Complex sex offender system isn't working, say lawmakers and lawyers

Handy, Ryan Maye; Apr 11 2013

Complex sex offender system isn't working, say lawmakers and lawyers

RYAN MAYE HANDY • Modified: April 11, 2013 at 12:00 am • Published: April 11, 2013

When he was 22 years old in 2003, Eric Martinez met a girl online. She was two months away from her 15th birthday, and he knew it.

Both were living in Colorado Springs, and after two months of chatting online, they met and had sex. The girl told Martinez that she had been sexually involved with men his age before, so he thought it was no big deal, he said.

“I kind of got myself into feeling I was her friend,” Martinez said. “If I said no, she was going to take that wrong.”

During the next couple of months, they had sex three or four times, and in June 2004, Martinez was arrested for sex assault on a child, after the girl’s parents discovered their relationship, Martinez said.

The arrest marked the beginning of a long, winding trip for Martinez through the correctional system, a trip determined by Colorado’s Lifetime Supervision Act of 1998.

Concern for public safety was at the heart of the act’s creation; it was designed to keep people convicted of the worst types of sex offenses behind bars, possibly for life, while using therapy to treat others with lesser offenses, allowing them to transition back into society and live under strict parole requirements.

But the system isn’t working as lawmakers intended.

The system has become an expensive way to warehouse sex offenders of all types, state lawmakers and lawyers say. Thousands of offenders, including Martinez, are serving what are essentially life sentences in prison, where release on parole depends on the availability of money and treatment spots. Of the nearly 2,000 Colorado sex offenders sent to prison under the Lifetime Supervision Act, 168 have been released.

Costs for the treatment program are rising yearly, as more offenders require treatment and others are on a years-long waitlist, with a disproportionate amount of money supporting a relatively small prison population. A state-ordered study of the offender treatment program found that it is poorly funded and is staffed by therapists whose training is out of date and who use antiquated treatment techniques.

Without more money, Department of Corrections officials have said, the system bears little resemblance to the one lawmakers envisioned and is further threatened by the costs of lawsuits by prisoners desperate to get into the treatment program that is the key to their release.

Raising red flags

When the act was created in 1998, some lawyers immediately raised red flags, and many of the issues they predicted have come to fruition, corrections officials say. But changing the system would take more than money — it also would take a willingness to examine the way the state punishes and treats an unpopular type of offender, experts said.

“With the benefit of this hindsight, I probably wouldn’t have supported it, but back then, who knows?” Sen. Pat Steadman, head of the Joint Budget Committee, said of the act. “It’s hard to be rational and evidence-based when you are talking about sex offenders. It’s so easy to let the emotion and the fear and demonizing these guys rule the day in terms of how policy decisions get made. That’s unfortunate, and we need to try to avoid that.”

In April 2012, state lawmakers ordered a study of the sex offender treatment program that is mandated by the Lifetime Supervision Act. The findings, released Feb. 1, confirmed the most problematic aspects of the treatment program: It is inefficient, costly and poorly executed. The study showed that budget cuts have crippled the program’s effectiveness and that undertrained and often underqualified therapists, distrusted by offenders, base their treatment on outdated research.

The sentencing system for sex offenders can be fixed by two things, the report said: more money and new laws.

The Department of Corrections agrees. It says the Lifetime Supervision Act cannot work without millions more dollars to push hundreds of offenders through the system.

But plans to enact changes have been derailed by a busy General Assembly session — dominated by gun control and civil union bills — and the March shooting death of Tom Clements, Department of Corrections director.

The most crucial change to the sex offender treatment program, namely eliminating the mandate that every offender get treatment, requires a change in law and must wait until the next session, said Rep. Claire Levy, D-Boulder, vice chairwoman of the Joint Budget Committee.

A work in progress

Victims of sex assault, their advocates and prosecutors say the Lifetime Supervision Act works. Sex offender treatment has helped reduce recidivism and provides a better alternative to letting offenders free in communities without supervision. Years in prison and rehabilitation is the price to pay, they say, for the harm done to sexual assault victims, who can face a lifetime of trauma.

Meanwhile, sex offenders desperate for freedom are suing the DOC. One class-action lawsuit questions the constitutionality of keeping sex offenders in prison. Without the funds to get offenders through treatment, the department expects it will be the target of several more lawsuits.

Two months after Martinez’s arrest, he was given a deferred sentence of four years and put on probation. Three months later, he violated his probationary restrictions and was sentenced to a Community Corrections program in Colorado Springs for two years. He spent more than two years going through treatment and probation programs, failing to meet the requirements each time.

Five years after meeting the girl online and after multiple probation failures, Martinez was given an indeterminate sentence, a minimum of two years to life in prison. Four years into his sentence, he is still in prison.

Martinez feels the effects of the tightening state corrections budget.

“I’m kind of at the back of the list right now,” he said in November. “It feels like a punishment for me. I bring it up in group (therapy).”

In desperation, Martinez and other offenders will do nearly anything to progress through treatment and get their tickets to freedom — even admit to crimes they did not commit, Martinez said. Sex offenders take a lie-detector test, which is meant to ferret out confessions to crimes they might have lied about in the past. Martinez continually fails the test — meaning, he must be lying, he said — and in frustration he has resorted to making up crimes and false confessions. The study of the treatment system confirmed that inmates have been known to deliberately lie on the test, called a polygraph.

“We have an expensive philosophy — if you don’t say you did it, then you’re going to stay in prison until you do,” said Laurie Rose Kepros, a public defender.

Penalties were largely unknown

When Martinez was first sentenced for his sex offense, he had never heard of the Lifetime Supervision Act. He had no idea that the sentences typically given for more serious crimes of pedophilia could eventually apply to him and give him years in prison.

Under the Lifetime Supervision Act, the term sex offender is broad and encompasses many offenses — some of which are punished more severely than they were before 1998. The act aims to put sex offenders through a heavily supervised and intense system of treatment, whether they are in prison or on probation. That has made the process — from court, to prison, to parole — more complicated.

A small percentage of sex offenders in Colorado are serial pedophiles or violent rapists who go straight to prison. Most convicted sex offenders, 70 percent, are like Martinez. They are convicted of consensual sex crimes with minors, for example, and are given probationary sentences.

Offenders with different crimes or differing contexts can get the same conviction. Martinez, for instance, was convicted of sex assault on a child in a position of trust — one of the same counts brought against former Colorado Springs police officer Joshua Carrier, who on Feb. 22 was sentenced to 70 years to life for molesting schoolchildren. But the context of Carrier’s and Martinez’s crimes were viewed differently by the court, and the men were given different sentences.

To tailor sentences to the crime, judges and lawyers study closely the context of the sex offense. Kepros, statewide director of sexual offense defense for the Colorado Public Defenders Office, and El Paso County Judge Tom Kennedy, among other lawyers and judges, said the system works best when an offender’s situation is closely considered. Unlike murder or manslaughter — convictions that carry a consistent sentence — a sex offense felony doesn’t necessarily send an offender straight to prison.

“For the majority of sex crimes, a person is probation-eligible,” said Kennedy, who serves on the Sex Offender Management Board, a group that oversees the prison treatment programs.

These sex offenders spend time in a Community Corrections sex offender treatment program or are sentenced to work duty. Offenders, even those on probation, face decades of state supervision. It is only when they violate the terms of their probation that they face a prison sentence. Whether on probation, in Community Corrections programs or in prison, sex offenders are part of the same group — regardless of the severity of their crime. They must register as sex offenders and often do treatment together, Kennedy said.

Martinez’s first probationary sentence was the result of a plea bargain — he told the court he was guilty in exchange for avoiding a possible life sentence.

But after Martinez’s repeated failures on probation, what he sought to avoid became his fate: He was given an indeterminate sentence.

Changing strategy

Indeterminate sentences are central to the Lifetime Supervision Act. Such sentences give prisoners a range of years they can serve in prison instead of a specific release date. Because of their potential severity, indeterminate sentences have changed the strategy of lawyers in the courtroom, Kennedy said.

“If I was a practicing attorney and I was having a client who was pleading guilty, you’d certainly have to advise them that they could spend time in prison,” he said.

Just one-quarter of sex offenders begin their sentences in prison. But because so few of them get out, the group dominates the population of lifetime offenders.

Since 1998, there have been 1,940 people sentenced to prison under the Lifetime Supervision Act, according to Colorado Judicial Department statistics released in January. Of those, 1,797 sex offenders are still in prison. There are more sex offenders in the Colorado Department of Corrections than prisoners serving a lifetime sentence for first-degree murder, at 831 offenders.

Because of the Lifetime Supervision Act, every sex offender sentenced under the act in Colorado is counted among those serving lifetime sentences. There are 2,474 prisoners in Colorado facing a maximum of life, and sex offenders make up almost exactly half of that group.

Far-reaching impact

The impact of the act stretches beyond the prison gates. Some sentences put offenders under intensive supervision for 10 to 20 years after their release from prison. They might be required to have regular — possibly daily — appointments with a probation officer and a mandatory profile on the sex offender registry, among other requirements.

Before the Lifetime Supervision Act, a person convicted of sex assault on a child in a position of trust, a class 3 felony, served a minimum of 12 years in prison. Today, an offender guilty of the same crime can receive a sentence of 12 years to life in prison. If that offender is paroled, he or she could spend at least 20 years under close state supervision.

The act was designed to keep perpetrators of violent sex crimes in prison for as long as possible. But many sex offenders across the spectrum, regardless of the severity of the crime, face long prison sentences and delayed access to treatment that is required for parole, defense attorneys and public defenders said.

Lifetime probation, parole in bill

Former state Rep. Norma Anderson, a Republican from Lakewood, sponsored the Lifetime Supervision Act.

“We cannot afford to keep them in jail or in prison for the rest of their life, and that’s not fair,” she said when she introduced the bill. “So, what this bill does — it does not change the sentencing requirements as already in law, but it does establish lifetime probation and lifetime parole.”

It was part of a national trend, said Peggy Heil of Denver, who has worked with sex offender treatment programs since before the bill passed.

“Back then in the United States, there was a trend in civil commitment laws,” Heil said last year. Civil commitment laws placed sex offenders in mental institutions instead of prison. In Kansas, the sex offender program required mental evaluations before offenders were paroled. Arizona instituted a program that placed sex offenders under state supervision, even after they were paroled.

Records of Colorado House Judiciary Committee meetings that year show the act was wildly popular, with representatives eager to place sex offenders behind bars for life. But attorneys who testified before the committee were apprehensive. While the bill considered the needs of pattern pedophiles, it didn’t make allowances for a lower class of sex offender, someone with a statutory rape or consensual sex charge, they argued.

Saskia Jordan, now a private defense attorney and former president of the Colorado Criminal Defense Bar, predicted that the bill would present many complications.

“You will have people being sentenced to life sentences who, in the past, wouldn’t have … and the sentence may well be unduly harsh,” she told the committee.

Jordan was also concerned that the bill’s plan for parole was unrealistic; it wouldn’t allow inmates out until it could be assured they wouldn’t reoffend. No one can be certain that an offender won’t reoffend, Jordan said.

'No known cure'

When the sex offender treatment program was created, it centered on a “no known cure” principle — sex offending was seen as a disease that could be monitored and kept in check but never cured. The thinking has since changed due to offender complaints, and the program is seen as a tool that helps sex offenders control their behavior.

Erin Jemison, executive director of the Colorado Coalition Against Sex Assault, said the benefits of the Lifetime Supervision Act far outweigh its problems. Offenders who violate probation need the prison environment to take treatment seriously, Jemison said.

“It’s hard for me to be convinced that the guy who is in prison is the guy who made one mistake,” Jemison said.

Victims of sex assault experience a lifetime of trauma, said Doug Cohen, an assistant district attorney in Jefferson County who was formerly an assistant district attorney in Colorado Springs.

“When the defendant was committing the crime, did they think about the fact that they were submitting the victim to an indeterminate life sentence?” Cohen said.

“I think in a lot of ways, they (victims) may just be left out there after a certain amount of time to fend for themselves. (That’s the) unanswered problem — like I said, their sentences are indeterminate,” Cohen said.

Anderson was inspired to champion the act after a close family friend was sexually assaulted. While she acknowledged that many offenders object to the system she helped create, Anderson contended that they cannot understand a victim’s pain.

“I guess they haven’t had a family member who’s had to live their lives under the burden of a sex offense,” she said in November 2011.

Considering a fix

In April 2012, lawmakers began looking into how to fix the Lifetime Supervision Act. Their move came after another budget request from the DOC for more funds for its treatment program. Lawmakers ordered an independent audit to examine how well the sex offender treatment program is working.

“We really did not want to continue investment in treatment programs that weren’t working, that weren’t evidence-based, that weren’t getting the results we want,” said Steadman, who as chairman of the House Joint Budget Committee commissioned the report. “We don’t want to just warehouse these guys in prison for the rest of their lives.”

The report’s findings echo many of Martinez’s and other inmates’ complaints about the treatment they receive in prison.

Martinez said he dislikes the “one size fits all” style of treatment, where offenders with vastly different crimes are treated together. That’s something the report harshly criticized as well. Because of this philosophy, a portion of low-risk offenders are being “over treated,” the report said. The limited treatment slots should be saved for high-risk offenders, the report said, while offenders such as Martinez should be on the fast-track to get out of prison and finish treatment outside.

And a lack of money means that therapists aren’t well trained, the report said. Training for new therapists is sporadic and inefficient and relies on out-of-date techniques. Therapists isolate the offenders, making them feel like monsters, Martinez said. Therapists are often quick to discipline, sometimes unfairly, Martinez claims. He said he doesn’t trust his therapists and like other offenders fears retaliation from them, particularly if they admit to disliking the treatment program. The report also noted and criticized the inmates’ fear of their therapists.

“There tends to be corner cutting and drift away from therapeutic models,” the report said.

Judge: Program sets up failure

In 2004, after Martinez was arrested and sent to court for the first time, he pleaded guilty to sex assault on a child in exchange for a deferred sentence of four years, which meant probation. He didn’t take it seriously, he said. He was late for some appointments with his probation officer, he missed some urinary analysis tests, and he still used the Internet — all of which ended his probation and sent him back to court.

Of all the probation programs for offenders, sex offender probation is the toughest, said Angel Weant, a probation services liaison officer for the Colorado Judicial Department. Although most offenders, roughly 70 percent, start with probation, many end up in prison. Kennedy, the judge, said the program’s challenges set many up for failure.

“It’s very demanding, so many people who initially get a probationary sentence will fail,” he said.

After Martinez violated his first probation sentence, he had to move out of his parents’ home because his young niece was living with them. He was given two years in Community Corrections, a state-run program that provides treatment to offenders, with a 10-years-to-life probation sentence afterward.

Martinez finished the Community Corrections program, but as before, he flouted some restrictions. He dated a woman, and in 2006, they went to the annual Balloon Glo at Memorial Park, where Martinez bumped into his probation officer. Events like the Balloon Glo, teeming with children, are prohibited for someone with Martinez’s history. He was sentenced to another four-year stint with Community Corrections but was kicked out after six months because he continued to see his girlfriend and his family members, he said. Like many sex offenders, Martinez said he did not understand the severity of a lifetime offense until it looked him squarely in the face. Martinez also said he felt that his punishment did not fit his crime: He was originally sentenced because of his interactions with a 14-year-old, and with no history of pedophilia, he did not understand why he should be barred from interacting with adult women or young children.

'Toughest' program

Sex offender treatment specialists consider sex assault a manipulative crime, where victims are coerced into keeping silent and trusting their perpetrators. And sex offenses are widely recognized as some of the most under-reported crimes; probationary restrictions attempt to assiduously control whom offenders come in contact with to prevent them from reoffending, judges and victims advocates say.

The intensive program for sex offenders is “probably the toughest that a person could be under,” for good reason, Kennedy said.

Allison Boyd, a victims advocate for Jefferson County, said most offenders fail probation because it does not provide the same motivation as a potential lifetime sentence in prison.

“(In many cases), sex offenders start out on probation, where they appear remorseful and want to change. But once they start, this is not the path they choose. They don’t choose to change their behavior,” Boyd said.

Offenders who violate the terms of a probationary sentence deserve what they get: prison, said Jemison, the director of Colorado Coalition Against Sex Assault. She doesn’t buy the argument that inmates are being held for unjustifiably long sentences — if they’ve ended up in prison, it was because their offenses were serious or they repeatedly violated probation, Jemison said.

“It’s hard for me to be convinced that the guy who is in prison is the guy who made one mistake,” she said.

For many sex offenders, the restrictions of probation often seem incongruous with their crimes, said Laurie Knight, a sex offender therapist who worked for Adams County Social Services for two decades.

For a man such as Martinez, whose initial crime involved a teenage girl, dating an adult woman or attending an event with children younger than 10 might not seem like an issue, Knight said.

But the rules are determined by research, Knight said. Research shows that one sex offending behavior can stem from another — even if Martinez had no sexual history involving children younger than 15, his one-time attraction to a minor means he runs a higher risk.

“People who come into the system rarely only committed a crime they’ve got caught for. Sixty percent of adult rapists have also molested children,” Knight said.

The strict probation system isn’t perfect, Knight said, but the probationary rules aren’t the problem.

“It’s how the rules are implemented. Every probation (program) has a different culture,” she said.

Her solution for offenders such as Martinez is simple: “Get out and stay out.”

But in 2008, after violating the conditions of two probationary sentences, Martinez was sentenced to serve two years to life in Fremont Correctional Facility outside Cañon City.

The ticket to freedeom

For sex offenders, a smooth passage through sex offender treatment programs while on probation or in prison is often their ticket to freedom.

To be considered for parole, offenders must start and finish treatment programs in prison, including taking lie-detector tests, called polygraphs, and meticulously recalling and discussing their personal sexual histories. Both are meant to ensure honesty from offenders, a key in their treatment, according to the program philosophy.

An inability to finish the second of two phases of treatment has kept Martinez in prison past his parole date. For more than a year, he has failed polygraphs and stalled in his treatment. He has now given up hope that he’ll be paroled.

Glenice Martinez has watched her son fail repeatedly in the treatment programs; she is frustrated, too. She is one of the founding members of Advocates for Change, a group working on behalf of sex offenders. The members are mostly mothers or spouses, who keep in touch with offenders and push legislators to change the Lifetime Supervision Act. While treatment might have helped Martinez’s son, she now thinks it is past the point of doing any good.

“He’s learned a lot about himself. But once you get to a certain point, it’s like beating a dead horse,” she said in late 2011. “They (sex offenders) made a really bad choice. To spend your life behind bars for something like that is ridiculous.”

Trouble with treatment

Sex offender treatment is a contentious subject for therapists and offenders — and it’s expensive.

Sex offenders complain that treatment casts them as hopeless and helpless monsters, with no hope of change. Therapists have adopted various philosophies of treatment — at one point, they treated offenders as if they suffered from incurable diseases, while other therapists believe sex offending is a choice.

Once in prison, offenders are put on a list to get into the treatment program. The program’s philosophy is based on helping sex offenders control their behaviors, said Heil, who heads the program for the Department of Corrections.

“Sex offending is a behavior. What treatment can do is teach people how to manage the problems that lead to their offending,” Heil said.

Martinez and other offenders said they dislike their therapists and have resorted to lying on polygraphs out of desperation to pass them.

The audit confirmed that offenders are often terminated from treatment too quickly or easily. The program has a notoriously high termination rate, inmates said. Offenders can be bumped out of the program for disciplinary issues or for being what inmates call “in denial” of their crime. In 2011, more than 90 percent of the offenders in the first phase of treatment were terminated, for various reasons.

Still, a few offenders have extracted some good from their treatment. Martinez, who said he considers himself an introvert, said he has gained confidence.

Nonetheless, as he struggles to get through Phase II, Martinez has given up. After more than a year in prison keeping a low profile and cooperating with his therapists, Martinez continued to fail multiple polygraphs, which he was counting on to help him pass out of Phase II and get one step closer to parole.

Martinez said he remained frustrated, even as signs of change trickled into the prison. Last fall, auditors visited Fremont Correctional Facility, where Martinez is serving his time, and interviewed inmates, giving them a rare chance to vent their frustrations in privacy.

“The hope around here is that they’ll make some changes,” Martinez said.