To Catch-22 a Predator
At the Manhattan Psychiatric Center on Ward's Island, a man named Michael Parker is stuck in a strange legal limbo.
He's in custody, but he's not serving a criminal sentence. He was actually released from state prison in the spring after completing his required stay there.
He's also not been officially committed as a psychiatric patient. He's being held in a separate area from the patients at the center who suffer from severe psychosis.
And although Parker's not going anywhere, no one, not even his attorneys, is pushing for his immediate release.
Like several other men in custody at the center, Parker is stuck because he's facing a choice that is, depending on your view, either diabolical or diabolically clever.
If he is officially committed, the only way Parker can ever be released is by volunteering to undergo psychiatric treatment that may require him to divulge incriminating information about his past—information that in turn could be used to send him right back to prison. Parker can't be forced to undergo the treatment, but he also can't leave until he agrees to participate. And participation, he knows, may mean prosecution and many more years in the state penitentiary.
Like the other men sharing his fate at the center, Parker has refused to volunteer, which is keeping him in custody indefinitely.
It's a catch-22 of serious proportion. But it's hard to find anyone feeling very sorry for him.
That's because Parker is a rapist, and for some New Yorkers, the limbo Parker finds himself in may be exactly what they've been hoping for.
Like other states, New York has wrestled with what to do with repeat sex offenders who serve their prison sentences but are still likely to continue victimizing others upon their release. In 1997, the Supreme Court decided that states could keep such people in custody using civil law, in a manner similar to committing mentally ill people to institutions. By labeling such offenders as mentally unfit and in need of treatment, their custody can be indefinite.
In the 19 other states where sex offenders are being held as patients, mental-health advocates, victims' advocates, and lawyers have criticized the high price and low rehabilitation rates of those programs; many say that focusing resources on the worst predators ignores a much larger population of less dangerous sex offenders who are often related to or friends of their victims, and who receive little treatment.
In March 2007, however, with overwhelming support from both political parties, New York passed its own civil-commitment law, sending Parker and others who were finishing their criminal sentences into secure psychiatric facilities.
A little more than a year later, 10 men have been moved to Ward's Island, at a cost to taxpayers of $200,000 per patient each year. (Keeping them in state prison costs considerably less—about $35,000 a year.)
By law, they can only be held past their criminal sentences if they are getting psychiatric treatment. But, until recently, none of them were.
Instead, they sat around playing Nintendo.
To get to the Manhattan Psychiatric Center on Ward's Island, you cross a bridge strewn with discarded needles and broken glass, trek through the eerily deserted island, and approach a tall fence adorned with spirals of barbed wire. For the more than 300 people who call this place home, their ticket here was a diagnosis of ailments like schizophrenia, depression, bipolar disorder, and even psychogenic polydipsia—a compulsion to drink so much water that seizures and cardiac arrest can result. Some patients are delusional or paranoid. One patient, for instance, claims to be from Planet Pacifica and says that she has a body different from humans.
Things are different inside the sex offenders' locked ward. Most of the men there are not typical psychiatric patients: They are not on heavy anti-psychotic medications, don't have hallucinations, and don't do things like set fires or beat their heads against the wall, as patients in other wards have been known to do. These men spend most of their hours playing video games, watching television, or writing letters in the computer room. (They're not trolling on MySpace; they don't have Internet access.) Although they're segregated from the other patients, the men are sometimes allowed into the center's café, where they can buy food and soda. At night, because the entire ward is devoted to just 10 men, most retire to a private room. Some of the men reportedly like their accommodations. It is, after all, an improvement over prison, or even the shabby halfway houses they might have gone to if they were released.
The Manhattan Psychiatric Center is supposed to be just a temporary stop for these men while they're in the city for court hearings. If the state successfully makes the case that they suffer from a mental problem that compels them to rape or molest, they'll be officially committed and locked away at psychiatric facilities upstate, where scores of other sex offenders are being housed already. However, about half of the men in the sex-offender ward have been cooling their heels there for more than two years. They are the originals, the men committed under former Governor George Pataki's initial attempt at civil confinement.
In 2005, Pataki directed the state to use existing mental-hygiene laws to commit 123 dangerous sex offenders after their release from prison. He announced that he wanted to "push the envelope" of the law to keep pedophiles and rapists off the streets. Although the public was on his side, the courts believed that he had pushed too far. An appeals court found that the practice violated the men's rights by confining them without any sort of judicial hearing. By 2007, most of those men had gone through court-ordered hearings and been freed.
Spitzer's Sex Offender Management and Treatment Act enacted a newer process of civil confinement that entails psychiatric exams, case reviews, probable-cause hearings, and trials. The new law paid more attention to due process, but the politicians who supported it spoke not of civil rights, but of victims. Assemblyman Joseph R. Lentol, who co-sponsored the law, says that civil commitment is a "draconian" measure that should only be used for the worst of sexual predators. He freely acknowledges that the law may place these people in a difficult position: "Those folks who have sexual proclivities have a hard time opening up to a psychiatrist in order to get the help they need, and that is a problem—but I dare say that is not the major problem. The point is, we have found a way to get sexual predators off the street."
And Lentol also acknowledges those who are ultimately committed may never be freed: "What judge is going to write the order to release someone knowing he is the worst of the worst, and knowing the kinds of crimes he committed to get in there?"
As for the high cost of committing these men, Lentol doesn't think the public will mind. "I think that if society gets the benefit of being protected, of course it's worth it. I mean, how much is it worth to protect a child or a woman from a potential rapist? Is it $200,000? Is it $200 million? There are many families who would tell you the price is priceless."
In the law's first year, 36 men have been committed to mental institutions, while approximately another 140 are still going through the process to determine if they are, as the attorney general's office believes, violent sex predators with mental ailments. Most of the men would have come off parole or been released from prison this year.
Whether they have already been committed or are, like Parker, in legal limbo awaiting trial, the men are considered patients in the Office of Mental Health's sex-offender treatment program. The agency created the program in 2005 to treat an expected wave of rapists coming into its care, but so far, it has been of little use.
According to a program description provided to patients at the Manhattan Psychiatric Center, the only way to successfully complete treatment and be released is to acknowledge past sexual misdeeds and express a "willingness to discuss sexual offenses." But acknowledging criminal behavior could be used as evidence against patients to keep them locked up.
"They have to write an autobiography of offending history. If I was a person that had certain crimes that were not charged, I would not want to admit that," says David Tull, an attorney for some of the men being held in the Manhattan Psychiatric Center. The curriculum given to patients there reads: "This process involves honesty and self-disclosure about thoughts and past behavior that may prove to be difficult and embarrassing." Patients could not advance past the first phase of treatment unless they signed a form acknowledging their offenses. At the same time, the curriculum states that there are limits to the confidentiality of what goes on in the treatment.
"It demanded a lot of stuff that could possibly incriminate them a little later on," Tull says. "It's a real catch-22."
But only if the subject has something to divulge.
The New York State Association for the Treatment of Sex Offenders tried to warn state agencies that patients in the new program might refuse treatment. In a position paper, the association wrote that subjects "are not likely to volunteer information about other, as-of-yet undocumented offenses if that volunteered information is going to reduce their likelihood of release." It also wrote that treatment would not be very effective if the men were holding back. "There is no easy answer to this issue," the association said. At the Manhattan Psychiatric Center, the answer has been simply to ignore the problem.
When federal inspectors dropped by the center for a couple of days last fall, they discovered that none of the sex- offender patients had signed consent forms in the two years the ward had been open. According to a report from the Centers for Medicaid and Medicare, one patient in the ward said that because he refused to sign the form admitting his crimes, he had simply repeated the first phase of the sex-offender treatment program four or five times without advancing. "Most of the program is more theoretical—not talk about incidents," the patient told inspectors, adding that most of the talk was about "definitions of paraphilias, cycles of sex offenders." Another patient diagnosed with pedophilia had been repeating phase one of the treatment for about a year. The inspectors concluded that these patients "had reached their maximum level of treatment" and were "being retained in the facility even though they were not receiving treatment based on their treatment needs."
The federal inspectors also weren't very impressed with the work being done in other parts of the center. Checking in on common areas, inspectors found 100 or more patients crammed into rooms for testing, group therapy, or educational presentations, some of whom had fallen asleep while staff members chatted about teenage fashions or current events. Medication was dispensed to calm down agitated patients, but was not documented appropriately. Patients who tried to injure themselves were put in wrist-to-waist restraints, but still emerged bloody. A patient in one of the coed wards alleged that she had been raped by a fellow patient after a staffer left a post. (The accused rapist was not from the sex offenders' ward.) For these and other problems, the feds threatened to cut off the center's funding.
That threat resulted in a flurry of policy reviews, policy changes, and staff trainings at the center. The sex offenders' ward was caught between two contending authorities: The feds wanted the center to release these men, who were burning through wads of taxpayer dollars with no treatment, but state law required the facility to keep them locked up for voluntary therapy. Ultimately, the Manhattan Psychiatric Center told the federal government that it couldn't release the patients and refunded the $60,000 that the Centers of Medicare and Medicaid had paid to treat them. From then on, the entire bill for that program would be footed by state taxpayers. The facility did make one concession: It changed the sex-offender treatment program, finally allowing the men to continue on to phase two without signing a consent form. Many of the men in the ward have since begun treatment in earnest, but reportedly at just six hours a week. (The Office of Mental Health couldn't confirm that number. A spokeswoman said the men are offered a miminum of 20 hours of programming per week, but couldn't provide a breakdown of how many of those hours were devoted specifically to sex-offender treatment.)
At a probable-cause hearing in April, Michael Parker towered above four court officers as they released him from his leather wrist-to-waist restraints. He was back in court, but for once he was not the defendant. He was there fighting the state's attempt to commit him indefinitely to a psychiatric facility. At 53 years old, he has only a bit of gray hair and wears a youthful pair of crisp black Nikes. He sat passively as the proceedings began.
Parker's first conviction occurred almost three decades ago, when he burst into a medical office on Queens Boulevard and grabbed an unsuspecting physician's assistant. She fought back, but Parker, who is at least six-foot-three, overpowered her easily and dragged her by the hair into a nearby auto garage. There, he threw her on the floor and told her that he would kill her, wrapping a rope around her neck. He violently raped her, then left her there alone. The woman emerged from the garage injured but alive, with bruises, cuts, and bite wounds across her body.
Parker was captured later that night and eventually spent 14 years in prison for that crime. After being released on parole, he attempted to rape another woman in 2000 and went back to prison once more. Statistically, he is the kind of sex offender who is likely to rape again, but when his sentence was up last spring, there seemed to be little that the state could do but let him loose and hope for the best.
"I think we're all plowing new ground here," Judge William Wetzel said, acknowledging that there was still some confusion over the year-old process of civil commitments.
The only testimony came from a state psychologist, Erica Francis, who fidgeted as she detailed each of Parker's disturbing sexual acts. After that first harrowing rape, the next incident she described occurred while Parker was in prison in 1996, when he was disciplined for masturbating in his cell while yelling vulgarities and threats at a correction officer. Soon after he was released, he was arrested for attempting to rape an acquaintance and was thrown in prison again. "It's clear that he has a difficult time controlling himself," the psychologist testified.
Parker's lawyers didn't argue that point. They debated, instead, the state's contention that their client was crazy. As the hearing plodded on, it became clear that the transition from inmate to psychiatric patient can be a clumsy one. Most psychologists agree that mental illness is not a prerequisite for sexual violence; some rapists are perfectly sane, at least from a legal standpoint. So instead of having to prove insanity or illness to lock away sex offenders in psychiatric institutions, the law only requires that the offender have "mental abnormalities." It's a vague and unscientific term, and has the attorney general's office working to find mental disorders in men who may have never been diagnosed with any before. Such was the case for Parker, who was diagnosed with antisocial personality disorder, a common diagnosis for criminals, and "paraphilia not otherwise specified," a sexual-deviance disorder that is not actually listed in the psychiatrists' bible, the Diagnostic and Statistical Manual of Mental Disorders.
The diagnosing psychologist, however, had never actually met Parker. Like everything else in the treatment program, a psychological exam can only be administered to a willing patient. Parker had refused. So the psychologist made a clinical diagnosis based only on records of his criminal history and on a stint that Parker did at a psychiatric hospital when he was just 13 years old. Based on those documents, Parker was assigned a score indicating the possibility that he would "re-offend." An inmate's score goes up for having victimized men or strangers; apparently, men who attack women who are known to them are considered less dangerous. More points are added if the offender was under the age of 25 at the time of his first attack, or if he has other, nonsexual convictions on his rap sheet.
Parker's score was high, and Judge Wetzel ultimately sent him back to the Manhattan Psychiatric Center to await another court date later this month. If he is officially committed at that time, he will be shipped upstate, either to the Central New York Psychiatric Center in Marcy or the St. Lawrence Psychiatric Center in Ogdensburg, where the state has scores of empty beds in preparation for the continued influx of sexual predators.
"The cost of providing this treatment in the U.S. is going to be extremely high," says Paul Fedoroff, an expert on sex-offender treatment and director of the Sexual Behaviors Clinic at the Royal Ottawa Mental Health Centre. "It's much more difficult to treat somebody who feels coerced into getting treatment," he says. "My suspicion is that the idea of the legislation was to prevent people from getting into the community, rather than to provide them with state-of-the-art treatment."
That seems fairly certain. And, so far, no agency or legislator has questioned the cost of civil confinement, and no one but the Mental Hygiene Legal Service lawyers have expressed concern over the lack of real treatment for the sex-offender patients.
Whether by accident or design, the catch-22 will likely keep these dangerous sexual predators locked up for the rest of their lives. The history of civil-commitment laws in other states has shown that, once a sexual offender is committed, it is unlikely that he will ever be released from a high-cost psychiatric facilities. Nationwide, only a small fraction of such people—a little more than 400 out of about 2,700 sexual predators being held in psychiatric facilities—has ever been freed. Most of those were released on legal grounds, not because those states believed the men to be reformed. "It's basically a life sentence," Fedoroff says.
And for many New Yorkers, that may be just fine.
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