Category: reason

5 more travel tips for flying

Earlier this month, I blogged about my top travel tips. I received a number of favorable comments from Volokh readers–fellow road warriors. Here are five more tips for flying. My general goal: make my time in the air as familiar and predictable as possible.

1. Always select the same seat on every plane.

Travel is difficult precisely because it is unfamiliar. You are not sleeping in your own bed, you are in a strange hotel. You are not driving your own car, you are in a rental car, a taxi, or a train. You aren’t working in your own private office, but are working in a cramped airplane seat next to strangers. And the list goes on. To reduce such unfamiliarity, I try to make travel as as familiar as possible.

The most effective way to make your trip predictable is to establish a routine. For example, on planes, I will always select the same seat. Here, I will refer to three of the most popular planes on United’s fleet. These planes will appear in most major fleets. (Southwest, for example, only flies the Boeing 737.) These principle should extend to all fleets.

On a Boeing 737 I will always sit in Seat 11C. Why 11C? I have several reasons.

As a general matter, I prefer aisle seats. I do not want to have to ask permission of my seat mate if I need to use the bathroom. Also, after the plane arrives at the gate, the person in the aisle seat can quickly get up and retrieve his or her bag before he queue forms down the aisle.

Aisle seats have another perk: you can lift up the arm rest. Under most seats is a little button–push it, and you can pull up the arm rest. Removing the arm rest gives you a few more inches to spread out. This extra space is especially helpful if the person in the middle seat is crowding you. (It happens.)

In particular, I prefer the aisle on the left side of the plane, over the right side of the plane. That is seat C rather than seat D. Why? I am a righty. When I use the trackpad on my laptop, my right elbow naturally sticks out to the right. It is possible to use a trackpad with a straight arm, but the motion is unnatural. (Try it.) When I sit in seat C, my elbow juts out into the aisle. It doesn’t bother anyone. (When the drink cart comes down the aisle, I have some temporary restraints). When I sit in seat D, my elbow juts out into the person sitting in seat E. As a result, I much prefer Seat C. Indeed, if there are no seat Cs available, I will sometimes prefer a Seat F (window on the right side). That way, my elbow juts into the window, rather than the person next to me.

Of all the C seats, why 11C? First, the 8C and 20/21C are out. (I explain below why the bulkhead and exit row seats are overrated). 15C, the row immediately before the exit row, is also out. That seat cannot recline. (I am on the pro-side of the recline debate; it’s my seat, I can use it as I choose.) That leaves us with 9C, 10C, 11C, and 12C. If I am in a pinch, I will select any of these four seats, but I prefer 11C the most. I consider three factors.

  • Proximity to the front of the plane: Flights board by status (Zone 1 before Zone 5) but deplane by row (Row 1 before Row 11). The closer you are to the front of the plane, the closer you get off the plane. A person in Zone 5, who sits in 10A will usually get off the plane before a Zone 1 passenger in 11C. Based on my rough timing, it takes a row (6 passengers abreast) about 30 seconds to a minute to get out of their seats, retrieve their overhead bags, and move forward. Passengers in every row, further back, will have to wait more time to get off the plane.
  • Availability of overheard space: Generally when I board early, I don’t have to worry about overhead space above my seat. But if I am running late, or if the gate agent boards early (I really wish they wouldn’t), I sometimes have a tougher time locating overhead space. I find that among rows 9-12, the overhead space fills up the quickest towards the front. Sometimes the airline will store some type of emergency equipment by the bulkhead–fixed space you cannot move. Also, pilots and other crew will put their bags up there. I rarely have problems with bag space in row 11 or 12.
  • Likelihood that the middle seat remains empty: On a less-than-sold out flight, middle seats are often open. I will usually prefer an aisle seat with an empty middle seat to a business class seat. (On shorter flights, I’ve declined last-minute upgrades to avoid the hassle of moving from a spacey position.) Sometimes the airline will “upgrade” someone from a regular economy seat to a middle seat in economy plus. (I am not sure that is an upgrade; I would rather have a cramped aisle seat than a roomy middle seat.) In my experiences, the middle seat in Rows 11 and 12 fill up after the middle seats in Rows 9 and 10. No science here. My anecdotal observations.

Given these three considerations. I have made 11C my default choice. It is my mobile office. Wherever available, I take it. Indeed, I am comfortable with it. When I have to use 10C, I feel too close to the front. 12C feels too far from the front. If you ever see me on a plane, and I am not in 11C (or in business class), you can assume that I didn’t buy the ticket early enough.

All of the C seats I mentioned are in the Economy Plus section of the plane. United (and most carriers) designate the first few rows of the plane as “premium.” You have more space between seats. Specifically, there are more inches from the end of one seat to the beginning of another. This unit is known in the industry as “pitch.” (I will explain later why “pitch” is not a useful measurement.) With premium seats, you can also board earlier (with Zone 1 or 2). All passengers can choose to pay extra for these seats (between $50 and $75). Passengers can also buy an annual subscription and receive unlimited economy plus seats (about $600 a year). And members with gold status or higher receive complimentary economy plus seating. (Traditionally gold status was awarded to passengers with 50,000 miles flown a year, but now status is primarily based on spending money.)

The seating configuration is different on the Embraer Regional Jet (ERJ) 175. Instead of two rows of three, the smaller plane has two rows of two. In other words, no middle seat. The seats themselves are also much thinner, and less comfortable. For a short flight, the seats are fine. But United treats some three-hour flights (Houston to DC) as “regional.”

The first four rows of the ERJ 175 are Economy Plus. I usually prefer 9B. (The aisle side on the left side). I avoid the bulkhead (7B). I also avoid 10B. This row is immediately in front of the regular Economy Section. It is harder to recline onto someone who has space. I prefer to recline onto people who have the added space of an economy plus seat. 8B also works in a pinch. As a general matter, I will take a D window seat in Economy Plus over a C aisle seat, to avoid having my elbow jut into the seat mate.

Finally, we have the ERJ 145, the tiny regional jet with a 2-1 configuration. This plane is (thankfully) being phased out. It is very cramped and uncomfortable. Some smaller airports can only be reached by these tiny planes. Here, the A seats are preferred. You sit by yourself, in your own row. But there is very little leg room. My knees always touch the seat in front of me. If the person in front of me reclines, I have to lift the tray table up, and put my laptop on my lap. Here I actually prefer the exit row (Row 18A). There is more leg room, and I can comfortably work. Also, the tray table is not in the arm rest, so there is more lateral space.

I have given seating a lot of thought.

2. Bulkhead seats and Exit Row seats are overrated

Bulkhead seats refer to the first row on a plane. On the Boeing 737, for example. There are two bulkheads. First, Row 1 in business class. Second, Row 7 in economy class. Generally, there is a wall in front of the first row to separate the seats.

Also, every plane has at least one or more exit rows. These are the rows that align with the plane’s wings. In the event of the emergency, people may need to evacuate through the exit rows, onto the wing. Some travelers prefer the bulkhead and exit rows. I think these seats are overrated.

One law professor described me as “tall and muscular.” I agree with the first half of that statement. I am about 6’2″, with long legs. I’m also wide. The bulkhead seats, located in the first row of the plane, don’t work for me for three reasons. First, there is actually less room for my legs. In seat 11C, I can stretch my legs all the way out under the seat in front of me (10C). But for the bulkhead, there is a partition in front of the seats. The bulkhead offers more knee room–that is, no one will recline a seat into my knees. (This measurement is referred to as “pitch.”) But there is less leg room–I have less space to stretch out. Indeed, with most economy plus seats, I seldom have problems with knee room. Even if the person in front of me reclines, I still have plenty of room. (Though I have to reposition my laptop on the tray table slightly).

Second, in the bulkhead, I cannot keep my laptop under my seat during taxi, takeoff, and landing. The path in front of the bulkhead must be clear. This FAA rule never made much sense to me. There is no quick escape by the bulkhead seat. I’m not sure why this path must remain free, but other rows can be cluttered. This rule is enforced unevenly. Some flight attendants will let me keep the laptop under my seat. Others will let me put it in the seat pocket (which hangs off the partition). But some flight attendants make me put my computer in the overhead bin. That change deprives me of about 20-30 minutes of working time per flight. Why? You can’t get the computer from the overhead until you reach cruising altitude (double chimes). And you have to stow your computer during the descent. Depending on weather, that could be as much as a 20-minute. No thanks.

Third, in the bulkhead the tray tables are stored in the arm rest. As a result, there are fixed boundaries on both the right and left side of the seat. I feel cramped inside that unit. Unlike with my beloved 11C, the exit rows do not allow me to lift up the arm rest, and extend into the aisle. Also, the tray tables that fold of the arm rests are far more flimsy. They are likely to sit on top of my knees, creating undue pressure throughout the entire flight.

The exit row seats will also place the tray table in the arm rest. You have more knee, and leg room, but there is less lateral space. But the exit row has plenty of knee room and even more leg room. I can’t even reach the seat in front of me. On some planes, the exit row is colder because of the proximity to the window. The temperature doesn’t bother me, but it could be a factor for other passengers.

I think the exit row and the bulkhead seats are overrated. They provide some benefits, but also add costs for taller, and wider passengers.

3. Tips for trading seats

This tip will be unpopular among unfrequent flyers, but will resonate with frequent flyers. I will generally switch seats switch to allow a parent to sit next to his or her child–the younger the child, the more likely I will make the switch. As a general matter, there are inconveniences to sitting next to a young child: they can make a lot of noise, can jump and kick around, and there are frequent bathroom breaks. Sometimes moving away from a child on a plane is win-win. Also in rarer cases, a person will want to sit next to an elderly parent with some health conditions. That switch will also usually work for me.

But I won’t entertain a switch for a husband, wife, boyfriend, girlfriend, etc. Seat 11C is very important to me. (See #1 above.) If I have to sit in a window seat, or an aisle seat, I will not be able to get work done that I had planned to finish. And I will likely have to sit in a cramped position, leading to discomfort for the rest of the day. Indeed, I won’t switch from seat 11C to 11D. Recently, someone asked to switch an “aisle for an aisle.” I declined. I’ve tried to explain in the past the difference between 11C and 11D while someone is asking me to switch, but it is too complicated. Now I just say no, without an explanation. (That incident, in part, spurred this lengthy post.)

Refusing to switch in such cases generates a lot of glares and dirty looks. And I have to sit next to the person who wanted to switch for 2+ hours. There are costs. But I am efficient at looking ahead and focusing on my work. I usually forget about the issue by the time we reach cruising altitude.

Indeed, my general tactic when my seat mate is unpleasant is to simply look forward and ignore them. Responding or engaging in any way simply escalates the issue. There are no rational conversations when a passenger is irate. On rare occasion, if the situation escalates, I press the call button and let the flight attendant deal with it. In some cases, reaching up to press the button could escalate the situation further–especially if the seat mate perceives the sudden motion as an act of aggression. In such cases, I get up “to go to the bathroom” and mention something to the flight attendant.

For example, on a recent flight, the passenger next to me was really, really drunk. (By my count, he had four vodka drinks, and probably started drinking before the flight.) He kept asking me bizarre questions and saying obnoxious things. I looked forward and ignored him. Alas the behavior did not stop. I got up and told the flight attendant to cut him off. And the flight attendant did so, and brought him coffee.

Back to switching for parents and children. The mechanics of the switch are complicated. And parents are seldom thinking about what they are asking. Their sole concern is to sit next to their kid. I can truly relate. Here I offer some general tips to make the process smooth.

As a threshold matter, parents who buy tickets well in advance would not knowingly seat their child apart. Parents and children are generally are assigned separate seats because they missed a connection, and were automatically rebooked. It happens. On most flights, stand-by passengers are assigned to the middle-seats (the most unpopular seats). As a result, a child may be assigned to 11B (an economy plus middle seat on the left side of the plane) while the parent may be assigned to 22E (an economy middle seat on the right side of the plane).

Usually, the parent will ask me (in 11C) to move back to 22E. That certainly seems like the easiest swap. I am in the aisle, and easy to talk to. The person in the window is further away. This is probably the worst trade. The parent is asking someone seated in a premium, aisle seat to go back to a non-premium middle seat. I addressed above how that seat would affect my trip.

Rather than swapping 11C for 22E, the parent should consider two other options.

First, send the child back to row 22. The parent should ask the person in 22D or 22F to move up to 11B This person did not purchase a premium seat, but would be getting that benefit. True enough, they would be giving up a window or aisle for a middle seat. But the added legroom may make it worth it. Also, I’ve found that people in row 22+ aren’t as persnickety about their seats. If they were, they wouldn’t be sitting in row 22+.

Second, ask the person in 11A to go back to 22E. This swap also represents a downgrade (window seat to a middle seat). But if 11C (me) declines, 11A should be the next bet.

I’ve been on some flights where parents try to organize three-way trades, so that mom, dad, and kid can sit in the same row. I won’t participate. These switches are too complicated and seldom pan out. The boarding process is fairly short, and everyone must be seated by the time the door closes. Waiting around for these trades to materialize is a waste of time.  Sometimes people try to organize a trade while in the air. At that point, people are seated, and are less likely to move.

On rare, rare occasion, a parent and child will be seated in my seat before I board. (Parents with children 2 and under board before members with “1K” status). Their hope is that if they are seated in my seat, I would be happy to move. I’ve acquiesced to this plan a few times. It is gutsy, but works. I would not recommend it. It could backfire, and create a scene at boarding.

 

4. Always use a neck pillow on planes, Ubers, and everywhere else

I have a neck pillow clipped to my bag. I bring it everywhere I go. I wear it all the time on planes, in Ubers, and everywhere else. Indeed, I usually put it on during the boarding process. It looks ridiculous. I’ll admit. But it prevent neck strain and cramping. Moreover, the neck pillow allows me to easily sleep for two hours at a time. (Something usually wakes me up during longer naps).

Not all neck pillows are created equal. I’ve tried them all. The best model I’ve seen is the Cabeau Evolution Memory Foam Travel Neck Pillow. It is perfect. The grooves on the slide let me rest my neck. And the memory foam material is quite comfortable. And the strap easily clips onto any bag handle. I have 2 or 3 extra ones at home, in the event I ever lose it.

 

5. To create extra leg room, remove the literature from the seat pocket

Most airplanes load lots of literature in the seat pocket: a magazine no one reads, safety cards no one reads, applications to sign up for credits cards, wifi instructions, etc. Those pages take up precious inches. Remove them. Put them on the floor. You will buy yourself a few inches of free room. Flight attendants will sometimes rebuke you for moving the safety card. (I once got yelled at while flying a 747 from Hong Kong to San Francisco–it was a tight ship.)

Some of the newer models place the literature pouch higher up, so there are no problems with knee room.

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Brickbats: March 2020

A former San Diego County, California, sheriff’s office captain has been charged with running an illegal gun trafficking operation. Federal prosecutors say Marco Garmo sold civilians “off roster” guns that are legally available only to law enforcement, high-capacity magazines, and department-issued ammunition. Prosecutors claim he did this not only to turn a profit but to win favor with potential donors for a planned run for sheriff.

A committee of the French Parliament has approved a bill that would ban Black Friday sales and promotions. Supporters of the bill say such sales lead to overconsumption and harm the environment by causing traffic jams and air pollution.

Hundreds of former and current state inmates in New York have filed a lawsuit claiming they received additional punishment, such as forced isolation, after being given drug tests that produced false positives. A spokesman for the Department of Corrections and Community Supervision says the agency has stopped using the test. Leaked documents indicate some 2,000 prisoners may have been affected.

A new Berkeley, California, law requires restaurants to charge customers 25 cents for a single-use cup. Similar laws have been passed or proposed in Palo Alto and San Francisco. Supporters say these laws will reduce waste, but advocates for the disabled say those with limited movement or sensation in their hands may find it hard to lift glass or ceramic cups. Berkeley is trying to find a way to exempt the disabled from having to pay.

Illinois Gov. J.B. Pritzker has ordered schools to stop locking up kids alone in “time out” rooms. By law, students should be placed in isolation only if they are a danger to themselves or others. But a joint investigation by ProPublica Illinois and the Chicago Tribune showed the practice was widely used for other reasons, such as refusing to do classwork or spilling milk.

Police in Germany have asked some 800 men to submit DNA samples in an effort to solve the murder of a young girl 23 years ago. The men would have been between the ages of 14 and 70 at the time and living in the village where Claudia Ruf was kidnapped and killed. Police say none of the 800 men are suspects, but they believe one of them might be related to the murderer, and they hope they can ID the killer through the connection.

An internal investigation found that Gwinnett County, Georgia, police officer Todd Ramsey had a YouTube video of Grand Theft Auto gameplay running on his patrol car computer monitor when he rear-ended an SUV at nearly 70 mph. The accident left the driver of the SUV in a coma for four weeks. Ramsey was cited for following too closely and demoted. An Atlanta TV station reports this was the eighth traffic accident Ramsey has been involved with where he was found to be at fault.

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Brickbats: March 2020

A former San Diego County, California, sheriff’s office captain has been charged with running an illegal gun trafficking operation. Federal prosecutors say Marco Garmo sold civilians “off roster” guns that are legally available only to law enforcement, high-capacity magazines, and department-issued ammunition. Prosecutors claim he did this not only to turn a profit but to win favor with potential donors for a planned run for sheriff.

A committee of the French Parliament has approved a bill that would ban Black Friday sales and promotions. Supporters of the bill say such sales lead to overconsumption and harm the environment by causing traffic jams and air pollution.

Hundreds of former and current state inmates in New York have filed a lawsuit claiming they received additional punishment, such as forced isolation, after being given drug tests that produced false positives. A spokesman for the Department of Corrections and Community Supervision says the agency has stopped using the test. Leaked documents indicate some 2,000 prisoners may have been affected.

A new Berkeley, California, law requires restaurants to charge customers 25 cents for a single-use cup. Similar laws have been passed or proposed in Palo Alto and San Francisco. Supporters say these laws will reduce waste, but advocates for the disabled say those with limited movement or sensation in their hands may find it hard to lift glass or ceramic cups. Berkeley is trying to find a way to exempt the disabled from having to pay.

Illinois Gov. J.B. Pritzker has ordered schools to stop locking up kids alone in “time out” rooms. By law, students should be placed in isolation only if they are a danger to themselves or others. But a joint investigation by ProPublica Illinois and the Chicago Tribune showed the practice was widely used for other reasons, such as refusing to do classwork or spilling milk.

Police in Germany have asked some 800 men to submit DNA samples in an effort to solve the murder of a young girl 23 years ago. The men would have been between the ages of 14 and 70 at the time and living in the village where Claudia Ruf was kidnapped and killed. Police say none of the 800 men are suspects, but they believe one of them might be related to the murderer, and they hope they can ID the killer through the connection.

An internal investigation found that Gwinnett County, Georgia, police officer Todd Ramsey had a YouTube video of Grand Theft Auto gameplay running on his patrol car computer monitor when he rear-ended an SUV at nearly 70 mph. The accident left the driver of the SUV in a coma for four weeks. Ramsey was cited for following too closely and demoted. An Atlanta TV station reports this was the eighth traffic accident Ramsey has been involved with where he was found to be at fault.

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The Truth Could Set Them Free

In late 2006, a public defender went before a Napa County judge to argue for his client’s freedom. Rex McCurdy, a 49-year-old man, had been detained for seven years at Atascadero State Hospital under a 1995 California law authorizing “civil commitment” of people who have been convicted of sex offenses, a practice that keeps them confined long after they have completed their sentences.

In 1983, McCurdy had pleaded guilty to a rape, for which he served two years in state prison. In 1990, he was convicted of a burglary and served another six years. In 1998, McCurdy says he was brought in on a parole violation for living too close to a school, contrary to his conditions of release. Prosecutors used that violation and the two prior convictions to get McCurdy classified as a “sexually violent predator” (SVP), he says. That designation let them civilly commit him to Atascadero, much the way people with mental health issues can be locked up when they are deemed a threat to themselves or others.

Seven years after McCurdy was committed, his lawyer, Jim McEntee, was trying to persuade a judge that his client was a low risk to reoffend. If he failed, McCurdy would be confined at the hospital indefinitely. Fortunately, the lawyer had heard of evidence that might tip the scales: a study done at Atascadero itself that could help his client.

McEntee called as a witness Jesus Padilla, one of Atascadero’s psychologists. Padilla was four years into a study of ex-offenders classified as SVPs who had been released on technical grounds. Padilla had tracked them to find out their recidivism rates, which he presumed would be high.

What he discovered would undermine the basic premise of civilly committing people with sex crime records. In his sworn testimony before the judge and an October 10, 2006, memo, Padilla explained that of the 93 ex-offenders he and a colleague had tracked, just six had been rearrested for an alleged sexual crime after about five years in the community. That amounts to an astonishingly low rearrest rate of 6.5 percent. By comparison, a 2018 study by the federal Bureau of Justice Statistics found that 49 percent of all state prisoners were arrested again for the same type of offense within five years of their release. 

The recidivism rate that Padilla found for SVPs did not square with the 1995 law that created the program, which had called the people it targeted a “small but extremely dangerous [group of] sexually violent predators.” In short, the study called into question the legitimacy of the entire $270-million-a-year civil commitment program.

Shortly after his testimony, Padilla’s study was abruptly terminated. His records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work. At first he pushed back and even tried to continue on his own. But as he explained in 2009, “It’s too hard to fight the system, you know.” In 2013, Padilla died of stomach cancer, his research unfinished. The whole incident might have been forgotten, if not for the work of law professors Tamara Rice Lave and Franklin Zimring, who excavated Padilla’s work in a 2018 American Criminal Law Review article and brought to light the ways in which the state tried to ensure that knowledge of it would die with him.

California’s civil commitment program is the biggest in the country, holding 15 percent of those detained nationwide—so a great deal rides on understanding whether it is actually achieving its goals. Yet for decades it has operated under the cover of unexamined assumptions, and the authorities apparently prefer it that way.

What Is a ‘Sexually Violent Predator’?

The Constitution’s Fifth and 14th amendments bar punishing someone twice for the same crime. A 1997 Supreme Court decision gets around that prohibition by permitting states to confine certain sex offenders not for their old crimes but for those they might commit.

In Kansas v. Hendricks, the Court created special rules for people with sex offense records who suffer from a “mental abnormality” or “mental illness” that makes it “difficult, if not impossible,” for them to control their behavior. The decision framed civil commitment not as punishment but as treatment. The justices took at face value the core assumption in the preamble to Kansas’ civil commitment law: that this group’s likelihood of committing new offenses is exceptionally high.

Today, 21 states and the federal government have civil commitment laws for people who have been convicted of sex crimes. Among them, they hold about 6,000 “sexually violent predators” in indefinite detention. California alone holds about 900. To qualify as an SVP under California’s law, a person must have committed at least one crime of sexual violence, and the state has to prove the offender has a diagnosed mental disorder that makes it “likely” he will reoffend.

The classification process begins six months before an inmate is scheduled to be released from prison. The California Department of Corrections screens inmates’ records and refers those who might qualify as sexually violent predators to the Department of State Hospitals (DSH) for evaluation. If two evaluators concur that an inmate meets the SVP criteria, the DSH refers the case to a district attorney, the D.A. brings the case to court for a civil commitment trial, and a jury decides whether the person meets the law’s criteria.

While the process may sound clear-cut, it is actually a dragnet that catches all manner of ex-offenders. The definition of a mental disorder that makes a person likely to reoffend is designed to include the broadest possible range of conditions. A 1998 American Psychiatric Association report concluded that “sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment.”

A rich vein of psychiatric literature has documented the ambiguities of diagnosing mental illness and predicting dangerousness when it comes to forcing people into institutions. A 1998 Massachusetts study, for example, found that mental hospitals involuntarily detained patients with insurance 40 percent to 100 percent longer than those without. “Over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor,” University of Georgia law professor Alexander Scherr noted in a 2003 Hastings Law Journal article. “Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest critique finds that mental health professionals perform no better than chance at predicting violence, and perhaps perform even worse.”

Civil commitment of sex offenders fares no better. Recent studies of people referred for civil commitment and released or never committed for technical reasons found reoffense rates ranging from about 3 to 11 percent. A 2013 review that Florida commissioned of its civil commitment program concluded that “for those deemed to be so dangerous that they may be committed indefinitely—and cared for at great expense to the state—[the] false positive rate appears high.” While defending his state’s SVP commitment program in 2015, Mark Dayton, then the governor of Minnesota, conceded that “it’s really impossible to predict whether or not [sex offenders] are at risk to reoffend.”

Ultimately, the determination about whether an individual is likely to reoffend is made by a jury, not a clinician. That lowers the bar dramatically: In one survey of jurors who had served in Texas civil commitment trials, nearly 54 percent defined a 1 percent chance of reoffending as “likely.” That rate is actually lower than the likelihood that an offender with no sex crime convictions will commit such a crime, which ranges from 1 percent to 3 percent in studies with follow-up periods ranging from three to four and a half years.

Cases like McCurdy’s, in which a decades-old offense is used to argue that someone is still dangerous, are not uncommon in California, according to San Bernardino County public defender Jeff Lowry, who has spent 19 years representing SVPs. A person with a sex offense from 10 or more years ago might be rearrested on a nonsexual charge, Lowry said in a 2013 presentation—it might even be something like a probation violation for drinking alcohol. The person then gets referred through the system as a possible SVP. When the decision comes before a jury, the phrase sexually violent predator—a legal term, not a clinical one—puts the defendant in a big hole out of the gate. When it’s first used, Lowry said in the presentation, “you can feel the atmosphere in the entire courtroom change.”

That’s why, Lowry tells me, he always introduces a motion to have the defendant referred to at trial as a “6600”—referring to the relevant portion of the law—instead of a “sexually violent predator.” The maneuver has worked only once, however. “Every judge says, ‘The legislature chose to use that term, so that’s the term that we’re going to use,'” Lowry says.

Defendants don’t stand much chance. There does not appear to be any research on how often the prosecution wins in civil commitment hearings with juries, but in state cases Lowry estimates the rate is about 90 percent. At the federal level, he says, it’s closer to 45 percent because judges rather than juries make the decision.

Padilla’s Odyssey

Under Kansas v. Hendricks, once people are locked up, the state has to offer them treatment. In theory, this offers a chance of release. In practice, some states almost never release SVPs. In 2002, Padilla had launched an effort to evaluate Atascadero’s treatment program and figure out whether it was actually reducing recidivism among those treated and then let out.

Padilla wasn’t looking to undermine the program. Quite the opposite, according to several people who knew him. In civil commitment hearings, he was “primarily if not exclusively an expert witness for prosecutors,” says Brian Abbott, a forensic psychologist in San Jose who often serves as a defense expert witness in sex offense cases. Marian Gaston, a former public defender who is now a California Superior Court judge, says by email that Padilla was “a big advocate of a particular diagnosis for rapists that I thought was specious, but he was very smart and believed in the work he was doing.” He was “a worthy adversary, I guess you could say.”

Some ex-offenders take a dimmer view. Mike St. Martin, civilly committed since 2002, says Padilla was strongly biased in favor of keeping people locked up. McCurdy claims that in his own commitment trial, several state evaluators concluded he was a low risk and should be released. He says Padilla, who was also on the evaluation team, was the only holdout.

According to Lave and Zimring’s masterful reconstruction, Padilla started working with an Atascadero social worker named Kabe Russell on what was planned as a 15-year study. At the time, California’s civil commitment program was the only one in the country to limit SVP commitments to two years; all other states with civil commitment allowed indefinite confinement. So every two years, the state had to prove to a judge that the person was still dangerous. California had consequently been forced by the courts to let out a trickle of detainees. (Voters have since enacted a ballot measure that allows indefinite confinement.)

By comparing the reoffense rate of Atascadero detainees who had been released after receiving treatment with the rate of those who were released without treatment, Padilla and Russell could test whether the hospital’s treatment program was working. “This is what any good program does,” Padilla would say at a 2011 hearing. “You say, ‘Well, we are treating sex offenders. How good is our program?'” Padilla and Russell planned to report their results every five years.

They expected—possibly hoped—to find high reoffense rates for the group released without treatment. “I’m hopeful that this data will confirm the importance of providing supervision and treatment for this high-risk group of patients,” Russell wrote to a program supervisor in 2004. Padilla later said he had expected the recidivism rates to be in the range of 37 percent to 38 percent over five years, consistent with predictions from a risk assessment done on the inmates.

That might be why Padilla and Russell went to extraordinary lengths to get solid data: They did not want to miss any new crimes committed by SVPs who were released. They could not get data from the state’s criminal history database without permission, so they went to Atascadero’s umbrella agency, the Department of Mental Health (DMH, a precursor to the DSH), which appointed someone to get them access. Melvin Hunter, the hospital’s executive director, approved the study design in 2004.

Padilla and Russell checked the state’s sex offender registry to see where the inmates who had been released were registered, then sent letters and made follow-up calls to the prosecutors in those counties, asking whether the ex-inmates had been rearrested. For anyone who had left the state, they checked FBI reports for rearrests.

The Investigators Get Investigated

Padilla and Russell were about two years into their data collection when McCurdy’s lawyer made his motion seeking their results. Padilla and the state resisted. “I said, ‘No, it’s privileged information,'” protected by the federal medical privacy law, Padilla remembered in 2009 testimony. But the judge ruled against him.

It turned out Padilla had good reason to fight the motion: After his resulting 2006 memo, the state turned on him. The director of the hospital’s SVP civil commitment program, George Bukowski, had OKed the study. Now he had been replaced by Jon de Morales, who accused Padilla and Russell of illegally accessing the state criminal history database, according to Padilla’s 2009 testimony.

Padilla showed de Morales he had authorization from the top to use the database. Nonetheless, in December 2006, Atascadero’s umbrella agency, the DMH, appointed an investigator to look into whether Padilla and Russell had illegally accessed the information. After a six-month ordeal, they were cleared. “My understanding was [Padilla] was pretty much taken aback by the negative reaction,” says Abbott, the forensic psychologist.

Worse was on the way. In June 2007, Hunter, the hospital’s chief executive, who had signed off on Padilla’s study, abruptly retired with no explanation. He was replaced by de Morales. Three days after taking over, de Morales sent Padilla a memo saying his study had been terminated and he was not authorized to use the data he had collected for publication, research, testimony, or any other purpose. Padilla was forced to turn over the electronic copy of his data and the boxes containing his backup information, all of which, he recounted in 2009, the department destroyed.

Padilla and Russell tried to keep going without the data they had collected. They reapplied to Atascadero for permission to continue. The hospital sent them to the DMH, which sent them to its own umbrella agency, the California Health and Human Services Agency, which sent them back to the DMH, which sent them back to Atascadero. Two years into the process, de Morales shut them down for good, telling the pair in a memo that they would not be given permission, because “neither [the hospital] nor DMH would permit ‘volunteers’ to conduct this research.”

Why did Padilla keep trying after the hospital shut him down? “I think what was driving him was that he wanted to know—he genuinely wanted to know—whether or not these people were dangerous,” Lave says. In his 2009 testimony, Padilla said he could have gone to then–Attorney General Jerry Brown and tried to convince him the state needed to look at the data. But he eventually gave up. “I got tired of pursuing it,” he said in his testimony, and now much of the information was “gone forever.”

De Morales retired in 2011. Contacted for comment, he responded by email. “Lave and Zimring did a good job with their analysis of predator commitment statutes,” he wrote. “However, the issue of access to [the state criminal database], Mel Hunter’s termination and whether or not the state/dept had a political or economic interest in quashing this ‘study’ is bogus.” He refused to comment further without approval from the state. When DSH was contacted to request that approval, spokesperson Ralph Montano said the agency was “unable to grant or deny a request for an interview with a former employee.”

Most other players in the story were unavailable for interviews. Hunter died in 2012 at 65. Russell, who owns a photography studio in the town of Atascadero, did not respond to requests for comment. Bukowski, the civil commitment director who approved the study, died in 2007 of leukemia. Two other people in Atascadero’s leadership who Padilla said knew of the study—Craig Nelson, who headed the treatment program, and Brenda Epperly, who headed the sex offender commitment program—did not respond to letters sent to their latest addresses.

By the time Atascadero shut down Padilla, it was too late to stop his data from being used in SVP cases. In a 2012 memo to defense lawyers, Abbott noted that under state standards the Padilla study was considered peer reviewed and therefore credible in court. At least two defense lawyers later called on Padilla to testify about his research while challenging their clients’ civil commitments. Gaston says Padilla’s testimony was part of the evidence that led a judge to find that one of her clients no longer met the SVP criteria.

Excavating Padilla’s Work

In 2011, when Lave and Zimring started what became a seven-year effort to discover what had happened to Padilla’s study, they found out what he had been up against. Lave is a University of Miami law professor, and one of her research interests is sex offense civil commitment law. Zimring, author of many books on criminal justice, directs the University of California, Berkeley, School of Law’s criminal justice studies program.

Lave and Zimring heard about Padilla and interviewed him by phone. Then they sent a freedom of information request to the DSH asking about Padilla’s data. They got back a letter from a staff lawyer saying the department was “unable to verify any study conducted by Jesus Padilla, PhD.” The DSH agreed to consider their request only after they sent the department a copy of Padilla’s original research proposal, which showed that the hospital’s top administrators had signed off on the study.

After months of wrangling, the agency turned over the data in mid-2012. But when Lave showed it to Padilla, he said the agency had tampered with the files, making the numbers unusable. Against de Morales’ orders, he said, he had kept his original data file. But he would not turn it over to Lave and Zimring, because the agency had ordered him not to, an instruction he abided by to the end.

Padilla did promise to use his original file to help Lave and Zimring restore the damaged data. But by then it was too late—he had been diagnosed with stomach cancer. When Lave met him in Atascadero in summer 2013, he was too weak to work with her. He died later that year. Lave and Zimring went to Russell for help, but he told them he did not remember the files well enough and would not look at them. All that’s left today of the study is Padilla’s October 2006 memorandum describing the results.

Even today, the DSH seems reluctant to acknowledge that Padilla’s study took place. Asked to respond to Lave and Zimring’s contention that the agency quashed it, Montano, the spokesman, said that “the study was allegedly conducted between 2004 and 2006” but that “the DSH was unable to validate the accuracy of the data that was recovered.” Asked whether the agency was denying the study’s existence (and, if so, to explain the data it provided to Lave and Zimring), Montano responded that the “DSH does not have records that indicate the Padilla study was completed.”

That, of course, is the point.

The Threat to Civil Commitment

Why deny the data? California’s program spends about $200,000 per inmate annually, according to 2016 data from the state’s sex offender management board—up almost 8 percent, adjusting for inflation, since 2005–06. The budget of the Coalinga State Hospital, which took over responsibility for SVPs from Atascadero in 2005, is $303 million for fiscal year 2019–20, up from $254 million four years earlier. Almost three-quarters of Coalinga’s patients are SVPs.

Low reoffense rates that undermine the program’s justification also might threaten a good chunk of the local economy. The hospital’s website notes that in the 2013–14 fiscal year, Coalinga bought some $15 million in goods and services from about 200 companies in the area.

Subsequent assessments of SVP civil commitment in other states comport with what Padilla found. A 2014 Minnesota study of 161 offenders referred for civil commitment but not actually committed found that just 6.5 percent were convicted of a new sex crime within four years of their release. In New Jersey, a 2013 study of 102 ex-offenders referred for SVP evaluation but ultimately not committed found that 10.5 percent were convicted of a new sex offense during an average follow-up period of six and a half years. A 2009 Texas study of 1,928 offenders screened for possible civil commitment as SVPs found that 3.2 percent were arrested for a new sex crime—a looser standard than reconviction—during follow-up periods that averaged nearly five years. A 2013 review of Florida’s civil commitment program cited state research involving 710 offenders who were recommended for civil commitment but released for various reasons between 1999 and 2013; 10 percent were subsequently charged with “a sexually motivated offense involving a victim” during followup periods of up to 14 years, depending on when offenders were released.

These data call into question the assumption at the heart of Hendricks v. Kansas. If SVP recidivism is not highly likely, as the Supreme Court assumed, the whole civil commitment scheme for getting around the Constitution’s ban on double jeopardy falls.

When California’s proposed SVP law was debated in 1995, the California Psychological Association, the Forensic Mental Health Association, and the California Psychiatric Association all came out against it, partly because of due process concerns. That last group argued in its legislative testimony that “mental health treatment facilities cannot be used as a gulag.”

One expert who has observed the growth of the state’s civil commitment program from the inside regrets what it has become. Janice Marques, a former DMH researcher whose work on recidivism is widely cited, is a founding member and former president of the Association for the Treatment of Sexual Abusers. Marques also was involved in the first legislative hearings on California’s 1995 SVP law. The civil commitment program “was never expected to be as large and as encompassing as it is,” she tells me. “The high recidivism rate just hasn’t panned out….It’s just so difficult once you set something like this up to get rid of it.”

California Assemblymember Sabrina Cervantes, a Democrat, introduced legislation signed by the governor last fall that reforms the SVP program by limiting continuances in civil commitment trials. But that response falls far short of eliminating the program altogether.

For their part, Lave and Zimring are calling on the U.S. Department of Justice to resurrect the Padilla study, which by now would have a long follow-up period. They would like to find out how many detainees released from the state’s civil commitment program without treatment have committed new crimes.

Without such a follow-up, California’s program will never be held to account. Even the rare legislators like Cervantes who pay attention to the program don’t seem inclined to touch the heart of the issue. In the absence of new data, inertia will compel the state to continue spending money on a program for which there appears to be little need.

One prisoner-cum-patient who has not been arrested for a new sex crime is Rex McCurdy. Padilla’s memo may have helped him: Following more legal wrangling, McCurdy says, he was released from Coalinga in 2009 after a judge ruled that he was no longer a danger. He moved to Spokane and opened an art studio, then returned home to Napa in 2019. Now 64, he lives on family property he co-owns.

The California sex offender registry still lists McCurdy as a “sexually violent predator.” That label, which the state applied to him a decade and a half after his sex crime, nearly condemned him to a lifetime of imprisonment.

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The Truth Could Set Them Free

In late 2006, a public defender went before a Napa County judge to argue for his client’s freedom. Rex McCurdy, a 49-year-old man, had been detained for seven years at Atascadero State Hospital under a 1995 California law authorizing “civil commitment” of people who have been convicted of sex offenses, a practice that keeps them confined long after they have completed their sentences.

In 1983, McCurdy had pleaded guilty to a rape, for which he served two years in state prison. In 1990, he was convicted of a burglary and served another six years. In 1998, McCurdy says he was brought in on a parole violation for living too close to a school, contrary to his conditions of release. Prosecutors used that violation and the two prior convictions to get McCurdy classified as a “sexually violent predator” (SVP), he says. That designation let them civilly commit him to Atascadero, much the way people with mental health issues can be locked up when they are deemed a threat to themselves or others.

Seven years after McCurdy was committed, his lawyer, Jim McEntee, was trying to persuade a judge that his client was a low risk to reoffend. If he failed, McCurdy would be confined at the hospital indefinitely. Fortunately, the lawyer had heard of evidence that might tip the scales: a study done at Atascadero itself that could help his client.

McEntee called as a witness Jesus Padilla, one of Atascadero’s psychologists. Padilla was four years into a study of ex-offenders classified as SVPs who had been released on technical grounds. Padilla had tracked them to find out their recidivism rates, which he presumed would be high.

What he discovered would undermine the basic premise of civilly committing people with sex crime records. In his sworn testimony before the judge and an October 10, 2006, memo, Padilla explained that of the 93 ex-offenders he and a colleague had tracked, just six had been rearrested for an alleged sexual crime after about five years in the community. That amounts to an astonishingly low rearrest rate of 6.5 percent. By comparison, a 2018 study by the federal Bureau of Justice Statistics found that 49 percent of all state prisoners were arrested again for the same type of offense within five years of their release. 

The recidivism rate that Padilla found for SVPs did not square with the 1995 law that created the program, which had called the people it targeted a “small but extremely dangerous [group of] sexually violent predators.” In short, the study called into question the legitimacy of the entire $270-million-a-year civil commitment program.

Shortly after his testimony, Padilla’s study was abruptly terminated. His records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work. At first he pushed back and even tried to continue on his own. But as he explained in 2009, “It’s too hard to fight the system, you know.” In 2013, Padilla died of stomach cancer, his research unfinished. The whole incident might have been forgotten, if not for the work of law professors Tamara Rice Lave and Franklin Zimring, who excavated Padilla’s work in a 2018 American Criminal Law Review article and brought to light the ways in which the state tried to ensure that knowledge of it would die with him.

California’s civil commitment program is the biggest in the country, holding 15 percent of those detained nationwide—so a great deal rides on understanding whether it is actually achieving its goals. Yet for decades it has operated under the cover of unexamined assumptions, and the authorities apparently prefer it that way.

What Is a ‘Sexually Violent Predator’?

The Constitution’s Fifth and 14th amendments bar punishing someone twice for the same crime. A 1997 Supreme Court decision gets around that prohibition by permitting states to confine certain sex offenders not for their old crimes but for those they might commit.

In Kansas v. Hendricks, the Court created special rules for people with sex offense records who suffer from a “mental abnormality” or “mental illness” that makes it “difficult, if not impossible,” for them to control their behavior. The decision framed civil commitment not as punishment but as treatment. The justices took at face value the core assumption in the preamble to Kansas’ civil commitment law: that this group’s likelihood of committing new offenses is exceptionally high.

Today, 21 states and the federal government have civil commitment laws for people who have been convicted of sex crimes. Among them, they hold about 6,000 “sexually violent predators” in indefinite detention. California alone holds about 900. To qualify as an SVP under California’s law, a person must have committed at least one crime of sexual violence, and the state has to prove the offender has a diagnosed mental disorder that makes it “likely” he will reoffend.

The classification process begins six months before an inmate is scheduled to be released from prison. The California Department of Corrections screens inmates’ records and refers those who might qualify as sexually violent predators to the Department of State Hospitals (DSH) for evaluation. If two evaluators concur that an inmate meets the SVP criteria, the DSH refers the case to a district attorney, the D.A. brings the case to court for a civil commitment trial, and a jury decides whether the person meets the law’s criteria.

While the process may sound clear-cut, it is actually a dragnet that catches all manner of ex-offenders. The definition of a mental disorder that makes a person likely to reoffend is designed to include the broadest possible range of conditions. A 1998 American Psychiatric Association report concluded that “sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment.”

A rich vein of psychiatric literature has documented the ambiguities of diagnosing mental illness and predicting dangerousness when it comes to forcing people into institutions. A 1998 Massachusetts study, for example, found that mental hospitals involuntarily detained patients with insurance 40 percent to 100 percent longer than those without. “Over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor,” University of Georgia law professor Alexander Scherr noted in a 2003 Hastings Law Journal article. “Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest critique finds that mental health professionals perform no better than chance at predicting violence, and perhaps perform even worse.”

Civil commitment of sex offenders fares no better. Recent studies of people referred for civil commitment and released or never committed for technical reasons found reoffense rates ranging from about 3 to 11 percent. A 2013 review that Florida commissioned of its civil commitment program concluded that “for those deemed to be so dangerous that they may be committed indefinitely—and cared for at great expense to the state—[the] false positive rate appears high.” While defending his state’s SVP commitment program in 2015, Mark Dayton, then the governor of Minnesota, conceded that “it’s really impossible to predict whether or not [sex offenders] are at risk to reoffend.”

Ultimately, the determination about whether an individual is likely to reoffend is made by a jury, not a clinician. That lowers the bar dramatically: In one survey of jurors who had served in Texas civil commitment trials, nearly 54 percent defined a 1 percent chance of reoffending as “likely.” That rate is actually lower than the likelihood that an offender with no sex crime convictions will commit such a crime, which ranges from 1 percent to 3 percent in studies with follow-up periods ranging from three to four and a half years.

Cases like McCurdy’s, in which a decades-old offense is used to argue that someone is still dangerous, are not uncommon in California, according to San Bernardino County public defender Jeff Lowry, who has spent 19 years representing SVPs. A person with a sex offense from 10 or more years ago might be rearrested on a nonsexual charge, Lowry said in a 2013 presentation—it might even be something like a probation violation for drinking alcohol. The person then gets referred through the system as a possible SVP. When the decision comes before a jury, the phrase sexually violent predator—a legal term, not a clinical one—puts the defendant in a big hole out of the gate. When it’s first used, Lowry said in the presentation, “you can feel the atmosphere in the entire courtroom change.”

That’s why, Lowry tells me, he always introduces a motion to have the defendant referred to at trial as a “6600”—referring to the relevant portion of the law—instead of a “sexually violent predator.” The maneuver has worked only once, however. “Every judge says, ‘The legislature chose to use that term, so that’s the term that we’re going to use,'” Lowry says.

Defendants don’t stand much chance. There does not appear to be any research on how often the prosecution wins in civil commitment hearings with juries, but in state cases Lowry estimates the rate is about 90 percent. At the federal level, he says, it’s closer to 45 percent because judges rather than juries make the decision.

Padilla’s Odyssey

Under Kansas v. Hendricks, once people are locked up, the state has to offer them treatment. In theory, this offers a chance of release. In practice, some states almost never release SVPs. In 2002, Padilla had launched an effort to evaluate Atascadero’s treatment program and figure out whether it was actually reducing recidivism among those treated and then let out.

Padilla wasn’t looking to undermine the program. Quite the opposite, according to several people who knew him. In civil commitment hearings, he was “primarily if not exclusively an expert witness for prosecutors,” says Brian Abbott, a forensic psychologist in San Jose who often serves as a defense expert witness in sex offense cases. Marian Gaston, a former public defender who is now a California Superior Court judge, says by email that Padilla was “a big advocate of a particular diagnosis for rapists that I thought was specious, but he was very smart and believed in the work he was doing.” He was “a worthy adversary, I guess you could say.”

Some ex-offenders take a dimmer view. Mike St. Martin, civilly committed since 2002, says Padilla was strongly biased in favor of keeping people locked up. McCurdy claims that in his own commitment trial, several state evaluators concluded he was a low risk and should be released. He says Padilla, who was also on the evaluation team, was the only holdout.

According to Lave and Zimring’s masterful reconstruction, Padilla started working with an Atascadero social worker named Kabe Russell on what was planned as a 15-year study. At the time, California’s civil commitment program was the only one in the country to limit SVP commitments to two years; all other states with civil commitment allowed indefinite confinement. So every two years, the state had to prove to a judge that the person was still dangerous. California had consequently been forced by the courts to let out a trickle of detainees. (Voters have since enacted a ballot measure that allows indefinite confinement.)

By comparing the reoffense rate of Atascadero detainees who had been released after receiving treatment with the rate of those who were released without treatment, Padilla and Russell could test whether the hospital’s treatment program was working. “This is what any good program does,” Padilla would say at a 2011 hearing. “You say, ‘Well, we are treating sex offenders. How good is our program?'” Padilla and Russell planned to report their results every five years.

They expected—possibly hoped—to find high reoffense rates for the group released without treatment. “I’m hopeful that this data will confirm the importance of providing supervision and treatment for this high-risk group of patients,” Russell wrote to a program supervisor in 2004. Padilla later said he had expected the recidivism rates to be in the range of 37 percent to 38 percent over five years, consistent with predictions from a risk assessment done on the inmates.

That might be why Padilla and Russell went to extraordinary lengths to get solid data: They did not want to miss any new crimes committed by SVPs who were released. They could not get data from the state’s criminal history database without permission, so they went to Atascadero’s umbrella agency, the Department of Mental Health (DMH, a precursor to the DSH), which appointed someone to get them access. Melvin Hunter, the hospital’s executive director, approved the study design in 2004.

Padilla and Russell checked the state’s sex offender registry to see where the inmates who had been released were registered, then sent letters and made follow-up calls to the prosecutors in those counties, asking whether the ex-inmates had been rearrested. For anyone who had left the state, they checked FBI reports for rearrests.

The Investigators Get Investigated

Padilla and Russell were about two years into their data collection when McCurdy’s lawyer made his motion seeking their results. Padilla and the state resisted. “I said, ‘No, it’s privileged information,'” protected by the federal medical privacy law, Padilla remembered in 2009 testimony. But the judge ruled against him.

It turned out Padilla had good reason to fight the motion: After his resulting 2006 memo, the state turned on him. The director of the hospital’s SVP civil commitment program, George Bukowski, had OKed the study. Now he had been replaced by Jon de Morales, who accused Padilla and Russell of illegally accessing the state criminal history database, according to Padilla’s 2009 testimony.

Padilla showed de Morales he had authorization from the top to use the database. Nonetheless, in December 2006, Atascadero’s umbrella agency, the DMH, appointed an investigator to look into whether Padilla and Russell had illegally accessed the information. After a six-month ordeal, they were cleared. “My understanding was [Padilla] was pretty much taken aback by the negative reaction,” says Abbott, the forensic psychologist.

Worse was on the way. In June 2007, Hunter, the hospital’s chief executive, who had signed off on Padilla’s study, abruptly retired with no explanation. He was replaced by de Morales. Three days after taking over, de Morales sent Padilla a memo saying his study had been terminated and he was not authorized to use the data he had collected for publication, research, testimony, or any other purpose. Padilla was forced to turn over the electronic copy of his data and the boxes containing his backup information, all of which, he recounted in 2009, the department destroyed.

Padilla and Russell tried to keep going without the data they had collected. They reapplied to Atascadero for permission to continue. The hospital sent them to the DMH, which sent them to its own umbrella agency, the California Health and Human Services Agency, which sent them back to the DMH, which sent them back to Atascadero. Two years into the process, de Morales shut them down for good, telling the pair in a memo that they would not be given permission, because “neither [the hospital] nor DMH would permit ‘volunteers’ to conduct this research.”

Why did Padilla keep trying after the hospital shut him down? “I think what was driving him was that he wanted to know—he genuinely wanted to know—whether or not these people were dangerous,” Lave says. In his 2009 testimony, Padilla said he could have gone to then–Attorney General Jerry Brown and tried to convince him the state needed to look at the data. But he eventually gave up. “I got tired of pursuing it,” he said in his testimony, and now much of the information was “gone forever.”

De Morales retired in 2011. Contacted for comment, he responded by email. “Lave and Zimring did a good job with their analysis of predator commitment statutes,” he wrote. “However, the issue of access to [the state criminal database], Mel Hunter’s termination and whether or not the state/dept had a political or economic interest in quashing this ‘study’ is bogus.” He refused to comment further without approval from the state. When DSH was contacted to request that approval, spokesperson Ralph Montano said the agency was “unable to grant or deny a request for an interview with a former employee.”

Most other players in the story were unavailable for interviews. Hunter died in 2012 at 65. Russell, who owns a photography studio in the town of Atascadero, did not respond to requests for comment. Bukowski, the civil commitment director who approved the study, died in 2007 of leukemia. Two other people in Atascadero’s leadership who Padilla said knew of the study—Craig Nelson, who headed the treatment program, and Brenda Epperly, who headed the sex offender commitment program—did not respond to letters sent to their latest addresses.

By the time Atascadero shut down Padilla, it was too late to stop his data from being used in SVP cases. In a 2012 memo to defense lawyers, Abbott noted that under state standards the Padilla study was considered peer reviewed and therefore credible in court. At least two defense lawyers later called on Padilla to testify about his research while challenging their clients’ civil commitments. Gaston says Padilla’s testimony was part of the evidence that led a judge to find that one of her clients no longer met the SVP criteria.

Excavating Padilla’s Work

In 2011, when Lave and Zimring started what became a seven-year effort to discover what had happened to Padilla’s study, they found out what he had been up against. Lave is a University of Miami law professor, and one of her research interests is sex offense civil commitment law. Zimring, author of many books on criminal justice, directs the University of California, Berkeley, School of Law’s criminal justice studies program.

Lave and Zimring heard about Padilla and interviewed him by phone. Then they sent a freedom of information request to the DSH asking about Padilla’s data. They got back a letter from a staff lawyer saying the department was “unable to verify any study conducted by Jesus Padilla, PhD.” The DSH agreed to consider their request only after they sent the department a copy of Padilla’s original research proposal, which showed that the hospital’s top administrators had signed off on the study.

After months of wrangling, the agency turned over the data in mid-2012. But when Lave showed it to Padilla, he said the agency had tampered with the files, making the numbers unusable. Against de Morales’ orders, he said, he had kept his original data file. But he would not turn it over to Lave and Zimring, because the agency had ordered him not to, an instruction he abided by to the end.

Padilla did promise to use his original file to help Lave and Zimring restore the damaged data. But by then it was too late—he had been diagnosed with stomach cancer. When Lave met him in Atascadero in summer 2013, he was too weak to work with her. He died later that year. Lave and Zimring went to Russell for help, but he told them he did not remember the files well enough and would not look at them. All that’s left today of the study is Padilla’s October 2006 memorandum describing the results.

Even today, the DSH seems reluctant to acknowledge that Padilla’s study took place. Asked to respond to Lave and Zimring’s contention that the agency quashed it, Montano, the spokesman, said that “the study was allegedly conducted between 2004 and 2006” but that “the DSH was unable to validate the accuracy of the data that was recovered.” Asked whether the agency was denying the study’s existence (and, if so, to explain the data it provided to Lave and Zimring), Montano responded that the “DSH does not have records that indicate the Padilla study was completed.”

That, of course, is the point.

The Threat to Civil Commitment

Why deny the data? California’s program spends about $200,000 per inmate annually, according to 2016 data from the state’s sex offender management board—up almost 8 percent, adjusting for inflation, since 2005–06. The budget of the Coalinga State Hospital, which took over responsibility for SVPs from Atascadero in 2005, is $303 million for fiscal year 2019–20, up from $254 million four years earlier. Almost three-quarters of Coalinga’s patients are SVPs.

Low reoffense rates that undermine the program’s justification also might threaten a good chunk of the local economy. The hospital’s website notes that in the 2013–14 fiscal year, Coalinga bought some $15 million in goods and services from about 200 companies in the area.

Subsequent assessments of SVP civil commitment in other states comport with what Padilla found. A 2014 Minnesota study of 161 offenders referred for civil commitment but not actually committed found that just 6.5 percent were convicted of a new sex crime within four years of their release. In New Jersey, a 2013 study of 102 ex-offenders referred for SVP evaluation but ultimately not committed found that 10.5 percent were convicted of a new sex offense during an average follow-up period of six and a half years. A 2009 Texas study of 1,928 offenders screened for possible civil commitment as SVPs found that 3.2 percent were arrested for a new sex crime—a looser standard than reconviction—during follow-up periods that averaged nearly five years. A 2013 review of Florida’s civil commitment program cited state research involving 710 offenders who were recommended for civil commitment but released for various reasons between 1999 and 2013; 10 percent were subsequently charged with “a sexually motivated offense involving a victim” during followup periods of up to 14 years, depending on when offenders were released.

These data call into question the assumption at the heart of Hendricks v. Kansas. If SVP recidivism is not highly likely, as the Supreme Court assumed, the whole civil commitment scheme for getting around the Constitution’s ban on double jeopardy falls.

When California’s proposed SVP law was debated in 1995, the California Psychological Association, the Forensic Mental Health Association, and the California Psychiatric Association all came out against it, partly because of due process concerns. That last group argued in its legislative testimony that “mental health treatment facilities cannot be used as a gulag.”

One expert who has observed the growth of the state’s civil commitment program from the inside regrets what it has become. Janice Marques, a former DMH researcher whose work on recidivism is widely cited, is a founding member and former president of the Association for the Treatment of Sexual Abusers. Marques also was involved in the first legislative hearings on California’s 1995 SVP law. The civil commitment program “was never expected to be as large and as encompassing as it is,” she tells me. “The high recidivism rate just hasn’t panned out….It’s just so difficult once you set something like this up to get rid of it.”

California Assemblymember Sabrina Cervantes, a Democrat, introduced legislation signed by the governor last fall that reforms the SVP program by limiting continuances in civil commitment trials. But that response falls far short of eliminating the program altogether.

For their part, Lave and Zimring are calling on the U.S. Department of Justice to resurrect the Padilla study, which by now would have a long follow-up period. They would like to find out how many detainees released from the state’s civil commitment program without treatment have committed new crimes.

Without such a follow-up, California’s program will never be held to account. Even the rare legislators like Cervantes who pay attention to the program don’t seem inclined to touch the heart of the issue. In the absence of new data, inertia will compel the state to continue spending money on a program for which there appears to be little need.

One prisoner-cum-patient who has not been arrested for a new sex crime is Rex McCurdy. Padilla’s memo may have helped him: Following more legal wrangling, McCurdy says, he was released from Coalinga in 2009 after a judge ruled that he was no longer a danger. He moved to Spokane and opened an art studio, then returned home to Napa in 2019. Now 64, he lives on family property he co-owns.

The California sex offender registry still lists McCurdy as a “sexually violent predator.” That label, which the state applied to him a decade and a half after his sex crime, nearly condemned him to a lifetime of imprisonment.

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Joe Biden Wins South Carolina Primary, Slowing Bernie Sanders’ Momentum Before Super Tuesday

Joe Biden scored a much needed victory in Saturday’s South Carolina primary, giving his flagging presidential campaign a boost just days before Super Tuesday, when more than a dozen states will hold primaries or caucuses.

The former vice president’s victory in South Carolina also blunted the momentum of Sen. Bernie Sanders (I–Vt.), who had won each of the first three contests (or two, depending on how you count Iowa’s results) and who is favored to win many of the states voting on Tuesday.

With 5 percent of precincts reporting at 8 p.m., Biden had more than 53 percent of the vote in South Carolina. Sanders was running second with 15.3 percent.

While Sanders seems poised to remain the Democratic frontrunner for the time being, the bigger question now is whether he can garner enough delegates to secure the party’s nomination without a convention floor fight. Biden’s win increases the chance of a brokered convention—something that the forecasters at FiveThirtyEight now say is the most likely outcome. To win the nomination outright, a candidate must secure at least 1,991 of the 3,979 pledged delegates that are up for grabs in state primaries and caucuses. Heading into South Carolina, Sanders had won 45 delegates while Biden had won just 15. (Former South Bend Mayor Pete Buttigieg was in second place with 26 delegates.)

It is not immediately clear how many of South Carolina’s 54 delegates will go to which candidate, since delegates are awarded based not just on the statewide results but also on results within each of the state’s seven congressional districts.

The 19 delegates connected to the statewide results are awarded proportionally to any candidate who gets at least 15 percent of the vote. Only Biden and Sanders (and possibly Tom Steyer) appear on track to score, with Biden getting the largest share. The same 15 percent threshold exists in each congressional district, making it possible that lower-polling candidates such as Buttigieg, Sen. Amy Klobuchar (D–Minn.), and Sen. Elizabeth Warren (D–Mass.) will be shut out entirely. Former New York City Mayor Michael Bloomberg was not on the ballot in South Carolina.

One thing to watch as the South Carolina results come in is Steyer’s results. If he can clear the 15 percent threshold—and polls suggest he has a decent chance to do so—it could provide a lifeline to his campaign. He’s not going to be the Democratic nominee, but failing to hit the 15 percent threshold in South Carolina would mean he might as well exit the race.

The number of delegates awarded in the first four contests will soon seem somewhat insignificant. Tuesday’s primaries and caucuses will award 1,357 delegates, with about a third of all the pledged delegates up for grabs.

So it’s possible that Biden’s South Carolina renaissance will quickly be overwhelmed by a wave of Sanders victories. It’s also possible that this will be the key turning point in the race, one that shows centrist Democrats—who have been casting about for a candidate capable of stopping Sanders—that Biden is their best bet. A quick consolidation of support away from non-Sanders candidates and toward Biden was evident in late-breaking polling of the South Carolina race. Now the question is whether that same phenomenon can be repeated nationally.

Anti-Bernie Democrats are probably right to worry about a general election between Donald Trump and a 78-year-old self-proclaimed socialist who honeymooned in the Soviet Union, praised some of Fidel Castro’s policies, and is promising an economic revolution at a time when unemployment is at a near-record low.

And it should go without saying that a Sanders-Trump general election is a no-win scenario for anyone who cares about reducing the size and scope of the federal government. It would be a choice between a socialist and a nationalist—both of whom admire freedom-crushing regimes around the world and oppose the free movement of goods and people.

As The New York Times reported this week, many so-called “superdelegates”—unpledged delegates at the convention, mostly Democratic Party officials—are opposed to nominating Sanders even if he arrives at the convention with a plurality of delegates.

After the 2016 election, the Democratic National Committee changed its rules to prevent superdelegates from voting on the convention’s first ballot—a change that was made, in large part, because Sanders and his supporters worried that superdelegates could block their candidate during the 2016 contest. The new rules effectively mean that any candidate who secures more than 50 percent of the pledged delegates awarded through the primary process would secure the nomination even if he or she were opposed by all superdelegates. The superdelegates will enter the picture only if no candidate secures an outright majority of the pledged delegates.

But now Sanders is making the argument that he should be the nominee even without a majority.

“Bernie wants to redefine the rules and just say he just needs a plurality,” Jay Jacobs, a superdelegate who chairs the New York Democratic Party, told the Times. “I don’t think the mainstream of the Democratic Party buys that. If he doesn’t have a majority, it stands to reason that he may not become the nominee.”

Would Democratic Party officials really deny Sanders the nomination if he arrives at the convention with the largest share of delegates but remains short of a majority? It’s impossible to know right now, though the answer likely depends on how large of a lead Sanders has and how close to the magic number of 1,991 he is. Chaos is guarenteed either way, but if another candidate can keep the race close, the superdelegates will have a better argument for swinging the convention away from Sanders.

The South Carolina results make it more likely that the superdelegates will enter the picture this summer in Milwaukee. In that regard, Biden’s win may prove—in the long run—to be less significant than Sanders’ loss.

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