Despite the release of a convicted sex offender who is now accused of raping and beating a woman at knifepoint Sunday, state courts are much more likely than not to keep convicted sex offenders locked up indefinitely after they finish their prison sentences.
Between 2010 and 2012, juries and judges sent 57 of the 83 convicts who sought release back to detention, even though their sentences were up, according to statistics kept by the Massachusetts District Attorneys Association.
About 20 states use civil commitments — in which a convict is ordered held after a sentence is over — for sex offenders, a controversial practice that critics call a form of double jeopardy.
Until four years ago, prosecutors did not have a say in whether a civil commitment case in Massachusetts would be decided by only a judge or by a jury. But prosecutors fought for the right to advocate for juries to hear the cases, thinking they would be more likely to keep convicted sex offenders off the street.
“I’m Joe Q Public and I see a guy who has been convicted as a sex offender, and now you’re asking me if I want him out in my community or if I want him in for treatment?” said former Middlesex district attorney Gerard T. Leone Jr. “I want him in for treatment.”
But last year, a Suffolk County jury of 14 people decided in a 12-to-2 vote that Essie Billingslea, who spent nearly two decades in custody after he was convicted of raping three young girls, no longer posed a threat to the public. On Sunday, about 14 months after his release, Billingslea, 45, was arrested and charged with breaking into an Arlington woman’s home and assaulting her.
Legal observers said they were shocked a jury believed Billingslea should be released.
“It’s stunning to me that anyone would let this guy go, looking at his record,” said Michael O’Keefe, the Cape and Islands district attorney.
A spokesman for the Department of Correction, whose lawyers fought against Billingslea’s release last March, issued a statement Tuesday night defending the legal team’s efforts in court. Darren Duarte said the agency presented testimony from two forensic psychologists who said he still posed a danger to the public.
“These facts, we believe, coupled with his vicious criminal, sexual assault history warranted a different decision than the jury handed down,” Duarte said. “Our thoughts and prayers, as always, are with the victim.”
Still, others familiar with the civil commitment process, which calls for a jury to rule by simple majority, said such verdicts are understandable.
“I can certainly empathize with jurors who are ordinary citizens who have to sift through literally pounds and pounds of stuff in an area in which they are not familiar,” said Ira Silverman, a forensic psychologist who sits on the five-member state board that reviews cases annually. Silverman declined to comment on Billingslea’s case specifically and spoke only generally on the civil commitment process.
“We’re really putting a tremendous burden on our jurors,” he said. “I don’t think I’ve ever guaranteed that I’m going to be 100 percent right and I have a lot of, more experience in this field.”
As convicted sex offenders near the end of their prison sentences, county prosecutors review their cases to determine whether they believe the convict still poses a threat. Prosecutors request court-appointed psychologists, known as “qualified examiners,” to review cases, a process that entails interviewing the convict and analyzing his or her history. If at least one of the qualified examiners concludes the person remains sexually dangerous, prosecutors will usually seek a trial for civil commitment.
If both examiners conclude the person no longer poses a threat, prosecutors typically will not fight the convict’s release. Prosecutors say limited funds and heavy caseloads lead them to seek trials for the offenders they deem the most dangerous.
In 2013, Essex County prosecutors filed for five civil commitments, but withdrew three applications after the qualified examiners concluded the convicts did not meet the criteria to be considered sexually dangerous.
O’Keefe said his office typically goes to trial to seek a civil commitment just once a year.
“We’re very careful, because the cases are costly and time-consuming,” O’Keefe said.
During the trial, both sides present mental health experts. In Billingslea’s case, his attorney presented the testimony of three psychologists, including one “qualified examiner” who interviewed Billingslea in 2005, when Suffolk County prosecutors first filed a motion to keep him detained.
That examiner found then that Billingslea did not meet the criteria of a sexually dangerous person, but she cautioned that if he were released, Billingslea would have to be monitored closely and remain involved in treatment programs.
After hearing the expert testimony, a judge or jury, depending on what is agreed upon before the trial by all parties, decides whether the convict is sexually dangerous. If deemed sexually dangerous, the convict can be ordered held indefinitely, but can petition for release. When that happens, Department of Correction officials, rather than a county prosecutor, determines whether to take the petition to trial. The department said 31 inmates convicted of sex offenses have been released from civil commitments between Jan. 1, 2013, and March 2014, but the agency did not say how many of them were released following a trial or how many inmates petitioned for release.
Eric Tennen, a Boston lawyer who represents sex offenders, said juries are often open to the idea that a person has been rehabilitated and no longer poses a threat.
“A jury is just as likely to let out or commit,” he said.
Laurie Guidry, a forensic psychologist who has testified in commitment trials, said predicting the risk of recidivism is extremely difficult and emotionally draining for juries.
“Thinking about this population is overwhelming for the public in general,” she said. “It’s all an imperfect science, and this is a terribly tragic case.”
Still, national and state studies have also shown that sex offenders are less likely than other offenders to commit another crime: A 2008 study by the Urban Institute Justice Policy Center found that 22 percent of Massachusetts sex offenders who were released were arrested again, compared with 40 percent of other violent offenders.