At great costs to the taxpaying public, the Department of Mental Health (“DMH”) officials, staff, and contractors are incarcerating hundreds of people beyond the end of their prison sentences.  These are people who have completely served a prison sentence for a “sexually violent crime,” as defined by statute but not necessarily violent in reality, and sometimes committed decades ago.

This is being accomplished through the impersonal, dubious, use of actuarial instruments (FN. 1), which do not require the person being evaluated ever be interviewed.  Actuarial instruments are a fill-in-the-blank, with a number, answer to questions about the person’s history, and then compare a numerical total to studies of similar questionnaires.  From this a recidivism risk percentage is predicted.  Add to this an evaluator’s personal opinion, and the result has become so Orwellian and mechanical, the person is now diagnosed with a mental disorder without ever having been interviewed.

This happens when the actuarial instrument results are enhanced with opinions of contract psychologist (“Experts”), who are recently reported to earn from their DMH contracts, and payments from district attorneys, up to $341,770 per year.  (FN. 2).

In California, these targeted individuals are committed to the custody of the DMH pursuant to the Sexually Violent Predator Act (“SVPA”), which is codified at Welfare and Institutions Code (“WIC”) §6600, et seq.  Ostensibly, the commitment is for a two year period, but in reality, the commitment becomes a life-sentence to a maximum security “hospital.”  This hospital is, in fact, a prison with another name.

This commitment process begins approximately six months prior to the person’s scheduled release date from prison at the completion of the person’s penal term.  (WIC §6601 (a)).  That person’s California Department of Corrections (“CDC”) Central File (“C-File”) is reviewed, screening him, usually by computer, to determine whether the person has been previously convicted of two or more “qualifying” offenses, and has two or more victims.

If the computer spits out a “yes” to the query, a more in-depth review is begun by the CDC who then involves Board of Prison Terms (“BPT”) personnel, where yet another screening and review is completed.

So far, this process is very mechanical; based solely upon the person’s old criminal history which sent him to prison in the first place, as well as the hearsay, rumor, and innuendo, which have become a part of the person’s prison C-File and criminal record over the years.  Items which the person has never been given a reasonable opportunity to challenge are now accepted as fact in his files.  If the BPT finds their criteria also to have been met, the case is referred to the DMH.  (WIC §6601 (c) and (d)).

At this time, the prisoner who expects to be released soon has no idea of what’s coming.

Next, the DMH sends two “Experts” to interview and evaluate the targeted individual.  When the person is summoned, without warning, to the first of these interviews, this is his first knowledge of the process.  It is not just a surprise—it is a complete shock—often catching the person off balance, thus enabling the psychological experts to easily violate his rights.  By the time the second Expert arrives a few days later, the person may have been able to learn more about the essence of the situation.

Many targeted individuals refuse the DMH Experts an interview, and are told, “we don’t need the interview.  We can make the diagnosis from your file.  The interview is only for your benefit.  Please sign this Form which states you understand anything you say can and will be used against you in a court of law.”  To anyone who has read history, this whole process is reminiscent of the Spanish Inquisition.

If the two Experts both find the person does not meet their criteria, he hears no more and is released on parole as scheduled.  If one Expert finds he meets the criteria, but the other does not, the DMH keeps sending additional panels of Experts until two of them agree.”  (WIC §6601 (e)).

When two Experts agree the person meets their criteria, the DMH sends the information to the designated county attorney, normally the District Attorney, with a recommendation to file a petition for commitment.  Typically, the county attorney has filed these petitions whenever recommended because historically the state has provided nearly total funding to the counties for prosecuting these civil commitments.  This bring money for salaries into the local communities, and trickles-down into the local economy, providing great financial incentive to counties to pursue these civil commitments.

Presently, this state funding is less reliable due to state budget concerns, with the Attorney General issuing an opinion on Monday, May 17, 2004, (2004 DJDAR 5816) shifting these costs to the counties.

When a petition for commitment is filed, the targeted individual is taken to the county jail and housed like a criminal, even though he has fully completed his penal term, and is now subject only to this civil commitment action.  Nevertheless, his punishment continues, as it is a civil commitment in name only.

The next step in the process is a Probable Cause Hearing before a Superior Court Judge, (WIC §6002), then if probable cause is found the person is bound over for a jury trial.  Up to this point, everything has essentially been a paper review of the person’s past.  The government has had little burden of proof, since in reality, a probable cause finding only requires some suspicion that the allegations may be true.

However, this burden supposedly changes at jury trial where the government is required by the SVPA to prove beyond a reasonable doubt certain elements, which include that the person is presently dangerous.  That this dangerousness is caused by a current mental disorder that makes him likely to commit sexually violent crimes if released, a serious and well-founded risk the person will reoffend in a sexually violent manner.

Logic immediately brings one to ask the question: How do the Experts arrive at present dangerousness and a current or present information, but rather was based solely upon a paper review of often decades old material?

The Experts, and their partners in financial incentives, the District Attorneys, avoid a present, current, or right now, showing through subterfuge and diversion, where they shift the focus by inflaming the passions of the judge and jury through a minutiae detailed graphic presentation of the person’s past criminal history.  He is simply retried for the original crime for which he has just completed the serving of a prison sentence.  There is never a showing of a current or present condition made.

As an analogy, when a person is sick, that person shows symptoms.  Mental health is no different.  One expects a crazy person to act crazy, and lesser degrees of impairment still shows some sort of sign or symptom.  Impaired people display behavioral quirks which are visible, they do overt acts.  When the person recovers, the symptoms are no longer there.

For the majority of those targeted for civil commitment under the SVPA, the DMH Experts can point to no current or present symptom.  This is their dilemma.  These Experts have forsaken their ethics oaths, and prostituted themselves to the golden cash cow of taxpayer money available through the SVPA laws.  (FN.  3). 

The State’s Experts make a diagnosis of a mental disorder based upon the historical record, claim that people never change, and therefore the person still has this same mental disorder.  Next, the Expert carries this circular logic one step further, then claiming that because the historical paper review diagnoses was made in the present time, the diagnosis of a mental disorder is therefore current.  Yet, the Expert cannot point to any current or present symptom.

Other states require the current or present condition be shown through a “Recent Overt Act.”  This would be a symptom.  However, California specifically states in its SVPA that a Recent Overt Act is not required.  (WIC §6600 (4)(d)).  This lack of such a requirement in California creates a logic dilemma: How does one show a symptom for a current or present mental disorder if he hasn’t done anything recently?

A Recent Overt Act does not need to be criminal in order to indicate the person has a problem, but the person must do something related to behavior normally associated with the claimed mental disorder.  A Recent Overt Act can manifest itself in many ways, but all of them are visible and require some current or present behavior on the part of the person, and this visible behavior would be a symptom of the proffered mental disorder.

Because the DMH Experts are unable to point to any current symptoms, the only way these civil commitments succeed is through the inflammation of the passions of the jury through retrial of the person utilizing graphic details of his original crime, and confusing the jury with complex statistical studies involving groups rather than individuals, none of which have anything to do with the present.  These Experts are simply predicting the individual may commit a crime at some obscure time in the future.

The tactics remind one of George Orwell’s “Big Brother” predictions.  The situation is similar to that explored in Steven Spielberg’s movie “Minority Report” staring Tom Cruise.  The movie explores the diminishing privacy in America.  For the protection of the public, does the government have the right to predict that we may commit future crimes?  And from these predictions, does the government have the right to incarcerate future possible criminals to prevent these predicted future crimes?

Minority Report is science fiction, however, the SVPA is reality.  Our government presently does what Minority Report warns against.  They now utilize two experts to predict people possibly may commit a future crime.  They arrest and imprison the suspected future criminal through civil commitment procedures so they cannot commit these possible future crimes.

This sham is being perpetuated upon the taxpaying public at huge costs.  The incarceration of these individuals in California, approximately 550 and growing, average $350.81 per day per person in 2002.  The average annual cost was calculated by dividing the cost of operating the “hospital” last year ($144,859,849) by the total number of patient days (412,935).  (See EXHIBIT 
“A”,  A-2).  This data was provided on August 6, 2003, by the Department of Developmental Services.  These numbers are expected to more than double in the next five years as this program is expanded.  These numbers do not include the huge legal costs or Expert costs.

Do taxpayers really want to spend this massive amount of money to incarcerate people beyond the end of their prison sentences through a process reminiscent of third world horror stories, and certainly not in keeping with traditional American values of fair play and justice for all.

Citizens need to realize that governments always start such programs with a hated and therefore defenseless group, and expands from there.  An example being the Holocaust.  Wake up people!  In order to protect one’s own rights, one must protect the rights of others.  The one flows from the other.  If you don’t, you could be next.

FN.  1. Actuarial instruments are nothing more than statistical group surveys which are based upon averages, and were originally developed by insurance companies to assess the risk to insure groups of people, e.g., What percentage of people who drive red sports cars have accidents compared to those who drive compact economy cars?  From this, a rate of charge to insure is determined for each group.  They were never meant to make predictions about any particular individual.

FN.  2. See “State experts get big fees to evaluate mental health,” by Jim Doyle, San Francisco Chronicle Staff Writer, Monday, July 12, 2004.

FN.  3.  Ibid.

Thomas B. Watson, Political Prisoner
AT 054128-4, U-16
P.O. Box 7001
Atascadero, CA 93423