So You Want to Find a Transitional House for Sexually Violent Persons

Abstract

Many states passed legislation in the 1990s to address the problem of violent sex offenders. While academic inquiries into the nature and extent of sexual offending have revealed some interesting findings, very little is known regarding how communities address the issue of managing violent sex offenders. This account documents how the state of Wisconsin attempted to manage violent sex offenders once released from prison and civilly committed under a sexually violent person statute. It chronicles the experience of a committee charged with locating possible sites for a facility for sexual predators under supervised release to the community. In addition, this account shows the problematic nature of implementing a state statute in a large county and identifies barriers inherent to this process. The concept of political failure is introduced to describe why sex offender legislation is difficult to implement.

Keywords

sex offenders sex offender residency sex offender supervision

Introduction

Few other criminals ignite the anger, fear, and condemnation of the public as sex offenders. Viewed as qualitatively different from other types of offenders, they are believed to be a homogeneous group specializing in sex crimes exclusively (Palermo & Farkas, 2001). Research findings, however, demonstrate that like other offenders, sex offenders tend to be more versatile in their criminal behavior (Harris, Smallbone, Dennison, & Knight, 2009; Simon, 2000). According to Simon (2000), researchers who measure the versatility of offending are in agreement that sex offenses are single or infrequent crimes that often are embedded in an extensive criminal history of property and violent crime.

Sex offenders are also presumed to be more dangerous offenders highly likely to repeat their crimes and more likely to recidivate than other types of criminal offenders, even though there is no supporting empirical evidence (Palermo & Farkas, 2001). The reality is that recidivism rates for sex offenders are relatively low. Sample and Bray (2003) contend that sex offenders have one of the lowest re-arrest rates for any crime and for the same original crime than do most other offenders. A comprehensive meta-analysis of 61 studies with a combined sample of 28,972 sex offenders found an overall sex offense recidivism rate of 13.4% in an average follow-up period of 4 to 5 years (Hanson & Bussiere, 1998). A later meta-analysis of sex offender recidivism also confirmed a lower recidivism rate of 12% among the 9,454 sex offenders in the 43 studies in the sample (Hanson et al., 2002).

Based on public assumptions, convicted sex offenders are subjected to intensive measures of legal and social controls (Miethe, Olson, & Mitchell, 2006). Numerous sex offender laws and policies have been enacted that apply to all sex offenders as a distinct group regardless of the type of sex crime and their likelihood to reoffend. Universal and selective crime policies and initiatives targeting convicted sex offenders have been instituted with little opposition or challenges from individuals and groups including legislators, political figures, criminal justice officials, and the general public.

In terms of criminal justice strategies, legislation at the county, state, and federal levels represents a broad spectrum of alternatives and options in limiting the movements and actions of sex offenders. This has taken the most notable form under the rubric of sex offender registration and community notification laws, such as the Jacob Wetterling Act, passed by the U.S. Congress in 1994 and then amended in 1996 and known as “Megan’s Law.” Under these pieces of legislation, states are required to post information regarding sex offenders on public websites and notify the public about sex offenders in their communities. The Adam Walsh Act, passed in 2006 (Adam Walsh Sex Offender Registration and Notification Act, 2006) offered guidelines for states to follow in the registration of sex offenders, and in some states, residency restrictions are intended to constrain where convicted sex offenders can live and sometimes work.

The fervor with which political bodies have advocated even more restrictive laws is unparalleled (Palermo & Farkas, 2001). As a unique response to this fear of sex offenders, 20 states have passed Sexually Violent Persons (SVP) laws that allow for the commitment postincarceration of a class of sex offenders to a specialized mental health facility for an indeterminate period (Deming, 2008). The laws require a periodic evaluation as to whether the sex offenders committed as SVPs are now safe to be released to a lesser level of restriction (Lacoursiere, 2003). The SVP law has raised interesting questions regarding the political processes in place to create legislation to address the incapacitation of sex offenders and how the public’s attitude may influence the application of laws.

A paucity of research has investigated how such laws designed to manage sex offenders actually become laws in practice (Terry, 2007). In addition, we know even less about the processes of implementation of sex offender laws. Because how the law is implemented is so critical to the law’s effectiveness, it is important to examine how laws designed to manage sex offenders in the community actually achieve that objective. Many of these laws have been endorsed without the benefit of empirical research as to their effectiveness. The net result is the efficacy of SVP legislation in the first place (Levenson, Letourneau, Armstrong, & Zgoba, 2010). While Terry (2006) questions the value of SVP legislation on legal and treatment grounds, this account questions such laws at the implementation level and ultimately views such failure of implementation as an example of political failure akin to the sexual psychopath laws of the 1930s (Terry, 2006). In addition, it is not clear what series of strategies would be the most effective in managing serious sex offenders in the community (Zgoba, Levenson, & McKee, 2009) with the attendant problems of finding adequate housing, harassment of sex offenders, and difficulties adjusting to the label of sex offender (Tewksbury & Lees, 2006; Zevitz & Farkas, 2000). Moreover, what role does the community play in the supervision of SVP’s, and how do agencies responsible for the management of these offenders gain the necessary trust for such an effort to exist in a community?

This article represents an account of the implementation of a law designed to enhance the supervision of a class of sexually violent offenders in Milwaukee, Wisconsin. It chronicles the experiences of a committee, the Sexually Violent Persons Transitional Siting Advisory Committee (hereafter referred to as the SVP Siting Committee) appointed by the Governor to expedite the law’s implementation.

This account highlights the difficulties in implementing an SVP community management plan in light of the uncertainty and lack of credible knowledge on how best to accomplish such a task (Furby, Weinrott, & Blackshaw, 1989). Most importantly, this account shows that even if legislative action and authority exist to address the management of a problematical population in the community, such as SVPs, this does not necessarily translate into community acceptance. Without the support of key community constituents and political leaders, such an effort is doomed to fail. In this account, we will show that even though there was widespread legislative support for the implementation of a transitional house for SVPs in the community, and a clear plan on supervised release was developed, the level of support needed to succeed was never realized at the community level, and as such, the implementation of key elements of the law that required community supervision and transitional placement was not possible.

The article begins with a description of the Sexually Violent Persons law (Act 980) and the 2003 Act 187 mandating the formation of a committee to locate transitional housing for the SVPs released from civil commitment. We chronicle the committee deliberations, communications and actions, public hearings, and news conferences to identify the barriers to finding suitable housing for sex offenders confronted by committee members throughout the implementation process and the strategies instituted to surmount these obstacles. Next an analysis of what was learnt from the implementation of this law and the experiences of the committee is presented including a discussion on why it was not possible to find adequate housing for sex offenders in the community. Finally, the ramifications and implications of this conclusion are considered as an example of political failure at two levels: private or market failure and government failure. Possible strategies to enhance the supervision of the SVPs, to increase their safe reintegration into the community, and to mediate the fear and hostility of community residents are explored for use by future siting committees.

Qualitative data were gathered to write this account chronicling 7 months of weekly and monthly logs and transcripts of committee meetings, communique among various members of the SVP Siting Committee, communique between the SVP committee and political leaders, the media, business leaders, realtors and public representatives, and official committee reports. An analysis of radio, TV, and print media coverage was conducted to determine the focus and perspective relayed to their audience. Transcripts of telephone calls and copies of e-mails from citizens were also analyzed. Another source of data was comment sheets filled out by community members at two public hearings.

The Sexually Violent Persons Act (Chapter 980)

Purpose and scope of the law

Twenty states have attempted to address a group of the most problematical sex offenders through the passage of SVP legislation (Deming, 2008).¹ Wisconsin had developed such a law in 1994 and amended it in 2004 to provide greater control and supervision of offenders who would ultimately be deemed “not dangerous” and fit for return to the community.² The legislation was passed as a way to address the release of serious sex offenders who had completed their criminal sentences. Operating under the rubric of “public safety,” some state legislators pushed through the legislature Act 980, a law specifically designed to address the management of serious and violent sex offenders as a postincarceration strategy predicated on the use of the civil system as a mechanism to institutionalize those offenders deemed to pose the greatest threat to the community and in need of some form of treatment due to their sexually violent proclivities.³ Under the 980 statute, the offender is committed under a civil commitment procedure, viewed as a “patient,” not an inmate, the final commitment decision and release is controlled by the courts, and the person is labeled as a “sexually violent person,” not a “sexual predator.”

The period of confinement is indefinite, however the commitment procedure has full procedural safeguards analogous to a criminal trial, is composed of periodic review of commitments, the option of community placement is possible, and the intent is to address the high risk sex offenders. Moreover, the state has to prove (a) that the person had been convicted, adjudicated delinquent, or found not guilty by reason of mental disease for a sexually violent offense; (b) at the time of petition for a probable cause hearing the offender was within 90 days of discharge from a correctional facility; (c) the offender has a mental disorder, or in the words of the 980 statute has a “congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence”; and (d) due to this disorder is “more likely than not to engage in acts of sexual violence” (Watters, 2009).

The legal authority for the 980 law was based on the Supreme Court cases of Kansas v. Hendricks (1997) and Kansas v. Crane (2002) that emphasized the importance of the nexus between a mental disorder and dangerousness and the offender having “serious difficulty in controlling behavior.”⁴ If the state could not show this connection and subsequent attempts to “treat” the offender as part of a civil commitment procedure, the legal threshold could not be met, even though the Supreme court had ruled that such a connection was no longer necessary. Moreover, the state knew from the inception of the law in 1994 that there would be many legal challenges to the 980 statute, but it had withstood these challenges due to the emphasis on treatment of offenders while institutionalized under civil procedures and the state’s long-term commitment to releasing those offenders who were deemed not dangerous and determined by a court to be prepared for supervisory release in the community.

Challenges to Act 980

A primary objection to SVP laws is they create a justification of postincarceration civil commitment under the auspices of a mental disease or defect and thereby may release the offender from taking responsibility for his/her actions. Labeling sex offenders as SVPs may provide these individuals with an excuse for giving into their sexual urges (Winick, 2003). Moreover, such laws may impede change and reinforce antisocial sexual behavior (Winick, 2003). The intent of the laws is also criticized as confining sex offenders as long as possible rather than treating and releasing them as soon as possible (Winick, 2003). The state, however, also knew that if it did not release people to the community consistent with its treatment efforts, questions would remain as to whether the civil commitment process was being used as another form of punishment, or in the words of Terry (2006), was simply pretextual. The state of Wisconsin did have a number of SVPs who were deemed appropriate for community release and ordered released by a court, but had no place to house these individuals within some communities. The lack of housing options for SVPs became a significant issue in 2004 and new legislation was passed to address this concern.

2003 ACT 187

The Wisconsin Legislature enacted 2003 Act 187 on April 7, 2004, with the express intent to renumber Chapter 980 (Sexually Violent Person Commitments law) and to create definitions of a SVP and criteria for supervised release of persons defined under the chapter. The law authorized the construction of a new facility or renovation of an existing facility to house SVPs in transitional housing with the final outcome of living independently in the community if deemed no longer dangerous by a court. The relevance of this new legislation was an attempt by the state legislature to address a growing concern for the placement of SVPs in the largest and most diverse and heterogonous community in the state.⁵ The city of Milwaukee had experienced some very difficult cases regarding the placement of SVPs imposed by the state with very little input from citizens and elected officials. This raised the awareness of city residents that the state was attempting to address the issue of sexually violent offenders by placing some offenders within the city without their knowledge or consent.

SVP Transitional Siting Advisory Committee Under 2003 Act 187

Charge of the committee

The passage of 2003 Act 187 created a committee “to make recommendations regarding the location of a facility for the treatment of sexual predators” in Milwaukee County. Specifically, this committee was to provide the Department of Health and Family Services (DHFS) and the Department of Corrections (DOC) “at least three specific locations that the committee determines are appropriate for the placement of (a) facility no later than December 31, 2004.” To implement the new law in this community, the state enlisted a committee of 15 members for the SVP Transitional Siting Advisory Committee, all of whom were appointed under the authority of the governor. One of the authors was appointed as a member to serve on the committee.⁶ One of the authors was elected chair of the committee, a position that seemed logical as he was beholden to no one but the governor and could stave off much of the political heat that was sure to follow given the committee’s charge.⁷ In addition, the committee was staffed by representatives of the Department of Health and Human Services, a state agency, along with the DOC, charged with seeing that supervised community release was made possible and enhanced through the selection of a house for offenders to reside in the community.

The first formal meeting of the committee occurred on October 19, 2004, and thereafter on a weekly basis through May 24, 2005, to pursue the charge mandated by the 2003 Act 187. One of the authors organized meetings for the committee, compiled notes and transcripts of public hearings, offered testimony to members of the judiciary, kept the state supreme court aware of the committee’s meetings and deliberations, and served as the public spokesperson for the committee. Over the course of 7 months, he worked with committee members and committee staff to identify properties within the county suitable for the placement of a home for sexually violent offenders.⁸

In addition, the committee spent many hours, during the deliberate processes of meetings and traveling throughout Milwaukee County, searching for locations that would meet the minimum criteria for the location of a facility to house SVPs deemed appropriate for community supervision.

Committee Meetings, Deliberations, and Public Hearings

The search for possible locations

A review of 2003 Act 187 identified the following selection criteria for the sites to house SVPs: community safety, proximity to sensitive locations, ability to make the facility secure, accessibility to treatment for the persons living in the facility, and availability of tax incentives to a community to locate the facility within its jurisdiction. In addition, the proximity of the placement must be considered to all of the following: residences of persons on whom sex offender notification bulletin has been issued by law enforcement agencies and facilities for children that the committee was aware of and any residential subdivisions.

In addition to these statutorily defined criteria, the committee included the following criteria: the facility must be located at least 1,000 feet from any facility for children, located at least 1,000 feet from any other sensitive area (nursing homes, community-based residential facilities, disabled centers, and community centers), with a special focus given to light industrial areas, and the seller must be willing to sell or lease the property for the purposes that were intended by Act 187.⁹ The inclusion of this criterion made the committee’s work more difficult, as the city of Milwaukee was so large and densely populated. In large urban areas, like the city of Milwaukee, finding a location that was more than 1,000 feet from selected facilities was going to be challenging, yet not impossible.

Moreover, the DHFS recommended that the parcel be of adequate size to accommodate the equivalent of a single story four-unit apartment building with parking for 3 to 4 vehicles, the site must be environmentally clean, the site must be appropriate for residence, the site must meet all applicable zoning requirements, and the location must be in an area maximizing community safety. The committee considered a property viable if it met these criteria, and it was feasible to build a facility if needed, and a private property owner was willing to sell the property for the purposes intended by 2003 Act 187 and would be willing to go public with this interest to sell the property to the state.

Geographic Information Systems (GIS) was utilized to produce a series of maps, which identified properties within the county and the committee was then able to divide the county into quadrants to identify locations. In addition, the DOC provided information on the locations of the more than 1,000 sex offenders who were on active supervision within the county and their zip code locations. These offenders, as well as those who were sex offenders but no longer supervised, totaled more than 1,600 persons within the county. Moreover, the committee received from the local police department Uniform Crime data for the city for use in its deliberations.

Realtor services in the county were also consulted to find suitable locations consistent with the committee’s criteria. Out of 44 realtors contacted in the community, only one responded and agreed to assist the committee. This realtor did provide a property his company was interested in leasing to the state for the purposes expressed in 2003 Act 187, and it did become one of the final six properties that the committee decided to forward for public review and consideration at its second public hearing. Splitting up the county into quadrants and using real estate websites and commercial real estate listings, committee members attempted to find locations that would be suitable for the placement of a facility consistent with the committee’s criteria.

Public hearings

The committee was required by 2003 Act 187 to hold at least two public hearings to receive input on possible locations to house sexually violent offenders on supervised release. At the first public hearing held on November 22, 2004, only two citizens attended and spoke. Their comments were generally supportive and encouraging of the committee’s work. Three public officials also spoke at the public hearing. The first was the Milwaukee County Sheriff and the second was the Mayor of Milwaukee, both of whom expressed vigorous opposition to the location of any site within the city or county to house sexually violent offenders. The Sheriff stated,

I will not be part of any agreement that places a violent predator or a facility to house them in any neighborhood where the residents themselves do not agree to have them.

This was read from a written statement that was then distributed to media outlets throughout the city. The Mayor stated,

I think we have to separate them as much as possible . . . They have to be isolated. I am more concerned about the innocent kids and women of the community than these people.

The committee received these statements with surprise and disappointment as the Sheriff and Mayor had representatives on the committee, consistent with statutory requirements. The comments by the Sheriff and Mayor represented a view that was to be voiced by other political leader as the committee continued its work.

The third public official to speak was the Milwaukee County District Attorney who spoke of the common good and community protection achieved when the most serious sex offenders in the state are committed under Chapter 980, rather than being released into the community after serving their prison terms with little or no supervision. Although his office had opposed supervised release in all such cases, the District Attorney expressed concern that if the committee did not succeed in finding a place for individuals ordered released by the courts, then the entire statute could be at risk of being declared unconstitutional. That in turn could result in hundreds of the worst sex offenders in the state being released back into the community without any treatment or supervision.

The list of potential properties

In December 2004, the committee finalized a list of potential locations with little or no assistance from the realtor community, no support from political leaders, and limited information from the public. Nevertheless, the committee’s time-consuming and concerted efforts yielded only 20 potential addresses for further consideration.¹⁰ Within the criteria specifications for building selection, the committee rank ordered the properties based on the criteria and individual assessments of the members. In addition, there was constant contact with property owners and local governments regarding the properties.

Of the 20 properties, 17 were in the city, and all but 4 properties were owned by private property owners. To ensure the properties remained “viable,” property owners were conferred with about any continued interest in selling their properties given that pressure was likely to come from others not to sell to the state for the purposes outlined in 2003 Act 187.¹¹

Private conversations with property owners over the next 2 months began with the hope of solidifying their interest in keeping their properties under consideration. One of the authors and the District Attorney’s representative worked with property owners to discuss issues and answer any questions about the committee and its charge. Some property owners could not be found or did not return phone calls. In addition, no one representing governmental properties responded initially to queries.¹²

As the committee moved forward, it became apparent that maintaining the original list of 20 properties would be difficult. In fact, through committee deliberations and conversations with property owners, the committee had winnowed its list to 12 remaining properties.¹³

Deliberations by the committee and conversations with private property owners further decreased the list. Finally, six properties were still considered appropriate locations and after several visits, committee members voted to keep all six under consideration. A time and date was chosen for the second public hearing. To announce the six locations, the committee held a press conference on March 8, 2005, to inform the public about the processes used by the committee in determining the six locations and to encourage attendance at the second public hearing.

Public and media response to press conference

Prior to the second public hearing, individual committee members received a number of letters, e-mails, and phone calls expressing disapproval with the six locations. In particular, the Chair received two letters from the County Executive expressing his strong disapproval of county land being considered for the placement of sexually violent offenders, and that

“In no other county (has) the state attempted to put the burden of placement on county government,” and that ultimately it was the state’s responsibility to place these offenders, not the county.

Similar views were offered in writing and verbally by residents of smaller communities within the county and their political leaders. Our analysis revealed that most radio, TV, and print media coverage focused on the understandable fear expressed by community members faced with a potential location in their neighborhood.

The committee chair received 198 calls and e-mails from angry citizens blaming and accusing the committee of everything from incompetence to political corruption. Some callers suggested that the committee, and specifically the Chair, was a political “hack” for the governor, even though he never communicated with the governor during the entire deliberative process. However, public pressure was not just reserved for the committee. Of the six remaining properties, private citizens owned four, and the pressure placed on these owners and the tactics used by elected officials and citizens to get them to retract their properties was overwhelming and offensive in some cases.

In one case, a city alderman threatened an owner of a convenience store chain that the city would do no more business with the chain if they agreed to sell their property to the state, and even boasted about it in the local newspaper. The alderman stated in a local newspaper

Let’s just say they (property owner) have other businesses coming before the city . . . It wouldn’t have behooved their interests to come in and try to push sexual deviants down the throats of residents. (Nunnally & Johnson, 2005, pp. 1-5).

The Chair received a letter from a local attorney requesting a public retraction regarding some statements he made concerning how public officials were addressing the issue of housing for SVPs. In addition, in this same letter, he was chided for alleged harsh treatment of the County Executive.

Second public hearing

It was within this heated context that the committee held its second public hearing at the State Fairgrounds in the county. By the time the hearing was held, the committee only had government properties to consider as possible locations, and even those locations were tenuous given that the County Executive had unequivocally stated that county land would not be considered for the purposes under 2003 Act 187. Given this turn of events, the committee considered canceling the hearing, but it was decided that the importance of receiving public input outweighed the short list of remaining addresses, and in addition, the hearing provided the potential for receiving constructive suggestions for new locations.

The second public hearing was attended by more than 1,100 people and was considered the largest public hearing held in the history of Milwaukee County. Ninety-two people registered to speak, each being given 2 min to present their views. Before the testimony began, the Chair laid down some ground rules and suggested that while the committee was very interested in hearing views regarding the six proposed sites, the committee also wanted to hear from the public regarding other potential sites for committee deliberation. Over the course of the testimony, most of which was negative and condemning of the committee (sometimes including personal attacks singling out members), not much constructive feedback and assistance was received. One comment was made by a citizen from a local community being considered as a possible site for the house. He stated,

The day you build a home for sex offenders in Franklin, Wisconsin, I will lay my body down to stop the bulldozers from working and you will have to arrest me.

In response to this statement, the district attorney commented that it was not wise to state to the district attorney of the county in which he resided that he was going to break the law because he would definitely go to jail if he broke the law.

Many speakers made emotional appeals. Three speakers talked about the importance of the committee’s work to the community and encouraged support and offered other potential locations. In addition, some political leaders stood up to express their views and even suggested further assistance to the committee to fulfill its charge. A state representative stated “We need to give them the resources they need to do their job.” Statements similar to this one were made in the context that to date the committee had “gotten it wrong” and needed assistance to do the job in the right way. Comment sheets were provided for speakers to offer written statements. These comment sheets yielded no new potential sites for the committee to review and consider.¹⁴

Subsequent to the second public hearing, the committee decided to continue to deliberate and consider its options. Particularly discouraging was the lack of support by political officials (except, notably, the District Attorney), and the oftentimes contradictory behaviors of elected leaders, many of whom were initial proponents of the 980 legislation and 2003 Act 187, but now walked away from the legislation and the committee. Many who criticized the committee had representatives on the committee who actively pursued the fulfillment of its charge. The committee needed greater support from elected officials. Even if additional addresses were to be found, without the support of community and political leaders the entire process, complete with intense public pressures on property owners, would recur with similar results.

Recognizing the futility of engaging in such a process again, and in consideration of some of the salient issues learned from the second public hearing, the committee on April 5, 2005, voted that further consideration should not be given to the two remaining county properties, and that for the committee to continue its work, it would require additional staff resources and above all, political support. A unanimous motion was passed instructing the Chair to create a letter to be sent to all political leaders in the county. The letter would request a simple pledge of support, but also asked that anyone capable of providing additional resources do so, to allow the committee to fulfill its charge of finding a minimum of three locations to house SVPs under supervised release. This letter, dated April 15, 2005, then requested that elected officials work with the committee to educate constituencies about the negative potential outcome if the 980 statute was deemed unconstitutional in implementation and the unsafe environment that could result for all members of the community.

It should be noted that at this point there were discussions among members about discontinuing our work due to what were viewed as insurmountable barriers to fulfilling our charge. The committee was getting tired and frustrated in its inability to find suitable housing options. The law enforcement representatives on the committee (two police chiefs and the district attorney) sought the dissolution of the committee. The district attorney stated,

Does anyone really think we can continue after the public hearing last night? We have no option but to suspend committee deliberations.

The committee ultimately concluded, however, that it could not ignore the very public pledges of assistance made by political leaders at the second public hearing. If assistance was forthcoming then we could not in good conscience cease our efforts, given our perception of the very serious public safety issues associated with the committee’s charge.

The Chair was therefore instructed to give elected officials 30 days to respond to the letter. The letter was sent to 128 public officials, including municipal, city, county, and state officials. The committee met on May 10, 2005, to discuss the responses.

Two County Supervisors informed the committee that the county board had voted 14-5 to seek changes in the extant 980 statute to allow for the placement of sexually violent offenders in other counties in the state.¹⁵ This letter was followed up by a letter dated May 17, 2005, from the County Executive who supported the county board’s resolution and reaffirmed his early position that no county lands would be considered for the purposes of housing sexually violent offenders supervised under the 980 statute within the county. Another letter was also received from the mayor of a small community in the county stating that the committee has not been “empowered by the Wisconsin State Legislature to engage in policy-making initiatives,” and hence our request for additional resources and support were not within our jurisdictional authority, and thus he would not recommend any action on the part of the common council of the city to support the committee.

Notably, the Chair did receive three letters pledging support, one from the secretary of DHFS who did offer to the “committee . . . the necessary support to meet its charge” in a letter dated May 9, 2005. The second letter was from the President of the City Common Council supporting the committee’s work and indicating that he would work with the committee to educate his constituents about the importance of the 980 law, but that he was “unable to assist . . . with your first two requests regarding additional resources and staffing for the committee.” The final letter was from a mayor of another small community in the county expressing that one of their alderpersons would be interested in being a “liaison between the Committee and his city.”

The committee received no letters of support or assistance from the public officials who had spoken at the second public hearing. The lack of political leadership and support was a recurring theme during the committee’s 7 months of work. The committee’s efforts were significant, but there was no reason to believe that further committee work would yield any locations for further consideration. The committee anguished over the fact that it could not meet its charge of securing at least three locations for consideration as houses to hold SVPs on supervised release, yet also understood the difficult charge it was given. The committee did believe that locations to house sexually violent offenders under supervision within the county could be found; however, unless an attempt was made to address the barriers faced by the committee, it was not likely that locations to house sexually violent offenders placed on supervision would ever be found.

Findings

Barriers to Completing Charge

The following recurrent themes were identified from the qualitative data as barriers to fulfilling the committee’s charge as presented in 2003 Act 187: (a) lack of public support, (b) lack of political support, (c) lack of resources, (d) and the vagueness of 2003 Act 187 itself.

Lack of Public Support

The community at large, with few exceptions, did not support the portion of the law that allowed for the supervised release of Chapter 980 offenders, at least insofar as that section allowed placement of these individuals in Milwaukee County. This was perceived as a barrier because members of the community were most familiar with properties within the county, and most properties in the county were owned by private citizens as opposed to governmental entities. Therefore, community members would be in the best position to come forward with potential locations.

When the committee actively sought community input and suggestions for placement locations using an initial press release, press conference, and then the first public hearing, however, fewer than five members of the public responded. When the committee turned to the members of the community who are paid for locating properties for sale using an Request for Proposal (RFP) and direct contacts with real estate agents and organizations, only one real estate agent responded with a potential location.

The public reaction after the potential addresses were released was not supportive. Community members reacted with fear and anger. The committee cared very much about this reaction, and recognized the reason for the fear and anger—after all, the people eligible for supervised release were by definition some of the worst sex offenders in the state. It is also true, however, that Chapter 980 had been very successful in protecting the public, and that the state had a demonstrable plan to effectively supervise offenders in the community. The supervised release of a very small percentage of the Chapter 980 offenders in other parts of the State had been a success, with no new sexually violent crimes convictions by those being monitored (Watters, 2009).¹⁶

Through media portrayals, interviews, a news conference, and public hearings to relay the relevance and importance of the 980 statute to community safety, the Chair described Chapter 980 as a civil commitment procedure, not a criminal matter, a process predicated on treatment, not punishment, and the goal of the process being transition from secure civil confinement to interim housing and finally to independent living. Despite these efforts there was no apparent acceptance that the individuals eligible for supervised release had worked hard for many years in treatment programs to earn the recommendation of qualified doctors that they be allowed to transition into the community. There was little or no acknowledgment that if nothing was done to find possible locations to house sexually violent offenders on supervised release, there was a possibility that the county could be ordered to build a facility by a court. Worse, there was little recognition that without a successful placement location, the statute could be declared unconstitutional thereby releasing all of the 980 patients into local communities with little or no supervision and no intensive treatment.¹⁷ The committee did not have a budget to mount a true campaign to disseminate this message, nor was communication of this message an enumerated goal (according to the statute) for the committee.

Lack of Political Support

The public reaction was communicated in no uncertain terms to the politicians representing the citizenry. The politicians’ reactions were at best inaction and denial that the county and its citizens through their elected officials had to address how sexually violent offenders were going to be supervised in the county. At worst, the reaction of public officials included attacks on the committee and the exertion of heavy pressure on private property owners whose locations were under consideration by the committee.

Previous attempts to place a SVP on supervised release in Milwaukee county had included a community-based committee initiative and a committee appointed by a local judge headed by an appointed Special Master. These committees proceeded in very different ways to attempt to find a location, with the community-based initiative holding open hearings and openly deliberating addresses or locations and the judicially created committee conducting its search for addresses in closed sessions. Neither approach yielded a viable placement. It was therefore acknowledged early on in this committee’s work that the support of public officials in the county was absolutely necessary to its work.

Importantly, 2003 Act 187 dictated that specific elected officials in the county sit on the committee itself, or assign designees to the committee. It was presumed that these public officials would support the work of the committee and attempt to assist in disseminating the message that Chapter 980 serves the common good and should be preserved, even if that meant the placement of a small number of offenders in the community.¹⁸ Of the dozens of political figures who were asked to assist the committee, only one person came forward: the local district attorney. His steady support and involvement with the committee was important in getting the message out to the various municipalities within the county that the 980 law was important to the long-term safety of their communities.

The designees of elected officials on the committee were genuinely interested in fulfilling the charge of the committee. During deliberations, the committee debated and discussed issues and came to consensus on how to proceed.¹⁹ Where behaviors changed is when committee members were asked to make public statements regarding committee work at the second public hearing. In one example, the director of behavioral health services in the community worked very hard to realize the committee charge, but when the second public hearing occurred he had to read a letter from his boss—the County Executive—that unequivocally spoke out against the placement of any sex offenders in the community.

In addition, many public officials severely criticized the committee and its work at the second public hearing. Some officials publicly pledged their assistance to the committee at the hearing, yet when the committee actually requested this assistance it never materialized.

Lack of Resources

The sheer volume of e-mails, letters, phone calls, and other assorted materials received from the citizenry alone required a major resource commitment. Four DHFS staff members conducted the background investigations of the properties as well as provided all other administrative support to the committee. However, resources cannot be limited to those provided administratively by one state agency. The committee, for example, required assistance from realtors and other city, county, and state entities to find suitable locations, but did not have support resources available to secure this assistance.

Vagueness of 2003 Act 187

Although providing many general criteria for the committee to consider when looking for locations in the county, 2003 Act 187 included many criteria without specific definitions. In addition, some of the criteria were internally contradictory, especially when the actual geography of Milwaukee County was closely scrutinized. In addition, the Act did not include clear definition of terms that would have been useful in completing the committee’s charge.

A key term, for example, that the committee struggled with in its deliberations was the word proximity. This word is used in the statute in many places, specifically when considering locations and their distances from sensitive areas such as facilities for children and residential subdivisions. The statute does not define this term and so the term proximity had multiple meanings for all parties involved. Therefore, the committee adopted a rule of 1,000 feet as a minimum distance that a location must be from these sensitive areas, defining the word proximity in a very narrow way. This was done given the density of the county’s population and the large number of sensitive locations that were close to one another. Some critics of the committee viewed the 1,000-foot rule as too short a distance from sensitive locations.

Some of the criteria in the statute also conflicted. The criterion “accessibility to treatment for the persons living in the facility,” for example, conflicted with the criterion of “proximity to sensitive locations.” In other words, the areas in the county with the lowest population density, including the lowest density of children, were almost always areas in where public transportation was extremely limited or nonexistent. Without clear direction in the statute, the committee was left to interpret these criteria in a way that seemed reasonable given the uniqueness and challenges found in the county to find locations.

Finally, the Act included language that allowed the committee to “consider” tax incentives to encourage successful placement locations.²⁰ This is a tool that would have been very helpful in finding a successful placement; however, the committee did not have the power to produce or promise such tax incentives and it was unclear exactly what was meant by including this phrase in the Act. Nor did the committee have the power to move day care or school facilities that would be too close to otherwise viable locations, and neither DHFS nor the committee had the power to condemn properties for the purpose of using them as potential locations to house SVPs under supervised release.

Discussion

This account shows that many political officials and citizens were woefully uninformed regarding the purposes and workings of the 980 law and the role this committee played in attempting to determine locations for the housing of sexually violent offenders under supervision in the community. The largest stumbling block was the fear and condemnation of integrating a class of offenders deemed SVPs into the community. The development of a greater understanding among community members regarding the necessity of an enhanced supervision process, stable housing and social support to reduce the recidivism of sexually violent offenders is necessary to move forward. The supervision processes that were in place in the state worked very well and did significantly reduce the risk of re-offending by offenders. A psychologist from DHFS gave this message to citizens at the second public hearing. In fact, over the course of a 15-year period the state was very successful in placing offenders and supervising them in the community (Watters, 2006).

Moreover, the citizenry was totally ignorant or indifferent to the consequences of not finding a house for this class of sex offenders. In an erroneous fashion, many citizens and political leaders believed that if they did not know about the problem and the issues of managing sexually violent offenders in the community it would disappear. The committee could not hold such a view, understanding that a possible implication of not securing a location in the county to house sexually violent offenders could be the striking down of the 980 law by a court.²¹ This could have had the tragic result of releasing a large number of the highest risk sexually violent offenders into the community without supervision and without the intensive treatment Chapter 980 offered. It was suggested that such a scenario virtually guaranteed additional victims of sexual assault, who could otherwise have been spared victimization if Chapter 980 remained in place.²² This horrific outcome, however, has been questioned by some in the academic community as overstating the re-offense rates of sex offenders (Langan & Levin, 2002).

In addition, any attempt to alter existing sentencing statutes in the state to enhance criminal penalties for the commission of sexually violent offenses was, in the mind of the committee, of little value to the community. The Supreme Court had already ruled that such enhancements for the group of extant offenders who had already served their sentences were unconstitutional and in violation of the ex post facto clause of the U.S. Constitution (La Fond, 2008), and as such would be of no value to either citizens attempting to promote greater safety in their communities from SVPs, or improving the treatment options available to these offenders. Pursuing such a strategy really would not address how communities across the state should manage sexually violent offenders on release from prison.

Further legislative attempts at finding locations to house sexually violent offenders placed under supervised release require a systematic plan for educating the public on the incidence and prevalence of sexual offending in society, the process of civil commitment procedures under the 980 law and the differences between civil commitment and criminal confinement, and the nature of supervision for those civilly committed under the 980 law. Other legislative acts to solve a housing placement problem should include more specific definitions regarding the criteria for supervised release as well as tax incentives and/or resources available for purchasing surrounding properties to effectuate a placement.²³

Political involvement and support are essential if locations to house sexually violent offenders are to be found. All 72 counties across the state had to address the issue of managing and supervising sexually violent offenders. Each county had unique circumstances that made this issue difficult. Some counties across the state, however, supervised sexually violent offenders very well. The committee found that in Milwaukee County, given its size and dense population, trying to find locations to house SVPs under supervision was made difficult given, in part, the statutorily defined criteria and other criteria used by the committee. Yet, having said this, there were still a large number of locations for possible placement of the facility, notwithstanding the difficulties adopting the criteria specified by statute and others created by the committee.

As the city of Milwaukee was large, it did have the benefit of having more possible locations to site the facility. As noted earlier, there were more than 300 locations in the city that met the committee’s criteria. It was only through long-term deliberations that 20 locations were chosen and a final 6 locations determined appropriate. The final 6 locations were deemed by the committee to be the most suitable for placement of a facility. It is likely that greater political involvement by local officials could have assisted the committee tremendously in fulfilling its charge. But as documented earlier, instead, the committee faced stiff opposition from political leaders, some of whom pandered to fear that justified a “NIMBY” (Not in My Back Yard) approach and further inflamed the citizenry. This fear can only be overcome through a conscious political effort by the state and counties working together to address this serious and emotionally laden issue. Because sincere political support was not present, the committee’s efforts were thwarted, twisted, and often times misrepresented by extreme positions, making its work much more difficult.

This raises the question of why there was such vitriolic opposition to the placement of a transitional house for SVPs in the community. Despite the obvious claim that it may seem intuitive why communities are in opposition to the placement of sexually violent offenders among them, it is not clear that even with such a highly problematic population why they could not be managed in the community. Communities often times deal with controversial issues. Why is this one so difficult to address? The answer may lie in the importance of political leadership when it comes to confronting tough social and political issues facing a community.

As with many criminal justice efforts, successful ones are those that generate a broad base of political support (see an excellent discussion of this topic by Stojkovic, Kalinich, & Klofas, 2012). As suggested earlier, political leaders’ expressions of opposition to the placement of sexually violent offenders in the community were ironic and strange. In the former case, political leaders and legislators voted to approve of legislation to augment the 980 statute with the 2003 Act 187 so that a house could be constructed in the Milwaukee community, yet when it came to actually move forward on the project at the local level, reversed their support almost unanimously.²⁴ Why? A possible answer lies in the construct of political failure.

Political failure is a difficult concept to define and, as such, has no uniform definition (Percy, 2010). Yet, the political science field has used the concept to describe when “market failure” occurs and political bodies have to rectify a wrong that the market cannot adjust for in a reasonable way (Buchanan, 1988). We may say, for example, the oil spill in the Gulf of Mexico in 2010 represents, at one level, the failure of many private companies to control their product and assume responsibility for its potentially devastating impact on the environment. The spillage and damage to communities caused by private actions or inactions are not only resolved by the companies in question, that is, paying for the cleanup and compensating victims, persons and businesses, for the spill. There is equally an expectation that the problem—the spill in this example—“could be ideally corrected by politically directed adjustments in the rules guiding market participants” (Buchanan, 1988). Yet what happens when the political solution is no solution at all, such in our case of attempting to find a house for violent sex offenders, or when the political solution is perceived as a worse option among limited alternatives by the community and ultimately rejected?

We then have failure at two levels, a private solution failure and a proposed government solution failure. Given the degree to which the private sector, in this case property realtors, and the government sector as expressed by this gubernatorial commission all failed, how are we to understand a way to generate a solution to the problem of managing violent sex offenders in the community? Terry (2006) proposes that we improve the management of sex offenders in the community through coordinated efforts among many private interests and public interests.

One state, Texas, utilizes this approach in its outpatient civil commitment treatment program for SVPs. The Council of Sex Offender Treatment is the foundation of the Texas program and consists of representatives of all of the agencies that deal with sex offenders in the state (Meyer, Molet, Richards David, Arnold, & Latham, 2003). This coordinated approach is also implemented at the individual level, the SVP is managed with a multidisciplinary team consisting of a case manager, treatment provider, a representative of the Department of Public Safety (who provides GPS and EM monitoring), and other adjunct members (including a polygrapher, psychologist, plethysmographer, and other mental health professionals; Taylor, 2003). The SVP is intensively monitored and attends cognitive behavioral treatment. As housing for sex offenders in the community has also been a problem in the Texas program, the Council will purchase an appropriate facility for the offender in the community (Meyer et al., 2003). The appeal of the program is the cost savings (US$15,000-US$20,000 per SVP per year in outpatient civil commitment as compared with US$80,000-US$125,000 per SVP per year in inpatient civil commitment) and the protection of the community with electronic and GPS monitoring (Taylor, 2003).

Releasing sex offenders into the community through “Circles of Support and Accountability” (COSA) is another means of enhancing the management of sex offenders in the community and reintegrating the “worst of the worst” (Cesaroni, 2001). The COSA model consists of trained community volunteers who assist, support, and hold sex offenders accountable for their actions (Wilson, Cortoni, & McWhinnie, 2009). For sex offenders to live offense-free lives, informal social support is needed along with formal controls. The volunteers stay in contact with the sex offender on a daily basis for the first 6 months and then weekly contacts and will help with problems, such as finding housing and employment, as well as ensuring that risk factors are appropriately managed (Braden et al., 2012). Recidivism data showed that 44 high risk sex offenders involved in COSA showed an 83% reduction in sexual recidivism (defined as a charge or conviction for a new sexual offense) over a 35-month follow-up period.

These strategies may have merit, but given the limited understanding that most ordinary people have regarding sex offenders and ways to manage them it is not likely that such coordination is easy or possible. This statement is true for ordinary citizens and those charged in the criminal justice system to manage this problem in the community. This experience showed that public discourse never reached a level of adequacy when basic fundamental issues were not addressed and understood, such as the highly variable nature of sex offending, the differences between the civil commitment process and the criminal process, and what promising intervention strategies exist to manage violent sex offenders in the community. These complicated issues are not so much practical concerns as they are political issues.

This account highlighted how most political officials never took the time to educate themselves regarding the issue of managing violent sex offenders in the community, never saw themselves as problem solvers as defined by the 2003 Act 187, and sought to obstruct the committee that was trying to address an issue that was extremely important to the community. In some cases, political sabotage even occurred and was practiced by elected officials who had their own personnel and staff serving on the committee that was charged to find a house for violent sex offenders in the county. This is why political leadership is so critical to successfully managing violent sex offenders in the community. Without active political leadership to address citizen concerns regarding public safety, the successful management of sex offenders in the community is not likely.

Finally, as evidenced in this account, political failure was a result of the unwillingness of political officials to provide the leadership necessary to confront the problems and concerns of citizens when faced with a decision to house sexually violent offenders in the community, especially as it related to their safety and security. At the end of the day, no building to house sexually violent offenders in the community was found or built.²⁵ No other issue has raised the attention of politicians and citizen groups concerned with community safety more than how best to manage sex offenders in the community (U.S. Department of Justice, 2009; Zgoba et al., 2009). While we had sufficient practical knowledge to manage violent sex offenders in the community, in this account it was revealed there was no political will to make it happen. Political leaders abdicated their responsibility to the community, and by doing so failed and committed Milwaukee County to more practical and legal problems with the implementation of the 980 statute, a clear example of political failure that continues to burden the community today. Ironically, the 980 statute was created and justified as a way to enhance public safety, yet due to changes in the law in reaction to the implementation of the 980 law and the resistance and unwillingness of political leaders to assume responsibility for the problem, the community is now in the same position it was in 1994 before the law’s passage: many violent sex offenders in the community with limited treatment and no supervision.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

Stan Stojkovic is Dean and Professor in the Helen Bader School of Social Welfare at the University of Wisconsin-Milwaukee. His research interests are in the areas of criminal justice administration and management and corrections.

Mary Ann Farkas is a Professor in the Criminology & Law Studies department at Marquette University. Her published work is in the areas of correctional leadership and sex offender management.

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