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In 1999 a tough-on-crime state legislature could tout itself as getting even tougher on criminals. It passed a new, politically appealing law that would keep sexual predators under supervision even after they'd served their prison sentences.
The statute created a process designed to cull the worst of those convicted of violent sex crimes through a civil commitment process to intercept them when they completed their years in confinement. A jury would have to find only that they were likely to strike again -- then the ex-convicts could be put into outpatient treatment programs under strenuous regulations such as electronic monitoring. Better yet, they'd be back in jail if they violated the conditions of their commitment.
It sounded great, and the publicity played well for the politicians.
But after almost two years and at least $2 million in state funding to set up the program, the first ex-con has come to trial -- and won.
At the four-day trial last month, the Special Prosecution Unit for the state presented evidence about how Billy Glenn Johnson had raped a 16-year-old when he was 18. He was sent to prison in 1985 for that crime. Two years later Johnson raped a fellow male inmate while serving time for the earlier rape, adding more time to his punishment.
There was conflicting psychological evidence, and Johnson himself took the witness stand in the civil trial. He admitted to his crimes, explained them, and told jurors that he'd reformed while in state prison. His record supported that contention; for the last several years in custody, Johnson had no reported disciplinary problems whatsoever.
"The jury just didn't believe he was the kind of person this statute was meant for," says David B. O'Neil, a private attorney who headed the State Counsel for Offenders office, which defends the convicts.
O'Neil says the verdict of the jury of eight women and four men demonstrates the severe flaws in the commitment procedures and the law. The Texas Department of Criminal Justice is applying unproved testing and screening methods in its efforts to come up with the worst offenders as candidates for commitments, he says.
"With all the people being released from prison, I find it hard to believe that this guy was the worst," O'Neil says. "I think what it comes down to is that the [prison system's] assessment tools have not been validated by research."
Walter Pinegar, with the Special Prosecution Unit, concedes that there are procedural problems with the new law. He says those are being worked out in the current legislative session, although he disputes O'Neil's contention that Johnson was unworthy as a candidate for commitment.
Pinegar says that jurors told attorneys after the trial that they did not believe Johnson was a violent predator -- a demonic type who would stalk victims -- as defined by the statute. Instead, they viewed him as more of an opportunist for sexual crimes.
Jurors also may have been swayed somewhat by Johnson's statements that he planned to return to his hometown of Marshall in East Texas, Pinegar says. By law, all the commitment trials are conducted in Montgomery County. So the Conroe jurors may have been more lenient on someone who was not going to remain in their area, prosecutors said.
After the first verdict, Pinegar says, the unit is likely to try future cases with more of a criminal prosecution emphasis on the offenses and defendant.
"You never know with a jury," Pinegar says of the first verdict. "They can be unpredictable."
O'Neil, however, says the whole process needs to be revised. "The Special Prosecution Unit got handed this white elephant. They are doing the best job they can with it, but they've still got to deal with the statute itself."
The prison system culls inmates who are about to be released and were convicted of at least two sex-related incidents of violence. Using a battery of disputed tests and other indicators, they try to screen those down to 15 to be tried each year. O'Neil says that in reality the selection process is hardly based on sound scientific knowledge. "There needs to be years of research; these assessment tools just haven't been around that long," he says.
The State Counsel for Offenders office is attacking the law in the appeals courts, arguing that it is a quasi-criminal process that violates the rights of defendants on several fronts. Prosecutors say it is a fair, balanced approach to the serious problem of repeat crimes by sexual deviants.
Both sides concede that the original law was plagued with impossible provisions. It mandated trials within 120 days of the commitment filing. However, there was no way to complete the required tests, exchanges of evidence, deposition and other pretrial matters in that amount of time. As a result, the state was forced to dismiss many of the actions. Three others have ended in settlements, with ex-convicts agreeing to submit to various conditions, monitoring and treatment.
"For the longest, there was no supervision, nobody there to look over their shoulder," Pinegar says. "People realized that something's got to be done."
With about 20 commitment cases now pending, O'Neil says his predictions of dramatic growth for the program are coming true.