Push is on to keep sex criminals locked up

Attempts by prosecutors to keep convicted sex offenders locked up indefinitely even after they serve their prison sentences have reached an all-time high, as district attorneys use recent changes in Massachusetts law that expanded the pool of criminals considered potentially too dangerous to walk the streets, court officials say.

The number of petitions filed to commit soon-to-be released sex offenders for an indefinite term to the state Treatment Center in Bridgewater has risen sharply, from 75 in 2003 to 124 in 2004.

This month, 157 petitions -- a number that includes those filed this year, plus a backlog from prior years -- were pending statewide, according to Superior Court officials.

In large part, court officials trace the increase to the outcry that followed the murder of 30-year-old Alexandra Zapp, who was killed by a convicted sex offender in a Burger King restroom on Route 24 in Bridgewater in 2002.

In laws enacted in April 2004 and earlier this year, legislators and Governor Mitt Romney greatly expanded the pool of offenders who could be committed to the Bridgewater facility to include people convicted of such offenses as possession of child pornography, propositioning a minor, and ''open and gross lewdness and lascivious behavior." The old law was much narrower, focusing, for instance, on sex offenders who assaulted children.

The man convicted of killing Zapp, Paul J. Leahy, was a convicted rapist, but he had most recently been in jail for propositioning a minor. If the new law had been in effect, prosecutors say, they might have been able to keep Leahy in custody.

Legislators also revised the law to allow commitment of convicted sex offenders regardless of the crime for which they are currently in prison.

''If I feel that an individual is a sexually dangerous person, then we're going to file against them," said Plymouth District Attorney Timothy J. Cruz, who prosecuted Leahy and who pushed for broadening the law after Zapp's murder.

Under the law, the prison system notifies a district attorney six months before a convicted sex offender is to be released from prison. Prosecutors can then file a petition alleging that the offender remains sexually dangerous and is likely to strike again.

The cases are civil proceedings but resemble criminal trials. Individuals are committed if prosecutors prove beyond a reasonable doubt that a ''mental abnormality or personality disorder" makes it likely that the offender will commit another sex crime.

While the Bridgewater Treatment Center is a secure facility, its stated mission is to provide psychological treatment for sex offenders, through a contract with a private not-for-profit organization.

Sex offenders who are committed can annually ask a judge to review whether they are still dangerous or whether they should be released. Since 1999, when the law was first enacted, however, not one has been released, according to the state Committee for Public Counsel Services, the public defender agency.

Massachusetts is one of 17 states with such a law, according to the Washington State Institute for Public Policy.

Critics say that indefinitely committing sex offenders after they complete prison sentences violates the constitutional prohibition against double jeopardy, and that the Treatment Center is a prison by another name.

But the Supreme Judicial Court ruled in 2002 that judges may commit sex offenders to state custody indefinitely if it is reasonable to expect they will attack again. The US Supreme Court has also repeatedly upheld such laws, ruling in 2002 that the Constitution permits confinement for treatment if there is ''proof of serious difficulty in controlling behavior." Supporters of such laws say some convicted sex offenders are simply too dangerous to ever be turned loose.

According to court records, Massachusetts prosecutors' requests for civil commitment have been rejected about 80 percent of the time since 1999. That has led some critics of the law to suggest that district attorneys are reflexively filing the petitions to protect themselves from a potential political embarrassment in the event a released sex offender commits a high-profile crime. Even if the petition is rejected, a prosecutor could point to the filing to show his or her office sought to prevent a release.

''Either they're doing it to impress their constituencies, or they're doing it out of fear of retaliation from their own constituencies if they don't do it," said John Swomley, a private Boston lawyer who specializes in representing sex offenders referred to him by the state public defender agency. Many of the petitions, he contends, are groundless.

District attorneys in Plymouth and Bristol counties filed a disproportionate share of the pending petitions and have historically filed more than prosecutors in more populous counties.

Longtime Bristol District Attorney Paul F. Walsh Jr., whose office has 21 pending petitions -- six more than Suffolk County and the same number as much larger Middlesex County -- denied that politics enters into the equation.

''It's not like I go on the campaign stump and say, 'We've filed more petitions than any other county,' " said Walsh, the immediate past president of the National District Attorneys Association. ''But as a public policy, I don't shy away from saying that we're very aggressive on those types of cases."

Cruz, whose office has 38 of the pending petitions, the most of any county, called the suggestion of politics insulting.

''All we do here is follow the law," Cruz said.

Prosecutors point out that they seek civil commitment for only a small percentage of those eligible. From July 2003 through June 2004, the prison system notified prosecutors that 811 soon-to-be-released sex offenders were eligible for commitment, according to Massachusetts District Attorneys Association statistics. Of those, prosecutors filed petitions for 77 offenders and succeeded in persuading courts to commit 13 offenders, or almost 17 percent.

From July 2004 through June 2005, the prison system notified prosecutors about 1,198 offenders, according to the statistics. Of those, prosecutors filed petitions for 108 offenders and had 21 offenders committed, or about 19 percent.

Geline Williams, executive director of the Massachusetts District Attorneys Association, said that prosecutors ''winnow out from the total pool of sex offenders those defendants whose demonstrated risk to reoffend requires the extraordinary measure of preventative detention."

The law ''is working as the Legislature intended," Williams said via e-mail. The Sexually Dangerous Persons law ''is an extraordinary process designed to identify the extraordinary defendant."

But the surge of petitions, which take as long as two years to be decided, has clogged the courts, delaying other cases and creating a scheduling nightmare for judges. State court officials recently summoned a retired judge to help dig into the backlog.

Also, processing the cases costs the state millions annually, because most convicted sex offenders are indigent and the state pays for court-appointed lawyers, as well as psychiatrists and psychologists who evaluate them.

The state public defender agency recently created, at a cost of nearly $342,000 a year, a separate unit whose four attorneys do nothing but represent sex offenders facing civil commitment. Expert witnesses received more than $541,000 in fiscal 2005 for their services, according to the Massachusetts District Attorneys Association. Commitment trials can take longer than some murder trials because they rely on complex testimony from dueling mental health experts and because offenders face high stakes: confinement at the secure center for ''one day to life."

''These cases are placing an enormous burden on the courts," said Superior Court Judge Carol S. Ball, who has presided over civil commitment trials. The Legislature ''created a law which may be the most reasonable law in the world, but they haven't given us the judges, courtrooms, court officers, or the clerks to do the work."

Even Zapp's mother, who spoke out publicly for reform after the slaying, said in an interview that she is concerned that the number of petitions is straining the courts. She suggested a broad review of commitment laws throughout the country.

''I'm not sure it's the best solution," said Andrea Casanova, who since her daughter's slaying has started a nonprofit foundation to prevent sexual violence. ''It is, unfortunately, the tool we currently have to work with to prevent repeat sex offenses."

Jonathan Saltzman can be reached at jsaltzman@globe.com