The civil commitment process
The Civil Commitment of Sexually Violent Predators Act in Virginia was originally enacted in 1999, but was not funded until April of 2003. The Act allows the Office of the Attorney General to initiate civil proceedings against certain individuals who were 1) convicted of a sexually violent offense or 2) charged with a sexually violent offense and found to be unrestorably incompetent to stand trial. Under the Act, those sex offenders who are a high risk to reoffend may be civilly committed in a secure inpatient mental health facility until they have developed the treatment tools they need to return to society and not reoffend sexually.
The civil commitment process begins when the Department of Corrections identifies those prisoners who are serving criminal sentences for one of the following offenses: rape, forcible sodomy, object sexual penetration, abduction of any person with intent to defile such person, abduction of any child under 16 years of age for the purpose of concubinage or prostitution, carnal knowledge of a child between 13 and 15 years of age, carnal knowledge by a person providing juvenile services of a minor 15 years of age or older when the minor is confined or detained, aggravated sexual battery, or conspiracy or attempt to commit any of the above offenses.
When the prisoner is within ten months of his release date, the Department of Corrections scores an actuarial instrument to measure the prisoner’s risk level. If the actuarial instrument shows that the prisoner is a high risk to re-offend sexually, his name and his records are forwarded to a committee for review, the Commitment Review Committee. The CRC has to review everyone that the Department of Corrections refers. By contrast, the circuit court refers to the CRC those offenders who have been charged with a sexually violent offense, and found unrestorably incompetent to stand trial. A psychologist or psychiatrist evaluates the prisoner’s mental health and makes a written report to the CRC. The CRC sends its non-binding recommendation and any information it has collected on the prisoner to the Attorney General.
The Civil Commitment of Sexually Violent Predators Section in the Office of the Attorney General reviews every case from the CRC and makes the decision of whether to file a petition. If the Attorney General’s Office decides to file a petition, then the matter is filed in the circuit court where the prisoner was last convicted of a sexually violent offense. To date, the Attorney General has filed petitions under the Act in at least 32 different jurisdictions across the Commonwealth.
The Act requires that the circuit court hold a probable cause hearing within 60 days of the filing of the petition. This hearing is comparable to a criminal preliminary hearing. The Act also requires that a trial be held 90 days of the probable cause hearing. The Court or a jury will decide if the prisoner is a sexually violent predator (“SVP”). To do so, they must decide that he “has been convicted of a sexually violent offense” (listed above) and that “because of a mental abnormality or personality disorder, [he] finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.” If found to be an SVP, the next question is solely for the circuit court judge to decide: should he be civilly committed or conditionally released?
Disposition of SVP cases
Civil commitment under the Act is an indefinite commitment to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for treatment and confinement. DMHMRSAS created the Virginia Center for Behavioral Rehabilitation (“VCBR”) to contain and treat SVPs. For the first five years of his commitment, each SVP has an automatic right to an annual review in the same court where he was originally committed. After those initial five years, the review hearing occurs every two years. During a year when there is no statutory review hearing, the SVP may petition the Court for release; DMHMRSAS may petition the Court for his release at any time.
Instead of commitment, the Court may choose to conditionally release the SVP. The SVP is released to the custody of DMHMRSAS, who monitors the SVP’s progress and compliance; however, the Department of Corrections, Probation and Parole will provide the hands-on supervision of the SVP, reporting to the DMHMRSAS. Once conditionally released, the SVP is monitored according to a conditional release plan developed by the Office of Sexually Violent Predator Services of DMHMRSAS with assistance of the Department of Corrections, Probation and Parole.
The role of Probation and Parole in SVP cases
The majority of the evidence presented as to whether an offender meets the criteria as an SVP comes from forensic evaluations of the offender completed by mental health expert(s). These evaluators rely on a broad range of information in diagnosing the offenders and in assessing their risk to reoffend. To that end, Probation and Parole may be contacted to provide records to the CRC, the OAG, either party’s expert(s) and/or attorneys. Relevant records include, but are not limited to, information about the offender’s offenses, presentence investigation reports, victim impact statement(s), polygraph reports, his home plan, and, if he had a prior probation or parole obligation, his adjustment to supervision and treatment in the community.
At the SVP trial, Probation and Parole officers may be asked to testify to explain a particular offender’s prior history of supervision and treatment in the community. Once a court or jury finds determines that an offender is an SVP, the Court must then decide whether to civilly commit the offender, or place him on conditional release. In doing so, the Court must examine any lesser restrictive alternatives to civil commitment. To assist the Court, Probation and Parole officers may be asked to testify as to the supervision and treatment alternatives available in the community for sex offenders. That testimony usually includes an explanation of Global Positioning System (GPS) monitoring. This general testimony regarding alternatives is utilized in nearly every case, even if a particular offender was not previously supervised by Probation and Parole.
If the Court decides to order DMHMRSAS to prepare a formal conditional release plan, Probation and Parole is usually consulted regarding the development of the plan, investigating a home plan for the offender and/or setting the conditions under which the offender will be supervised.
As for the disposition of the case, if the Court decides to civilly commit the SVP and he has a continuing probation and parole obligation, then his supervision is transferred to the local office (currently District 7). If instead the Court decides to place the SVP on conditional release, he will be supervised by a Probation and Parole officer if he has a continuing supervision obligation. Otherwise, DMHMRSAS will supervise the SVP on conditional release, and may contract with VDOC for such supervision services. Furthermore, the Act requires that an SVP on conditional release be placed on GPS monitoring. The SVP is monitored for his compliance with the conditional release plan, and the conditions may be modified only with the approval of the Court. Finally, if the SVP violates any of the conditions he may be taken into custody and brought before the Court for a violation hearing. If the Court finds that the SVP has violated the conditions of his plan, the Court may order him to be civilly committed.
The Act provides the Commonwealth with additional resources to protect the public from high risk sexual offenders and provide those offenders with treatment tools they need to reduce their risk. Probation and Parole plays an important part in the process from providing information needed to evaluate offenders, assisting the circuit courts with examining the alternatives available to supervise and treat offenders, and providing the direct supervision of those offenders.
When Courts determine that a civil commitment is warranted, offenders go the Virginia Center for Rehabilitation. Dr. Mario J. P. Dennis provided the following report on the facility.
The Virginia Center for Behavioral Rehabilitation
Mario J.P. Dennis, Ph.D.
VCBR Clinical Director
The Virginia Center for Behavioral Rehabilitation (VCBR) was established in April 2003 after action by the Virginia General Assembly and Governor Mark Warner in response to public concern about sexually violent individuals being released from the Department of Corrections directly into the community.
Buildings on the Southside Virginia Training Center campus in Petersburg were identified as a temporary facility. Modification and retrofitting began almost immediately after the Governor signed the bill and the Office of the Attorney General, the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) and the Virginia Department of Corrections went into action to begin the legal process of identifying inmates meeting criteria for consideration as Sexually Violent Predators (“SVPs”.)
Construction consisted of retrofitting two residential units for maximum security observation, monitoring and containment. Security, administrative and clinical staff were hired and the facility accepted its first resident in December 2003, capping an impressive effort by many people in the DMHMRSAS, the Department of Corrections, and the Office of the Attorney General. All three agencies continue to work together to facilitate the civil commitment procedure.
Even as the Petersburg facility opened planning was already underway for a state-of-the-art treatment facility in nearby Nottaway County. Construction for the new facility began in July 2006 and the facility is expected to open to residents in February 2008. The facility will house up to 300 residents when all three construction phases are completed.
Intensive treatment is the focus of VCBR’s clinical staff, which operates within a psychosocial rehabilitation model that emphasizes that every interaction between staff and residents is potentially therapeutic. The ultimate goal for all residents is the reduction of risk through treatment such that they can be conditionally released to the community and, with proper supervision using the containment model, function safely within the community.
Residents are actively involved in their treatment planning and meet regularly with staff to receive feedback about their progress. They have individualized treatment plans that focus on specific factors that increase their risk for sexual recidivism. Treatment is also designed to enhance protective factors that reduce the likelihood of reoffending. The program is non-punitive and residents enjoy more freedom than they might in a correctional setting. A progressive housing model that incorporates increasing privileges and freedom within the facility based on behavior allows residents to demonstrate their ability to manage themselves. Similarly, there is an emphasis on community living and cooperation. Comprehensive medical and psychiatric services are provided to residents.
VCBR’s motto is “Striving for Excellence” and teamwork between all staff is emphasized and recognized. Together, VCBR’s staff works to make the Commonwealth a safer place to live while providing intensive treatment to this challenging population.
THE JOURNAL IS THE ONLINE PERIODICAL OF THE VIRGINIA PROBATION AND PAROLE ASSOCIATION
Civil Commitment of Sexually Violent Predators in Virginia
Angela Axselle and Jill Ryan, Assistant Attorney Generals
Civil Commitment of Sexually Violent Predators Section
Office of Attorney General Robert F. McDonnell
For Additional Information on Sex Offender Initiatives by the Office of the Attorney General visit: Sex Offenders