Va. approaches decision on privatizing sex offender program

Posted on: June 25th, 2012 by Siddhartha Mahanta 4 Comments

The Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia. Photo provided to the Joint Legislative Audit and Review Commission by VCBR.

The nation’s second-largest private prison company says it expects Virginia to make a decision by next month on its bid to expand and operate the state’s detention facility for sexually violent predators who have completed their prison terms.

“In Virginia, we submitted an unsolicited proposal for the management of the state’s sexually violent predator treatment facility involving approximately 250 beds,” said GEO Group Senior Vice President Jorge Dominicis during a company earnings call last month. “The state has decided to move forward with this process and is expected to make a contract award by July 1st of this year.”

The detention and treatment of sex offenders represents a growing business opportunity for GEO and its competitors, who hope to score lucrative contracts from state officials looking to keep predators off the streets.

In this case, the facility that GEO wants to run is the Virginia Center for Behavioral Rehabilitation, a civil commitment center that houses and treats “sexually violent predators” who have already completed criminal sentences in a department of corrections facility but are deemed by a special court to be at risk of re-offending. Rather than being released at a predetermined date, these sex offenders are sent to VCBR to participate in what the state describes as “intensive treatment.” Their “eventual conditional release” from the center “is determined by their progress in treatment and reduction of re-offense risk.”

Virginia’s civil commitment program has been operating for about a decade. It grew slowly at first, with fewer than a dozen new detainees per year. But in 2006, the General Assembly greatly increased the number of crimes that can qualify convicts for the program and also made changes to the evaluation process for identifying which of these offenders are sexually violent predators eligible for civil commitment. The result was an explosion in VCBR’s population. In January of last year, Virginia’s Department of Behavioral Health and Developmental Services warned legislators that the current VCBR facility was already over capacity and that its population would grow by about 80 detainees each year, reaching nearly 700 by 2016. The department released the following chart:


Less than a month later, GEO Care — a GEO subsidiary that operates an array of psychiatric, civil commitment, reentry, and juvenile detention facilities, and also provides prison health care — submitted an unsolicited bid to operate VCBR. Describing itself as “a national leader in the provision of residential mental health services to government agencies with a particular specialization in sex offender populations,” GEO Care pledged to increase VCBR’s capacity to 600 beds while significantly reducing costs for Virginia taxpayers.

GEO Care wasn’t the only company looking to cash in on the state’s growing population of indefinitely detained sexually violent predators. Liberty Healthcare Corp. also submitted a bid to operate the facility, as detailed by The Washington Times.

Civil commitment is “the perfect market” for private detention companies, according to Michele Deitch, a criminal justice expert at the University of Texas’ LBJ School. “No one’s likely to want to close them down. The inmates probably aren’t getting out. You’ve got the growing population feeding into these civil commitment centers. I would imagine private prison companies see it as a fairly safe area for growth.”

These same factors have made civil commitment programs — which exist in 20 states and the District of Columbia — increasingly controversial. Mental health experts say they often fail to provide adequate treatment. The ACLU argues that that the programs undermine offenders’ rights to due process. And as Hannah Rappleye reported for The Crime Report, the low rates of offenders who are ever actually released from commitment facilities have led to spiraling costs across the country.

In Virginia, just 21 offenders treated at VCBR were released between the beginning of the program in 2003 and July of last year.

The politics of civil commitment

GEO Group has long been active in Virginia politics. From 2003 to 2009, it donated a total of $84,600 to state-level politicians, mostly Republicans, according to data compiled by Influence Explorer.

In 2009, GEO contributed $28,000 to Republican Bob McDonnell’s gubernatorial campaign. Four years earlier, GEO gave more than $28,600 to the campaign of GOP gubernatorial nominee Jerry Kilgore. GEO executives Jorge Dominicis and Wayne Calabrese each donated another $1,000 to Kilgore.

Kilgore is currently a partner at McGuire Woods Consulting. According to state lobbying disclosures, GEO Care retained the services of the Richmond office of McGuire Woods in January of 2011 to lobby specifically on “matters related to Virginia’s sexually violent predator program.” As of June 2011, GEO had paid McGuire Woods $13,720 for its lobbying. McGuire Woods and GEO Care declined to comment on the matter.

Both McDonnell and Kilgore have long been outspoken proponents of tough sex offender laws.

As attorney general in 2003, Kilgore urged lawmakers to fund the state’s civil commitment program for the first time and then initiated a number of highly publicized efforts to commit individual sex offenders under the law.

As a state legislator, McDonnell convinced Virginia’s Crime Commission to create a task force on sex offenders, which he co-chaired while running for attorney general in 2005. The taskforce made a number of recommendations regarding harsher sentences, registration rules, and restrictions on sex offenders. In addition, the task force recommended expanding the list of crimes — known as “Sexually Violent Predator predicate crimes” — that would make an offender eligible to be screened for possible civil commitment. It also recommended that the state begin using Static-99, a screening survey designed to assess the risk that a specific individual will commit another sex offense after being released from prison.

As attorney general, McDonnell championed these reforms, which were signed into law by then-Gov. Tim Kaine. And when he ran for governor, McDonnell touted his role in crafting the legislation. He called Virginia’s civil commitment program “one of the most advanced and aggressive in the nation” and pointed specifically to the state’s use of Static-99. Additionally, he called for “intensive lifetime monitoring” of sex offenders who are not eligible for confinement.

The 2006 changes pushed by McDonnell — in particular, the adoption of Static-99 — are largely responsible for the spiraling cost and size of the state’s civil commitment program. A recent report authored by the Joint Legislative Audit and Review Commission, a legislative oversight body, chronicles its rapid growth. According to the report, between 2003 and 2006, there were 38 civil commitments in Virginia. But from 2007 to 2010, that number ballooned to 228 new civil commitments*, bringing the facility perilously close to its limit of 300 — with no end to the growth in sight.

In evaluating the program, the commission sharply criticized the state’s use of Static-99.

Beginning with the 2006 law, all individuals convicted of Sexually Violent Predator predicate crimes were required to be evaluated with Static-99 or “a comparable, scientifically validated instrument” shortly before their release from prison. Criteria in the 10-question Static-99 assessment include age, number of prior sexual offenses, and sex of the victims; offenders receive a score between 0 and 12. The law specified that offenders need a minimum score of 5 to be considered for civil commitment, or 4 for crimes where the victim was 13 or younger. (Since the program began in 2003, about seven percent of Virginians who completed their prison terms after being convicted of an SVP-predicate crime were civilly committed.)

But the commission’s report said the state’s process was flawed because it did not adequately incorporate evaluations from mental health professionals. The commission found that Virginia’s use of Static-99 had contributed to the “release of dangerous offenders,” including one who “admitted to a [prison] counselor that he was still attracted to children and was concerned that if released, he would not be able to control his compulsion to have sex with children.”

At the same time, the commission wrote, the Static-99 method specified by the statute was out-of-date and had a tendency to overestimate the risk of recidivism. The commission calculated that Static-99 led to a 450 percent increase in the number of offenders whose cases could potentially be reviewed for civil commitment.

In response to the commission’s findings, the General Assembly recently enacted legislation that left Static-99 in place for the time being but directed Virginia officials to develop a new risk assessment instrument by the end of the year. The new law also allows the state Department of Corrections to refer offenders for civil commitment screening even if they do not qualify under the Static-99 measurement.

“Profit motive”

The growth in VCBR’s population has contributed to swelling program costs. In 2005, Virginia’s civil commitment program received only $5.8 million; in 2011, the center spent $24.5 million, or about $91,000 for each of the 269 patients, according to the commission.

The commission’s report found that the bulk of that funding goes to activities and operations unrelated to treatment. In 2011, the civil commitment center spent nearly 50 percent of its budget on security and resident services staffing. Sixteen percent went towards medical costs, and another 10 percent to treatment. The latter category includes spending on salaries and benefits for the center’s 38 professional treatment providers.

Referencing GEO’s unsolicited bid to take over VCBR, the commission reported that privatization had the potential to lower costs. The commission pointed specifically to GEO’s operation of a civil commitment center in Florida as an example of a privatized facility that has kept costs down, in part by hiring fewer staffers. That facility’s costs per patient have been about $52,600 lower than those in Virginia.

But the commission warned that the state should carefully consider whether private companies’ “profit motive” was appropriate for a civil commitment program.

“The incentive to make a profit tends to encourage efficiency and quick decision-making that often results in lower costs,” the commission explained. “However, the same profit motive could supersede treatment and safety considerations and lead to individuals being moved through treatment and then recommended for release before they are ready.”

Justin Brown, a commission staffer, says that the state should weigh a range of factors — not just promises of lower costs — in deciding whether to privatize the facility.

“It’s not inaccurate to say that the cost issue is one of the reasons why it would seem reasonable to entertain a bid,” Brown says. But he adds that this “doesn’t mean you should do it. … There’s a lot of other things you’d need to look at.”

One relevant issue could be GEO’s spotty track record. In 2008, a convicted rapist escaped from the Florida Civil Commitment Center (authorities ultimately re-captured the escapee). And in 2010, GEO Group settled a $3 million class-action lawsuit alleging that inmates were subject to unconstitutional strip searches at a facility in Pennsylvania. GEO’s difficulties stretched into last November, when the Florida Department of Children and Families’ blamed the suicide of a schizophrenic patient at the South Florida State Hospital on staff neglect.

GEO Care was awarded the contract to run the Florida civil commitment program in 2006, taking over from the scandal-wracked Liberty Health Corp., which is also bidding on Virginia’s civil commitment program.

Experts differ on whether privatization could potentially improve treatment. Eric Janus, the dean of the William Mitchell College of Law in Minnesota, is a harsh critic of civil commitment. “This is a quintessential public function. This is the state exercising its most awesome power to deprive people of their liberty. I think there’s something inherently worrisome about the state turning that over to a private company,” Janus says.

But given the right mix of talent and funding, Janus thinks it is conceivable that private companies could do better than states and adds that “it’s hard to imagine anything that would make [state-run systems] worse.”

Al O’Connor, an attorney with the New York State Defenders Association, says he would be surprised if Virginia’s rationale for privatizing civil commitment is to improve treatment. “It’s all about saving money. It’s preventive detention,” O’Connor says. With privatized civil commitment, there is “no way to declare success. And no incentive to declare success.”

Mary Devoy, executive director of Reform Sex Offender Laws of Virginia, says she would “see nothing positive” about GEO Care taking over the state’s civil commitment program. “The day this becomes a business, we know no one will ever get out of there.”

In an email to The American Independent, Pablo Paez, GEO Group’s vice president of corporate relations, said the company does not comment on its ongoing business developments or legislative issues, but does “advocate the use of public-private partnerships that have been demonstrated to achieve significant savings for taxpayers while improving the quality of care and outcomes in mental health and residential treatment facilities.”

*Originally, the story miscited the report and said there were 288 commitments.

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