Do They Belong Behind Bars? : Sex offenders: Should rapists like Vance Cunningham ever be released from prison? No, say Washington authorities who drafted the state’s ‘sexual predator’ statute.

By the time he was 22, Vance Cunningham had been convicted of raping three women and sexually threatening a fourth. So when he was released from a Washington state prison in August, 1990, prosecutors didn’t wait for Cunningham to possibly strike again.

Instead, they used the state’s Sexually Violent Predator statute, which was designed to keep dangerous rapists and child molesters who have finished their prison terms off the street. The 1990 law allows the indefinite detention of sexual predators--offenders who have a “mental abnormality” or “personality disorder” that makes it likely they will attack again.

Under this law, Cunningham was arrested five months after his release, tried and is confined to the 36-bed maximum security facility at Monroe, which was built especially for sexual predators. He could stay there the rest of his life.

But the law has drawn fire from civil libertarians, public defenders, and even the Washington State Psychiatric Assn., and two weeks ago they took the battle to the state’s Supreme Court.

“This statute unleashes a nightmare worthy of Kafka; a distortion of language and thought to match Orwell,” attorney Robert Boruchowitz told the nine-judge panel. “It turns treatment facilities into prisons and mental health care providers into jailers.”

The law’s opponents say that Cunningham’s case, his record notwithstanding, shows why the law is unconstitutional and unfair.

A high school dropout, Cunningham was first arrested at 15, after he threatened a woman in a Seattle-area park with a knife, demanding oral sex. The woman screamed, and he fled. He spent 20 days in juvenile detention and was released for outpatient counseling.

At 20, Cunningham picked up a hitchhiker outside a south Seattle tavern and offered to drive her home. Instead, he pulled off the road and raped her. He was arrested, pleaded guilty in January, 1985, and was released early from a 31-month sentence in November, 1986.

Within five months of his release, however, he had raped again--twice. He was found guilty and sentenced to 54 months in prison.

But this time, Cunningham used his prison time well. He obtained a high school equivalency degree and a certificate in marine mechanics.

His lawyer, Public Defender Annie Engelhard, says that he was more than a model prisoner. Friends, family and employers say Cunningham came out of prison the last time a changed man--hard-working and responsible.

After stints in odd jobs and as a truck mechanic, Cunningham landed a job on a fish-processing boat, and began working 16-hour days helping ready the ship for sea.

“That was the best job of my life, assistant engineer, being responsible, responsible for the lives on the boat,” he says. “It was something that gave me a good feeling, made me feel respected, it gave me dignity.”

But Cunningham didn’t know that he was being considered for sexual predator commitment.

Before his last release, in 1990, the Department of Corrections had a staff psychologist evaluate him for predator status. The psychologist said Cunningham showed no symptoms of major disorders and that beyond his repeat convictions, little indicated he was necessarily predatory or violent.

A department committee asked the psychologist to reconsider her findings. She refused. Still, the committee referred Cunningham’s case for prosecution. But prosecutors, too, had questions and sent it back for further review.

A second psychologist reviewed Cunningham’s records, but did not interview him, and concluded that the convicted rapist had a high likelihood of future sexual violence. And a third psychologist, who also only reviewed his records, concluded that Cunningham fit the statute’s definition of a predator.

In December, the day before his ship was to sail, police arrested Cunningham, told him that he was to be evaluated for commitment under the sexual predator law, and took him to the Monroe facility.

Although he was not charged with a new crime--indeed, no one had alleged that he had done anything wrong since his release--he was denied arraignment or bail request.

Instead, Cunningham was ordered to cooperate with a state-hired team of psychologists and social workers who would decide if he should be tried for commitment under the new law.

According to the court order, he had to answer all questions related to convictions that were not under appeal, and to “reveal or discuss his previous non-criminal activities, mental impressions, such as his thoughts, feelings, perceptions, as they relate to the past, present, or future.”

He had “no blanket Fifth Amendment privilege,” according to the order, so Cunningham had to talk, even though any statement he made to the Monroe team could be used against him.

Public Defender Engelhard says she had not paid much attention to the law as it worked its way toward passage last year. “This was so far beyond what I’d ever conceived of the state seriously trying to do: depriving somebody of their liberty like this and trying to force them to testify against themselves, essentially forced confessions.”

Professor John La Fond of the University of Puget Sound Law School argues that the law is simply preventive detention dressed up as a treatment program, and thus is unconstitutional.

“Under our system, you punish people for past acts. You do not take away their liberty simply because you think they might commit a harmful act in the future.”

Is the sexual predator law a legitimate “civil commitment” statute? Or is it, as opponents maintain, an attempt to circumvent the constitutional rights of criminal defendants?

King County Prosecutor Norm Maleng, who headed the governor’s task force that drafted the law, says states have always been able to use civil commitment to keep dangerous people off the streets.

“What are you going to do with these people? You can either do what we are doing, use the civil commitment process, or you can do nothing,” Maleng says. “I don’t think anybody is going to accept the fact that nothing can be done.

“Sex offenders are different than other types of criminal offenders and we have treated them historically in different fashions.”

The Washington State Psychiatric Assn., however, disagrees and strongly opposes the law.

“These sex offenders are rational people who can learn from their punishment, they are not different from other criminals,” says Dr. James Reardon, a psychiatrist and association spokesman.

The group also views the law as a perversion of commitment laws intended for the truly mentally ill.

“What they’ve done is defined their own mental illness. It’s a way of interpreting mental illness laws and using them for social control,” says Reardon.

“The danger is that this year, you are going after sex offenders, next year you are going after drug offenders and next year you’re going after, what? Homosexuals?. . . Once you are allowed to take one class of people and say they are mentally ill, you can take any class of people and say they are mentally ill.”

Maleng scoffs at such concerns. “That’s what I call the parade of horrible unimaginables. No one has even suggested that this be extended to some other category of criminal.”

Maleng says the law is narrowly drawn, allowing prosecutors to act against only the most dangerous cases. To date, according to state figures, the cases of nearly 2,000 sex offenders have been reviewed and only 12 cases have been filed.

(Of the 12 men at the facility, eight have been committed and four are being evaluated. Like Cunningham, eight are multiple rapists, while four are child molesters; they range in age from 20 to 50.)

In sexual predator trials, jurors must make three determinations: that the defendant has committed a sex offense, that they have a mental abnormality or a personality disorder and that the defendant is likely to re-offend.

Engelhard says that stacks the deck against the defendant.

“OK, the jury says, let’s see--he raped before; that’s not normal, so he must have mental abnormality. And if he’s abnormal, he’s likely to do it again. It’s an easy law.”

But Maleng contends the law provides defendants with full constitutional protections and requires proof beyond a reasonable doubt.

In Cunningham’s case, his three rape survivors and a psychologist testified for the state.

The defense called Cunningham, his family, friends and employers, and psychologist Nancy Steele, supervisor of Minnesota’s Transitional Sex Offender Program.

After reviewing his record and interviewing Cunningham, Steele concluded he should be freed. “Obviously, he had been dangerous, but he’s like many men I’ve worked with over the past 19 years; they reach a point where they wake up and realize they have to make some changes if they want to stay out of trouble and prison. They grow out of it.

“I mean, it sounds terrible to say, but Cunningham was more like a normal rapist--not a bizarre, weird, sick one.”

The jury disagreed.

Cunningham was ordered to Monroe for “control, care, and treatment until such time as (his) mental abnormality has so changed that (he) is safe to be at large.”

Which means never, says Engelhard, because the law gives no criteria for determining when a sexual predator has become safe. “I don’t know; the state psychologists don’t know; they don’t have any guidelines for it. You ask them and they say, ‘We’ll know it when we see it.’ ”

The state psychiatric association rejects the law’s use of the terms mental abnormality and personality disorder , saying they have no scientific or clinical bases. The group contends that most sexual offenders are simply criminals, and, like other criminals, learn from doing time.

Professor La Fond says the treatment at Monroe is a ruse to legitimize the detentions. “They will have just enough to pass muster as a treatment program so the court can look the other way.”

But Regina Harrington, a psychologist working at Monroe, says the state has set up a well-intentioned, well-funded program, which will use techniques that are applied nationally to treat sex offenders.

The Washington Supreme Court’s decision is not expected until next year. If the court strikes down the statute, the law’s defenders say, tougher laws would be quickly passed. Sex offenders would face life sentences from which the only chance for parole would be proof that they are unlikely to commit a crime again.

“There’s no question of the constitutionality of that,” says law professor David Boerner, an author of the predator statute. “A parole board of laymen would make precisely the same judgments as are being made in the civil commitment statute--future dangerousness, but with no procedural protections at all, no jury trial, counsel, expert witnesses, proof beyond a reasonable doubt.”

Engelhard says tough laws are fine as long as they are constitutional and fair. “This law gives carte blanche to prosecutors. If they can get him (Cunningham), they can get anyone.”

And Cunningham, sitting in the Monroe facility waiting for the court’s decision, shakes his head. “It’s unfair for somebody to be completely clean and work his butt off to stay out of trouble trying to build a life for himself and then slam him in the face and say it wasn’t good enough, we want better, you’re going to be locked up.”