This week, Michael and Thomas are joined by Wanda Bertram, Communications Strategist for the Prison Policy Initiative, to discuss Virginia's practice of using "civil commitment centers"-- facilities that continue incarcerating people convicted of sexual crimes after they've finished their prison sentences. Sometimes, they're held in those facilities indefinitely. With less data from these treatment facilities than we get from prisons, Wanda, Michael, and Thomas discuss the constitutionality and ethics of this practice--and what might need to change in the future.

Episode Transcript

Michael Pope  

I'm Michael Pope.

Thomas Bowman  

I'm Tom Bowman.

Michael Pope  

And this is Pod Virginia podcast that's going inside the therapeutic industrial complex to date to look at the civil commitment Center.

Thomas Bowman  

400 people in Virginia are currently incarcerated behind these shadow prisons, despite the fact that they've already served their sentences.

Michael Pope  

How on earth could this possibly happen? We've got the best guest here today to help us understand this. She's the communication strategist for the Prison Policy Initiative, which recently issued a new report on these civil commitment centers. Wanda Bertram, thanks for joining us.

Wanda Bertram  

Thank you for having me.

Thomas Bowman  

It's great to have you here want to, so a lot of people are probably scratching their heads like we are wondering how Virginia or any other state could incarcerate people whose sentences are already finished. So what, uh, can you give us an overview of what the civil commitment centers are and how they work? 

Wanda Bertram  

Around the turn of the millennium, about 20 states passed what were called sexually violent person laws that empowered the state to continue incarcerating people after they have finished serving their criminal sentences if that person is deemed to be a continuing threat. Right. So, if the Department of Corrections, someone in the Department of Corrections decides that a certain individual poses a risk of offending again, then that person can be confined in what's called a civil commitment Center, which is a facility designed to treat people so that they no longer have the proclivity of you know, committing sexual offenses. Sounds great, right? The only problem is that I mean serious constitutional issues and serious kind of philosophical issues with doing this. These are folks who have already completed a prison sentence, right? They have done their time. There is no due process for them in going to these facilities. They are subject that the forced right to receive certain treatments, including, in some places, chemical castration, that so so hormonal therapies, right forced hormonal therapies, and they're not released until this rotating cast of often inexperienced medical staff, right often who are just postdocs decide this person is safe to go home. So people who aren't people are being detained in these facilities indefinitely in a lot of places. They've been there for over 10 years. A recent survey that the author of our report did in Illinois found that there are several people in Illinois who have been incarcerated in civil women's centers for over 20 years. Right. So these people think of this as basically a de facto life sentence.

Michael Pope  

Well, you went through a lot of stuff there that I'm sure caused a lot of heads to explode as they were trying to understand all of this. So let's start with due process. I mean, this just seems on its face to violate basic constitutionality, principles that we've got in this country. How is it possible to incarcerate people, you know, like, what happens to their due process rights?

Wanda Bertram  

Right? I'm not a constitutional lawyer. I can't speak to, you know, the legal ins and outs of this. But I can say that it's, this is active, and this is active in 20 states. This is something that 20 states, we decided, you know, we want to do this; it has not been found unconstitutional, except, I think, via the lower court in Minnesota. And I think the Supreme Court doesn't like declining to hear an appeal. So that didn't really go anywhere. But my understanding is that as a society, we are currently in a bind because there's this perception that there are people who, like, absolutely cannot control certain things. Saviors need to be forced to receive treatment, right? This is something that is a conversation that we have when we talk about people who are mentally ill and they don't want to be. They don't want to receive medication, or they don't want to receive treatment for their mental illness. And in the meantime, they're a danger to themselves and maybe to others. You know, this is a conversation that we have about people who have substance use problems, addictions, right? And there they are, they're in serious, you know, their health is at risk, but they don't, they don't want to receive treatment. We talk all the time about, you know, what to do about people who are, you know, have some kind of medical issue. And this is kind of an extension of that, right? Because the whole theory behind these facilities is there are people who, chemically in their brains, are predisposed to commit sex crimes and that there is something about these individuals psychologically that they cannot control or they cannot cure. And so we need to they, you know, they, they need to be locked up until they can prove that they're no longer, you know, that they're in control of their behavior.

Michael Pope  

How does that work? How do they make it? How do they prove that?

Wanda Bertram  

That's one of the things that we don't know about these facilities? So this is what one of the biggest concerns that I advocate, such as ourselves, have about these places, is that there is virtually no transparency into them. If you're a prison, you have to make regular reports to the Department of Corrections, or excuse me, to the Bureau of Justice Statistics about things that go on, you know, sets such as, you know, what are the demographics of who you incarcerate? What are the conditions behind prison walls? What kinds of programs do you have in place? There is really nothing like that for the civil commitment centers because they're not considered to be correctional facilities; they're considered to be treatment facilities. And so we're not all that we know about, you know, the, the prospects for release that people have is what we hear, anecdotally, and from, you know, very occasional surveys that come out from particular facilities. And what those reports suggest is that people are being forced to prove via lie detector tests via something called the penile police McGrath test, which is where they attach it, they attach receptors to your penis, and then they show you sexually suggestive content to see what like what you respond to.

Michael Pope  

Just sounds like a really bad science fiction movie.

Wanda Bertram  

It's, I mean, I, that's great, that's a great description of our society right now, isn't it? But, you know, folks are being required to show that they are not. They no longer, if they ever did, have an uncontrollable desire to commit sex crimes. Right? Of course, this is, you know, this prompt a lot of questions. But basically, what people are saying is, you know, until one or more medical staff say, This person is safe to go home, they can't go home. And one of the issues is that it's often the medical staff who are making these decisions are often like a rotating cast of people. So you may have one, there may be one, a behavioral specialist on staff that thinks that you're safe to go home, but then that person leaves, and then a new person comes in and says, I don't think so. Right. And then you're back to square one.

Thomas Bowman  

So your report has identified that there are about 6,000 people, mostly men, held in these facilities. And you mentioned that they're in what's known as pre-crime, preventative detention. It does sound like a dystopian concept. And nobody knows what's happening to these people. They're deep in the shadows. So how do you? How do you get there? Do I understand you correctly that it's just doubling down on the initial crime, and people just assume someone somewhere assumes that this individual is highly likely to re-offend just because of the type of offense?

Wanda Bertram  

So what happens is that so this is not something that this is not something where, you know, when you were sentenced to prison, this is part of your sentence, right? That's not what this is. It's, it's not like a court is going, Okay, you need to do 10 years in prison, and then you're going to do an indefinite amount of time in civil commitment. Right? That's not part of your sentence whatsoever. What happens is that when you are incarcerated at the end of your incarceration, there is it. I think it differs from place to place, and we don't know a ton about it. But at the end of your sentence, there is medical staff within the prison, which I think conduct certain risk assessment tests on you. And if you're found to pose a risk of re-offend, then you're sent to civil commitment. Now, this could be, you know, this, this could be psychiatric exams, right? Where they find that you know, they, they, they subjected you to some kind of psychological test, or it could just be what's called a risk assessment tool. This is a tool that has come to prominence in other other parts of the criminal justice system, like really releasing people pretrial or releasing people on parole, where they simply go through your history and your demographics, and they assign a basically a point score to you, based on factors that statistically make people likely are to re-offend. And those tests are problematic in a whole lot of ways. There's one that's called the static 99 risk assessment tool that's used by a number of states in determining whether someone should go to civil commitment. And that's a test where one of the factors that can increase your risk score is if you had you're the victim of your crime of what you're convicted, was at the same sex as you. So what that means is that people are calculating risk scores that explicitly inflate the perceived riskiness of someone who is who has a same-sex rectum who are most likely to be homosexual. So So queer people, LGBTQ people are vastly overrepresented in these facilities. So that's that, you know, that's just one more, that's just one more issue.

Michael Pope  

So this is a group of people that's not popular, that does not engender a great deal of sympathy. We're talking about sexually violent people here. There was an effort back in 2021; Senator Joe Morrissey had a bill to get rid of these things. And he brought it before the Senate Judiciary Committee. And there was some discussion about this back in 2021, about at least taking a look at this issue and sending it to the Crime Commission. And the Crime Commission didn't do anything about this. But and so I suppose theoretically, at some point in the future, the general somebody could bring this up again, but the unpopularity of sexually violent people, and you know, like, there's not like a constituency for this, it's clamoring for it necessarily is there. I mean, you mentioned there are 20 states that have done this. Have any pulled back and said this is a terrible idea. We're not doing this anymore.

Wanda Bertram  

Well, several states that have civil commitment have reduced their civil commitment numbers in the last few years. Wisconsin, for instance, I was just looking at Wisconsin, and they've reduced civil commitment by almost 40% in terms of the number of people who are detained. Not to be doing that, you need to be releasing more people than you're bringing in. So that could be that they are releasing a lot of folks who are inside. Or it could be that they are just admitting fewer people, which could be a matter of justice system capacity. I really don't know. But, you know, what's clear is that there are in the states that passed sexually violent person laws; they're basically all still doing it. They're all still incarcerating people post-sentence.

Thomas Bowman  

I want to get back into the bias here because you mentioned that LGBTQ-plus people and disabled people are overrepresented due to these problematic risk assessment tools. And your report, by the way, says that they make incorrect predictions much of the time, with one attorney stating that in sex offense cases, those tools are only 58% accurate, which is hardly better than a coin toss. A couple of questions, I guess. And it's not fair to give you a compound question, but here it is. Can you delve into this data collection process? And why it's difficult to accurately quantify the extent of this issue a little more? And then how can we effectively challenge these biases in such a risk assessment tool used for those decisions?

Wanda Bertram  

So why is it so hard to gather data on even the basics of civil commitment? Again, this is because you know that these are facilities that are supposed to be treatment facilities, right. And so unlike prisons, you know, where we think about, Okay, we have this kind of idea as a society that we need to pay attention to how we treat incarcerated people because that reflects on us treatment is has not really come under the same level of scrutiny. And at the same time, because there is not, I think one of the reasons that we don't have good data on this is because there has not been a there hasn't been a robust method of data collection setup. There's no requirement; I believe that some equipment facilities submit data, including like their, you know, how many people they are releasing, how many people they're admitting, to the federal government on a yearly or BI yearly or, you know, decade basis. So we have very little to work with at the same time. There's just not a lot known about the curriculums with the treatment curriculums that people are being subjected to inside, and no one is asking those questions. Now, you know, when you talk about the over-representation of LGBTQ people and people with disabilities, I do want to say that this is, you know, this is where, you know, this is where it gets tricky because, by the logic of civil commitment facilities, everybody inside has a disability. Right? Everybody inside is they do not have control over certain impulses. And so they need psychiatric help or psychological help in order to to get better. But at the same time, we don't want to be confining people who are, you know, we don't want to be, you know, disproportionately confining people who are who actually have other disabilities. Because that's ableist. Right. So how do you, you know, how do you, how do you kind of work through this? I guess you might call it a dilemma, right? A moral dilemma. I think that you have to start by asking if someone has a disability, right? If someone if we think of someone as having a disability or a mental abnormality or something in need of treatment, what is, you know, what is the degree to which we want to sanction forcibly locking that person up.

Michael Pope  

So Virginia's facility is in Burnsville, which is in Nottoway. County, Southside Virginia. And when the Senate Judiciary Committee was taking up Senator Morrissey's bill to get rid of these facilities, one of the senators, a Republican Senator Bill Stanley, chimed in to say that in his day job as a lawyer, he had been to this facility, he had seen the people who are incarcerated. And he told the other senators to trust me; all these people should be incarcerated. I've seen them. They're dangerous people. What would you say to Senator Stanley and other people who say, due process, whatever, these people should be locked up?

Wanda Bertram  

Yeah, really, I'd say to anybody who's thinking about this, who's concerned and doesn't really know, you know, where to come down on this question of whether we should be locking up people who don't seem to have control over certain sexual impulses. And say, imagine that this happened to someone that you know, right. You know, say it's a relative or a family friend; this person commits a sexual offense, they go to prison, they do their time, they get out of prison. And then a prosecutor gets them put back in confinement indefinitely by retaining a psychologist who says this person is unable to control their behavior, and they're probably going to commit a crime again; by the way, that did happen to someone I was reading the same article that you were reading earlier. And it was this is the situation that a gentleman that was discussed in the article, Galen Bellman, faced; he actually finished his prison sentence, he got out, and then he committed some technical violation of his probation. And then the prosecutors got back involved and brought in a psychologist, and the psychologist said he seemed like he couldn't control himself. Let's throw him back into civil commitment. So just imagine that this happened to someone you know, right. They're done with their sentencing, yet they've been put back in confinement. Would that feel fair? You know, would that feel right? Like, I don't think that that's, I think that that's something that a lot of people would have questions about.

Michael Pope  

My mind is still sort of hung up on this issue of You can't leave until you prove that you have been rehabilitated, which just seems like a terrible bargain to make. I mean, like, I mean, and also the fact that these centers don't have the disclosure rules that prisons and jails do because they're technically not incarceration centers, even though people are incarcerated there. They're theoretically treatment centers. But people are there indefinitely. So I mean, I will. I'm really trying to get to what our people should be thinking about this should. I mean, the effort to close these centers and get rid of them seems to be kind of a non-starter. So I mean, maybe the thing that needs to be done in terms of reform, at least a starting point, would be, let's collect some data here. I mean, as you mentioned, there's a federal issue here with prisons and jails, which are legally required to submit data to the federal government so that you and I and our listeners have information that we can use to make decisions. We don't have that information here. So I mean, should the federal government start demanding more data on these from the Centers?

Wanda Bertram  

I mean, I think I think that that might be a good idea. I think that one thing to, you know, come back to is people are being locked up in these facilities indefinitely. And we know that that's not like for a few weeks, or even for a couple years in Illinois, where we have some more recent data. A significant number, I want to say half of the people who are there have been there for 10 years or more. Right. And there are several people who are inside who have been there for 20 years or more. Right. I think that's pretty damning. Right? What is being gained by putting somebody in a treatment facility where they cannot leave until they've proved that they're better, and then they're there 20 years later than they still haven't proven anything that I think is quite bleak, right? I think I think it reflects. It reflects that we apparently live in a reality where you know, there are some people who just never, ever Ever get better. And there's nothing that we can do about that, in which case, perpetual incarceration and perpetual, you know, attempting to treat these people that seems like, you know, maybe the wrong solution. And I think it sheds light on the sort of one of the fallibilities of this, you know, of civil commitment as a solution to sexual harm. That, you know, we claim that we can treat people, and yet we keep people locked up for decades and decades.

Thomas Bowman  

There's another inconsistency with the philosophy behind this phenomenon is that frequently, what we want is for prisons to focus more on rehabilitation than they do. But our criminal justice system is about retribution, not really rehabilitation. And so to have this thing even exist plays into fiction; that just isn't the case, right? The goal is not rehabilitation. The way the system is currently set up, I'm not saying it should or shouldn't be a goal, but it's not. And so then to have a fiction, where for these few people, these specific people, we can't let them out because they're not rehabilitated, is not consistent with what is actually before us as far as the system we have to navigate. Yeah,

Wanda Bertram  

I mean, and I also want to point out, you know, this is civil commitment happening within a larger context here, which is that, you know, there is sexual harm in this country, right? There's, I've, you know, I've known many people who are victims of it. And I've never lived anywhere that did a very good job of preventing sexual harm; this country does not do a good job of preventing sexual harm. We make it hard and expensive, for example, for people to have insurance, which they need to access therapy, right. We underfund shelters and services for victims of assault, and we make it really difficult for women to get out of abusive relationships that could become sexually violent. We don't guarantee housing as a human right. These are all things that could help prevent sexual harm. And we're not really succeeding remotely on any of those things. But we are choosing to lock people up who have been found potentially guilty in the future of committing a sex crime. Right. That's what it is. That's extremely disheartening.

Michael Pope  

That's like Philip K Dick's stuff. I mean, like, that's, that's really like horrible science fiction, futuristic kind of stuff.

Wanda Bertram  

Yeah. And I and I actually want to go out on a limb here and say that I think that some people who pass these, these laws and, you know, empowered, the creation of these centers were really well-intentioned, right? They saw a problem happening where people were being sexually harmed. And they said, you know, this seems to be the way that we can deal with this, or this seems to be a way that we can deal with this. But it is. It is, in my opinion, unconstitutional. It's it runs contrary to everything that our criminal justice system claims to stand for. And it's not actually meaningfully intervening in the epidemic of sexual harm that's happening in this country.

Thomas Bowman  

Now, the Prison Policy Initiative has identified a better way, right. So Minnesota, for example, successfully ended its civil commitment program for sex offenders. And that program was fraught with violence and lack of therapy, and it was replaced with a more rehabilitative housing-based model. That new model focuses on therapeutic and skill-building programs and allowing residents to live in less restrictive environments, and the state has not witnessed an increase in reoffending rates since implementing that change. Can you elaborate more on Minnesota's success and how that model could be adapted to other states, particularly Virginia?

Wanda Bertram  

Unfortunately, we don't have a ton of data on we are we don't know a ton about Minnesota's program. But I do want to bring one thing up, right, which is that there are many, many different things that the state could be doing to invest in the prevention of sexual harm, right. There's obviously education, you know, changing the way that we educate young people into reading in people's lives early so that they're able to access therapy; I think that would be an extremely meaningful thing to do. Unfortunately, there are, you know, many, many people in this country who can't afford or can't access behavioral therapy. And I think that makes it extremely difficult to, you know, overcome these issues early in life when it's most likely going to stop a pattern from emerging. You know, there are again, there are there's there, we can invest in housing for people who are in domestically abusive relationships so that they can get out of those relationships before a pattern of sexual harm begins. You know, these are there are I'm bringing up. I'm bringing up interventions that really have nothing to do with punishing somebody who is convicted of a sexual offense. But again, in Minnesota, there is this other Um, they, you know, there's this other kind of version of, of rehabilitation that they're pursuing, where, you know, they're people are held in less restrictive facilities, and they're provided with services, as opposed to, you know, subjected to a battery of, you know, psychiatric, quote-unquote, treatments that may or may not actually be backed by, by scientific evidence. And I think that's great, too. There are many different ways of treating this problem, including the right to sexual harm. And we just need to be exploring them more, because currently the, you know, the only solution that we have, or the only solution that is, you know, has, we're still sort of relying on this solution that is heavily focused on incarceration. And I think that's, that's really a shame. The last thing I want to say about this is that, to my knowledge, recidivism rates among people who were convicted of sex offenses are actually some of the lowest recidivism rates of any justice-involved group, certainly, you know, lower than people convicted of nonviolent offenses, which I think that the fact that people are people convicted of sex offenses, or recidivating. Some of the lowest rates of anyone involved in the justice system actually suggest that we need to be looking more closely at what is the positive impact the civil commitment is actually having on people post-release, right. There's a certain facility that claims I know it claims that their recidivism rates are like 2%. Is that any better than, you know, the same demographic of people released simply released into their communities and allowed access to health care? We don't know. Right? Because we've never, we haven't done that experiment.

Michael Pope  

Well, this has really been a fascinating discussion. Thanks for joining us and explaining this new report, Wanda Bertram from the Prison Policy Initiative. Thanks for joining us.

Wanda Bertram  

Thank you so much for having me.