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Through the Civil Commitment Looking Glass

If the object or purpose of the Kansas [civil commitment] law had been to provide treatment but treatment were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish . -- Justice Kennedy's concurring majority opinion in Hendricks v. Kansas , 117 S.Ct. 2072 (1997)

Iam about to tell you what I believe to be among the more peculiar employment sagas ever told: the story of what happened when I was sent to work in the state of Washington's Special Commitment Center (SCC) as a court-appointed ombudsman.

In 1995, Judge John C. Coughenour, in Federal District Court, invalidated Washington's Sexually Violent Predator law that led to the creation of the SCC [See: Young v. Weston , 898 F.Supp. 744 (WD WA1995), PLN Vol. 6 No. 11]. The state immediately appealed. The ninth circuit remanded the case for reconsideration in light of Hendricks. See: Young v. Weston , 122 F.3d 38 (9th cir. 1997).

In June, 1997, the U.S. S.Ct., in a 5-4 decision, ruled that Kansas' statute, on its face, was constitutional. In February, 1998, Coughenour acquiesced to the Supreme Court, ruling that Washington's civil commitment law is also constitutional.

However, on March 28, 1994, a jury in Judge William Dwyer's Federal District Court had found the Washington Special Commitment Center did not provide constitutionally adequate mental health care to the involuntarily committed patients there. According to this ruling, "State officials must provide a civilly committed person access to mental health treatment which gives him a realistic opportunity to be cured or to improve the mental condition for which he was confined."

SCC "residents" have often served upward of 25 years in confinement, and have committed no overt acts that would justify reconviction. Most were transferred to the SCC directly from their former prison cells during the last week of their sentences, without formal notice. One resident learned of his civil commitment from the television news program he was watching from inside his cell two nights before his release. Another resident reported being arrested without warning in the parking lot of the prison in the presence of his wife of more than 30 years. Having waited 20 years for her husband's release, the wife fainted when told he was now facing civil commitment.

Judge Dwyer slapped an injunction on the SCC and ordered it to provide real treatment. Deciding that an ombudsman was needed to improve trust and rapport between patients and staff in order to make treatment possible, Dwyer ordered one to be appointed. Between February 1996 and September 1997, I was that ombudsman.

I arrived the first day to discover that I had an office with a computer and phone. I spent a good deal of time searching around for manuals, law books, and other items I needed. I found that many of the documents I was looking for had been torn from their books; in other cases, the books themselves were missing.

I asked to attend some initial meetings where I was introduced by name and little else. I didn't find out until months later that the staff didn't know that I had many years of experience working in corrections and specializing in sex-offender issues. They knew little about the injunction, little about who I was, and virtually nothing about what to expect from my role.

I soon discovered that there was no "plan" in this place. So not knowing what else to do, I started interviewing the residents one by one. This seemed eminently logical, since they had initiated the claims leading to the injunction and my appointment; but in a matter of weeks, staff members were complaining to their attorney [the State Attorney General's office] that I was biased and should be thrown out.

To make matters worse, my interviews won me no points with the residents. They were calling their attorneys and saying I was biased in favor of the staff.

I can't blame the residents. I soon learned that everything a resident says and does including what he says in therapy (should any of them actually get therapy) is logged and regularly forwarded to the prosecuting attorney. There is no hearing or investigative process allowing for input from residents that is not used against them.

I found that no resident had ever received an annual dental or medical exam. I heard of the use of cell isolation for 72 hours or more as a means to punish residents for such transgressions as speaking belligerently, swearing, picking up an item from the floor, not responding to a staff member's remarks, or getting upset abut a situation and venting to staff.

After several months of getting nowhere (except, perhaps, to begin understanding that this was a prison rather than a treatment center), I wrote to Judge Dwyer and asked for guidance. Dwyer scheduled a special hearing, and I was officially declared to be an observer, a reporter, and someone to make recommendations to the administration that would help build trust and rapport. I was directed to mediate resident-staff disputes and attend meetings whenever invited by a staff member or resident. I was told to teach relationship building, to resolve complaints, even to play games.

I was also told to remain neutral something which proved to be all but impossible.

Whenever I recommended action or resolved a complaint, the disputants claimed that I violated neutrality. If I wrote that staff needed to redefine their lockdown practices, I was called biased by the administration. If I ruled that the staff therapy plan, called the Behavioral Modification Plan (BMP), was appropriate, I was deemed biased by the residents. Just as before, both sides were clamoring at their attorneys to have me removed.

Once I reviewed a BMP that required a resident to eat in his cell for months. I wrote that forcing someone to take all of his meals for five months seated on his bed facing his toilet, and ordering that he be isolated from other residents and his family, seemed punitive rather than therapeutic particularly since his "violation" had been swearing in front of his therapist.

For this, I was called to a "Clinical Meeting" at which I was grilled on my position of neutrality. I reminded my inquisitors that I was instructed by the court to make recommendations. They asked if I believed in the Sexual Predator Law, and suggested that I meet some victims.

Now it happens that I have some firsthand experience as a victim, having been raped. My story resembles that of many of those testifying against SCC residents. So I have no interest in sugar-coating the crimes of sex offenders. But these residents had already served their full sentences, and were now being subjected to the nation's first "coercive treatment" program. It seemed important to me to pay attention to how such a program works or doesn't work.

The staff divided the residents into two categories: litigants and non-litigants. In order to keep the two groups from intermingling, the SCC developed an elaborate scheme of controlled resident movement. A resident could go out to the patio to smoke or to a small yard to feel fresh air only if he was accompanied by staff and no residents from the "other group" were in the area.

During this period, the SCC was housed in an underground chamber in the state's maximum-security prison near Monroe. Fluorescent lights, steel railings, glass walls, intercoms, blaring buzzers and bells gave the SCC environment a compressed, submarine quality. (Certain corrections department colleagues and I wryly refer to it as Das Boot .) Even the air seems compressed. In the winter, the residents wear coats and hats inside, and when I asked why they didn't complain, they said they preferred the cold to breeding flu viruses in the warm, artificial air. This depressing physical environment is one component in the weave of restrictive qualities creating a blanket of shame that covers this place.

Because the SCC is equipped with cameras, intercoms in every hall and room, glass walls, and windows in every door, staff can thoroughly monitor residents without ever dealing with them directly. I noticed that many staff took advantage of the opportunity to keep their distance, often as a means to protect themselves emotionally.

My mistake was to connect with the residents in an authentic way. Staff have psychobabble catchwords for those who get too close: "violating boundaries," "projecting," "Stockholm Syndrome," "transference," "professional drift."

By being generally in proximity and available to residents, I got to know them as real people, with human complexities. I took in their frustration, shame, relief, joy, and despair, and inevitably saw something of myself in all of them. I fell prey to the conviction the staff strove to avoid: that these "monsters" were human beings.

These unfortunate humans were subjected constantly to degradation and neglect. Many of their "therapists" were therapists in title only. Consider, for example, two who left during my tenure: One, who had come up with the BMP confining the resident to his cell during meals was famed for having called an African-American prisoner a "nigger" in her previous job at the prison adjoining SCC; the other was accused by a resident of saying, "You might as well shove a 10-inch dildo up my ass." The superintendent looked into the accusation and decided the therapist had done nothing out of line.

Everything about the routine seems designed to be demoralizing. Breakfast is served around 7am. When I arrived, the eating area called the dayroom had doors that were locked at every meal. Residents crowded into this room, which was furnished with bolted-down tables and chairs, and were required to stay until everyone had eaten and the plastic silverwear counted. If a single utensil was missing, residents could be subjected to a strip search until it was found. If a resident had a late-night job or medicine that invited morning sleep, he would miss the meal.

Not that that was necessarily bad. Food is prepared by convicts in a kitchen at the adjoining prison. "Convicts" don't like sex offenders. Sometimes residents find garbage or globs of mucus in their food.

After considerable research, comparative studies, and interviewing, I submitted a proposal to open the dayroom doors during mealtime. The superintendent said that the doors had to be kept locked because the danger of rioting. I pointed out that no one at SCC has ever rioted in fact, the residents were so orderly they had been known to turn in keys lost by staff. Historically, sex offenders commit few infractions. Even so, any suggestion that might generate a sense of expansion rather than contraction was nixed over the all-encompassing "security" issue.

I found myself keeping track of abusive treatment of the residents. Some examples:

An all-unit search is conducted after first sounding the fire alarm. It is mid-winter. Forty people are herded outdoors and locked into 15- by 15-foot spaces, where they wait for approximately half an hour. Many, straight from bed, are half-dressed. The fire alarm was false, set off for the sole purpose of clearing out the unit without warning so staff could conduct a search.

A resident suffering from terminal cardiomyopathy takes morphine as prescribed by his private cardiologist. The SCC doctor reduces the amount of morphine. The resident's requests for a second opinion are ignored for months as his pain increases until he is weeping, waking up in spasms at night, spitting up blood, and vomiting. Finally, he is granted a trip to his private cardiologist, who prescribes a higher dose. However, the SCC doctor later orders further reduction.

A resident's sister dies, and he is denied a family call.

A resident is stripped in front of females and placed in a padded cell, where he remains nude for several hours. After he is allowed to dress, he remains on lockdown indefinitely. Although staff justified the act by claiming that he might have weapons, my investigation revealed that his primary violation was the amorphous catchall "belligerence."

After the Supreme Court upheld the Kansas law, there was widespread talk of suicide. Residents pleaded for help, asking that outside crisis-intervention specialists be hired temporarily, since the residents and their staff therapists were embroiled in lawsuits and doctor-patient confidentiality does not exist. The clinical director told residents to attend the already-established Peer Groups and meet with their assigned therapists if they want to discuss their emotional states.

I finally succeeded in getting the dayroom doors open. lt was a huge victory although it most likely was attributable to the fact that Judge Dwyer was holding another hearing to check on SCC's progress under his injunction. The court is the only motivational force that seems to move the SCC to action. Every time a hearing is scheduled, the very air of the place begins to buzz. Policies are handed out to residents for input, plans forwarded to staff for review. Then it all dissolves after the hearing is over.

The constant connection between the courts and the SCC reminds me of Bertrand Russell's observation that fanaticism prohibits the practice of argument to settle disputes. Fanatics always go to war. For the SCC, the battleground of choice is the courtroom it used to be common for staff to respond to a resident's complaint with a curt "Sue me if you don't like it."

SCC line staff worked previously either with the developmentally disabled or as prison guards. One former prison guard was promoted from line staff to therapist. (I believe he has a degree in physical education.) Another was promoted to supervisor.

But then, you wonder if the quality of therapy matters given the apparent mandate of this place. The SCC has vehemently opposed the release of any resident from the program, on the grounds that all residents are likely to re-offend no matter how much treatment they get.

Can chronic sex offenders be treated? You bet. There all kinds of sex-offender success stories we never hear about. But if we don't believe that people who do bad things can change, then the issue of treatment is really moot. And if we rely only upon the "expert" testimony of a handful of specialists who base expected treatment outcomes on what the professional treatment community admits is relatively little data on the subject, aren't we essentially putting the power of the people into questionable hands of a few? An attorney friend of mine aptly defined "mental abnormality" as "a legal construct that allows the `experts' to provide all sorts of baloney testimony."

The December 1995 Washington State Bar News reprinted an article by C.S. Lewis shortly after Judge Coughenour's decision invalidating the Washington civil commitment law. Titled "The Humanitarian Theory of Punishment," it suggested that citizens must be wary of any concept in criminal justice that promotes healing efforts as opposed to punishment for crime. If we focus only on what will deter or cure a criminal, he becomes a "patient" rather than a citizen with rights. The change in status allows us to mete out indefinite sentences to people we deem unpalatable. Simply put, we end up with criminal justice without the justice.

As my frustrations mounted, I began generating increasingly adamant memos and recommendations. I did have some small successes I managed to implement a new grievance policy, abuse policy, and the creation of new Resident Advocate and Ombudsmen positions but these amounted to practically nothing in the face of what the residents needed.

When a new superintendent arrived in the autumn of 1997, he immediately hired a consultant to "improve trust and rapport between staff and residents." The newcomer began doing some of the things I had already done including infuriating the staff.

Seeing that my days were numbered, I decided to write a report to Judge Dwyer. Administration was no longer responding to my memos or recommendations, and I was being denied access to meetings. I filed my report at the end of 1997, and my position as court-appointed ombudsman was eliminated shortly thereafter, to be replaced by the SCC ombudsman who spent 10 hours per week on the job and a "resident advocate" who spent 20 hours per week among the residents.

The court ruled that I should be seriously considered for both positions, but I wasn't invited to apply for either one. The people now filling the jobs have temporary contracts, with the unspoken understanding that the positions will be eliminated once Dwyer's injunction is lifted.

In short, my tenure ended with a system still in place that can incarcerate citizens indefinitely, on the theory that they are diseased. And by ensuring that they are not provided the means to a cure, we can ensure that they stay imprisoned for life. If we care about our community, if we care about our fellow humans, if we care about ourselves, this insidious practice must cease.

I am not necessarily advocating that the program be closed although that would probably be the most cost-efficient and least burdensome solution. Failing that, the SCC's sole purpose should be to direct its energies toward the safe and positive recovery of these people all of whom are victims in their own right. At the very least, the state should provide adequate, confidential treatment outside the purview of prosecutors. And the SCC should be subjected to juridical review every six months as a check against the instincts and cynicism of prison-system bureaucrats who cannot be made to believe in the possibility of rehabilitation. Every resident should be afforded the opportunity to demonstrate progress. Legislators should be working on laws that shape and direct these residents' return to the community in a safe and healthy way for both communities and residents. The state must provide treatment with a possible end in sight instead of punishment without end, as it now does.

[The author began her employment with the DOC in 1984 where she worked in the Twin Rivers prison mailroom. In 1998 she transferred to Community Corrections where she produced pre-sentence investigation reports, mainly on sex-offenders. She took a leave of absence from the DOC to take the court-appointed ombudsmen position at SCC. Thereafter she resigned from the DOC and now heads the non-profit Whitestone Foundation, whose mission is to advocate justice for individuals incarcerated under civil commitment schemes, to unite supporters in non-violent protest against injustices suffered by such persons, and to facilitate a critical examination of civil commitment schemes by law makers, the judiciary, and the public. The author can be reached at: Whitestone Foundation; PO box 1138; Bothell, WA 98041-1138; e-mail: This article was adapted from one previously published in the Seattle Weekly .]

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