Open Letter to NH lawmakers: Reintroduce HB 192 for oversight of sex offender treatment program

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Editor’s note: The following submission from Chris Dornin of Citizens for Criminal Justice Reform was written in advance of the scheduled 10 a.m. Aug. 22, 2017 public hearing of HB 192 in the Legislative Office in Concord.


We would ask the House Executive Departments and Administration Committee to reintroduce HB 192 for a vote before the full House in January. Your subcommittee voted in June to kill it. The bill would force the Department of Corrections to submit its operating rules for oversight before the Joint Legislative Committee on Administrative Rules.

Only the Parole Board remains similarly exempt from the rulemaking process. We will seek legislation next year to make that agency gets its administrative rules approved by lawmakers as well. Both state agencies wield enormous and disproportionate power over inmates and parolees. The two have joined forces in opposing HB 192.

Below you will find three pages of comments from inmates taking the prison sex offender treatment program to task. You will also find a two-page article from New Hampshire Public Radio that exposes the vindictive and demeaning way the Parole Board has long operated. Finally, our testimony suggests ways that lawmakers could greatly improve the sex offender treatment program.

Incidentally, one option is to abolish it. Rep. Neil Kurk asked prison officials last fall if they could show any evidence the sex offender treatment program is effective. Helen Hanks, the deputy commissioner of corrections, admitted she had none. She promised to find some. I don’t believe she ever did. If you would like a transcript of the relevant part of that Nov. 18 meeting before the Joint Fiscal Committee, I would be happy to email it to you.

Before your final vote on HB 192, I would urge you to read the performance audit last fall (Nov. 2016) of the sex offender treatment program. You received a copy at the public hearing for HB 192. Helen Hanks testified before you that it is a favorable report. You will have a hard time agreeing with her if you study the report yourself. Please, please do that. Every page of it will persuade you to approve HB 192.

Here is a link to a similar scathing performance audit of the same program in 2012. 

We heard from inmates that the sex offender program improved ever so slightly when the auditors were closely watching it. Today we hear it is once again as bad as it ever was.

Lawmakers need full rulemaking oversight over the Department of Corrections. HB 192 gives it to them.

Please reintroduce HB 192 in January. The bill deserves to become law. It would simply require the Department of Corrections to get its administrative rules approved by the Joint Legislative Committee on Administrative Rules. Today only one other state agency is similarly exempt from the legislative rulemaking process, the Parole Board. Neither program should have the freedom to make up its own rules, or more accurately, to operate without rules. Both agencies have long abused their enormous power over prisoners.

On June 6 the subcommittee on HB 192 voted 3-0 against the bill after hearing testimony from a spokesman for the Parole Board. You should know that for years the Parole Board has deferred to the recommendations of a little known entity within the prison called the Administrative Review Committee. That group serves as the de facto Parole Board for sex offenders. Sex offenders never go before the Administrative Review Committee, and they don’t know when it meets, who serves on it, what information it looks at, or what its rulings say. But the Parole Board almost always takes the recommendations of the Administrative Review Committee on sex offenders seeking parole.

That is a key finding of a devastating performance audit last November about the sex offender treatment program. The Office of Legislative Budget Assistant said that prison officials have long withheld from the Parole Board vital material for making parole decisions on sex offenders. The report noted on page 33 that parole officials ought to receive sex offender “..assessment scores, treatment progress, level of participation in treatment, and whether they showed signs of accepting responsibility for their crime. However, this information was not directly provided by the ISOT (sex offender treatment) program.”

That is stunning news. It justifies your vote to bring HB 192 back before the full House in 2018. Yes, the prison may soon ask lawmakers to approve the prison sex offender treatment program as rulemaking. Maybe the presence of HB 192 helped to make that happen. This dubious program was in place for more than a decade without written policies to shape and justify it. About a year ago when the performance audit was starting, the prison system posted its first-ever sex offender treatment rules. They looked almost as if they had gone before the Joint Legislative Committee on Administrative Rules.

The assessment scores the Parole Board reportedly almost never sees are an objective and reliable measure of the threat a sex offender poses in the community. The treatment progress reports the Parole Board never looks at reveal how well the prisoner has addressed the sex offending that led to prison. So does material on the level of participation in treatment. The last item withheld from the Parole Board by prison officials was maybe the most important: whether these inmates accepted responsibility for their crimes. Every prison policy should be subject to JLCAR review.

NH State Prison for Men

Inmate comments on sex offender treatment program

Each prisoner statement below starts with a bullet. A different inmate wrote each comment. Citizens for Criminal Justice Reform is withholding the names of the authors, but they signed their statements to us. We removed some of the strongest comments because they might reveal who the writers were, even 15 months later. We are also withholding the names of employees the inmates praised or criticized by name.

  • What the hell is the Administrative Review Committee? Is that a second parole board? Why doesn’t anyone else have two parole boards?
  • Therapist 1 and therapist 2 are very effective and they care about what they’re doing, and more importantly, the people they work with. Their supervisor swears like a truck driver. She’s very unprofessional. She regularly throws people out of the program or forces them to take it over again for minor infractions. She’s a big part of the reason for the backlog. She was part of the problem that caused the last audit in 2012. The bottleneck is back in force.
  • The Administrative Review Committee has no PPDs that govern how it works. An inmate does not have any due process rights with it.
  • The inmate is not allowed to be at the board, nor is the meeting audio or video taped. Nor is there any transcript of the meetings. This ARC board slows down the treatment program greatly.
  • My lawyer put in for a sentence reduction at two thirds of my minimum. It was approved, but because I had not yet completed the (sex offender) program I am still waiting.
  • People who fail the polygraph wait months for another appointment.
  • They need to stop lying to the higher powers like the governor’s office and the state reps.
  • We are still required to participate in the (sex offender treatment) program when we are released on parole, so why waste the taxpayers’ money doing it inside?
  • The ARC has no prison rules and regulations. They have no set schedule or standards or oversight by anyone. I’m not even sure anyone outside the prison knows about it. My lawyer had no clue what it was.
  • I feel every therapist should have proof they are certified.
  • When that (Concord Monitor) article was in the paper all our newspapers were not delivered to us. Therapist 3 even came to the pod and told anyone that had gained access to a copy to give it up. I feel my rights were violated extremely at that moment.
  • I am done with the program and I’m still sitting here.
  • You have to start the program all over again if you fail the polygraph. There is a big backlog waiting for the illegal ARC board. They use it to punish people.
  • My therapist quit right after the three new people were hired. I am being punished and sanctioned by having to restart the program from the beginning.
  • When I had 24 months left they said I couldn’t start the program due to the backlog.
  • They are denying me an education by forcing me to choose between taking the SOT program or getting a high school diploma. Whereas if I was allowed to pursue both, I could walk out on time.
  • The ARC, it’s a parole board before the parole board.
  • Recently more people have been going through the (sex offender) system a little quicker. It seems that Therapist 3 has been allowing more people to complete the program outside the prison. In the past, very few had this opportunity. That’s another area the auditors should look into. I’m pretty sure they’ll find very few were allowed to leave without completing the SOT. Just another reason why it was bogged down.
  • The auditors should take one day of their time to see how the program runs and see how much down time there is. The meetings are a waste of time. They say the same things over and over about the same things.
  • When you ask for the policy on the ARC they tell you to find it in the law library. The law library tells you it doesn’t exist.
  • Therapist 3 does everything she can to kick people out of the program, and she loses paperwork when they finish.
  • This program actually does help some people, but at the cost of keeping them in prison longer than people without sex crimes.
  • Whoever is running the program doesn’t like to give accurate numbers of how many people are over their minimum and how many are waiting to take the program.
  • I am not guilty of the crime I was convicted of. The therapists say I am in denial. I will never admit to a crime I did not commit. (Note- Inmates must confess a sex crime in order to enter the sex offender treatment program and make parole. This speaker was going to max out.)
  • The therapists all use different handouts. They have no structure or consistency. You can’t work at your own pace. You follow the therapist’s pace and your group’s pace.
  • I’ll be heading home more than a year after my minimum parole date. My mittimus states that I can complete the SOTP on the outside, after my release from prison. I was ready, willing and able to do this.
  • Now I’m waiting for the ARC. I sent my envelope to Mike Sheehan (an attorney with Citizens for Criminal Justice Reform) to make it legal mail. This place likes to intimidate inmates, go through their mail, and lose it. I just wanted to make sure it got to your office.
  • I had a paying job before I started this program. I was forced to quit it so I could take the program.
  • The people in the program live in the same pod. It puts a bulls eye on us with all the other inmates.
  • The ARC is a massive problem, and therapist 3 is one of the largest bottlenecks here.
  • The therapists are working very hard. If they had some more therapists it would be better.
  • I did my best to be an exemplary inmate hoping to get a sentence reduction after two thirds of my minimum. Without first completing the SOT, I can’t have a sentence reduction.
  • I am fighting my sentence, so I can’t get into the program. It should be open to everyone, not just inmates that have no cases pending. (The above inmate was past his minimum release date.)
  • The ARC keeps people from leaving on time. This in turn keeps others from getting into the program. One therapist is incredibly unprofessional. She has belittled and humiliated prisoners in front of others.
  • There are too many weaknesses to this program to list them all. Therapist 3 has no professional demeanor and breaks confidentiality on many levels. She is very biased against all sex offenders.
  • The counselors are overwhelmed by the ratio of inmates to staff. I am now months past my parole date, but I’ve finished the program and the ARC. I should have been able to progress through custody levels like most other inmates, due to my good behavior.
  • Why do sex offenders have to do the program on the inside and for another two years on the outside? When it comes time for the ARC or the parole board, therapist 3 has not done her reports, so here I sit waiting for therapist 3 again.
  • There are only two therapists meeting with 96 inmates at present. They have too much of a workload and the program takes way too long to complete. The groups keep taking on new members, which slows everyone’s progress. I requested entry to the program early enough to leave at two thirds of my minimum. I was ignored.
  • They use the ARC and polygraphs as weapons to keep sex offenders back longer.
  • I had a good therapist who quit for some reason. Then they put me in with therapist 3. We’re not making any headway with her. There are 200 or more people over their minimums. There is no need for this to happen.Why not take this program out on the street? There’s nothing getting done here.
  • The polygraph is stressful on people because it is not being done right. They should also get rid of therapist 3 so people can learn something. She is mean and does not teach anything.
  • I started the program after my minimum. Many people had to redo some of the program when they hired the new therapists. The program director lies and threatens people. And the unconstitutional ARC needs to go.
  • The therapists don’t really know what they are doing.
  • One therapist creates a bottleneck by her bullying and intimidation. She makes people retake the program on violations that have nothing to do with sexual assault. If you show a blip on the polygraph she makes you take the program over. Which takes up another bed (in the sex offender unit) for 9-12 months.
  • I want to do the program. But not twice, once on the street and once on the inside. I believe the state has the budget for six therapists, but we only have two for real. Therapist 3 is not a therapist, judging by the way she treats people.
    They need more staff and all the groups should run the same way.
  • Therapist 3 tries to control everything, breaks confidentiality, harasses inmates and picks and chooses favorites. Being treated as humans by therapist 3 and not as animals would be nice.
  • They make people redo the program if they fail the polygraph. It’s so shame based. The ARC made me take programming before I could leave. I am way past my minimum because of their backlog. The so-called counselors want to oppress people who are already oppressed. Who can learn from that?
  • Therapist 3 keeps this place jammed up really well. And the ARC and polygraph are in place for what reason? The ARC is a bottleneck parole board before the actual parole board. The polygraph I don’t understand at all. More people fail it than pass it, but not because they don’t tell the truth.
  • When therapist 4 retired and another therapist quit it set the program back many months. The two therapists they hired are very young and inexperienced. Putting 96 men together on a pod is no environment to study, get therapy or even think. I still have not done the ARC. The prison had many years to get me through this program on time, but I’m going to serve additional time due to their inability to plan.

The Parole Board is just as callous to sex offenders.

The prison has long made the key parole decisions on sex offenders, and the Parole Board has rubber stamped those decisions. Perhaps understandably, the Parole Board now seeks to cover up this arrangement. We will seek legislation next year to force the Parole Board to get its administrative rules approved by JLCAR. At several Parole Board hearings I have seen strange irregularities. This spring, for example, its chairwoman told an inmate at the end of a 20-minute public discussion that her board had decided to deny him parole. But there was no vote by the Parole Board during the meeting. Apparently it happened before the meeting. That’s like a jury ruling on a case prior to the trial.

NH Public Radio aired a long and scathing story by Emily Corwin on June 29 about the Parole Board. It was entitled, “You’re Full of #$*@!” At N.H. Parole Board, Tough Talk Often Veers To The Profane.” In the story Corwin quoted Parole Board member Leslie Mendenhall belittling inmate Adam Smart. Below is a key passage from that Public Radio story. It is material every lawmaker should know about the Parole Board, and why it opposes HB 192.

“I think you’re full of shit, and I think you’re trying to sell a nice boat down the river,” she (Leslie Mendenhall) said. “You’re full of it. You’re full of yourself. Every single time. And what are you taking for medications?”

“Nothing,” he (Adam Smart) replied.

“Nothing! Why?”

“Because they want to put me on sleep meds for anxiety,” said Smart.

“Right, because do you know one of the best things you can do for bipolar is to make sure that you get a solid amount of sleep because that helps stable your mood?” Mendenhall asked.

“I don’t know if I have bipolar,” Smart said. “All I know is I have anxiety.”

“You’re sure presenting like a bipolar,” she replied.

Phil Utter is a private defense attorney who I met at a previous parole hearing. “It strikes me as completely inappropriate,” he said, after hearing a recording of the exchange. “It is certainly not the parole board’s role to advise them on their mental health issues. And swearing at an inmate? How can that possibly be helpful? This is a person who’s going to be reintegrating into society at some point. If you start belittling them… It’s just wrong. It’s just wrong.”

David Hendricks, the attorney who called the board the wild west, went into more detail.

“Their job is to demonstrate conduct that takes seriously laws, and takes seriously what their job is,” he said.
Hendricks said he believes when people are denigrated by public officials, they lose faith in the entire system and become less likely to abide by laws.

Mendenhall chose not to be interviewed for the story. The board’s chair, Donna Sytek, says things used to be even more informal.

“That’s one of the reasons I asked to be appointed to the parole board,” she said. “Because I didn’t think the hearings were accorded the dignity that the parties and the process deserve.”

Sytek is a former New Hampshire House Speaker who has published a guide to political etiquette. She calls Mendenhall’s exchange “inappropriate.” Still, she said, confrontation can be constructive for some inmates.

Another board member, Brian Cashman defended tough talk at parole hearings.

“If you’re gonna get their attention, you have to get their attention,” he said. Cashman explained that feeling deceived can make one “emotional,” adding “I try not to, but sometimes it just comes out.”

Attorney David Hendricks said he knows how frustrating the parole board’s job is, and how fraught the justice system can be. But, being polite?

“That is something that is not very difficult to achieve, and is sort of a bare minimum that we should just frankly, expect.”

Background on the need for HB 192

The Office of Legislative Budget Assistant issued a scathing report Nov. 18, 2016 on the sex offender program. It showed a huge backlog of prisoners who passed their minimum parole dates before completing this mandatory treatment. Only 14 percent of sex offenders made timely parole in 2016, the performance audit year. That was a sizable improvement over the previous four years.

Prison spokesman Jeff Lyons told the Concord Monitor on Nov. 29, 2015 that the prison reviews all sex offenders at least two years before their minimum parole date. “We put them on a waiting list at that time,” Lyons said. “As beds free up, they move into the treatment program. There is no backlog.”

Previously Corrections Commissioner Bill Wrenn and his deputy, Helen Hanks, both told board members of Citizens for Criminal Justice Reform that only six sex offenders were on track to miss their earliest parole dates. Wrenn made his claim in front of 50 of our members.

The 2016 LBA performance audit showed roughly 200 people in that nonexistent backlog. The delay was costing the state up to $7 million per year, based on the average inmate cost of $35,000 per year. The LBA study used $5,006 per year, the added operating cost for a single inmate. Even this lower figure comes to $1 million per year. Prison officials shortened the sex offender program during the performance audit from 18 months to as little as six months. The LBA report showed that the Vermont sex offender treatment program lasts 12 to 24 months. The one in Maine lasts three years, the one in Rhode Island four years, the one in Massachusetts 18 to 42 months. That could mean there was no clinical reason to shorten the New Hampshire program so abruptly.

The study also said the prison had just released 40 sex offenders to the street without giving them sex offender treatment inside the walls. Another 28 sex offenders suddenly required no treatment, which was another new class of prisoners. An additional 37 had reportedly refused treatment, though it might double the length of their sentences. These were desperate efforts by the prison to shrink the backlog during an audit.

Unaudited Information on Sexual Offenders within 24 Months of, or Exceeding, Their Minimum Parole Date; May 31, 2016
                                        


To help with the November report by the Legislative Budget Assistant, report, scores of sex offenders returned to Citizens for Criminal Justice their survey replies saying they were furious the prison made them exceed their minimum parole dates. They also lost the chance to leave hard time at two thirds of their minimum sentences. And they missed out on serving some of their sentences at a halfway house. Instead, 86 percent of them finished the sex offender program inside the walls well after their minimum sentences elapsed.

Corrections Commissioner Bill Wrenn told the Joint Legislative Audits Committee on April 5, 2016, that the sex offender treatment program needed four or five therapists to prevent a backlog. At the time it had three staff, he said, with only two of them working full time as counselors. “If you lose one or two, backups do occur,” the commissioner testified.

Wrenn told lawmakers the backlog had reached 50 or 60 people in prior years. “The head of the program has just retired, so it’s starting again. It may be 10 or 15 people now.” Inmates tell us that only two people now teach the sex offender program full time, supervised by therapist 3, who does some teaching as well. The day after Jeff Lyons told the Concord Monitor there was no sex offender backlog, therapist 3 reportedly told sex offenders that they could no longer work at prison jobs, go to school or take any other training while enrolled in sex offender treatment. The inmates saw this new policy as retaliation for the newspaper article, which indirectly criticized her. Inmates think therapist 3 also kept that Nov. 29, 2015 copy of the Concord Monitor from reaching the prison library.

Prisoners believe therapist 3 kept most sex offenders from receiving two mailings we sent them in May of 2016 requesting their experiences in the sex offender program. We received back 53 responses, most of them in a single packet identified as privileged mail to the attorney on our board of directors. Without that bundle, you would not be reading very much of their take on HB 192.

Many of those returns arrived on handwritten forms, suggesting the originals were intercepted. Well over a hundred letters came back to us unopened and undeliverable, including ones sent to prisoners who were definitely in the Concord prison at the time. None of our 50 or so questionnaires to convicted sex offenders on parole was completed. We had information on where those people lived. It is unlikely all of our addresses were wrong.

Many sex offenders say that therapist 3 curses at inmates in front of other people. They believe she tries to make them feel worthless. She even passed out her own questionnaire right after ours was mailed. Hers asked prisoners to review the sex offender program and sign their names. We have a copy of her form. It was wrong of her to give inmates these first-ever program review sheets at that moment. The right time would have been just after the LBA’s scathing audit report of her program in 2012.

Another dubious road block for inmates is the lie detector test every sex offender must pass before reaching the Parole Board. Some prisoners flunk that exam multiple times, even though the procedure is inadmissible in court. Inmates believe the test administrators try to make them fail. Any failure sends the prisoner back to restart the sex offender treatment program. At least it used to. In a recent change, therapist 3 may be letting prisoners who failed the test advance sooner. If so, the audit likely made it happen.

It is a clear mistake the way the prison withholds sex offender therapy until the last two years of an offender’s minimum sentence. Placing them in programming as early as possible has many advantages. It would allow them to address their offending issues while the memories are fresh in their minds. It would encourage family members not to abandon them. The offenders would be working on a key issue right at the start of incarceration.

This alternative timing would let offenders petition for a sentence reduction after two-thirds of their minimum sentences. It would let them process out through minimum security and the halfway house in an orderly fashion. It might reduce the backlog of sex offenders who exceed their minimum parole dates.

The recently incarcerated offender is emotionally vulnerable and receptive to a therapeutic environment that focuses on the possibility of help, change, and recovery from addiction. The offender has just passed through the rigors of a trial and conviction and the shock of losing family, friends and freedom. These inmates are scared, remorseful and in need of some word of hope.

There is another benefit to treating a sex offender early. It gives the prison a pool of peer mentors to work with new prisoners. Two of our board members at Citizens for Criminal Justice Reform went through the sex offender program when it ran that way. Both became facilitators. They gained from the program and from being role models.

Almost all the inmates quoted in this testimony are on parole by now. You can see how desperate they were. The son of one of our board members at CCJR made parole 42 months past his minimum sentence. He also lost out on a plea deal that would have given him four years off his minimum bid once he completed the sex offender program. That means he left prison six and half years late. He was a sex offender in a flawed system that you as lawmakers have some power to improve.

Please let HB 192 pass or die on its merits in the 2018 legislative session. It would make the Department of Corrections get all of its rules approved by JLCAR like every other state agency except the Parole Board. Prison officials never wanted to bring the workings of the sex offender treatment program before lawmakers.

They fought the move to force a program audit. They have opposed the passage of HB 192 at every step in the process. They are submitting their sex offender program rules for adoption now because HB 192 made them do it. Correct that. They are likely waiting until HB 192 dies before they withdraw their rules from the JLCAR process. We saw a draft of those rules a year ago. The department has never applied to get them approved.


 

Chris Dornin is co-founder and spokesman for Citizens for Criminal Justice Reform, a nonprofit advocacy group that has written and secured sponsors for 40 bills in the New Hampshire legislature since 2010, one of which became the earned time law of 2014, allowing prisoners reduce their sentences by up to 13 months through demonstrable self-improvement. He has previously worked as a reporter and editor for a dozen New Hampshire publications, including the Derry News, Lawrence Eagle Tribute, NH Union Leader, and the Golden Dome News, as well as teaching high school English and working as a case manager at Community Bridges area agency for client with developmental impairments and brain injuries.