Prisoners challenge extended confinement for sex crimes

Sex-crime convicts are held beyond their release dates after the government determines they could still be dangerous

ablythe@newsobserver.comMay 20, 2012 

  • Civil commitment process • Federal prison officials review inmate records for violent sex crimes and child molestation crimes and identify people they will brand sexually dangerous. • A prison psychologist reviews whether the inmate has a serious mental disorder that would justify commitment and considers actuarial models that estimate the likelihood of reoffending. • A Bureau of Prisons panel decides whether to declare the inmate “sexually dangerous.” Such a designation means the inmate remains in custody until a mandatory hearing in federal court. •  A federal judge hears the case and determines whether there is “clear and convincing evidence” the person is too dangerous to release. •  If the judge determines the detainee is “sexually dangerous,” he is detained until that danger is no longer an issue. An intensive treatment program for sexual offenders is offered. •  Sixty days after the declaration, a detainee can go before a judge again and argue for freedom.
  • More information Adam Walsh Child Protection and Safety Act The act was named for Adam Walsh, the boy who was abducted from a Florida shopping center in 1981 and found dead 16 days later. John Walsh, the boy’s father, founded the National Center for Missing and Exploited Children and is host of TV’s “America’s Most Wanted.” Signed on July 27, 2006, by President George W. Bush, the law set up the national sex offender registry and organizes sex offenders into three tiers. The law set up a new civil process for commitment of those declared most dangerous.

The high walls surrounding the Federal Correctional Complex at Butner leave no doubt that it’s a prison.

But for dozens of men held behind those walls, there is a growing question of whether they should be prisoners.

They have served their time and now are being imprisoned not for what they did, but what they might do. They are sex offenders being held – sometimes for years – under a recent federal law that allows the detention of those deemed so dangerous the government will not risk their release even when their sentence is complete.

Now, with the bulk of the detainees being held at Butner, federal courts in North Carolina are trying to sort out who should remain in and who should be released from this legal limbo.

Lawyers for the detainees say the extended captivity reflects a law that applies a different and unfair standard to sex offenders. They also say many detainees do not meet the level of threat the 6-year-old law requires for indefinite detention.

“The law doesn’t seem fair to me,” said Raleigh attorney John Keating Wiles, who has represented several of the men. “Traditionally, we don’t take away people’s liberty because they might commit a crime.”

The U.S. Department of Justice has sought to extend the confinement of at least 136 sex offenders since 2006, but almost half the attempts have been rejected by the courts or dropped by the government.

Of the men being held for hearings, some, indeed, have criminal histories and behavioral offenses inside prison that raise questions about their release into the community.

In some cases, though, it is unclear whether the problems are deviant sexual compulsions or broader mental impairments and illness compounded by drug and alcohol abuse.

By law, a federal judge must rule on whether a detainee is too dangerous to be released.

In the Eastern District of North Carolina, a visiting judge from Michigan has been brought in, and several district judges have been assigned to help clear a backlog of cases that stacked up in the first four years after the law was passed.

Many cases were stalled by the lawsuit brought on behalf of Graydon Comstock, one of the first to be detained as sexually dangerous after serving time for receiving child pornography.

In 2011, a year after the U.S. Supreme Court ruled the government had that authority, a federal court ruled on the merits of classifying Comstock as sexually dangerous and found he did not qualify for commitment.

Eric J. Brignac, a federal public defender who has been involved with many of the cases in the state’s Eastern District, said the commitment procedure has highlighted a societal challenge.

“It’s that tension between liberty and security,” Brignac said.

Expecting bad behavior

Though North Carolina has no such law, 20 states have procedures in place for committing sexually violent predators. Many sexual assault cases are tried in state courts, and those offenders are not in the federal prison system.

Of those in the federal system, there are many whose crimes were committed on Native American reservations, which are federal property.

Each case essentially becomes a battle of the experts, with the government presenting doctors, psychologists and mental health analysts to bolster its claims. The defense brings in experts who offer their own assessments. It is up to a judge to sort through the opinions and evidence.

Andrew Red Star, 37, has been incarcerated since he was 21. On Jan. 3, Senior U.S. District Judge W. Earl Britt declared him “sexually dangerous” and ordered him committed.

Red Star, who pleaded guilty in Montana federal court in 1996 to two counts of aggravated sexual assault by force, has been diagnosed with bipolar disorder, an anti-social personality disorder, depression, a dependence on alcohol and marijuana, and as suffering lingering effects of fetal alcohol syndrome.

He was arrested for raping a 66-year-old disabled man after entering his home through an unlocked door and later that day entering a woman’s home and sexually assaulting her by grabbing her crotch, according to court documents. The woman was able to grab a hammer and force him out of her home. Though Red Star entered guilty pleas, he claims to have no recollection of the incidents.

That capped a series of sexual assaults that were tried in a tribal court. In 1993, he was involuntarily committed for alcohol treatment.

Prosecutors contend that Red Star was cited for sexual misconduct during his federal incarceration. Court records show a marked decline in his misconduct after changes to his medication regimen in November 2009.

During a bench trial late last year, physicians for the government argued that Red Star might have difficulty staying on prescribed medications and difficulty controlling his urges if he were outside a highly structured environment such as Butner.

“Because Red Star has been unable to control his behavior even in the most supervised setting, the court concludes that he will have serious difficulty in refraining from sexually violent conduct if released,” Britt stated in his order.

A life of alcohol

David Gloshay, 38, was born in Santa Fe, N.M., but spent his early childhood years at his father’s home in White River, Ariz., on the Fort Apache Indian Reservation. His aunt raised him until his parents divorced when he was 5 years old. Then he and his siblings moved with his mother to the Jicarilla Apache Indian Reservation in northern New Mexico. But his mother had problems with alcohol abuse, according to court documents, and when he was 8, the courts placed him in a dormitory where he lived until he was 18.

After that, he moved back and forth between the two reservations of his earlier years, staying with his aunt in Arizona and his mother in New Mexico.

Gloshay was first convicted in 1994 for an offense in July 1993 that involved a 17-year-old girl who had been drinking with him.

Gloshay accepted responsibility and put the following in a written statement at the time: “I have been abusing alcohol regularly for a number of years. When I drink, I usually do so until I black out. I believe I drink because that is what my mother did every day while I was growing up.”

He wrote that he might have misunderstood the girl when she asked their male friend to leave them alone. “I do not recall what else happened after that and until I awoke, alone, in the area where we had all been drinking.”

There was a report, too, of him climbing through a window into the bedroom of a woman in April 1993 on the Fort Apache Reservation in Whiskey Flat, Ariz., and grabbing her, throwing her onto a bed and engaging in sexual intercourse against her wishes. That case, though, was not prosecuted as part of a plea arrangement with prosecutors in New Mexico.

When later asked about the 1993 Arizona events, he was reported as saying the woman was lying, that he only talked with her, then went to his cousin’s house to drink and stayed there all night.

After his release from his four-year sentence in the New Mexico case, Gloshay was in and out of trouble with the law for not attending substance-abuse counseling and failing to notify the right people of changes in his residence. He was arrested in 1998 and released to the custody of his girlfriend at the time.

It was that girlfriend, though, who was at the root of the sexual offense that landed him back in federal prison.

In a 2001 conviction based on his time with her in 1998, she stated that he moved into her place without permission, and they lived together for four months.

During that time, according to court records, he beat her with his feet and fists and sexually abused her, becoming rougher and rougher after she told him to stop hurting her.

A written statement from him in his court file again makes reference to his alcohol abuse and his girlfriend’s reaction.

“I was able to stay sober sometimes, but other times, when I drank (she) did not want to be with me and that made me upset. On the date of this incident, I was drinking and she told me to leave. I got angry and forced her to have sex with me. She became pregnant as a result. For a while after that, we lived together and I helped her with the baby.”

But the families got involved, telling him the child was not his, that an old boyfriend was the father, a statement that angered him.

“The worst part of this case is that because of my conduct, I will not have a relationship with my son,” Gloshay wrote. “I will be in prison for a long time and he will grow up without a father.”

In October 2007, six months before his scheduled release, Gloshay was transferred to Butner. Thirteen days before his release date, the government began proceedings to classify Gloshay as “sexually dangerous.”

In a court document submitted in November, Raleigh attorney Wiles argued that Gloshay suffers from alcoholism, but the government had not proved dangerousness “sufficient to justify commitment by clear and convincing evidence.”

Gloshay awaits a ruling.

Worse than criminal detention?

Thomas Shane Matherly, 36, who was scheduled for release in November 2006 but awaits a hearing on whether he’s sexually dangerous, was in New Bern in March in a federal courthouse making an argument similar to that made by the so-called “enemy combatants” detained at Guantanamo Bay.

He argued that he is being wrongly held and is seeking damages of more than $50 million for emotional pain and suffering.

Court filings in his case offer a picture of life inside Butner for sex offenders caught in the legal limbo.

His life is like that of a prisoner. He wears an inmate uniform and eats in the prison mess hall.

Matherly contends that he and others in a similar circumstance often are called “baby rapers” and “child molesters,” taunts that “very likely could lead to a physical confrontation at some point.”

In some ways, Matherly contends, his detention under the civil procedure has been more restrictive than when he was serving his sentence for possessing child pornography.

Prisoners can take classes in blueprint reading, carpentry, car care and electrician skills, he contends, but detainees may not. Narcotics Anonymous and Alcoholics Anonymous sessions are not available to the detainees, he says.

The detainees are not given as much access to the recreation yard, he complains, or the recreation center with TVs, pool tables, basketball courts, exercise equipment, a band room and hobby-craft rooms.

“The government cannot have it both ways,” Matherly stated in court documents seeking damages.

If the confinement is part of a civil process, he further stated, he should not be confined like a criminal.

“Civil means civil,” Matherly stated, “with all the rights that accompany it.”

Matherly argues that he has “the right to be free from harm.”

“Because he is a civil detainee who is labeled ’sexually dangerous’ he is clearly in harm’s way by being forced to be in the physical presence of medium security federal prisoners,” Matherly’s petition to the court contends.

“As the court is likely aware, in a prison setting, a sex offender is the most despised type of inmate. Many are the victims of assaults at the hands of other prisoners in our nation’s prisons.”

No treatment yet

The men branded by the government as sexually dangerous ostensibly are being held because they are mentally ill and need treatment, but few have enrolled in the sexual offender treatment program.

Lawyers and mental health workers advise them to be careful what they say in therapy, acknowledging that it could be used against them at trial.

“It’s a Catch-22,” said Fred Berlin, director of the Sexual Behaviors Consultation Unit at Johns Hopkins Hospital in Baltimore.

Some question whether the underlying notion behind the new commitment procedure is about treating the sickest and most dangerous or more about issuing life sentences in cases where criminal law would not otherwise allow.

Though prison statistics show low recidivism rates among sex offenders, high-profile cases of repeat offenders have left a lingering belief to the contrary.

“In general, sex offenders are seen as different,” said Brignac, the public defender. “I think, in part, it is because we see them as incurable.”

Blythe: 919-836-4948

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