You’re going to jail … just in case

Sex offenders, and especially those classified as “sexually violent predators,” are not, generally speaking, a sympathetic class of people. Californians long have been uncomfortable knowing that once sex offenders have done their time, they’re free to return to communities full of potential victims. Sex offenders have been known to re-offend.

In 1996, the Legislature responded to public concern and passed the Sexually Violent Predator Act. Now, so-called sexually violent predators, or SVPs, can be committed to Atascadero State Hospital after they’ve served prison terms. They’re committed for two years at a time at the discretion of a jury, based on a diagnosis like paraphilia: intense, recurring sexual fantasies or behaviors focused on children or violence. Although the Sexually Violent Predator Act has been upheld by the Supreme Court, there are some SVPs and attorneys who wonder if it is, in effect, institutionalizing someone for a crime he or she is capable of committing—which is very different from institutionalizing someone for a crime he or she has committed.

“We’re obligated by oath to follow the law,” said Stan Kubich, supervisor in charge of the SVP unit at the Sacramento district attorney’s office. “The law was passed in the interest of public safety.”

Oscar Jones, a two-time convicted rapist who was sent to Atascadero in 2000, is claiming in two federal lawsuits—one against Sacramento Sheriff Lou Blanas and the County of Sacramento—that his civil rights were violated by the SVP process. In 1997, Jones was picked up on a parole violation; evaluated for SVP status; held in jail for two years, while he fought his SVP designation; and then sent to Atascadero, where he remains. In effect, Jones has served a combined six years in jail and at the hospital for crimes he potentially could commit.

From Atascadero, Jones explained by phone that he was 21 years old and recently discharged from the Navy when he committed the first of the two rapes for which he was convicted.

Jones used to pick up “hookers,” he said, and then refuse to pay them, believing the women were too vulnerable to accuse him of a crime. (Court documents actually refer to the women as “hitchhikers.”) Among other crimes, Jones was convicted of rape once in 1976 in Southern California and again in 1985 in Sacramento. He admits that violence was involved. “They said I choked and raped them,” said Jones. For the second rape, Jones was sentenced to 17 years in prison. He served about half of that with parole violations.

Jones readily admits to the crimes. He thought he could get away with them, he said plainly by phone. “I’ve had some things happen to me in my life that made me not want to consider the feelings of others.” He listed a number of relevant factors: “Low self-esteem,” he said, “thinking I was slicker than I was … wrong set of values.”

Jones doesn’t have a problem with his prison sentence. He earned it, he served it, and in 1997 he was almost done with his parole.

Jones said he was living in a halfway house in Sacramento when he took a mandatory drug test and was found to have methamphetamine in his system. Claiming that he smoked marijuana but didn’t do methamphetamines, Jones wondered if the resulting parole violation was specifically designed to get him into custody so that he could be evaluated for SVP status. He’d already been out of jail for more than three years, he said. “I had nine months left on my parole. … I woke up at 6 in the morning with three or four parole agents in the room with me.”

At his hearing, Jones received a six-month sentence for his parole violation. But even before his hearing, Jones already had been identified as a potential SVP. After completing his six-month term at the Deuel Vocational Institute in Tracy, Jones was sent to the Sacramento County Jail as a “civil detainee” awaiting the completion of his SVP evaluation.

According to court documents, on December 3, 1997, as Jones arrived at the jail, a classification officer mistakenly put him in with the jail’s general population. For a year, Jones was treated like any other convict.

The officer, Kevin Farrell, claimed in court documents that “on December 9, 1998, the classification department was informed that [Jones] was undergoing civil commitment proceedings. … He was reclassified accordingly as a civil detainee.”

For the next year, while Jones fought against his classification as an SVP, he was kept isolated from the population. In one of his federal cases, Jones vs. Blanas, which he has pursued without a lawyer, Jones claims that both his time in the general population and his time in isolation violated his civil rights. In isolation, he couldn’t attend religious services, his suit claims, and he couldn’t visit the jail’s law library.

The defense claimed that he still could practice his religion privately, and it submitted numerous documents showing that even if Jones’ access to the library was restricted, he got to meet with his attorney and attend court proceedings regularly.

With capital letters and underlined words, Jones made other claims as well: that he was strip-searched at gunpoint, forced to live as a civil detainee among convicted criminals, allowed only one hour of exercise every other day and denied confidential phone calls and mail. Jones reasoned that since the SVP process identified him as a mentally ill person, the jail was obligated to treat him gently.

A federal-court judge for the Eastern District of California ruled that Jones had failed to make his case. In August 2002, his suit was dismissed. That would have been the end of it, but Jones appealed. In 2004, the 9th Circuit Court of Appeals evaluated the case differently, saying that as a civil detainee, Jones was “entitled to conditions of confinement that are not punitive.” The court also accepted Jones’ argument that he was denied access to religious activities.

The 9th Circuit overturned parts of the lower court’s ruling, upheld others and sent the case back to the district court. The 9th Circuit also asked the Eastern District court to find Jones an attorney. The case now is being sent to the UC Davis Civil Rights Clinic to see if attorneys there will represent him.

Jones also is pursuing a habeas-corpus case claiming that technically, being held on a parole violation, he never should have been a candidate for SVP evaluation. His argument is based on a technicality, and so far, no judge has accepted it.

A two-year stay at the county jail appears to be unusual in most SVP cases, but Jones claims that he filed motion after motion in his case, which elongated the process.

For a sex offender to be classified as an SVP and sent to Atascadero, he must be convicted of “violent sexual crimes involving two or more victims.” He also must be evaluated by two mental-health professionals who agree that he has a mental disorder making it likely he will re-offend.

But commitment to Atascadero isn’t guaranteed. A record from the California Department of Health Services claims that of 5,867 total commitment cases, only 506 SVPs made it through the evaluation process, a probable-cause hearing and a trial that ended in their commitment to Atascadero.

Evidence against Jones included results from his Static-99 test, which estimated the statistical probability that he would re-offend. As Jones remembers it, he was estimated to have a 40-percent chance of re-offending within the first 15 years.

“It’s so subjective,” said local attorney Mark Merin. The law asks “psychologists to predict future behavior. … It cannot be reliably done.”

In his December 1999 trial, Jones remembers that the jury deliberated for three days and came back saying that he “had a mental problem, no volitional control and was likely to re-offend.”

Jones will receive a new trial every two years, though his most recent trial was postponed so that he could pursue other legal cases.

Richard Curry, a deputy district attorney in Sacramento, said he couldn’t speak specifically about Jones’ case but that generally, it is harder to win jury support for commitment in multiple-rape cases than for child-molestation cases. Rapists “tend to burn out,” said Curry, as they get older. “It’s not the same for pedophiles.”

According to Jones, the threat of a third strike was enough to keep him from re-offending. He’s done the math. With enhancements, he said, any felony would net him about 40 more years of prison time. Jones is already 50 years old.

When Jones got to Atascadero in 2000, he was surrounded by 450 other sexually violent predators. He chose not to join them in psychological treatment, claiming that most of them were there for pedophilia. Asked how he spent his days, Jones said he spends most of his time doing legal research.

Jones may be one of the first to file a federal case against Sacramento for his treatment as a civil detainee, but he claims to know other SVPs with similar stories. Court documents show that at least one other inmate has requested information from the court regarding Jones’ case because he’d like to be considered as part of a class-action suit.