Having already served their sentences, hundreds of Virginia sex offenders are held behind bars for months _ some for years _ while waiting to see whether they'll be sent to a psychiatric center indefinitely, an Associated Press review has found.
Judges acting on the requests of both prosecutors and defense attorneys routinely shrug off the legal deadline for making that decision, leaving the inmates in limbo well beyond their designated punishment and without access to the very kind of treatment the state says they may need.
Attorneys and authorities blame the delays on court backlogs and note that in some cases, the postponements benefit the inmates.
Either way, the result is that just one out of six cases gets decided by the deadline, which the law says should be extended only for "good cause," according to figures obtained by the AP through a series of public records requests.
Virginia and 19 other states allow certain sex offenders to be detained at psychiatric facilities after their sentences are served if they have a mental disorder that would make them more likely to offend again. In Virginia, the Attorney General's Office files a civil petition to deem someone a sexually violent predator, and a judge and jury decide whether the offender should be committed.
Lawmakers set a 210-day timeline so that the court cases would be completed around the time the offender's prison sentence is over.
But a review of court documents and more than 400 filing records shows that only 73 of the 436 petitions filed from the program's beginning in 2003 through the start of September were finalized within that seven-month window.
The slow track of these cases "threatens to eviscerate the meaning of due process," attorneys for sex offender Galen Baughman argue in a filing to the Virginia Supreme Court challenging the practice.
Baughman was supposed to be released from prison in November 2009 but remains in segregation in an Arlington jail.
"While awaiting trial on this purportedly `civil' case, Mr. Baughman has effectively served a new sentence, the length of which now exceeds the actual prison terms for certain convicted felons," the attorneys wrote.
Of the 364 cases that have been completed, one took more than six years to wind through the courts, another took five years and four others took more than three years. An additional 13 cases took more than two years to be settled. The average case took just over a year, or about five months longer than is outlined in the law.
Of the 72 cases that remain pending, one has been unsettled for more than four years, four for more than three years and eight others still had not been finalized after two years. Another 16 were filed more than a year ago.
The Attorney General's Office said it would charge the AP at least $11,000 to answer a Virginia Freedom of Information Act request for data that included specific information on the amount of time offenders were held beyond their prison release date. The state Department of Behavioral Health and Developmental Services provided a similar database promptly and at no cost.
"If these things aren't taken seriously by the Attorney General's Office and if they're not enforced by the courts, then whatever their intention is on paper, it's not being met and people are being punished a second time," Washington attorney Eugene Gorokhov said of the timetable outlined in the law. "The judges need to realize that these requirements that were put in by the Legislature were put in for a reason, and they need to enforce these things stringently."
Gorokhov represents Baughman, who at 19 pleaded guilty in 2003 to carnal knowledge for having sex with a 14-year-old and for aggravated sexual battery for sexual contact with a 9-year-old when he was 14. He also pleaded guilty to obscenity for sending another teenager a lewd photo.
Like in other cases, some of the five delays were requested by Baughman's attorneys, including one so that his parents could come up with the money to hire an expert. Others were at the request of the state, including one for the surprise retirement in July of the assistant attorney general who led the division that pushed back Baughman's trial from August until March.
The Attorney General's Office argues that speedy trial rights don't apply in such cases _ these are civil rather than criminal proceedings.
Also, most delays are on behalf of the offenders, while very few are at the request of the Attorney General's Office, spokesman Brian Gottstein argued.
Virginia law says that trial extensions are allowed only for "good cause," but it does not cap the number of continuances and contains no consequences for judges or attorneys who continuously delay the cases.
In another court challenge, attorneys for Jack Harvey argued his continued imprisonment was unconstitutional because he was held in prison and the U.S. Supreme Court has said civil commitment is constitutional only if the detainment is for treatment _ not further punishment. Harvey, who has been in prison since 1997 for sex crimes, was supposed to be released in October 2010.
Harvey's attorney, Terry Marsh, argued that he should have been moved to another facility rather than held in prison. Last month, a Circuit Court judge rejected that argument, saying the law had been upheld.
It makes sense to hold the offenders in prison, Department of Corrections Director Harold Clarke said, because an offender who may have done well during his sentence may become an escape risk if he is facing the possibility of indefinite detainment in a psychiatric facility.
Del. David Albo, chairman of the House Courts Committee that wrote the civil commitment law, said while it was not intended for offenders to languish in prison after their sentence is over, he knows of no alternative.
"If there's probable cause to believe the person is a sexually violent predator, then I don't think anybody but these people would have a problem holding them after their release date," he said. "That's not the way it's supposed to work in a perfect world, and nothing's perfect."
Associated Press Writer Dena Potter can be reached at _ http://twitter.com/DenaPotterAP.