At 21, Thomas Simmons has spent nearly half his life in confinement.
When he was 13, Simmons was sent to a juvenile detention center for raping and sexually abusing a younger relative over a period of years. When he was 17, Simmons became the youngest person indefinitely committed to South Carolina's adult violent sex offender treatment program, according to court testimony.
The government initially placed Simmons in a restricted wing and assigned a staff member to stay with him to protect him from the other residents, many of them middle-aged child molesters, a program psychologist testified earlier this year.
Four years after his civil commitment, Simmons is asking the South Carolina Supreme Court to order his release. Though experts for the state Attorney General's Office say Simmons is still dangerous, a psychologist at the sex offender commitment center testified at a court hearing earlier this year that Simmons has not shown signs of sexually violent behavior since before he was 13, and should be released.
“Thomas was at best 11 years old when he committed his crime; he was a child,” said Brana Williams, Simmons's attorney.
“And now he may be locked up for the rest of his life. This is why they say you should not get life without parole when you're that young. You're not who you're going to be.”
At least 10 states allow some form of juvenile sex offender civil commitment, according to research compiled by the Defender Association of Philadelphia. In four of those states, at least 52 adults—not including Simmons—are currently indefinitely committed as sex offenders as a result of crimes they committed when they were juveniles, state departments of corrections and mental health said in response to inquiries from The Crime Report.
The six other states either do not track such commitments or did not respond to requests for information in time for publication.
'Worst of the Worst'
The juvenile offenders are described by prosecutors as the “worst of the worst”—those likely to commit another sex crime and therefore too dangerous to release.
But some mental health experts who specialize in the treatment and risk assessment of juvenile sex offenders say civil commitments raise troubling questions. In many cases, these experts say they cannot reliably predict whether a young person who has committed a sex crime will grow up to become a dangerous sex offender.
“If someone says I want to protect the public from the very small number of individuals who are highly dangerous, but I don't want to put children in institutions for things they might have done, the reality is you cannot have it both ways,” said Mark Chaffin, a director at the Center for Child Abuse and Neglect at the University of Oklahoma Heath Sciences Center.
“A very small number of kids are really likely to do horrible things,” Chaffin added in an interview with The Crime Report. “If you want to protect the public, the price you pay is that you will harm probably a larger number of children who are not going to commit crimes.
“That's what no one really wants to face.”
In a series of cases over the last eight years, the Supreme Court has signaled a shift in how the law treats underage criminals.
In 2005, the Court banned mandatory death penalty for juveniles in Roper v Simmons. Five years later, in Graham v. Florida, the Court barred mandatory life without parole sentences for juveniles who were not convicted of murder; and in June this year it ruled that all mandatory life without parole sentences for juveniles violated Constitutional protections against “cruel and unusual punishment.”
The justices' decisions were based in part on briefs from medical experts arguing that juveniles' underdeveloped brains, immaturity and impulsiveness made them less culpable for their actions. Because of that immaturity, the Court wrote in 2005, “juvenile offenders cannot with reliability be classified among the worst offenders.”
At the same time, many states have moved in the opposite direction when it comes to young sex offenders: they have applied to juveniles many punishments once reserved for adult sex offenders, including mandatory registration on public registries and, in rare cases, potentially permanent civil commitment.
Though the commitment process varies from state to state, a young person who commits a sex offense is often sent to a residential treatment center for juveniles. As with adults finishing a prison term, when a juvenile is nearing release from confinement, usually because he or she is too old for the juvenile system, the government can ask a court to issue a civil commitment order to a center for sexually violent predators.
Prosecutors, looking at the sex crime and the offender's subsequent behavior, typically must show that an offender committed certain types of violent sex crimes and has a mental illness or abnormality that makes it likely they will do so again. Though commitment decisions typically are reviewed every year, release from sex offender centers is rare.
The Supreme Court has said that adult sex offender civil commitment is constitutional, in part because it is not considered a criminal punishment. The fact that sex offender commitments are a civil process subject to periodic review makes it difficult to challenge juvenile commitments on constitutional grounds, according to Nicole Pittman, a Soros Senior Justice Advocacy Fellow with Human Rights Watch.
However, Pittman noted that the Ohio Supreme Court, relying on the Simmons and Graham cases, recently found that mandatory lifetime registration for juvenile sex offenders violates the constitutional ban on cruel and unusual punishment.
Numerous studies have shown that about 10 percent of them will be rearrested for another sex crime—a lower recidivism rate than for most other juvenile crimes and for adult sex offenders.
Civil commitment cases present challenging problems for prosecutors and mental health experts, who must try to separate the truly dangerous young criminals from the much larger number who will probably never commit another sex crime.
Unlike adult sex offenders, juveniles tend to be impulsive, experimental and prone to risk-taking, said Robert Prentky, a professor at Farleigh Dickinson University who specializes in risk assessment of juvenile offenders.
Risk of Re-Offending?
Since juveniles' brains are still developing, their risk of re-offending can change quickly as they age, Prentky said.
Chaffin, of the Health Sciences Center in Oklahoma, said that in some cases it will be obvious to anyone that a young person is dangerous. But he said that many juveniles, because of their age, do not have a significant pattern of deviant sexual behavior and often have not had time to develop a stable sexual proclivity, making it difficult to say who will reoffend.
“Evaluating risk in juveniles is extraordinarily complex and difficult, much more so than risk assessment of adult offenders,” said Prentky, who developed one of the commonly used juvenile sex offender assessment tools. “It's a whole different ball game entirely.”
He continued: “The very fact that you're dealing with 15 or 16-year-olds, or even younger (juveniles), means that all aspects of their development are in flux.”
Though researchers have identified known recidivism risk factors, many experts say the prediction models used on adult sex offenders don't accurately forecast which children will go on to become repeat sex offenders and which will grow out of it.
“The tests that we have to predict recidivism for juveniles just really don't work at the level they need to work,” said Richard Wollert, a psychologist in Vancouver, Canada who specializes in sex offender assessments. “I think it is impossible to answer the question that the court poses in these cases unless there is some extraordinary evidence of mental abnormality.”
Those differences with adults mean that many of the policies designed for adult sex offenders may not be right for juveniles, said Maia Christopher, the director of the Association for the Treatment of Sexual Abusers.
Compared to adults, juveniles are both more amenable to treatment and less likely to persist in deviant behavior, she said.
And some practitioners question whether civil commitment is ever appropriate for someone who committed a crime when they were underage.
“There are interventions that should never be used on juveniles and civil commitment is one of them,” said Elizabeth Letourneau a professor at the School of Public Health at Johns Hopkins University.
“Something that you do as a child of eleven, twelve, or thirteen rarely predicts what you're going to do as someone age 21,” she said.
Letourneau, who was also an expert witness for Thomas Simmons at a recent court hearing, said home-based treatment is effective in treating most juvenile offenders.
Other experts contacted agree that once someone is committed, it becomes difficult to know when to release them.
“When you have someone in the system since they're 12, and then they're civilly committed, there are not many people who will say that that person is going to get out,” said Pittman. “We have institutionalized children so badly that they can't go somewhere else.”
Others see no better alternative and say they are able to identify the few juveniles who are too high risk to release.
“The number one tenet in sex offender treatment is 'no more victims',” said Vito DonGiovanni, the former director of Pennsylvania's sex offender treatment center.
A small number of juvenile sex offenders are referred for potential commitment, and an even smaller number have been committed.
The Case of Pennsylvania
In Pennsylvania, the only state with a civil commitment program solely for sex offenders aging out of the juvenile justice system, more than 180 commitment assessments have been completed since 2004, said Meghan Dade, director of the state's Sexual Offenders Assessment Board.
Of those, the state committed 39 people; one has been released because he no longer met the criteria for commitment, Dade said.
In Washington, 31 juveniles were recommended for commitment between 1990 and 2003, about one percent of juvenile sex offenders placed on parole, according to the Washington State Institute for Public Policy. Of those, six were initially committed; another four were later committed after their initial release.
“There are some juveniles who have committed crimes that foretell of a spectacular risk of future predatory behaviors,” said Paul Stern, a prosecutor in Everett, Wash., who has handled several juvenile civil commitment cases. “If we are skilled at identifying those individuals, then sexual predator laws that apply to that very, very small population are appropriate.”
Added Stern: “The risk or the dangerousness is not unique to adults and foreign to those under 18. A 17 year old can be just as dangerous as a 21 year old.”
DonGiovanni, the former director of Pennsylvania's sex offender treatment center, said that researchers were only now “on the cusp” of understanding how to best deal with dangerous young offenders. But, he said, commitment was the best option for those in Pennsylvania's program.
“Some of these guys, it gives you chills. I'm happy for society that they're getting the treatment they need and not out offending against some little kid,” he said.
In the Thomas Simmons case, according to court briefs, Simmons raped a younger male relative and forced him to have oral sex at least five times over a period of three years, when his relative was between six and nine years old. At one point, Simmons choked the relative until he was unconscious, according to the briefs.
Simmons was sent to a juvenile sex offender facility when he was 13. At the time, according to Don Stewart, a retired professor who has mentored Simmons, he was manipulative and aggressive and did not acknowledge that he had done something wrong.
When Simmons was 17, a court-appointed psychologist diagnosed him with “sexual sadism,” but said that he should not be committed to the adult violent sex offender program, according to court testimony. The state Attorney General's Office argued that he belonged in program, and a jury agreed.
The Attorney General's office and the state Department of Mental Health declined to comment on the case. But, according to court filings, while in a juvenile facility, Simmons had 30 disciplinary infractions, including fashioning a weapon, and allegedly became angry when he was told he would have to pay restitution to his victim.
At the time of his commitment, Simmons had fantasies about rape and other sexual violence, the brief says.
Since 2010, Simmons has had three hearings to determine whether he should remain committed. A jury voted against release once and twice deadlocked, according to court papers.
Dr. William Mulbry, a forensic psychiatrist, testified for the Attorney General's Office earlier this year that Simmons had not been adequately treated for sexual sadism and remained a threat to the public. He said Simmons lacked empathy and insight into his mental problems.
But other psychologists have questioned Simmons' diagnosis as a sexual sadist and said he does not belong in the commitment program.
Thomas Victor Martin, the former chief psychiatrist at the South Carolina sexually violent predator program, testified earlier this year that giving a juvenile a diagnosis like sexual sadism was “rather reckless.” He said Simmons should be released.
Since 2010, psychologists at the sexually violent predator program also have recommended releasing Simmons, saying he is unlikely to commit more violent sex crimes, according to court testimony. The program's acting clinical director testified that exposing Simmons to sexually deviant fantasies as part of continued treatment could be harmful.
Simmons is now asking the South Carolina Supreme Court to order his release, arguing that his confinement violates his constitutional rights.
Both the Attorney General's Office and the Department of Mental Health say that a judge or jury should resolve the dispute between the two agencies.
Simmons's mother, along with mentor Don Stewart, maintain that the youth wants to go to college or join the military if he's released. Stewart said Simmons asked for forgiveness for his crime and wanted to move on with his life.
“That was him when he was 10 or 12 years old,” Stewart said. “People change over time. He has grown up so much. He has served his time.”
Scott Michels is a New York City-based lawyer and a freelance writer for The Crime Report. This story was jointly commissioned by The Crime Report and the Juvenile Justice Information Exchange. Michels welcomes comments from readers.