State’s sexually violent predator law used only rarely
In 2007, when New Hampshire began allowing the most dangerous sex offenders to be held past the end of their sentences, officials worried they might need a new facility to house all the people who would be committed.
Six years later, though, that projection hasn’t panned out.
Only two people are being held under the state’s sexually violent predator law. And two counties – including one with the second-highest court caseload in the state – have not initiated even one civil commitment.
The route, which can result in inmates being committed for treatment past their sentence in five-year increments, is complex and includes a jury trial where a prosecutor must prove the inmate has a mental abnormality that makes him likely to re-offend. The law, aimed at the most extreme cases, is deliberately narrow, and many county prosecutors who spoke with the Monitor said they use it infrequently because they rarely have cases they believe fit the statute.
But other prosecutors – particularly those who have gone through the process at least once – point to factors like funding, limited sentencing options under the statute and restrictions placed on what evidence is admissible in court as deterrents to using the law.
No county attorney said those challenges would keep him from going forward with a civil commitment if one was warranted.
But many said they will avoid it if they can.
“The (sexually violent predator) civil commitment process is flawed,” Merrimack County Attorney Scott Murray said. “And that is what necessitates the use of creative alternatives to protect the public.”
Last week, Murray’s office did just that.
After filing a civil commitment petition last year against 64-year-old Denis Gagne, a child rapist whose sentence was set to expire in June, prosecutors pulled the case on Wednesday when Gagne pleaded guilty to another assault on one of his prior victims.
The crime happened in 1989; his then 7-year-old victim is now 30.
Passing the civil commitment law was former governor John Lynch’s top priority in 2006, a year when he was running for re-election. Earning the strong support of Democrats and Republicans, the legislation passed quickly and by a wide margin.
Under the law, county attorneys are notified by the state prison when an inmate who has committed one of several applicable crimes is nearing release. The Department of Corrections was unable to provide data on how many notices it sends out annually, but officials said that in general the number could range from none to about 20 each week. Several county attorneys told the Monitor that a majority of those inmates are granted parole, meaning they have likely completed sex offender treatment and wouldn’t qualify for an extended sentence.
If a county attorney believes a person they’ve received notice for remains a danger, they can ask for a review by the state’s multidisciplinary team, a group of licensed psychiatrists and psychologists who specialize in sex offender diagnosis and treatment. That’s happened 34 times since 2007.
In 11 of those cases, the team decided the person was a sexually violent predator, a ruling that allows prosecutors to file a petition with the court.
Geoffrey Souther, who has been chairman of the state’s multidisciplinary team since the law created it, said that initially he and others anticipated receiving many more requests. One expert, he remembers, estimated that most states with sexually violent predator laws see an average of five civil commitments each year for every million people in the state.
Six years after the law took effect, that means New Hampshire could have seen anywhere from nine to 57 people committed by now, Souther said.
“We were all collectively saying, ‘Oh my goodness gracious. How are we going to do this?’ And we were thinking that we were going to get absolutely swamped with referrals from county attorneys,” he said.
Instead, the multidisciplinary team has received requests at a steady but modest rate, ranging from two to nine per year.
The 11 inmates they concluded were sexually violent predators have resulted in just two commitments: William Ploof, who was convicted by a jury, and Thomas Hurley, who agreed to a three-year commitment without going to trial. (That period is ending soon, and the Hillsborough County prosecutor who handled Hurley’s case said he recently filed another petition to keep him incarcerated for another five years, as the law allows.)
In Merrimack County, prosecutors initiated but then dropped two cases, Gagne recently, and William Decato shortly after the law passed.
Deputy Attorney General Ann Rice, who helped write the legislation, said last week it doesn’t surprise her that New Hampshire’s numbers aren’t in line with the civil commitments from other states because the law is geared to address a small but dangerous group.
“It’s a pretty arduous process to go through,” she said. “I think the county attorneys have been very diligent in terms of looking at the people who are potential candidates and deciding whether they should pursue the sexually violent predator process.”
Part of that decision includes weighing the risk involved in a civil commitment petition, according to Murray.
The law is essentially all-or-nothing. For instance, if prosecutors had pursued the sexual predator process against Gagne and didn’t convince a jury that he has a mental abnormality making him likely to re-offend, he would have walked free with no oversight.
Instead, prosecutors charged him with a crime more then two decades old and accepted a plea agreement in which they dropped the commitment attempt and Gagne agreed to spend up to seven more years in prison.
Equally important, according to Murray, was Gagne’s agreement to be supervised by the Department of Corrections for the rest of his life.
Supervision, or other alternative sentences, aren’t options under the predator law. According to Murray and others, they should be.
“They literally walk out. They have no support, no supervision, no treatment, no money. There is no transition,” said Michael Valentine, a prosecutor in Hillsborough County who has handled seven civil commitment cases, far more than anyone else in the state. “That is something that most other states have developed.”
Dan St. Hilaire, who brought the state’s first civil commitment petition when he led the Merrimack County Attorney’s Office, knows that frustration acutely. His office dropped that case against Decato when experts ultimately concluded he didn’t fit the scope of a sexually violent predator.
And though Decato had another suspended sentence hanging over his head at the time he was released, St. Hilaire was unable to impose it or any form of supervision. Less than two years later – after he had “maxed out” of prison without completing sex offender treatment – Decato raped a woman in Manchester.
“That’s why supervision is so important,” St. Hilaire said. “You can get somebody to do the treatment or do home visits, make sure they’re not drinking and using other drugs, make sure they’re checking in with a mental heath worker, make sure they’re taking their medications, make sure they have a job and are compliant. All of theses things are very important and are not tools under this particular law.”
It’s unclear how supervision would work under the law and if prosecutors would still need to prove that an inmate was a sexually violent predator to see it imposed. But St. Hilaire speculated that the parties could agree to supervision as a way of avoiding a trial, or a judge could impose supervision rather than commitment.
Essentially, St. Hilaire said, it would be a bargaining chip.
“When you’re negotiating a case, the main factor for the respondents is they’ve already served their max sentence. They have nothing to lose (if they go to trial). All you’re asking is for them to serve more time,” he said. “The chances of a plea bargain in that case are very low.”
Weighing the risk
When weighing whether to continue seeking a commitment against Gagne – which could have resulted in life confinement if he didn’t succeed in treatment – or taking a plea deal, Murray said he and Assistant County Attorney Kristin Vartanian looked to the cases in Hillsborough County for guidance.
What they saw worried them.
Judges there, according to Valentine, have limited the use of evidence helpful in proving the basic element of the case, that the person is likely to re-offend. In assessing that risk, psychiatrists can use an assessment known as the Static-99R that predicts a person’s risk of recidivism.
The experts then compare those numbers to data sets of other sex offenders, ranging from low to high risk. The low-risk numbers include all sex offenders, including those who have been successful in treatment, while the high-risk set includes people who have failed counseling, served multiple sentences for sexual assault or had violent tendencies.
Valentine said judges in Hillsborough County have only let evidence in at trial comparing the inmate to the lowest-risk group.
“They’re not allowing us to say, ‘Look our person is more like this high-risk group.’ . . . So we’re being limited in the usefulness of the actuarial instrument,” Valentine said, adding that he believes the approach creates an artificially low appearance of the person’s likelihood of re-offending.
According to Valentine, the same problem hasn’t arisen in other states where legislatures have validated the use of the Static-99R within their civil commitment laws. He added that the test has changed in recent years, which makes it suspect to judges in New Hampshire who aren’t as comfortable with the assessment as those in states with long-standing predator statutes.
Lawmakers here need to follow the example set out by other states, according to Murray, who said that until there is a set standard for using the assessments, he’ll continue looking for creative ways to avoid the law unless it’s completely necessary.
“The Legislature needs to amend the statute to deal with the evidentiary issues associated with the introduction of psychiatric testimony, the expert opinion testimony,” he said. “And until they do, this is going to be a real tough process to go through. And it is the last resort.”
Expensive to prosecute
All the county attorneys who spoke with the Monitor are quick to say that money will never keep them from filing a civil commitment petition if one is warranted. But funding, they added, is a major challenge associated with the law.
Murray estimates that one civil commitment petition costs about $30,000 to prosecute, at least 10 times more than an average case. The money goes mainly to costly experts who spend hours reviewing the inmate’s file, testifying at initial hearings where a judge decides what evidence to allow and then speaking at the trial.
While Valentine said his office allocates money specifically for civil commitment petitions each year, that isn’t the case in most offices where the law is used less frequently.
When Murray considered prosecuting a civil commitment in early 2011, he asked for and received a $30,000 appropriation from the county. But that case, much like Gagne’s, was settled when the inmate pleaded guilty to another crime. Murray said he used some of the remaining money to begin the case against Gagne last year.
In Coos County – one of two counties, along with Rockingham, that hasn’t made any requests of the state’s multidisciplinary team – there is no appropriation in the budget for such cases. Coos County Attorney John McCormick said he’d find the money if an applicable case came across his desk.
Finding the time to prosecute it, he said, would be the bigger challenge because his office has just two attorneys.
For offices that don’t have someone on staff familiar with the law – like Valentine in Hillsborough County or Vartanian, who prosecutes the cases in Merrimack County – taking it on is a daunting task. Ideally, many said, a team at the attorney general’s office would work on cases across the state, the same way the public defender’s office handles them. (Inmates facing a civil commitment are typically defended by Anthony Sculimbrene, who did not return a request to be interviewed for this story.)
Instead, the cost and learning curve falls on each individual county, a move Murray called a “downshift.”
“The state is responsible for correcting them or modifying their behavior (while in prison),” he said. “And I think the state ought to bear the cost of continuing their confinement for treatment purposes if they don’t meet an appropriate standard.”
Few changes made
Just weeks after the law went into effect, some legislators and officials began to question if it was rushed through the State House without being properly vetted. The sexually violent predator legislation includes about two dozen provisions other than the civil commitment process, and most of the debate at the Legislature focused on changes to mandatory minimum sentencing standards.
Mostly, though, people agreed that it was a good law that would be tweaked in the future.
“I think we’ll likely revisit this bill several times,” then-Rep. David Welch, chairman of the House Criminal Justice Committee, said in early 2007.
That hasn’t been the case, though. The law was edited in 2009 and 2010 to change mostly procedural issues, according to Rice. In 2009 the Legislature lessened the severity of deadlines imposed in the law in response to three cases being dropped in Hillsborough County because court deadlines were missed.
It makes sense that there haven’t been substantive changes, according to Rice.
“There have been so few of the proceedings under this law,” she said.
“You know, the more a law is used and applied, that’s when you find out when there are problems or what needs to be changed.”