under the State sodomy statute need only serve the fifteen-year maximum term. See Ragsdale v. Oberholser, 281 F.2d 943, 950 (D.C. Cir. 1960); Wyatt v. Stickney, supra, 325 F.Supp. at 784; People v. Feagley, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373.8

Appellants are not requesting the best possible treatment nor are they demanding a guarantee to be cured of their mental incapacity. They only request a treatment program that will address their particular needs with the reasonable objective of rehabilitation. Lack of funds, staff or facilities cannot justify the State’s failure to provide appellants with that treatment necessary for rehabilitation. Lora v. Bd. of Education, 456 F.Supp. 1211, 1292 (E.D.N.Y.1978); Wyatt v. Stickney, supra, 325 F.Supp. at 782-83, 344 F.Supp. at 377.

The standard adopted by the trial court is clearly erroneous. Nevertheless, the record must be examined to determine whether the treatment offered appellants at OSP will give each of them a realistic opportunity to be cured or to improve his mental condition.

III. THE RECORD OVERWHELMINGLY INDICATES THAT APPELLANTS ARE NOT RECEIVING CONSTITUTIONALLY ADEQUATE TREATMENT.

Extensive evidence was submitted at the trial pertaining to the effect of the OSP program on appellants’ mental condition and the degree and kind of treatment needed to provide them with an opportunity for rehabilitation. The parties stipulated that appellant Ohlinger received absolutely no treatment of any kind between 1961 and 1971.

The evidence indicates that appellants require intensive individual therapy which includes a program concentrating on development of social skills, a reconditioning process, work in sexual fantasies and dreams and community passes to gradually integrate them into the community.

These methods are not available at OSP. They are available at Oregon State Hospital (“OSH”). Dr. McGovern, the only witness recognized by the trial court as an expert in the treatment of sex offenders, testified that appellants would not be a security risk and that because appellants were not physically abusive sex offenders they would be very receptive to treatment in a hospital-residential facility.

Although appellants participated in group therapy, the sessions were for only one-and-a-half to two hours per week. Dr. Nance testified that while he was the prison psychologist he had only one group of eight to twelve members out of the approximately two hundred fifty sex offenders housed at OSP. Most of these inmates were not sentenced under ORS 137.111. Dr. Nance also provided six to eight hours a week of individual therapy to the entire prison population of 1700-1900. Less than 20% of the individual therapy was devoted to sex offenders.


The witnesses further testified that the current level of treatment, predominantly group therapy, was not only inadequate and ineffective, but possibly detrimental in some circumstances. Appellant Haddon had participated in the group sessions but withdrew because he feared that the information about his sex offense would eventually reach the rest of the prison population. The evidence indicates that Haddon’s fear was reasonable. Sex offenders are looked upon as falling somewhere in the lower echelon of the inmate population and are, therefore, most susceptible to physical attacks from other inmates. One witness testified that, “sex offenders find their very existence in prison one of moment to moment anxiety if not occasionally better described as terror.”

(I)nvoluntary confinement for the “status” of having a mental or physical illness or disorder constitutes a violation of the cruel and unusual punishment clauses of both the state and federal Constitutions … unless it is accompanied by adequate treatment. (Robinson v. California (1962) 370 U.S. 660, 665-667 (82 S.Ct. 1417, 1419-1420, 8 L.Ed.2d 758) …)

 

NOTE: after writing this I realized that there is another issue that needs to be addressed within this article. That is the effectiveness of  behavior modification treatment programs. I and others have written about it in other articles that have appeared in SOSEN. To be quite blunt most behavior modification programs are not only ineffective but they increase the possibility of recidivism. I would suggest you see prior articles pertaining to treatment and risk assessment procedures. Remember we have a study called the Jack study done in the 1960s that was 15 years long and during that time. In any given year the re-offense rate was less than 2/10 of one percent if a treatment program who wants to show their more effective than no treatment they have to have a re-offense rate of less than 2/10 of one percent — good luck with that.

 

10 comments for “And then we have the Civil Commitment Threat!

  1. Fair&Balanced
    October 20, 2016 at 6:45 am

    So Will, let me ask you this. Can the state arbitrarily mandate a person into sex offender treatment even without a determination/diagnosis of a mental illness by a psychiatrist or psychologist? In the Country of Texas, the parole board mandates weekly sex offender treatment and EXTORTS a fee from you at $30.00 a pop. I have attended these classes for right at 12 years and have paid the so called treatment provider enough money to have made a down payment on house! Seriously, do the math, I have. I have paid in $18,720.00!!! And in actuality, this is like what the old 1930’s gangsters used to do to local merchants operating in their territory; make them pay extortion fees to NOT burn down their business or in extreme cases kill them. In this case the state extorts fees from SOs for these treatment classes and if you don’t pay your fee they burn down your house, i.e., violate your parole. What they (parole board) are doing is acting as de facto psychiatrist or psychologist and have unilaterally diagnosed you to have some sort of mental abnormality in order to justify your having to take these classes. Even though not everyone who commits a sexual assault has some sort of mental problem. I certainly did not. I was just stupid kid and did something stupid and paid for it with 20 years incarceration. I do not have a mental illness of any type and there has never been a finding/diagnosis by a psychiatrist or psychologist to this effect. Only the parole board says so and they say so only on the basis of my conviction. This in my very considered opinion is flat out WRONG!!! So tell me Will, is this action by the state violate my 8th and 14th Amendments rights?

    • Will Bassler
      October 20, 2016 at 8:38 am

      Part of the reason for writing this article was to raise questions about just such a situation that you are in. Understand I am not an attorney I was at one time a paralegal from my way of thinking being forced into any treatment program rather its drug and alcohol or anger management or sex offender treatment by the court is outside their jurisdiction without additional due process. Changing a person’s thinking patterns rather it is through the humanistic treatment programs or behavior modification it is against our Constitution and case law without the court pointing to recent overt acts and in entirely separate hearing proving that there is a bona fide mental illness at the time of the hearing. this also could be carried over to parole boards requiring treatment programs within the prison system to get good time or early release. I would also point out that the parole board, or for that matter the parole officers, are part of the executive branch and has no such authority to coerce or threatened or force someone into a treatment program only the judicial branch has that authority and it has to be done through a separate hearing proving that there is a mental illness it cannot be assumed because of the crime or because of past actions.

      In some of our earlier articles It was pointed out that most behavior modification treatment programs do not reduce the risk of re-offense, they in fact increase that risk. if you are thinking about a court battle I would suggest you go back through the older articles and gather the information from those older articles and share that information with your attorney.

      I’m hoping that the article will cause some people that have money or connections to start to fight for everyone’s constitutional rights.

  2. Michael Chambers
    October 21, 2016 at 12:16 pm

    Is there any to be removed from the regertree once you are on it. I have class one crime. Revived mail requesting forty dollars for forms to file seem a bit much for forms. And they said tere three removal what ever that means. Please advice. If helpful would be glad to give to the couse. Thanks

    • Will Bassler
      October 22, 2016 at 8:37 am

      Someone in our forums mentioned that they received a form letter from an attorney about the same thing, for about the same cost. They went online and found the paperwork for free. as well as legislation of what the paperwork was about.

  3. Robert Columbia
    October 24, 2016 at 6:23 am

    There is a fundamental mismatch when criminal justice and mental health treatment collide. A bedrock principle of sexual offender treatment (at least “The System” ‘s version) is that persons convicted of a sexual offense are unable to control their behavior without professional help. That sounds like a textbook example of the kind of condition that constitutes Legal Insanity and should result in an aquittal and a commitment for compassionate treatment in the Least – Restrictive Environment possible under the circumstances.

    “The System” can’t have its cake and eat it too. It needs to decide, for each person found to have sexually harmed another, whether that person is *sick* (and in need of treatment) or *bad* and in need of punishment, stigma, and do-not-pass-go-do-not-collect-$200.

  4. Fair&Balanced
    October 24, 2016 at 12:03 pm

    Robert Columbia, I like your reasoning/insight on this, it’s right on point. And it stands to reason, at least to me anyway, that not only the courts would have something to say about this, but also the mental health community. I would think that the courts would step in and say hey, wait a minute, you (legislators) can not act as “De Facto” psychiatrist/psychologist and designate these people with a mental abnormality, there is such a thing called Due Process. And the mental health community are the ones who should step in and intervene on behalf of a person believed to have a mental formality to assure a fair process of evaluation. The way the Country of Texas does it is that they take the fact of your conviction for a sexually based offense and automatically deem you mentally depraved and in need of psychological treatment and mandate that treatment as a condition of parole or probation, and on top of that, require you to pay for the treatment under duress or threat of revocation. This is dead wrong! I am not a psychiatrist or psychologist but I have sense enough to know that if the state believes a person to have some sort of mental abnormality, then the proper thing to do is to remand that person to a state mental health facility for evaluation by qualified mental health professionals who can conduct a proper assessment to establish a correct diagnosis, and if that person is found to have some sort of mental abnormality then they can decide on a treatment plan that fits the diagnosis—does this make sense? I mean if it doesn’t then somebody PLEAS stop me from making a fool of myself any further. But this I believe would be the proper avenue or steps to take, not state legislators acting as DE FACTO psychiatrist/psychologist and unilaterally SHOT GUNNING a person into treatment and then on top of that MAKE HIM PAY FOR THE TREATMENT UNDER DURESS!!! I mean these people got some damn nerve. Anybody got any ideas on how to address this issue? I’m all ears. Thank you.

  5. kayt
    October 24, 2016 at 5:35 pm

    I could write a seriously long article on what I know about civil commitment; but the bottom line and the truth is that we all need to work on being aware of the laws and how to protect ourselves against the accusations that could put us into mental institutions and into civil commitment. The laws change all of the time, and unfortunately the laws of civil commitment or confinement are NOT written to protect us! The exception is anybody who threatens suicide, and then arguably it could be a way to protect the committed person – but then that is an “argument.”

    I am talking about parolees, inmates, and the people who are collateral damage – we all need to keep up on these laws and how they affect us.

    Again,the point is – we need to know the laws and they change all of the time.

  6. KayT
    October 25, 2016 at 7:27 pm

    Thoughts:
    We should not forget that some people really do re-offend, and they use friends and family as stepping stones, they truly don’t care who they hurt. Aren’t these the people that the entire general public believes the registry is all about?

    I think that we should never forget to acknowledge that these people really do exist.

    Thoughts?

  7. Fair&Balanced
    October 28, 2016 at 8:13 am

    Yes KayT, sad to say that these people do exist; however, these are the ones who needed to be targeted. But let me say this, say for example you got a speeding ticket on Monday, and on Wednesday you went to your local Municipal court and paid the $75 ticket. You think its over with and go on about your business. However, that next Monday the city counsel decides to pass a new ordinance that increases from $75 to $300 the fine for speeding tickets, and not only that, they back date the ordinance one (1) year! Lo and behold, you get a letter from the city that says the $75 you paid is not enough and that you now owe $225 extra and if you don’t pay it a warrant will be issued for your arrest. I don’t know about you but I would be mad as hell because I had already paid the fine that was the law at the time of the ticket. Well KayT the same analogy applies to sex offender (SO) laws. Using myself as an example, my case was an 1983. And as anyone knows, there was no such thing as an SO registry, there was not even an internet or PCs for the home. SO laws did not come about in Texas until 13 years (1996) AFTER my conviction and sentence. 13 years!!! But still, after my release in 2005 these laws, having been BACKDATED to 1970, were applied to me, and everyone else from that time. This is called a violation of the US Constitution’s ban on Ex Post Facto laws which simply means that legislatures (state and federal) cannot make laws and apply them retroactively or backward just like the city counsel did with your speeding ticket above. Yes, the city counsel could increase the fines for tickets but they are supposed to apply to everyone AFTER the law is passed going forward. same with SO laws. They cannot apply laws to you that were not in effect at the time of your conviction and sentence. I could talk about Due Process (Substantive and Procedural) but that is for another day. Then KayT think about this point. Sex offenses have become the GOLD STANDARD in the criminal justice system. SO crimes have replaced murder as the number one crime. Probably a majority of politicians run their campaigns on a get tough on SO line causing other legislators who want to keep their jobs to try and pass all kinds Draconian SO laws—piling and heaping on. But here is my point, if SOs are so hated, why aren’t there laws passed that says people who commit sex crimes will never get out of prison? Look around the Country and you will see SOs get 6 months in prison, or probation, or some other light sentence. Look at the Stanford University swimmer who sexually assaulted another student a few months back, this guy got a slap on the wrist and a wink and a nod from the Judge. Seriously!!! With the general public out with pitch forks and knives screaming for the blood of SOs you would think that this guy would have at least got 50 years in prison! Do you get my point KayT? This also goes hand in hand with this high residivism crap that proponents of SO laws like to throw out there. In order for there to be a high residivism rate for SOs then there has to be a corresponding REVOLVING prison door for SOs—right? Chew on that for a minute, match the two points side by side. But let me get out of here; I have work to do. Thank you KayT.

  8. kayt
    October 29, 2016 at 2:20 pm

    Fair and Balanced, I don’t find anything with your writings to argue with.

    But, if our concern is about civil commitment then my question would be – is there ever a time that Civil Commitment is the right thing to do? If it is, then what would it be?

    And for all of the arguments against all of the types of sex crimes that are out there, my personal opinion is that a sex crime that is a punishable offense should be crimes that are rape related and proved in a court of law with DNA, not just with accusation. Why? Because to accuse anyone of a sex crime is of lifetime consequence to that person and the lives of most people in that person’s circle, and at times for generations to come. Any other sex crime is just too easy to fake by someone who wants to throw an accusation against someone.

    Frankly, my personal opinion of many of the laws related to sex-related crimes is that they seriously need an over-haul by someone who has a grip on reality. Too many twisted-sister type people are out there milking the cash-cow of sex.

Comments are closed.