The “lock ’em up and throw away the key” era of criminal justice is over. Virginians have reassessed their views on criminal justice to better address mass incarceration weighed against costs and the likelihood to reoffend. Policies ripe for reform include: resentencing prisoners who were convicted as youth; repealing mandatory minimums; legalizing marijuana; abolishing the death penalty; ending solitary; reinstating parole; ending cash bail; and creating alternatives to incarceration.
Virginia Attorney General Mark Herring has a strong track record of criminal justice reform. But there’s one enforcement aspect his office needs to re-examine: the “sexually violent predator” (SVP) laws. Under these laws, Virginia is expanding mass incarceration in the form of a “civil commitment” process at enormous expense, without any demonstrated impact on public safety.
Through this process, the state has locked up hundreds of people at the Virginia Center for Behavioral Rehabilitation (VCBR) in Nottoway County in a maximum-security setting on an indefinite basis.
Today, VCBR warehouses an estimated 490 people and projects to grow to 726 people by 2024. Keeping this facility operating costs taxpayers $48 million annually and Virginia plans to spend an additional $110 million to build more beds to keep pace with admissions.
Why is demand growing? In 2006, the General Assembly expanded the number of offenses that qualify as SVP-eligible for civil commitment from four to 28.
Second, Virginia utilizes a biased screening tool for civil commitment prosecutions, called the Static-99, to predict the level of risk of reoffending and justifying civil commitment. The Static-99 includes an explicit bias against gay men and younger offenders.
Finally, the SVP civil commitment process is loaded with due process concerns. Under the law, a psychological expert hired by the Department of Behavioral Health and Developmental Services (DBHDS) must complete an evaluation to determine whether the person has an uncontrollable psychological “defect” to reoffend, and thereby meets the statutory criteria for civil commitment. If the DBHDS expert finds the detainee does not meet these criteria, that should be the end of the case. However, the attorney general’s office, without statutory authority, can ignore those findings and hire its own psychological expert.
Even worse, judges in these cases can limit defense witnesses and evidence, and limit the defense’s ability to cross-examine the prosecution’s experts. Incredibly, an individual can have multiple SVP civil commitment trials if the accused wins the initial trial, even without another criminal charge or conviction in between.
There’s a real-life example of this injustice playing out in Arlington County right now. Galen Baughman is being held for civil commitment based on two offenses for which he unwisely pleaded guilty at age 20. The two convictions are for youthful offenses: one when he was barely 14 years old, the other when he was 19 years old, where the “victim” was 14. He served 6 1/2 years in prison for these two offenses, then was held another 2 1/2 years for a civil commitment trial in 2012, where he was found not to be a SVP by a unanimous jury verdict.
Baughman was arrested again in 2016 for a technical violation of his probation, for communicating with an out-of-state minor who was over the age of consent in his home state. There was no sexual content to these communications and the youth is not gay. Baughman’s probation officer was aware of the communications and did not charge him with a violation for several months, and only after Baughman’s prominent advocacy detailing the abusive Virginia SVP system.
Baughman was sentenced and held 20 months in jail for this technical violation. He was to be released in November 2017 but has been continuously held pending the civil commitment process. Because he is young and his “victims” were male, the Static-99 found him to be a “risk.”
The DBHDS-hired psychologist found Baughman did not meet the criteria and recommended his release. The attorney general’s office ignored that finding, went outside the law and hired a second expert. This expert did not interview Baughman, but nonetheless claims that Baughman meets the statutory criteria.
At trial, Baughman’s defense attorneys may not present the results of the 2012 civil commitment trial or the results of the DBHDS psychological assessment, nor can they present qualified psychological expert testimony. His trial is scheduled to begin Sept. 30 and serves as a prime example of how the SVP laws are unjust and unfair.
We need to enact meaningful criminal justice reform. Those reforms must be changes to Virginia’s SVP laws so this kind of miscarriage of justice can never occur again.