Sexual Danger Redefined

By Fred Contrada
The Springfield Republican
August 9, 2004

NORTHAMPTON - He claimed to have seen the error of his ways, but despite convicted child molester Joel Pentlarge's testimony in Hampshire Superior Court last month, a jury deemed him sexually dangerous and sent him to a state prison hospital for treatment.

A disbarred lawyer and former member of several Ware town boards, Pentlarge, 54, had already served a prison sentence for sexually abusing four boys. His trial came as the result of a petition by the Northwestern district attorney's office to have him civilly committed under a 1999 law that allows sex offenders to be held for treatment indefinitely if it is determined that they have a mental condition or personality disorder that makes them likely to reoffend.

Paul Leahy had been out of prison for less than a year when he stabbed Alexandra Zapp to death in a rest room behind a Burger King restaurant in Bridgewater July 18, 2002. Leahy had served 13 years for a rape conviction in the 1980s, but was in jail more recently for accosting two teen-age girls for sex. The Plymouth County district attorney had tried to petition for Leahy to be declared sexually dangerous, but accosting did not fall under the aegis of the law, and the DA was not allowed to hark back to Leahy's rape conviction.

Thanks largely to the Zapp case, new legislation has closed what prosecutors saw as a loophole in the 1999 law. The new legislation broadens the list of sexual offenses to include crimes such as open and gross lewdness and lascivious behavior, incestuous marriage or intercourse, posing or exhibiting a child in a state of nudity, possession of child pornography and accosting or annoying persons of the opposite sex.

Still, the legal community, particularly those on the defense side, continues to wrestle with the concept, letter and repercussions of the sexually dangerous person law.

Although some form of the law has been on the books in Massachusetts for decades, it has undergone major renovations as legislators tried to patch leaks and civil libertarians argued that it subjects defendants to a form of double jeopardy.

Prior to 1990, convicts could be declared sexually dangerous at sentencing instead of at the completion of their sentence. That was the case with Ronald Leftwich, who is now in prison for murdering Bishop Martin-Henri. Leftwich received a life sentence in 1978 for raping a 63-year-old woman in Nantucket, but was effectively absolved of criminal responsibility when he was deemed sexually dangerous. Instead, he was turned over to the Department of Mental Health for treatment. Despite a protest from his counselor, a judge ordered Leftwich released from the treatment center in 1991 after hearing testimony from a panel of experts concerning his danger to the public.

Leftwich served time on an armed robbery charge in connection with the rape, but with the rape sentence voided, he was set free in 1995. The following year, he beat and stabbed to death Henri-Martin, the bishop of a Brimfield monastery.

The process lay dormant for almost a decade after the legislature decided in 1989 that there would be no new sexual dangerousness commitments. According to David Hirsch, who coordinates litigation on the law for the Committee for Public Counsel Services, lawmakers made the change after a committee set up to study the topic concluded that sex crimes did not result from mental disorders.

In 1997, however, the U.S. Supreme Court upheld a sexual dangerousness law in another state, and Massachusetts enacted a new law. Initially, some judges refused to apply it to inmates who were convicted before Sept. 10, 1999, the day the law went into effect. In 2000, the Supreme Judicial Court rejected an argument that the law was unconstitutional because it resulted in additional punishment after the fact, declaring it remedial rather than punitive. The court also ruled that it pertained to inmates who were convicted before 1999.

Hirsch said his organization has active litigation contesting the sexual dangerousness statute.

"We believe it's an unconstitutional law and we're going to continue fighting it," he said.

Pittsfield lawyer George Crane also has many qualms about the law.

"I feel the law is very, very unjust," said Crane, who has tried more than a dozen sexual dangerousness cases. "As far as I'm concerned, it barely passes constitutional muster."

While the courts have characterized the treatment as remedial, Crane points out that Bridgewater is a high security facility that houses many of the system's most dangerous inmates.

"It's a Class 5 prison surrounded by barbed wire," he said.

Crane also contends that the law is not applied evenly.

"Different district attorneys have different standards," Crane said. "Some counties name (sexually dangerous persons) with regularity; others are more picky," he said.

The Department of Correction is supposed to notify district attorneys when an inmate it deems sexually dangerous is about to complete his or her sentence.

Elizabeth Dunphy Farris, who coordinates the sexually dangerous person cases for the Northwestern district attorney's office, said DA Elizabeth D. Scheibel has a qualified examiner from the Department of Correction review each case before deciding whether to petition for a hearing.

"We spend a great amount of our budget screening who gets designated a sexually dangerous person," Farris said.

Hampden County District Attorney William Bennett said his office is also discriminating about petitioning for sexual dangerousness hearings.

"Quite often the qualified examiner determines a person is not a danger and usually that's the end of the matter," he said. "A lot of people get screened out in that manner."

The examiners look at an inmate's treatment records during incarceration as well as his criminal history. Crane said the examiner does not interview the inmate, however.

Unlike a prison sentence, there is no set period for treatment. Pentlarge will be held at the Massachusetts Treatment Center in Bridgewater until the Department of Correction decides he is no longer sexually dangerous. He can ask that his case be reviewed every year. If the review is not favorable, he can seek a new trial. There are presently 118 people in treatment petitioning for trials, according to the Department of Correction.

Alan Rubin, who heads the Hampshire-Franklin office of the Committee for Public Counsel, says the statute is poorly written.

"That's why there's such a phenomenal amount of litigation over it," he said. "The standards are so vague, nobody knows what we're dealing with here."

Rubin, who successfully defended a sexual dangerousness case in Hampshire Superior Court this month, questions the effectiveness of the treatment programs as well as the training of the examiners who review the cases, saying that concepts such as "mental abnormality" and "personality disorder" that are discussed at the hearings don't conform to legal definitions.

"It's basically what these people think," Rubin said.

Examiners often base their opinions to a large extent on how an inmate does in prerelease treatment programs for sex offenders. Because there is no confidentiality requirement in these programs, however, what prisoners say there can be used against them. Knowing this, some inmates refuse to participate.

"They're caught between a rock and a hard place," said Crane. "The only defense they have is to not participate in treatment and keep their mouths shut, but that's held against them, too."

Dunphy Farris defended the prerelease programs, noting that in many cases inmates complete them successfully. She said refusal to take part in them is not the sole factor on which her office bases its decision to petition for a hearing.

"I don't believe this is a Catch 22," she said.

Dunphy Farris also pointed out that in every sexual dangerousness case she has tried, a jury has validated the decision to go forward.

"I take it very seriously," she said.

Because it only pertains to inmates completing prison sentences, the law is limited in its ability to keep sexual predators off the streets and in a rehabilitative setting.

For example, former Roman Catholic priest Richard R. Lavigne cannot be tried as sexually dangerous even though he pleaded guilty to two counts of child molestation because he is already serving probation. In contrast, Bristol County prosecutors are awaiting a trial date for defrocked priest James Porter, who is serving prison time for molesting 28 children in the Fall River Diocese.

Some people designated level 3 sex offenders by the state Sex Offender Registry were released from prison before the 1999 law went into effect. Other level 3 sex offenders, classified as posing the greatest danger to the community, may not have a mental abnormality or personality disorder that meets the criteria for civil commitment.

In the case tried last week by Rubin, a Hampshire Superior Court judge ruled that Adam V. Callahan, 38, formerly of Northampton and Easthampton, was not sexually dangerous "beyond a reasonable doubt."

Callahan, who was convicted in 1982 of killing his stepmother when he was 15 and admitted raping a 15-year-old baby-sitter, had refused to attend sex offender treatment in prison. In ordering Callahan's release, Judge Judd J. Carhart ordered Callahan to get sex offender treatment and said he will retain personal jurisdiction over the case while Callahan serves 10 years' probation.

In the Leahy case, prosecutors tried to have him declared sexually dangerous only to see him released back into the community. Plymouth County District Attorney Timothy J. Cruz said the law at that time precluded his office from using Leahy's old rape conviction.

"It meant we were unable to file against a lot of people with really bad histories," he said.

In addition to adding crimes like accosting to the list of sexual offenses, the legislation passed in April allows prosecutors to cite expired offenses.

"It's certainly a step in the right direction," Cruz said.


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