Denver Post article, shows eight amendment violation, for lack of treatment

An article in the Denver Post on November 3, 2013 was titled “Unintended effect of 1998 Colorado law: More sex offenders in for life”. This article brought to light that Colorado has not been offering treatment, as is required by law to people who have been sentenced for crimes. These people can only be released after receiving effective treatment and the state is not offering that treatment supposedly because of facilities and financial issues. Here is a link to the Denver Post article

I responded back to the writer of the article, in hopes that he would do a follow-up article showing that the state of Colorado is not only acting irresponsibly but they are also opening themselves up to multimillion dollar lawsuits based on prior federal court decisions.

In reading your recent story in the Denver Post “Unintended effect of 1998 Colorado law” I thought about posting a response in the comments section , but realized my response would be way too long, especially considering I would be using direct quotes from a federal case stating that the state of Colorado cannot use the excuse of the necessity of funds, facilities or staff to justify lack of treatment. Also, the fact that in the same case the federal court has stated that just because someone commits a crime you cannot declare them mentally ill and require them to be in treatment.

The second part of this is the fact that there is a constitutional issue here that most people don’t want to deal with. Because of the Constitution and Bill of Rights of 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 or Moral values, on other individuals. Just 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 in another country burning an American flag or flying a plane into the World Trade Center. Think about it, 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.

Consider this information from federal cases.

The plaintiff is order into a mental health program without due process to see if he is mentally Ill and in need of treatment or that treatment will help him. 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 recive at treatment center…” Cameron v. Tomes 783 F Supp 1511 (point: If the Plaintiff 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.) 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 constitutional ly 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.. Cruzan v. Director Missouri Dept of Health 110 SCt. 2841.the court has forced the plaintiff in to a involuntary psychiatric treatment to change his thinking Patterns 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 constitutionsl 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

but 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 Landgrar v. usi film products 114 S.Ct @1497. These laws act as Bills of Attainders in violation of the State and Federal Constitutions

If that treatment does not give the Plaintiff 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 re-offence. Then the Plaintiff has been deprived of his liberty without sufficient cause and without due process. The fact that the treatment involves changing the thinking patterns of those in the treatment, (people that are not mentally ill), is a violation of his First Amendment rights in that “the state does 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 394 US 557, 89 SCt 1243, Flanagan v. State 846 P2d 1053 or his associational ties Griswold V. Connecticut 85 SCt 1678. Healy v. James 92 SCt 2338

Below is an excerpt from the Federal court decision in Ohlinger vs Watson 652 F2d 775:


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.

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.6 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.


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.9

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) …)

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