ST. LOUIS • In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.
The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.
With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend. The program has been praised and criticized since it began in 1999.
Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington. They entered the program after completing prison sentences for sex crimes.
“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.
“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”
Those issues will be addressed soon in the remedy portion of the trial. A hearing will be held Sept. 29.
“I can’t believe it, man,” said John Van Orden, 53, who lived in the Springfield, Mo., area before being committed to SORTS in 2005. “It’s hard to describe after all that we have been through here. Finally, we get some light at the end of the tunnel.”
The class-action lawsuit began in 2009.
Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”
Nanci Gonder, a spokeswoman for Attorney General Chris Koster, said by email: “We are reviewing the ruling and decline to comment further on pending litigation.”
Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool. He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.
Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.
The judge agreed. In her ruling, she said the state of Missouri has not:
• Performed annual reviews in accordance with the Sexually Violent Predator Act.
• Properly implemented any program to ensure the least restrictive environment.
• Implemented release procedures, including director authorization for releases, in the manner required by the law.
At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system. In June, a federal judge in Minnesota ruled that indefinitely committing sexually violent predators is unconstitutional when used as punishment.
While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society. They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.
Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street.
In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.
“The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added. “The setting would likely enhance their treatment and provide motivation.”
The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.
Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.
With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.
Joel Poole, chief litigator for the attorney general’s office, told the court in April that the program had passed federal scrutiny in a Civil Rights Act case brought by a patient in 2009. U.S. District Judge E. Richard Webber weighed complaints and concerns in that case about treatment and wrote in his decision that some treatment probably fell below professional standards but not enough to “shock the conscience” to be declared constitutionally inadequate.
“SORTS today is a substantially better program than it was in 2009,” Poole said in closing arguments. “It is moving toward its goals.”
He said the program became accredited as a mental hospital and provided treatment with a series of phases to work through, including the goal of release.
“This program is working hard to get people out,” Poole said.
But, in her ruling, Fleissig wrote that “systemic failures have created a pervasive sense of hopelessness at SORTS that is undermining what little improvement the SORTS treatment programs have made.”
Since the first phase of the trial ended in April, the Department of Mental Health said two patients had been allowed to leave SORTS, but under certain conditions.
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