By the time he was 11 – after he had threatened to bring a gun to school and attempted to poison his parents with cat de-worming medication – Thomas Simmons was convicted of sexually assaulting a 9-year-old.
He spent six years at the Department of Juvenile Justice. But just before he was to be released, the state Attorney General’s office had him committed – indefinitely – to the Sexually Violent Predator Program at the Department of Mental Health.
When Simmons got there in 2008, the program had 94 people in it. Today, it has 157, a 67 percent increase.
In July, lawmakers gave the Department of Mental Health an additional $7.4 million in recurring money to meet the growing demands of the program. Next year, they are asking for $1.4 million more.
The facility at the Broad River Road Correctional Facility that houses violent sexual predators is full.
The Department of Mental Health is paying $552,750 for a new facility, scheduled to open in January, that should allow for 90 more people. But all of those spots will be filled by 2015, according to the Department of Mental Health.
As the program to indefinitely commit the most violent sexual offenders expands and lawmakers search for ways to fund it, serious questions are arising about why the growth is happening and how individual retention decisions are made.
And officials, meanwhile, are forced to deal with cases like Simmons’.
Since 2010, the psychiatrists and psychologists at the Department of Mental Health have – three times – recommended the release of Simmons, who is 21 years old today.
But each time the Attorney General’s office, spooked by three instances of offenders being released only to sexually assault someone else, have stopped it.
How can lawmakers manage the cost of a rapidly expanding program while protecting public safety?
“I don’t know the answer to all of that,” said state Rep. Murrell Smith, R-Sumter, who leads the House subcommittee that oversees the Department of Mental Health’s budget.
Program modeled after Kansas law
South Carolina’s Sexually Violent Predator Program began in 1998 when the state legislature passed the Sexually Violent Predator Act. It was modeled after a similar law in Kansas that was upheld by the U.S. Supreme Court in 1997.
If you are convicted of a sexually violent crime, you first serve your sentence at the state Department of Corrections or the Department of Juvenile Justice. But if the state can prove that you are a sexually violent predator, the law says they can hold you indefinitely for treatment.
Once committed, the law says patients must have their mental health reviewed once a year. If the Department of Mental Health decides you are safe to be released, they will allow you to petition the court for release.
In the early years of the program, the state Attorney General’s Office rarely opposed such releases. From 2004-10, the program on average released 10 people per year.
But several cases have prompted the Attorney General’s office to be more cautious.
In 1999 Derrick Swinney was convicted of criminal sexual conduct in the second degree. The state committed him to the Sexually Violent Predator Program. After a year, the department recommended his release. The Attorney General’s Office did not oppose it, and Swinney was released.
Less than a year later, Swinney was convicted of kidnapping a woman and sexually assaulting her in an abandoned mobile home, according to local news reports.
“It made us slow down and say we need to look at these more closely,” said Deborah Shupe, senior assistant deputy attorney general in charge of the Attorney General’s Sexual Violent Predator Unit. “In the last three years, I will tell you the AG’s office has more frequently exercised its right to get a second opinion.”
Shupe estimates about 80 percent of those committed to the program are “diagnosed pedophiles.” All of them are men; however some women have come close to being committed, Shupe said.
Last year, four people were released. So far this year, no one has been released. Yet the program likely will have a lot more commitments in the coming years, according to Smith.
Since 1994, when the South Carolina legislature passed sentencing reform, violent offenders have to serve 85 percent of their sentences. Smith said today, many of those folks first sentenced in the mid-1990s are starting to be released, triggering more reviews and possible commitments to the Sexually Violent Predator Program.
“I think this is going to be an issue the Legislature is going to have to combat with funding, because I do not think there will be a decline in that population,” Smith said. “I think there are going to have to be more resources committed by the state of South Carolina to this program.”
While the Department of Mental Health plans to open the new facility in January, officials already are thinking ahead, said Mark Binkley, the department’s general counsel. Earlier this year, lawmakers ordered the department to prepare a report, due in May, on the future needs of the program.
Some offenders considered pawns
Simmons’ case is tied up in a number of lawsuits, including one before the S.C. Supreme Court, highlighting just how difficult it has become to be released from the program.
Since 2010, Simmons has had three release trials. One jury declined to release him. The other two were mistrials, caused by juries deadlocked at 11-1, according to court documents.
“None of us would be here today if we didn’t believe that Thomas Simmons was safe to be at large,” Peggy Wadman, medical director for the Department of Mental Health’s medical division, testified at one of Simmons’ three trials, according to a court transcript. “We’re saying he is safe to be at large and if released he’s not likely to reoffend.”
Simmons’ court-appointed attorneys, Gene Connell and Brana Williams, argue that Simmons is “a pawn,” caught between two governmental entities.
“Can one branch of the State detain a citizen because another branch of the State disagrees with its decision?” the attorneys wrote in a petition filed before the state Supreme Court. “The answer has significant implications for all of South Carolina’s citizens and the individual freedoms which each enjoy.”
Shupe and Attorney General Alan Wilson say while their goal is to get these offenders healthy, “public safety is the driving factor in our decision to commit someone.”
In Simmons’ case, the Attorney General’s Office has hired its own independent expert who has testified Simmons is still a danger to the community.
While the Attorney General’s Office and the Department of Mental Health disagree about Simmons’ status, Wilson says this is exactly the type of situation the law was set up to handle.
“Neither the (Department of Mental Health) nor the Attorney General is the final arbiter of whether the person should be released,” Wilson wrote in court documents. “Rather, the issue is decided in a courtroom, and when the evidence is contradictory, a jury comprised of twelve members of the public makes the ultimate decision.”
While the program has grown rapidly and the number of releases has declined, Shupe said the state has committed less than 3 percent of those screened. And the Attorney General’s Office has only opposed two release petitions. In one case, the Attorney General’s Office was successful in denying a release, only to let the offender be released 1½ years later without opposition.