PERFORMANCE AUDIT REPORT

Larned State Hospital: Reviewing the Growth In the Sexual Predator Program

A Report to the Legislative Post Audit Committee By the Legislative Division of Post Audit State of Kansas Apri12005

05-10 Legislative Post Audit Committee Legislative Division of Post Audit

THE LEGISLATIVE POST Audit Committee and or committees should make their requests for its audit agency, the Legislative Division of Post performance audits through the Chairman or any Audit, are the audit arm of Kansas government. other member of the Committee. Copies of all The programs and activities of State government completed performance audits are available from now cost about $11 billion a year. As legislators the Division's office. and administrators try increasingly to allocate tax dollars effectively and make government work more efficiently, they need information to evaluate the work of governmental agencies. The audit work LEGISLATIVE POST AUDIT COMMITTEE performed by Legislative Post Audit helps provide that information. Representative John Edmonds, Chair Representative Tom Burroughs We conduct our audit work in accordance Representative Peggy Mast with applicable government auditing standards Representative Bill McCreary set forth by the U.S. Government Accountability Representative Tom Sawyer Office. These standards pertain to the auditor's professional qualifications, the quality of the audit Senator Les Donovan, Vice-Chair work, and the characteristics of professional and Senator Anthony Hensley meaningful reports. The standards also have been Senator Nick Jordan endorsed by the American Institute of Certified Senator Derek Schmidt Public Accountants and adopted by the Legislative Senator Chris Steineger Post Audit Committee.

The Legislative Post Audit Committee is a LEGISLATIVE DIVISION OF POST AUDIT bipartisan committee comprising five senators and five representatives. Of the Senate members, three 800 SW Jackson are appointed by the President of the Senate and Suite 1200 two are appointed by the Senate Minority Leader. Topeka,Kansas 66612-2212 Of the Representatives, three are appointed by the Telephone (785) 296-3792 Speaker ofthe House and two are appointed by the FAX (785) 296-4482 Minority Leader. E-mail: [email protected] Website: Audits are performed at the direction of http://kslegislature.org/postaudit the Legislative Post Audit Committee. Legislators Barbara J. Hinton, Legislative Post Auditor

The Legislative Division of Post Audit supports full access to the services of State government for all citizens. Upon request, Legislative Post Audit can provide its audit reports in large print, audio, or other appropriate alternative format to accommodate persons with visual impairments. Persons with hearing or speech disabilities may reach us through the Kansas Relay Center at 1-800-766-3777. Our office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. LEGISLATURE OF KANSAS LEGISLATIVE DIVISION OF PosT A uniT

800 SOU1HWEST JACKSON STREET, SUITE 1200 ToPEKA, KANsAS 66612-2212 TELEPHONE (785) 296-3792 FAX (785) 296-4482 April 18,2005 E-MAIL: [email protected]

To: Members, Legislative Post Audit Committee

Representative John Edmonds, Chair Senator Les Donovan, Vice-Chair Representative Tom Burroughs Senator Anthony Hensley Representative Peggy Mast Senator Nick Jordan Representative Bill McCreary Senator Derek Schmidt Representative Tom Sawyer Senator Chris Steineger

This report contains the findings, conclusions, and recommendations from our completed performance audit, Larned State Hospital: Reviewing the Growth in the Sexual Predator Treatment Program.

The report also contains several appendices containing information about the number of sex offenders assessed for commitment to the Sexual Predator Treatment Program since fiscal year 2000, the number of residents in each phase of the Treatment Program as of February 10, 2005 and whether they were making adequate progress, and a table which summarizes the treatments provided in a sexual predator treatment program.

The report includes two recommendations. One calls for the Sexual Predator Treatment Program to be studied further during the 2005 interim. The other calls for SRS to develop forecasts for resident capacity, housing costs, and staffing costs. We would be happy to discuss these recommendations or any other items in the report with any legislative committees, individual legislators, or other State officials.

Barbara J. Hinton Legislative Post Auditor Get the Big Picture Read these Sections and Features:

1. Executive Summary - an overview of the questions we asked and the answers we found.

2. Conclusion and Recommendations - are referenced in the Executive Summary and appear in a box after each question in the report.

3. Agency Response - also referenced in the Executive Summary and is the last Appendix.

Helpful Tools for Getting to the Detail e-

In most cases, an "At a Glance" description of the agency or department appears within the first few pages of the main report.

Side Headings point out key issues and findings.

• Charts/Tables may be found throughout the report, and help provide a picture of what we found.

• Narrative text boxes can highlight interesting information, or provide detailed examples of problems we found.

• Appendices may include additional supporting documentation, along with the audit Scope Statement and Agency Response(s). ~------~pv

Legislative Division of Post Audit 800 SW Jackson Street, Suite 1200, Topeka, KS 66612-2212 Phone: 785-296-3792 E-Mail: [email protected] Web: Viww.kslegislature.org!postaudit EXECUTIVE SUMMARY lEGISLATIVE DIVISION OF PoST AUDIT

Overview of the Sexual Predator Treatment Program

The 1993 rape and murder of a Pittsburg State University student by a sex offender who had been released from prison about seven months earlier prompted the Legislature to adopt the Sexually Violent Predator Act. The Act created a separate involuntary civil commitment for the long-term control, care, and treatment of sexual predators after they had completed their prison sentences. In 1997, the U.S. Supreme Court ruled that Kansas' Jaw was constitutional.

There's a rigorous process for determining whether a sex offender should be committed to the Sexual Predator Treatment Program. Once committed, sexual predators are housed in a residential setting on the grounds of Larned State Hospital. When they've progressed through 5 of the 7 treatment phases of the Program, they are transferred to Osawatomie State Hospital for transition services. The goal of the Program is to minimize the likelihood that sexual predators will re-offend after their release.

Question 1: What Factors Have Contributed to the Rapid Growth In the Sexual Predator Treatment Program at Larned State Hospital?

Since 1998, the number of residents in the Sexual Predator ...... page 7 Treatment Program (Program) has increased from 16 to 136. After the U.S. Supreme Court ruled the law was constitutional in mid-1997, the Program began to grow rapidly. Most of the sex offenders in the Program have been diagnosed as pedophiles.

The Program is growing so fast because more sex offenders ...... page 8 are being committed, and few are leaving. Even though the number of "eligible" sex offenders about to be released from prison has dropped since fiscal year 2000, the percent of eligible offenders committed to the Program increased from 3% in fiscal year 2000 to a peak of 11% in 2003. In fiscal year 2000, an average of 1.3 offenders entered the Program each month. During the first seven months of fiscal year 2005, that average was 2.7.

The decision to commit a sex offender to the Sexual Predator Treatment Program is carried out in several stages. Between 2000 and 2004, the people involved in two of those stages had determined that significantly more of the sex offenders they reviewed should be considered for commitment:

EXECUTIVE SUMMARY I Legislative Division ofPost Audit Apri/2005 • in the initial stage, the multi-disciplinary team that reviews all eligible sex offenders about to be released from prison had rated 41% of those offenders as "high risk for re-offending" in fiscal year 2003, up from 31% in 2000. • in the stage right before an offender is actually committed to the Program, Larned Hospital staff determined that 94% of the offenders referred to them in fiscal year 2004 had "sexual predator" tendencies, up from just 39% in fiscal year 2000.

For fiscal year 2005 to-date, these percentages had all dropped off sharply, which should result in a drop in the number of sex offenders actually committed to the Sexual Predator Treatment Program that year. However, the resident population will continue to grow because so few residents are being released from the Sexual Predator Treatment Program.

Although some residents were released early on because of a legal ruling and six have died, so far only one resident has been discharged for successfully completing the treatment program, and only two others have achieved conditional release. Here's why:

• the Program is designed to provide long-term treatment that should last about seven years for willing and active participants. Most residents haven't been in the Program long enough to complete it • many residents aren't progressing through the Program's different phases on a timely basis • Program officials estimate one-third of all residents won't complete the Program because they lack the motivation, discipline, or mental capacity, or have severe mental problems

Based on current data, we estimate the Program's maximum ...... page 12 population could increase significantly before it levels off. Assuming that two-thirds of Program residents actually leave the Program after seven years, we conservatively estimated the Program could increase by 100 residents over the next 10 years, and over the next several decades could grow to 384 residents before the number of residents leaving the Program equaled the number entering the Program. If less optimistic assumptions are used, the resident population could grow as high as 850 residents before leveling off.

Officials think completing sex offender treatment programs in ...... page 13 prison doesn't have any impact on residents' progress in the Sexual Predator Treatment Program. Of the 156 sex offenders who have been sent to the Sexual Predator Treatment Program, 53% successfully completed the Department of Corrections' sex offender treatment program while they were in prison.

Program officials told us that completion of the treatment program in prison generally has no impact on-and shouldn't be used as an indicator of-how well a resident will progress in the Sexual Predator Treatment Program. To complete the prison program, an offender only has to demonstrate a desire to change. To complete the Sexual Predator Treatment Program, residents have to demonstrate that they have changed and can control their thought processes. 2 EXECUTIVE SUMMARY Legislative Division ofPost Audit Apri/2005 Question 2: How Have Staffing and Funding Resources for the Sexual Predator Treatment Program Changed Over Time, and How Does Kansas Compare to Other States?

Between fiscal years 2001 and 2005 to-date, staffing and ...... page 15 funding for the Program skyrocketed, as the number of residents climbed. Since fiscal year 2001, Program costs have increased about 480%. During that same period, staffing levels increased by 342%, and the number of residents in the Program increased by 144%. No standards exist for how to staff a sexual predator treatment program, but the current staffing plan for the Larned State Hospital portion of the Program calls for slightly more than one clinical staff person per resident.

The Program's budget request for fiscal year 2006 may be ...... page 17 significantly understated. At the rate of growth in new commitments to the Program that SRS has used (three per month), the Program would need to add about 40 new clinical staff positions during fiscal year 2006 to maintain current clinical staff-to-resident ratios. If commitments total just two new residents per month, about 28 new clinical staff would be needed. Funding 28 new positions would cost about $840,000.

If the resident population continues to grow as it has, this same situation could be repeated each year for many more years. SRS officials told us they haven't developed a cost and staffing plan beyond the budget submitted for fiscal year 2006.

Kansas' staffing levels and operating costs seem reasonable ...... page 17 compared to other states. In 2004, 16 states had civil commitment Jaws and sexual predator treatment programs. We surveyed six of them. Because of variations in how these states operate their programs and in who they count as a program resident, any comparisons should be viewed only as general indicators. Kansas' costs for providing treatment services were the lowest among the states we surveyed, and its staffing ratio fell in the middle.

Kansas' Sexual Predator Treatment Program is similar to ...... page 18 other states in some areas, but more stringent in others. In general, the comparison states have similar criteria for defining a sexual predator, use a civil commitment procedure for committing sex offenders to a treatment program, and rely on group and individual therapy-as well as development of a relapse-prevention plan-to help residents identify ways to control their behavior.

On the other hand, although most states share the goal of minimizing repeat sexual offenses, Kansas' Program requires residents' risk level for re-offending to be reduced to "practically nil" before they can be released. Both Wisconsin and Illinois appear to have Jess stringent standards, and have released significantly more offenders from their sexual predator treatment programs than Kansas has.

EXECUTIVE SUMMARY 3 Legislative Division ofPost Audit April2005 Also unlike other states, Kansas requires residents to complete treatment before being released. Other states have released residents because they made progress toward, but did not complete, the treatment program.

Unless Kansas is willing to accept a higher level of risk of re­ ...... page 21 offense, few options exist to curb the growth of the Program. SRS officials have identified two options for moving some residents out of the Program more quickly: transferring medically frail residents to nursing homes, and establishing a community containment model for residents in the transition phases of the Program.

Other options we identified for limiting the growth of the Program include reducing the number of sex offenders who are eligible, allowing sexual predators whose risk levels have dropped to be released, and providing more treatment to sex offenders who have sexual predator tendencies while they are in prison. These and other options would need to be explored further.

Conclusion ...... page 24

Recommendations ...... page 24

APPENDIX A: Scope Statement ...... page 25

APPENDIX B: Listing of Sexually Violent Offenses ...... page 27 That Make an Offender Eligible for the Sexual Predator Treatment Program

APPENDIX C: General Stages of the Sexual Predator ...... page 30 Treatment Process

APPENDIX D: Number of High-Risk Sex Offenders Assessed ...... page 31 Through the Commitment Process for the Sexual Predator Treatment Program

APPENDIX E: Length of Time Residents Have Been in the ...... page 33 Sexual Predator Treatment Program and Their Current Phase

APPENDIX F: Agency Response ...... page 34

This audit was conducted by Joe Lawhon, Lisa Hoopes, Brad Hoff, Felany Opiso, and Amy Thompson. Cindy Lash was the audit manager. If you need any additional information about the audit's findings, please contact Mr. Lawhon at the Division's offices. Our address is: Legislative Division of Post Audit, 800 SW Jackson Street, Suite 1200, Topeka, Kansas 66612. You also may call us at (785) 296-3792, or contact us via the Internet at [email protected].

4 EXECUTIVE SUMMARY Legislative Division ofPost Audit Apri/2005 Larned State Hospital: Reviewing the Growth In the Sexual Predator Treatment Program

Since 1994, Lamed State Hospital has operated a Sexual Predator Treatment Program for sex offenders who have served their prison sentences but are committed by the courts because they still pose a danger to society. The Hospital must accept whomever the courts commit to the Program.

Recently, the total number of sex offenders sent to the Program has increased to almost three per month. As of June 30, 2004, SRS records indicate there were 117 residents, up from 95 in June 2003. Department of Social and Rehabilitation Services' (SRS) officials have estimated the Program will reach 200 residents in early 2007. Soon thereafter, the estimated population will be greater than the capacity to house these offenders at Lamed.

Because of the Hospital's request for a significant number of additional positions in 2004, members of the House Social Services Budget Committee expressed concern about the projected growth of the Sexual Predator Treatment Program, and requested an audit to address the following questions:

1. What factors have contributed to the rapid growth in the Sexual Predator Treatment Program at Larned State Hospital, and what options exist for controlling that growth?

2. Are the staffing and funding needs included in the budget for the Sexual Predator Treatment Program at Larned State Hospital realistic?

3. Do other states have sexual predator treatment programs that are similar to the one in Kansas, and if so, how do they compare in terms of staffing, funding, and who is committed to the program?

To answer these questions, we reviewed applicable Kansas laws to understand the civil commitment process, and budgetary documents to see how staffing levels and expenditures for the Program have changed over time. We also analyzed Department of Corrections' data regarding the number of sex offenders in prison and released from custody in recent years, and observed a meeting of the multi­ disciplinary team in which risk assessments of sex offenders about to be released from prison were made.

PERFORMANCE AUDIT REPORT 1 Legislative Division ofPost Audit April2005 In addition, we analyzed SRS records to determine the number of days sexual predators have spent in the Program, and developed several scenarios about how high the Program census might rise before it begins to level of£

We toured the Larned State Hospital grounds and interviewed Hospital officials regarding the care and treatment provided to Program residents. We also interviewed officials from the Hospital, SRS, the Department of Corrections, and the Attorney General's Office to help determine why the Program had grown, and what options existed for controlling that growth.

Finally, we contacted and surveyed officials in several other states about staffing, funding, and treatment in their sexual predator treatment programs. In doing so, we focused on states that have operated a program for at least five years. However, given the differences in the way states operate their programs and in the point at which they begin counting sex offenders as program participants, these state-to-state comparisons should not be viewed as absolutely comparable measures.

A copy of the scope statement for this audit approved by the Legislative Post Audit Committee is included in Appendix A. For reporting purposes, we've combined questions two and three into a single question, and moved the discussion of options for controlling growth to the end of the audit.

In conducting this audit, we followed the applicable government auditing standards set forth by the U.S. Government Accountability Office, except that, because of time constraints, we didn't test the accuracy of computerized data provided to us by the Department of Corrections regarding the number of sexual offenders who have been evaluated for commitment to the Sexual Predator Treatment Program. We used these data to show how many sex offenders ultimately end up in the Program, however, these data were not essential to the conclusion and recommendations made in this audit. Our findings begin on page 7, following a brief Overview.

2 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 An Overview of the Sexual Predator Treatment Program

The Legislature The 1993 rape and murder of a Pittsburg State University student by a Passed the sex offender, who had been released from prison about seven months Sexually Violent earlier, prompted the Legislature to act. At the urging of the Attorney Predator Act In 1994 General, the Legislature created a separate civil commitment for the In Response to a long-term control, care, and treatment of sexual predators who: Rape and Murder • are sexually violent • have a mental abnormality or personality disorder • because of their abnormality or disorder, are likely to engage in repeat acts of sexual violence if not treated

Between 1993 and 1996, the Legislature also adopted new laws which require convicted sex offenders to register with the KBI when released on parole, increased incarceration time for several sex offenses, and allowed a judge, under specific circumstances, to double the prison sentence of a sex offender who has more than one conviction of a sex crime of extreme violence.

In 1997, the U.S. Supreme Court ruled that Kansas' sexually violent predator act was constitutional. In Kansas v Hendricks, the Supreme Court upheld Kansas' law. They ruled that the civil commitment process wasn't a second prosecution for the same crime and didn't violate an offender's due process rights. After that, several other states followed suit and enacted similar sexually violent predator laws. Currently, 16 states have this type of program.

Since its enactment, the law has been changed slightly. The Legislature amended it in 1999 and again in 2003-after several sexual predators in the Program were released because legal proceedings didn't occur within the time frames specified in the law. Subsequently, the Legislature clarified that the time frames in question weren't mandatory.

In 1998, the Legislature added a "conditional release" period that required sexual predators who completed the Program to be under court supervision in the community for at least five years before being eligible for final discharge from the Program.

There's a Rigorous Any sex offender who has been convicted of a sexually violent Process For offense (including rape, indecent liberties with a child, and Determining Whether aggravated incest), or a sexually motivated offense (crimes such as A Sex Offender murder and stalking that were committed for the purpose of sexual Should Be Committed gratification) is eligible to be committed to the Program once he has To the Program served his time in prison. (See Appendix B for a complete list of

PERFORMANCE AUDIT REPORT 3 Legislative Division ofPost Audit Apri/2005 such crimes.) Sex offenders are committed to the Program for an indefinite period of time until their abnormality has so changed that they are deemed to be "safe."

Figure OV-1 on the next page describes the process for determining which sex offenders are sexual predators--they have serious difficulties controlling their violent behaviors, and should be committed to the Program. As the figure shows, that determination (for sex offenders about to be released from prison) is made at a number oflevels:

• a multi-disciplinary team assesses the risk that the offender will commit another sexual crime when released from prison (members come from the Department of Corrections, the Juvenile Justice Authority, and SRS) • staff from the Attorney General's Office decides whether to petition the court for a probable cause hearing • a judge decides whether probable cause exists that the offender is a sexual predator • Larned State Hospital staff evaluate the offender • a judge or jury must find beyond a reasonable doubt that the offender is a sexual predator and should be committed

Figure OV-1 also shows that very few sex offenders actually were found to be sexual predators and committed to the Program for fiscal year 2004.

Once committed, sexual predators are housed in a residential setting on the grounds of the Lamed State Hospital. The Program has seven treatment phases:

Phase 1: Orientation, identification of treatment issues Phase 2: Teaching concepts related to controlling sexual impulses and avoiding high-risk situations Phase 3: Implementing concepts of Phase 2 Phase 4: Identifying and resolving deeper issues; developing a comprehensive relapse-prevention plan Phase 5: Beginning to acclimate the resident to real world Phase 6: Allowing the resident to set his own schedule and go off­ site to work Phase 7: Building toward conditional release

Phases 1 through 5 are provided at Larned State Hospital. Since 2002, the last two phases-known as transition-have been provided on the Osawatomie State Hospital grounds. However, in Spring 2005, SRS allowed one elederly resident to begin his transition phase in a community facility in Lawrence, rather than at Osawatomie. Appendix C describes general stages of treatment in more detail.

4 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit April2005 Figure OV-1 Process for Committing a Sex Offender to the Sexual Predator Treatment Program (Number of sex offenders going through each stage are for fiscal year 2004)

Sex offenders who Sex offenders who were eligible to be were determined not to Process committed be sexual predators

A sex offender is about ·.· to be released from

Notice of pending release is •···· gi~en toJh~·.multi,;dis~pliPS~ry 330 sex offenders were ·•. •t$arni ·.The te<~m .mak ·· assessed (a high, medium, :~s~~~~smeot.of fi~K·for: or low level of risk) C'.l~flper:.··.

Notice of pending release is given to the Attorney General's Office. The case file is · · reviewed; the multi-disciplinary team , 36 petitions for 294 offenders didn't asse~IT;lent is c:onsidered, ·a ri'is: probable cause were have a petition of :rrii!d~;~~:uJ:~!~f · .... ·~rt tor•: filed probable cause filed

34 determinations 2 determinations of probable cause of no probable were made cause were made l I• Once the probS.bi~eauseisfound, 30 evaluations 4 evaluations determined offender is sent to Larned for a determined offenders offenders weren't sexual prOfessional evaluation. were sexual predators predators 1 A trial is held fo defei'I'J'Iine beyond a 19 offenders were found to be sexual 4 offenders were 7 trials were still in reasonab.le doubt that the offender is a predators and committed to the found not to be process as of sexUal predator .ilflP Ol;!edS to be Sexual Predator Treatment Program sexual predators February 15, 2005 committed fOr treatment

PERFORMANCE AUDIT REPORT 5 Legislative Division ofPost Audit Apri/2005 The Goal ofthe Kansas has set a very high standard for release from the Program: Sexual Predator the overall goal of the Program is to have no new victims. With Treatment Program the current treatment structure, the Program aims to do everything Is Minimizing possible to ensure that residents won't commit another sexual crime The Likelihood after they are released. Predators Will Re-O/fend After In general, the purpose of the treatment is to have a sexual predator: Their Release • understand the violent behavior he committed • understand that the behavior was wrong • accept responsibility for his actions • learn to control his thinking and behaviors

After a resident has completed treatment, the court must approve placing the resident on conditional release. Conditional release must last for a minimum of :five years. During that time, the sexual predator is under the supervision of the court, not SRS.

To receive final discharge and be released from the Program, a sexual predator must complete all phases of the Program and demonstrate that his mental abnormality has so changed that he is "safe" to be back in society.

Sexual Predator Treatment Program AT A GLANCE

Authority: Created in 1994 by K.S.A. 59-29a01 et seq. Staffing: The Program has 168 full-time-equivalent positions--160 work at Lamed State Hospital and eight at Osawatomie State Hospital.

Budget: The Program currently is funded entirely through General Fund appropriations. In fiscal year 2005 the Program's anticipated expenditures will be almost $7 million, as shown below. In 2006, expenditures are expected to reach almost $8 million. Most of these moneys are used to pay Program staff.

FY 2005 Expenditures FY 2006 Governor's Recommended Budget

Im! Amount %of Total Im! Amount %of Total

Salaries & Wages $6,370,103 93% Salaries & Wages $7,351,044 94% Contractual Contractual Services $342,753 5% Services $303,951 4% Commodities $168,274 2% Commodities $172,649 2%

Total Expenses: $6,881,130 100% Total Expenses: $7,827,644 100%

Source: SRS Bud et Documents

6 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 Question 1: What Factors Have Contributed to the Rapid Growth in the Sexual Predator Treatment Program at Larned State Hospital?

ANSWER IN BRIEF: Since 1998, the number ofresidents in Kansas' Sexual Predator Treatment Program has increased from 16 to 13 6. The Program is growing so fast because more sex offenders are being committed, and fow are leaving. Since fiscal year 2000, about six percent ofthe sex offenders released from prison have entered the Program. Few have left the Program because it's designed to provide long-term treatment, most residents haven't been in the Program long enough to complete it, cmd many residents aren't progressing on a timely basis. If the Program continues to grow as it has, we estimated its population could increase by 100 residents over the next 10 years, and could nearly triple over the next several decades, before leveling off Those figures could be much higher. These and other findings are described in the sections that follow.

Since 1998, the The first sex offender was committed to the Sexual Predator Number of Treatment Program in October 1994. Possibly because of questions Residents in the about the Program's constitutionality, the Program's growth was slow Sexual Predator in the early years. After the U.S. Supreme Court ruled the law was Treatment Program constitutional in mid-1997, the Program began to grow rapidly. That Has Increased from growth is illustrated in Figure I-1. 16 to 136

Figure 1-1 Population of Kansas' Sexual Predator Treatment Program at Year End Fiscal Years 1995 through 2005 (as of February 10, 2005)

140

' 117 120 ' 7 i U.S. Supreme Court ruled Kansas' civil commitment i law was constitutional 100 / ~

Profiles of Residents in the Sexual Predator Treatment Program

We analyzed the demographics of everyone who has entered the Program (through February 10, 2005) and found the average age of a resident when admitted is 44 years, all are males, and most committed their offense(s) in one of Kansas' more populous counties. A vast majority of those in the program have been diagnosed as pedophiles, more than half have been diagnosed with an anti-social personality disorder, and several have a developmental disability, such as mental retardation.

The following are histories of two sexual predators in the Program:

A 64-year old white male was convicted in 1985 of aggravated sexual battery against a seven­ year old girl who attended his wife's daycare. At the time he was charged, he stated he had exposed himself to four of the girls in the daycare, and had physical contact with one. The victim said she was directed to masturbate him and sit on his penis on several occasions. The behavior took place over a two-year period. He was sentenced to a prison term of 2-5 years, and was released after serving slightly more than three years. In 1996 he was convicted of aggravated indecent liberties with a child for molesting a four-year old boy. He stated they were in bed together naked and "got to fondling and touching each other's genitals." He was sentenced to 78 months in prison, and was admitted to the Sexual Predator Treatment Program in July 2002 when his sentence ended. As of February 2005, he was on Phase 2 of the seven-phase program.

In 1992, a 46-year old white male was convicted of indecent liberties with a child for fondling a seven-year old boy. He was sentenced to one year of probation and house arrest. In 1996, he was convicted of attempted aggravated indecent liberties with a child against a 13-year old boy. He fondled the boy and performed anal sex while the boy and the boy's brother spent the evening with him. According to the offender, he was explaining by example what molestation was. He received a sentence of 52 months, and was admitted to the Sexual Predator Treatment Program in February 2000. In February 2005, he was on Phase 2 of the program, but was returned to the Kansas Department of Corrections for assaulting another resident. Upon his return to the Program, he will be placed back on Phase 1.

The Program Is These two factors are described in the sections that follow. Growing So Fast Because More Sex The number of sex offenders committed to the Program has Offenders Are Being increased nearly every year. In fiscal year 2000, an average of 1.3 Committed, and Few offenders entered the Program each month. As Figure 1-2 on the Are Leaving next page shows, that number gradually has increased over the years. During the first seven months of fiscal year 2005, an average of2.7 new residents were committed per month.

8 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 There's no definitive explanation for Figure 1-2 Annual Admissions to the Kansas this growth in admissions, but we Sexual Predator Treatment Program identified some trends that have been

Fiscal¥ear All Admissions ~te per month contributing factors: 1995 6 0.5 • the percent of eligible offenders 1996 1 0.1 committed to the Program 1997 2 0.2 increased steadily from fiscal 1998 8 0.7 years 2000 through 2003. As 1999 13 1.1 Figure 1-3 shows, even though the 2000 16 1.3 number of Program-eligible sex offenders has dropped since fiscal 2001 19 1.6 year 2000, the percent of those 2002 20 1.7 offenders committed to the Program 2003 28 2.3 gradually increased from 3% in 2004 23 1.9 2000 to a peak of 11% in 2003.

2005 (through 20 2.7 February 10, 2005) Figure 1-3 also shows that the

Source: LPA analysis of Program and Department of percent of eligible sex offenders Corrections records. committed to the Program decreased in fiscal year 2004 and, based on the data for the first six months of Figure 1-3 fiscal year 2005, likely will decrease Number of Sex Offenders Assessed for Commitment agam. To the Sexual Predator Treatment Program Fiscal Years 2000-2005 (through December 2004) • the percent of eligible offenders # of Sex Offenders #Of Sex % of Released Released .from Offenders Sex Offenders rated as "high risk for re­ Fiscal Prison and Reviewed Committed to Who Were offending" increased significantly Year for Commitment the Program Committed between fiscal years 2000 and 2000 467 15 3% 2004, before dropping off. 2001 361 14 4% When the multi-disciplinary team 2002 360 26 7% meets, it assigns a risk level of 2003 305 32 11% either high, medium, or low to each sex offender. Department of 2004 330 19 (a) 6% Corrections' data shows that 109 sex 2005 (b) 162 (b) 3 (b) 2% offenders have been committed to Total 1,985 109 5J5% the Program since fiscal year 2000, (a) At the time of this audit, seven additional offenders had trials pending to determine all1 09 of whom were classified as whether they would be committed. If all seven are committed to the Program, the percentage of eligible offenders from fiscal year 2004 who were committed would high-risk offenders. increase to 8%. (b) For the first half of fiscal year 2005, final determinations have been made for all Appendix D provides detailed but one offender, whose case was pending a commitment trial. If this offender is committed to the Program, the percentage of eligible offenders from the first half of information about the number and fiscal year 2005 who were committed would remain at 2%. Based on Department of Corrections data, we estimate 282 sex offenders will be reviewed for commitment percent ofhigh-risk sex offenders during fiscal year 2005. reviewed during each phase of the Source: LPA analysis of commitment process data provided by the Kansas commitment process since fiscal Department of Corrections. year 2000. As the information in

PERFORMANCE AUDIT REPORT 9 Legislative Division ofPost Audit Apri/2005 that Appendix show, the multi -disciplinary team rated 41% of eligible sex offenders as "high risk for re-offending" in 2003, compared with only 31% in fiscal year 2000. For 2005 to-date, that percentage has dropped back to 25%.

Members of the multi-disciplinary team told us that their assessment process hasn't changed over the years, but that as they conduct more assessments, they become better at identifying the proper level of risk to assign to each sex offender.

• Lamed State Hospital staff have found that an increasingly higher percentage of the sex offenders referred to them for a final evaluation have "sexual predator" tendencies. As summarized in Appendix D, those percentages increased from 39% in fiscal year 2000 to a peak of 94% in 2004. Larned State Hospital officials attributed this increase to the following:

~ The definition of a sexually violent predator was changed in 1999, which made it easier to classify a sex offender as a sexual predator. Although most of the definition remained the same, one phrase was changed: " .. .likely to engage in the predatory acts of sexual violence" was replaced with the phrase " .. .likely to engage in repeat acts of sexual violence."

~ In 2001, the Hospital changed its process for evaluating sex offenders in order to make evaluations more consistent. Standardized forms were developed and fewer staff were authorized to conduct the evaluations. One psychologist conducts most of the assessments.

Based on the activity that occurred during the first half of fiscal year 2005, Appendix D also shows that, if those trends holds true for the remainder of the year, there should be a decline in the number of sex offenders actually committed to the Sexual Predator Treatment Program. However, this lower rate of admissions still is higher than the rate of releases from the Program.

Few sex offenders have left the Program to-date, and many may never leave. Since the Program's inception in May 1994, only 20 of 156 offenders committed to Program have left. As Figure 1-4 shows, two offenders currently are on conditional release (they completed the treatment phases of the Program but still are under court supervision), and one has received a final discharge.

As the figure shows, most residents who have left the Program were released because oflegal rulings (a situation that since has been corrected by amendments to the Act), not because they completed the Program or were deemed safe for release. We identified several reasons why offenders aren't leaving the Program: 10 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 Figure 1-4 Status of Residents Served by the Sexual Predator Treatment Program Since Inception As of February 10, 2005

Resi(i,ents Still. in the Rrogram • · Residenti; ~ LoJ'Ig~~ inthe P~()gran,

Housed at: .. Number Reason fo~ Leaving Number Larned State Hospital 127 Discharged because of legal 11 ruling (a)

Osawatomie State Hospital 4 Died while in the Program 6 (transition phase of the Program)

Prison or jail (b) 5 On conditional release 2 (under court supervision)

Discharged because 1 successfully completed the treatment program

Totai current~s{dents 136 Total previous JJ!Sidents 20

(a) One resident was released in 1999 and 10 were released in 2002 because of court rulings involving time frames and commitment requirements. Subsequently, State law was amended to make the time frames advisory rather than mandatory.

(b) Residents who are re-incarcerated, either short- or long-term, are returned directly to the Program upon release. A resident might be returned to prison because of conviction for a new crime (typically long-term), or because the resident violated conditions of his parole, such as getting into a minor altercation with another Program resident (typically 90 days). Of the five inmates shown above, three are expected to return to the Program in 2005. The other two residents could return as early as 2007.

Source: LPA analysis of Program records.

• The Sexual Predator Treatment Program is designed to provide long-term treatment. and most residents haven't been in the Program long enough to complete it. The Program is designed with seven phases, starting with an initial orientation period, and ending with a transition phase that's designed to prepare the offender for release into the community. Program officials estimate that a resident who is willing to-and capable of-participating should complete the Program in about seven years. As Figure 1-5 on the next page shows, most current residents have been in the Program less than seven years.

• Many residents aren't progressing through the Program's phases on a timely basis. Figure 1-5 also shows most of the Program's residents were in phases one, two, or three as of February 10, 2005. As of that date, only 16 residents were in phase four or higher.

Appendix E provides a more detailed breakdown of residents' progress. It shows that slightly more than half the residents appear to be making adequate progress in the Program, while almost 40% of them aren't on track for completing the Program in seven years.

• Program officials think many residents never will meet the high standards for completing the Program. The goal of the Program is cited as "no new victims." To be recommended for conditional release, a resident must have successfully completed all seven phases of the Program, and Program officials and the court of jurisdiction must agree that probable cause exists to think the resident's mental abnormality or personality disorder has changed so the resident is safe to be at large.

PERFORMANCE AUDIT REPORT 11 Legislative Division ofPost Audit Apri/2005 Figure 1-5 Length of Time Residents Have Spent In the Sexual Predator Treatment Program and Current Phase As of February 10, 2005 30

25

D Incarcerated 1!14, 5, 6, or 7 .1 or3 20 J!l c.. "C iii a::.. ... 15 .....0 J:l E z:I 10

5

0 2 3 4 5 6 7 8 9 10 11 Years in Program (a) (a) Doesn~ include time spent out of the Program while incarcerated Source: LPA analysis of Program data.

Overall, Program officials estimate that one-third of those currently in the Program won't master the necessary skills to be placed on conditional release. That's because some residents lack the motivation and discipline to complete the Program, others lack the mental capacity (some suffer from dementia and others have learning disabilities), and some have severe mental problems and aren't able to change their thinking patterns.

Based on Current The Sexual Predator Treatment Program has grown from 43 residents Data, We Estimate the at the end of :fiscal year 2000 to 136 residents as of February 10, 2005. Program's Maximum In January 2005 testimony before the House Social Services Budget Population Could Committee, SRS officials projected the Program would continue to Increase Significantly grow by about three residents per month for the foreseeable future. Before It Levels Off Although that estimate may be somewhat high, given the downturn in the percent of eligible sex offenders being committed to the Program in fiscal years 2004 and 2005, the Program likely will grow significantly before the number of residents entering and exiting the Program levels off.

12 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 To get a sense of how large the Program might grow in future years, we developed a relatively simple model to estimate how large the resident population could get before the number of residents leaving (either through completion ofthe Program or death) equals the number of new residents entering the Program.

Figure 1-6 We conservatively estimated the Projected Maximum Resident Population of the Sexual Predator Treatment Program Program could increase by 100 residents Resident population as of2-10-05 136 136 over the next 10 years, and could nearly !------+-----+------; triple over the next several decades, Projected number of new residents 2 per month 3 per month entering the program each year (24 per year) (36 per year) before leveling off. Figure 1-6 shows 1-As-s-um-pt-io_n_:-As-s-um-i-ng_n_o_o_th_e_r c-h-an..._g-es_t_o t-h-e -Pr-og-r-am-.-'p-ro-je-ct-ed_m_SXI_.m_u_m--1 OUf estimates for the maximum number resident populations in the future if two-thirds of the residents leave the of residents the Program may have in 1-P_r_og_~_am_att_e_r._··------.---·----....------1 the future. Under the scenario of two l-._..._7..;..ye_a_rs_i_n_th_e_P_ro_g_~_m ___ -+ ___ 38_ 4__ -+- __5_ 7_6__ -l new residents per month entering the l-._..._1o_y_e_a_rs_in_t_h_e_P_ro_g_ra_m ___ +- __43_2 __ -+- __6_4_a __--l Program each year and most residents .... 13 years in the Program 480 720 completing the Program in seven years, we estimated the Program's population

Assumption: Assuming no other changes to the Program, projected maximum over the next several decades could grow resident populations in the future if only half the ~idents leave the Prog~m to 384 residents before it leveled off. after...

Figure 1-6 also shows that, if more residents stay in the Program longer than seven years, or if as many as three new residents enter the Program each month over the years, the maximum resident population could increase even more significantly over time before leveling off in the distant future.

Unless the level of commitments to the Program is reduced, it's clear the Program will become much larger than it is today, and also probably much larger than anticipated when the law was enacted.

Officials Think One of the concerns raised in requesting this audit involved the Completing Sex treatment sex offenders receive while in the Department of Corrections' Offender Treatment custody, and the impact that treatment has on the amount of time they In Prison Doesn't spend in the Sexual Predator Treatment Program. Of the 156 predators Have Any Impact who have been sent to the Sexual Predator Treatment Program, 53% On Progress in the successfully completed the Department of Corrections' sex offender Sexual Predator treatment program. Treatment Program Sexual Predator Treatment Program officials told us that completion of the Department of Corrections' sex offender treatment program in

PERFORMANCE AUDIT REPORT 13 Legislative Division ofPost Audit Apri/2005 prison generally has no impact on-and shouldn't be used as an indicator of-how well a resident will progress in the Sexual Predator Treatment Program.

Here's why: to complete the sex offender treatment program in prison, an offender has to attend classes, complete written assignments, and demonstrate a desire to change. This differs from the Sexual Predator Treatment Program, which requires residents to demonstrate that they have changed and can control their thought processes.

Program officials told us they thought many of the sex offenders who take the treatment program in prison don't have a change of heart for the sexual offenses that they committed. They said, though, that the treatment in prison may help some inmates make changes that allow them to avoid being committed to the Program.

As ofMarch 2005, the Department of Corrections had 2,423 sex offenders in its custody. Ofthose, 23% had completed the sex offender treatment program, 11% were taking the Department of Corrections' sex offender treatment program, and 51% were on a waiting list to enter the sex offender treatment program.

Conclusion and Recommendations can be found at the end of Question 2.

14 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 Question 2: How Have Staffing and Funding Resources for the Sexual Predator Treatment Program Changed Over Time, and How Does Kansas Compare to Other States?

ANSWER IN BRIEF: Between fiscal years 2001 and 2005, staffing and funding for the Program skyrocketed, growing by about 340% and 480%, respectively. During that same time, the number ofresidents increased by about 144%. The Programs budget request of$7.8 million for fiscal year 2006 may be significantly understated because it lacks funds for new staffwho likely will have to be hired as the resident population grows. SRS has developed few detailed plans for how it will handle Program staffing, funding, and resident capacity issues in the future.

Kansas' staffing levels and operating costs seem reasonable compared to other states. Kansas' Program is similar to other states in some areas, but more stringent in others. All states have similar treatment programs and definitions for a sexual predator, but several other states have more lenient criteria for releasing residents from their program. Unless Kansas is willing to accept a higher level ofrisk and release more sexual predators from the Program, few options exist to curb the growth ofthe Program. These and other findings are described in the sections that follow.

Between Fiscal Years One concern that led to this audit was the large increase in authorized 2001 and 2005, positions and funding for the Program in fiscal year 2004. That year, Staffing and Funding 93 additional positions were approved for Lamed State Hospital, for the Program increasing the number of authorized positions from 67 to 160. In the Skyrocketed, as the previous fiscal year, eight positions had been added at Osawatomie Number ofResidents State Hospital for the transition phases of the Program. Climbed Figure II-I on the next page shows the increase in total costs, authorized positions, and resident population since the inception of the Program.

As Figure 11-1 shows, Program costs have increased from $1.2 million in fiscal year 2001 to an anticipated amount of nearly $6.9 million in fiscal year 2005-an increase of 478%. During that same time period, staffing levels have increased by 342%, and the number of residents in the Program should increase by 144%.

The current staffing plan for the Larned State Hospital portion of the Program calls for slightly more than one clinical staff person per resident. No standards exist for how .to staff a sexual predator treatment program.

PERFORMANCE AUDIT REPORT 15 Legislative Division ofPost Audit Apri/2005 Figure 11-1 Total Expenditures, Staffing, and Resident Population for the Sexual Predator Treatment Program Fiscal Years 1995 to 2005

160

$6 140 lllll!i!iiilStaffing c:::JExpenditures -Residents I 120 $5 ~ J!l c ~ CD 100 "1;1 $4 :lE "iii CD 0:: ·= .. 80 E 0 $3 ~ ==J!l c rn !. 60 )( w $2 40

$1 20

0 $0 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 (a) Fiscal Year (a) Staff and expenditures for 2005 are budgeted. Residents in 2005 are based on LPA projections. Source: SRS budget documents and Program census records.

In March 2003, the Superintendent of Larned State Hospital developed WotkUnit a detailed staffing plan that called for 1.15 clinical

Lamed employees per resident. In general, the clinical Administrative/Support (a) 3 16 433% staffing levels currently Clinical/Treatment 35 144 311% authorized for the Larned Lamed Subtotal 38 160 321% Program achieve that ratio.

Osawatomie Figure 11-2 summarizes the change in staffing for the Clinical/Treatment 0 8 N/A Program at both Larned Osawatomie Subtotal 0 8 NIA and Osawatomie State Hospitals since fiscal year Program Total 342% 2001.

(a) The additional administrative/support positions include four food service workers, four administrative assistants, a laundry worker, and four other positions.

16 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 The Program's For fiscal year 2006, the Program's budget request of$7.8 million Budget Request for maintains services at current levels at both Larned and Osawatomie. Fiscal .Thar 2006 However, SRS officials have estimated that the Program will have May Be Significantly three new commitments each month during fiscal year 2006. Understated At that rate of growth, about 40 new clinical staff positions would be needed during fiscal year 2006 to maintain current clinical staff­ to-resident ratios. If commitments totaled just two new residents per month, about 28 new clinical staff would be needed.

In the agency's budget briefing to the 2005 Legislature, SRS officials reported they were working with the Division of Budget to approve ''just in time" staffing increases for the Program. This means staffing and funding increases will be sought during the year to cope with the increasing resident population.

Funding 40 new positions would cost up to $1.2 million; funding 28 new positions would cost about $840,000. (In either case, the first­ year cost would be somewhat less because hiring would be spread out during the year.) If the resident population continues to grow as it has, this same situation could be repeated each year for many more years.

SRS has developed few detailed plans for how it will handle Program staffing, funding, and resident capacity issues in the future. SRS officials told us they haven't developed a cost and staffing plan beyond the budget submitted for fiscal year 2006. However, efforts are under way to increase resident capacity at Larned.

Program officials told us contracts for remodeling various buildings on campus have been signed. The last of these projects-scheduled to be completed around November 2006-increases the Program's capacity to 212.

If the Program were to have three new commitments per month, it might reach this limit around June 2007. With two new commitments per month, that limit would be reached around June 2008. In addition, plans to build three 30-bed units are being developed, but funding has not yet been requested.

Kansas' Staffing In 2004, 16 states had civil commitment laws and sexual predator Levels and Operating treatment programs. We obtained basic program census data for the Costs Seem nine programs that existed before 2000, as well as staffing and cost Reasonable Compared information for six of the nine programs. The comparisons presented To Other States below should be regarded only as general indicators, given variations PERFORMANCE AUDIT REPORT 17 Legislative Division ofPost Audit Apri/2005 in how different states operate their programs, and in who is counted as a program resident.

Kansas' costs for providing treatment services were the lowest among the states in our survey, and its staffing ratio falls in the middle. Kansas and six other states we contacted funded their sexual predator treatment programs in fiscal year 2004 using only State General Fund moneys. Figure II-3 shows that Kansas' Program ranks third among seven states in the number of staff per resident.

Figure 11-3 Full-Time-Equivalent Staff per Resident, and Average Annual Cost per Resident Fiscal Year 2004

State Number of FTE Program Staff Total Av erage Cost Positions (a) ~esidents (b) , per Residejit ~nnual Costs per Resid~nt

Missouri 189.9 100 1.9 $5,328,082 $53,281

Washington 340.5 196 1.7 $26,806,307 $136,767

Kansas 168 117 1.4 $4,828,245 $41,267

Iowa 57 49 1.2 $3,780,180 $77,147

Illinois 210 204 1.0 $15,998,086 $78,422

Minnesota 198 211 0.9 $19,279,952 $91,374

Florida 305 467 0.7 $23,339,273 $49,977

(a) These numbers are not entirely comparable from state to state. For example, several states included staff that appear to serve as security guards; Kansas has no such positions in its Program. Given the time available for this audit, we weren't able to resolve all staffing differences.

(b) These numbers are not entirely comparable from state to state. Unlike Kansas, the other states house committed sexual predators with sex offenders undergoing assessment. The figures for each state represent its combined total as of fiscal year-end 2004. In general, the other states reported that "pre-committed" sex offenders spend more than a year, on average, in their facilities. In addition, most of these states said they provide similar services to both groups.

Source: LPA analysis of survey responses and interviews with state officials.

Kansas' Sexual For this analysis, we were able to compare Kansas with California, Predator Treatment Florida, Illinois, Minnesota, Washington, and Wisconsin. Kansas Program Is Similar to generally appeared to be similar to other states in the following areas: Other States in Some Areas, but More • In general, the states have similar criteria for defining a sexual predator. Each state generally defines a sexual predator as a sex Stringent in Others offender who has been convicted of or charged with a sexually violent offense, and who suffers from a mental abnormality or personality disorder that is likely to lead to repeat acts of sexual violence unless confined to a secure facility. The types of sexual offenses that qualify as a sexually violent offense also are similar. They include crimes such as rape and indecent liberties with a child.

Also, all the states use a civil commitment procedure for committing their sex offenders to a sexual predator treatment program.

18 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 • Most of the programs rely on group and individual therapy, as well as development of a relapse prevention plan, to help the resident identify ways to control his behavior. Although states' programs varied somewhat in the number of phases they have, the emphasis they place on certain concepts, and the specificity of the criteria a resident has to meet to advance in the program, they all use the cognitive-behavioral therapy model for treating residents.

That model is based on the premise a person's thoughts (rather than external events) cause feelings and behaviors. The therapy identifies the thinking that's causing undesirable feelings and behaviors, and teaches strategies for replacing this thinking with thoughts that lead to more desirable reactions. The goal is to help the person "unlearn" his unwanted reactions, and learn and apply a new, healthier way of reacting. In addition, Kansas and several other states have developed a "parallel" treatment program for those residents who are developmentally delayed or have limited learning abilities.

• Most states wouldn't provide an average estimated completion time for their sexual predator treatment programs, but officials from Wisconsin and Florida estimated five and seven years, respectively. That compares with an average estimated completion time of seven years in Kansas, for a motivated resident who is actively participating.

The areas we identified where Kansas' Program appeared to be more stringent or restrictive than other states are described below:

• Kansas' goal of "no new victims" appears to be more stringent than other states. Although most states share the goal of minimizing repeat sexual offenses, Kansas' program appears to have zero tolerance for the likelihood of repeat offenses. For a sexual predator to be released from Kansas' Program, staff have to be convinced there's very little likelihood the resident will commit another sexual offense when he is allowed to re-enter society.

Some other states' goals may not be as stringent. For example, Wisconsin's goal is to "increase community safety by committing individuals who pose a risk and to assist these individuals by changing their behavior and decreasing their likelihood of committing a sexual offense upon their release." Illinois' stated goal is to "successfully and safely reintegrate individuals into the community from which they came." As Figure 11-4 on the next page shows, these two states have released significantly more offenders from their sexual predator treatment programs than Kansas has.

• Unlike other states, Kansas requires residents to complete treatment before being released. Figure 11-5 on the next page summarizes the ways in which states have released residents from their sexual predator treatment programs.

The figure shows that only Kansas and Minnesota have released residents solely because they completed program requirements. The other five states have released residents because of other reasons, all of which relate to a resident making some progress-but not completing the treatment program. PERFORMANCE AUDIT REPORT 19 Legislative Division ofPost Audit Apri/2005 Figure 11-4 A State-by-State Comparison of the Total Number of Residents Released Since Program Inception (a) 50 46 45 40

Ill 35 Cll Ill I'll Cll 30 Gi 0:: 25 0... .aCll 20 E :::1 z 15 10 5 0 0 0 Wisconsin Washington Illinois Florida Kansas Iowa Minnesota Missouri Year 1994 1990 1998 1998 1994 1998 1994 1999 Started

13 achieved conditional release • achieved final discharge

(a) Residents could be counted in both conditional release and final discharge figures. For example some residents have progressed from conditional to final discharge. Dats are as of February 2005.

Source: LPA analysis of survey responses and Kansas' Program records, interviews with stste officials.

Method of Release

IR•~ .. ;,~ .. ,,t completed all phases of treatment and was granted X X X X X release by either a judge, jury, or administrator.

X X X X

IRr!'!sirder1t petitioned for early release. Resident was given an I.Y.!.1:fiD!!ll§~~;QJI!.!!!§l!J.QJa!iQn. from state officials, but a judge, jury, X X X X X administrator granted conditional release.

two years, the court determines whether the resident's should be extended. The burden of proof falls on the X evidence isn't presented to keep the resident the resident is released from the program.

LPA analysis of states' sexual predator treatment programs and interviews of state officials.

20 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 Unless Kansas Is As previously mentioned, Kansas had 136 residents in its Program in Willing To Accept a February 2005. Figure II-6 shows that Kansas ranks in the middle Higher Level ofRisk when compared to other states in terms of the total number of sex OfRe-of/ense, offenders in their programs, and that Kansas' rate of growth isn't Few Options Exist To significantly different from those other states. Curb the Growth of The Program Figure 11-6 A State-by-State Comparison of Resident Population of Sexual Predator Treatment Programs Fiscal Years 1994-2004 (a)

250r------,

Minnesota

Florida I!! ~ £ 150 +------,;;;~~~£------7'-----.-----t"linois iii Kansas U) ~= 100+------~------~~----~~---1 ! E :I z Missouri

Iowa

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Fiscal Year

(a} Data ara as of fiscal year end. Wisconsin and washington didn't provide this historical data.

Source: LPA analysis of survey responses and Kansas' Program racords.

SRS officials have identified two options for moving some residents out of the Program more quickly. The options include:

• transferring medically frail residents to community group residences. According to a Program official, about 10 residents have become frail or disabled because of physical disease or aging. These residents are unlikely to complete the Program because of their physical and mental deterioration. Through March 22, the Hospital had spent $718,000 in medical costs for all Larned residents during fiscal year 2005 (including $477,000 for one terminally ill resident who died in March).

It's likely the number of frail and disabled residents will grow in the future. According to SRS officials, if medically frail residents were granted conditional release and placed in a secure community facility, they no longer would be in State custody, and possibly Medicaid funds could be used to cover a portion of their medical costs.

Officials from the Attorney General's Office said they could support conditional release and transfer to a nursing home for a resident who

PERFORMANCE AUDITREPORT 21 Legislative Division ofPost Audit April2005 has been deemed "safe" by Program staff. However, they said they wouldn't support conditional release for a resident simply for financial reasons.

• establishment of a community containment model for residents in the transition phases of the Program. This option would require a major conceptual change in how the Program operates, as well as changes to State law.

It involves releasing residents back into the community-instead of placing them at Osawatomie State Hospital-when they reach phase six. The residents would be under court supervision and placed on lifetime parole. If a resident violated a term of his parole, he would be sent back to pri_son. While in the community, residents would continue to be treated by therapists on a regular basis. Also, community agencies would work with each resident in various ways-such as helping him implement his relapse prevention plan, find a job, and find a place to live.

Besides resulting in lower housing costs, residents could be required to pay for some of the services they receive. An SRS task force currently is in the process of reviewing the containment model and determining how it could be implemented in Kansas.

Options to significantly limit the growth of the Program include changing the entrance or exit criteria, and modifying the type of treatment that's provided. Like Kansas, officials in other states are concerned about the growth of their programs. Some states are addressing this issue by adding new bed space for sexual predators. For example, Washington opened a new facility in 2004, California will open a new 1,500-bed facility soon, and Florida is seeking permission to begin construction of a new facility.

Options for restricting Program growth include the following:

• taking fewer offenders into the Program. Entry criteria could be limited, for example, by excluding certain crimes. However, these types of actions do nothing to further Kansas' intent to protect the public from sexually violent offenders who are likely to re-offend without significant intervention. Many such actions occur against young children.

In addition, Washington modified state law to allow sex offenders' prison terms to be extended when they hadn't participated in treatment while in prison, and were assessed as not having changed their tendencies. This action limits program growth by keeping some sex offenders in prison longer.

• Jetting more sexual predators out of the Program. Under this option, program participants' risk level for re-offending would not have to be reduced to "practically nil" before being released. In Wisconsin, for example, a sexual predator can be released after receiving some treatment and making sufficient progress to convince Program officials his risk of re-offending has dropped to medium or low since he came

22 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit April2005 into the Program. Kansas also could allow some sexual predators to be released when factors such as age or health make it unlikely that they will re-offend.

Another possibility is to have outside evaluators conduct the annual reassessment of the sexual predator. Some contend that outside evaluators might be more objective and assign a lower level of risk than Program staff who work with and see residents on a regular basis. Illinois and California use this approach.

• providing more treatment for sex offenders in prison. State officials could explore whether enhancing the sex offender treatment provided in prison would be effective. For example, it might be possible to assess inmates after they complete the existing sex offender course and offer a second, specialized course for those deemed most likely to re-offend. Presently, inmates have the option of deciding whether they want to take the Department of Corrections' only sex offender course. To achieve maximum results, inmates would have to be required to participate in both courses.

• provide sexual predator treatment through outpatient services. As described in the accompanying profile box, Texas operates its program this way. One significant limitation is that such a program is not likely to be as effective at eliminating re-offenses as an inpatient treatment program. For example, Larned State Hospital officials know where each sexual offender is all the time, and during treatment they are able to restrict residents' access to the Internet and written materials that could trigger unwanted thoughts and behaviors. Texas' program doesn't control sexual predators' access to these materials, nor their daily movements and whereabouts.

Texas' Sexual Predator Program Involves Only Outpatient Treatment and Treats Any Violations of the Release Plan as a New Felony Crime

In 1999, Texas created its civil commitment process for long-term supervision and treatment of sexually violent predators. The commitment process is similar to Kansas' in that sex offenders are reviewed by a multi-disciplinary team prior to being released from prison. The offender also goes through an evaluation and court trial to determine whether the offender is a sexual predator.

Texas differs from Kansas and other states in that its sexual predators return to the community for outpatient care and treatment upon release from prison. In Texas:

~ the courts specify a treatment plan and the sexual predator wears a tracking device so his location is always known. ~ every two years the sexual predator is re-examined to determine if his behavioral abnormality has changed to the extent that the person is no longer likely to engage in predatory acts. ~ while under treatment, if a person breaks any requirement of the treatment plan, it is considered a felony. This is a critical element of the program, because Texas also has a "three strikes law, " which can place a person convicted of three felonies in prison for life.

PERFORMANCE AUDIT REPORT 23 Legislative Division ofPost Audit April2005 Conclusion In 1994, State policyrn.akers decided that in order to adequately protect citizens from sexual predators, it was necessary to place those offenders in treatment after the completion of their prison sentences, until such time as they could be returned safely to society. Initially the Program grew slowly, and the costs were relatively low. However, the Program's population is bulging because of increases in both the number of sex offenders committed and the length of time they spend in the Program. If current trends continue, Program census and costs will be much greater in the years to come. It appears Kansas will either have to change its policies so that it commits fewer sex offenders to the Program or allows those in the Program to be released sooner, or it will have to reconcile itself to supporting a new class of institutionalized individuals.

Recommendations 1. To help ensure that the Legislature is fully aware of the costs for continuing the Program as it exists today, and the implications of making changes to the Program's entrance and exit criteria, the Legislative Post Audit Committee should request a study of the Program during the 2005 interim. That study should cover such topics as whether the Program's entrance and exit criteria are reasonable, whether the Program's goal of"no new victims" is a standard the State should continue to pursue, and what the Program's future needs and costs for staffing, treatment, and housing for residents under current operating procedures will be. In addition, that study should consider options for expanding the sex offender treatment program offered by the Department of Corrections.

2. To ensure the Legislature has sufficient information to base its decisions on, SRS should develop a multi-year forecast that addresses such issues as resident capacity, housing costs for those residents, and staffing costs. The forecast should cover at least five years, and should show outcomes based on a number of different assumptions, such as what happens if the number of newly committed sex offenders is 18, 24, or 36 per year, or if the length of time in the Program for a motivated resident decreases to five years or increases to nine years, and so on. This information should be developed in time for the 2005 interim study. If no interim study is authorized, SRS should submit this information to the appropriate legislative committees during the 2006 legislative session.

24 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 APPENDIX A Scope Statement

This audit was approved by the Legislative Post Audit Committee on December 13, 2004. The audit was requested by the House Social Services Budget Committee.

Lamed State Hospital: Reviewing The Growth In the Sexual Predator Program

Since 1994, Lamed State Hospital has operated a Sexual Predator Treatment Program for people who have served their prison sentences but are committed by the courts because they still pose a danger to society. The Hospital must accept whomever the courts commit to the Program.

Recently, the total number of people in the Program has increased by about 3 per month. As of January 20, 2004, there were 103 residents, an increase from 80 in June of 2003. Based on current growth rates, the Program is projected to have 177 residents by January 2006. At these growth rates, the Program is growing faster than building and staffing capacity.

While reviewing the Hospital's budget for 2005, the House Social Services Budget Committee noted that the budget included the addition of 72 new positions for the Program that weren't funded in the Governor's recommendation. Members expressed concern about the projected growth of the Sexual Predator Treatment Program, and requested that Legislative Post Audit conduct an audit of the Program.

Specifically, the Committee is interested in knowing whether staffing and budget needs projected for the Program are realistic, what factors may be contributing to the rapid growth in the number of people being committed to the program, what changes may be needed to curb the growth of the Program, and whether Program participants have participated in sexual offender treatment programs during their incarceration in State penal facilities. In addition, they would like to know whether any other states have these types of programs, whether they are experiencing the same type of growth, how their staffing and funding levels compare, and the like.

A performance audit of this topic would answer the following questions:

1. What factors have contributed to the rapid growth in the Sexual Predator Program at Lamed State Hospital, and what options exist for controlling that growth? To answer this question, we would review the process and criteria for committing an offender to the Program. We would determine whether there has been a change in those eligibility requirements over time that would increase the number of people eligible for the Program. We also would look at the population of sex offenders in Kansas prisons over time and determine whether a higher percentage of those offenders are being sent to the Program in the past couple of years. We would review case files on a sample of current participants to determine whether they appear to meet all the criteria. In addition, we would look at Program records to determine whether there has be a change in the length of time offenders are kept in the Program. We would look at how offenders can be released from the Program,

PERFORMANCE A UDJT REPORT 25 Legislative Division ofPost Audit Apri/2005 and whether there are things that delay the release of some Program participants. Also, we would interview staff at Larned State Hospital and the Department of Corrections as well as judges to help determine why the increase in the number of people in the Program. Finally, we would look at what type of treatment these offenders received while they were in the Department of Corrections' custody, and whether that would have any impact on the amount of time they spend in the Program.

2. Are the staffing and funding needs included in the budget for the Sexual Predator Program at Larned State Hospital realistic? To answer this question, we would review any projections the Department of Social and Rehabilitation Services has made regarding the number of offenders that will be placed in and released from the Program. Using information from the Department of Corrections or other sources, we would assess the reasonableness of those projections. We would also determine what types of new positions the Department plans to hire and how they would be used. Using information about staffing ratios and funding levels for similar programs in other states (as gathered in question 3 below) we would assess the reasonableness of the Department's projections in those areas. If any of the Department's projections appear out of line, we would interview Department officials to understand the reasons for why they have estimated what they have.

3. Do other states have sexual predator programs that are similar to the one in Kansas, and if so, how do they compare in terms of staffing, funding, and who is committed to the program? To answer this question, we would identify other states that have sexual predator treatment programs designed to treat offenders after they have served their prison sentences. For a sample ofthese states we would gather such information as who gets admitted to their programs, what their growth rates have been, what their staff ratios have been, what their funding levels are, what their sources of funding are, and what State agency is responsible for operating the program. We would then determine how Kansas' Sexual Predator Program compares to those other states.

Estimated time to complete: 10-12 weeks

26 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit April2005 APPENDIXB

Listing of Sexually Violent Offenses That Make an Offender Eligible for the Sexual Predator Treatment Program

Any sex offender who has committed a sexually violent offense, as listed in K.S.A. 59-29a02, or a sexually motivated offense (a crime committed for the purpose of sexual gratification) is potentially eligible for the Program. Offenders who have committed these types of crimes must be reviewed by the multi-disciplinary team, which ranks the offender's likelihood of re-offending, and by the Office of the Attorney General which determines whether the offender should be further considered for possible commitment. A list of the eligible offenses is included as this appendix.

PERFORMANCE AUDITREPORT 27 Legislative Division ofPost Audit Apri/2005 SEXUALLY MOTIVATED OFFENSES TABLE : *POSSIBLY STATUTE# OFFENSE SEXUALLY MOTIVATED 21-3401 MURDER IN THE FIRST DEGREE * 21-3402 MURDER IN THE SECOND DEGREE * 21-3403 VOLUNTARY MANSLAUGHTER * 21-3414 AGGRAVATED BATTERY * 21-3420 KIDNAPPING * 21-3421 AGGRAVATED KIDNAPPING * 21-3438 ATTEMPTED STALKING * 21-3438 A STALKING IN ALL OTHER CASES * STALKING WHEN VICTIM HAS A TEMPORARY RESTRAINING ORDER OR 21-3438 B INJUNCTION AGAINST THE OFFENDER * STALKING WHEN OFFENDER HAS A PREVIOUS CONVICTION WITHIN 7 21-3438 c YEARS FOR SAME VICTIM * INTENTIONAL AND PREMEDITATED KILLING-VICTIM OF RAPE, CRIM 21-3439 A4 SODOMY OR AGG CRIM SODOMY INT AND PREMED KILLING-CHILD< 141N COMMISSION OF KIDNAPPING, 21-3439 A7 AGG KIDNAPPING, SEX INTENT 21-3502 RAPE RAPE; SEXUAL INTERCOURSE WITH A PERSON WHO DOES NOT 21-3502 A1 CONSENT; OVERCOME BY FORCE, FEAR, ETC. 21-3502 A2 RAPE; SEXUAL INTERCOURSE WITH A CHILD< 14 YOA 21-3503 INDECENT LIBERTIES WITH A CHILD INDECENT LIBERTIES W/CHILD; GE 14 YOA, BUT <16 YOA; LEWD 21-3503 A1 FONDLING OR TOUCHING INDECENT LIBERTIES W/CHILD; GE 14 YOA, BUT <16 YOA; SOLICIT TO 21-3503 A2 ENGAGE IN LEWD FONDING, ETC. 21-3504 AGGRAVATED INDECENT LIBERTIES WITH A CHILD 21-3504 INDECENT LIBERTIES WITH A WARD AGGRAVATED INDECENT LIBERTIES W/CHILD; GE 14 YOA; BUT < 16 21-3504 A1 YOA; SEXUAL INTERCOURSE AGGRAVATED INDECENT LIBERTIES W/CHILD; GE 14 YOA; BUT <16 21-3504 A2 YOA; LEWD FONDING OR TOUCHING AGGRAVATED INDECENT LIBERTIES W/CHILD; <14 YOA; LEWD 21-3.504 A3 FONDLING OR TOUCHING CRIMINAL SODOMY; SODOMY BETWEEN PERSONS GE 16 YOA OF SAME 21-3505 A 1 SEX; OR WITH AN ANIMAL 21-3505 A2 CRIMINAL SODOMY; SODOMY WITH A CHILD GE 14 YOA, BUT < 16 YOA CRIMINAL SODOMY; CAUSING CHILD GE 14 YOA, BUT< 16 ENGAGE IN 21-3505 A3 SODOMY W/PERSON OR ANIMAL 21-3506 AGGRAVATED SODOMY 21-3506A1 AGGRAVATED CRIMINAL SODOMY; SODOMY WITH A CHILD < 14 YOA AGGRAVATED CRIMINAL SODOMY; CAUSING A CHILD < 14 YOA 21-3506 A2 ENGAGE IN SODOMY W/PERSON OR ANIMAL AGGRAVATED CRIMINAL SODOMY; SODOMY W/PERSON WHO DOES 21-3506 A3 NOT CONSENT; OVERCOME BY FORCE, ETC. 21-3507 ADULTERY * 21-3508 LEWD AND LASCIVIOUS BEHAVIOR * 21-3509 ENTICEMENT OF A CHILD * INDECENT SOLICITATION OF A CHILD GE 14 YOA AND < 16 YOA TO 21-3510A1 COMMIT OR SUBMIT TO UNLAWFUL SEXUAL ACT INDECENT SOLICITATION OF A CHILD GE 14 YOA AND < 16 YOA, 21-3510 A2 INVITING, ETC. TO ENTER SECLUDED PLACE 21-3511 AGGRAVATED INDECENT SOLICITATION OF A CHILD AGGRAVATED INDECENT SOLICITATION OF CHILD; < 14 YOA TO 21-3511A COMMIT OR SUBMIT TO UNLAWFUL SEXUAL ACT AGGRAVATED INDECENT SOLICITATION OF CHILD; < 14 YOA, INVITING, 21-3511 B ETC. TO ENTER SECLUDED PLACE 21-3512 PROSTITUTION * 21-3513 PROMOTING PROSTITUTION *

28 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 SEXUALLY MOTIVATED OFFENSES TABLE

4 POSSIBLY STATUTE# OFFENSE SEXUALLY MOTIVATEC PROSTITUTION; PROMOTING PROSTITUTION WHEN PROSTITUTE IS GE 21-3513 B1 16YOA * PROSTITUTION; PROMOTING PROSTITUTION WHEN PROSTITUTE IS GE 21-3513 B2 16 YOA; 2ND/SUB CONVICTION * PROSTITUTION; PROMOTING PROSTITUTION WHEN PROSTITUTE IS < 16 21-3513 B3 YOA * 21-3514 HABITUAL PROMOTING PROSTITUTION 21-3515 PROSTITUTION- PATRON !ZING * 21-3516 SEXUAL EXPLOITATION OF A CHILD SEXUAL EXPLOITATION OF CHILD; EMPLOY CHILD < 16 YOA TO ENGAGE 21-3516 A1 IN SEXUALLY EXPLICIT CONDUCT SEXUAL EXPLOITATION OF CHILD; POSS VISUAL MED OF CHILD < 16 21-3516 A2 YOA ENGAGING I N SUCH CONDUCT SEXUAL EXPLOITATION OF CHILD; GUARDIAN PERMITTING CHILD < 16 21-3516 A3 YOA TO ENGAGE IN SUCH CONDUCT SEXUAL EXPLOITATION OF CHILD; PROMOTE PERFORMANCE CHILD <16 21-3516 A4 YOA TO ENGAGE IN SUCH CONDUCT SEXUAL BATTERY; INTENTIONAL TOUCHING OF ANOTHER, WITHOUT 21-3517 CONSENT, WHO IS GE 16 YOA 21-3517 CONSPIRACY TO SEXUAL BATTERY AGGRAVATED SEXUAl: BATTERY; INTENTIONAL TOUCHING WITHOUT 21-3518 CONSENT, GE 16 YOA; FORCE, FEAR 21-3519 PROMOTING SEXUAL PERFORMANCE/MINOR UNLAWFUL SEXUAL RELATIONS BETWEEN DOC PERSONNEL AND 21-3520 INMATE VOLUNTARY SEXUAL INTERCOURSE W/CHILD 14 <16 BY OFFENDER< 21-3522 19 21-3601 BIGAMY * 21-3602 INCEST 21-3603 AGGRAVATED INCEST AGGRAVATED INCEST; MARRAIGE TO PERSON <18 YOA WHO IS A 21-3603 A1 KNOWN RELATIVE AGGRAVATED INCEST; OTHERWISE LAWFUL INTERCOURSE OR SODOMY 21-3603 A2A W/RELATIVE GE 16 YOA, <18 YOA AGGRAVATED INCEST; LEWD FONDLING AND TOUCHING W/RELATIVE 21-3603 A2B GE 16 YOA, BUT < 18 YOA FURNISHING ALCOHOLIC BEVERAGES TO A MINOR FOR ILLICIT 21-3610b PURPOSES. 21-3715 A BURGLARY; BUILDING USED AS A DWELLING .. 21-3716 AGGRAVATED BURGLARY .. 21-4301 PROMOTING OBSCENITY; 2ND OR SUBSEQUENT OFFENSE * 21-4301 A PROMOTING OBSCENITY TO MINORS; 2ND OR SUBSEQUENT OFFENSE * 21-4301 A1 PROMOTING OBSCENITY TO MINORS; 3RD OFFENSE IN 2 YRS * 21-4301 A2 PROMOTING OGSCENITY TO MINORS; 2ND OFFENSE IN 2 YRS * 21-4301 c PROMOTING OBSCENITY TO MINORS; THAT IS HARMFUL TO MINORS * 23-102 MARRIAGE, INCESTUIOUS MARRIAGES; PENAL TV * 23-103 CONFESSION TO INCESTUOUS MARRIAGE •

PERFORMANCE AUDIT REPORT 29 Legislative Division ofPost Audit Apri/2005 ~I

APPENDIXC General Stages of the Sexual Predator Treatment Process

Building Preparing for Re-entry rtart ATuntabillty on Accouiblllty lntol Society Condlnal Release

* Assessed by staff including • Accepts responsbility for offenses • Continues to build on accountability objectives • Moves to less structured • Approved by judge, who sets identification of sexual behavior • Develops sexual autobiography • Develops community support plan setting conditions, which might include issues • Develops relapse prevention plan • Applies relapse prevention plan • Becomes more independent outpatient monitoring and annual * Understands treatment process • Attends individual and group therapy • Copes with emotions • Meets with support group polygraph tests *Acknowledges sexual history • Takes polygraph and plethysmograph • Examines personal values • Finds a job * Respectful to staff and peers tests • Identifies risk factors • Finds a place to live upon • Maintains daily journal of • Demonstrates responsible use of privileges conditional release thoughts/emotions • Develops victim empathy • Identifies impact of sexual offenses on victim • Identifies patterns of sexual behavior • Identifies thinking errors • Resolves "victim of the system" issues • Identifies ways to control sexual desires

(Kansas Phase 1) (Kansas Phases 2 and 3) (Kansas Phases 4 and 5) (Kansas Phases 6 and 7) (Kansas Conditional Release) t--<~ ~· ~ S':::t. ~0 Source: LPA analysis of states' sexual predator treatment programs. ~ !;?~ -·::.:..~· tl1 § s::; ~tl ~'"tl~ ;::;;:'ti::l. ~ ~ g~§; v, ::::.· "-3 APPENDIXD

Number of IDgh-Risk Sex Offenders Assessed Through the Commitment Process for the Sexual Predator Treatment Program

The process for committing a sex offender to Kansas' Sexual Predator Treatment Program requires five different evaluations, and has four places at which the offender can be screened out. The table on the following page shows the outcomes of that process since fiscal year 2000.

For example, in fiscal year 2000:

• A total of 467 sex offenders were assessed by the multi-disciplinary team. The results of those assessments, which ranked146 offenders as high-risk for re-offending, were sent to the Attorney General's Office for consideration.

• Based on that data and other data gathered by staff, the Attorney General recommended 51 high-risk sex offenders for commitment.

• A district court judge found there was probable cause to continue on for 49 cases.

• These 49 sex offenders were assessed at Larned State Hospital and 19 were identified as having sexual predator tendencies.

• The court found that 15 of the 19 offenders were sexual predators and should be committed to the State's Program.

Shaded cells on the table highlight significant growth.

PERFORMANCE AUDIT REPORT 31 Legislative Division ofPost Audit April2005 W' N!

Appendix D Number and Percent of Sex Offenders Assessed for Commitment to the Sexual Predator Treatment Program Fiscal Years 2000-2005 (through December 2004)

Sex Offenders High-Risk Offenders Offenders with Probable Offenders With Sexual Potentially Eligible Offenders for Whom the AG's Petitioned Offenders Cause Who Larned Predator Tendencies Eligible for Identified as Office Filed a for Whom a Judge Evaluators Identified as Who Were Committed to Fiscal Commitment to High-Risk for Petition for Probable Found Probable Having Sexual Predator the Program by the Year I the Program Re-offending Cause Cause Tendencies Court Number Percent Number Percent Number Percent Number Percent Percent

2000 I 467 I 146 I 31% 51(b) 35% 49(b) 96% 19 39% 79%

2001 361 45 98% I 21 I 47% I 14 I 67%

2002 360 37 93%

2003 305 47 92%

2004 330 32(b) 94%

2005 (a) I 162 I 41 I 25% 9 22% 7 78%

(a) Data represents only first six months of fiscal year 2005. (b) Three offenders in 2000 and two offenders in 2004 were assessed at a medium risk. In all cases, the Attorney General petitioned for a probable cause hearing and the judge found probable cause. t-<~ Source: LPA analysis of commitment process data provided by the Kansas Department of Corrections. i. ~ l:l§ ~· !i;':: 9.~ ~· t>l -. ~ § ~ ~tJ ~'"tl~ ::!. ~ ~ ;::;~"'ci 8[~ '-'1::::'-3 APPENDIXE

Length of Time Residents Have Been in the Sexual Predator Treatment Program and Their Current Phase

The Sexual Predator Treatment Program includes seven different phases. The table below shows, as of February 10, 2005, a majority of residents are in treatment phases two and three. Program officials provided time frames for how long they thought it might take an average and motivated resident to complete the Program. Based on those estimates, we assessed whether residents were making adequate progress, given the length of time each had been in the Program. The shaded areas show those who were progressing at above average (gray), average (black), and below average (white) rates.

Number of Residents in Each Phase of the Sexual Predator Treatment Program As of February 10, 2005 Phase (average length of time for an actively participating and motivated resident to each

1 2 6 7 Total

(a) Five residents were incarcerated and weren't included in this table. Source: LPA analysis of Program data.

Progress in Number of

PERFORMANCEAUDITREPORT 33 Legislative Division ofPost Audit Apri/2005 APPENDIXF

Agency Response

On March 30, 2005, we provided copies of this draft audit report to the Department of Corrections, the Attorney General's Office, and the Department of Social and Rehabilitation Services (SRS). The Department of Corrections and SRS submitted responses, while the Attorney General's Office did not. The two responses are included as this Appendix.

The agencies generally concurred with the report's findings, conclusions, and recommendations. As a result of their review of the draft report, we made some minor corrections and clarifications that didn't affect any of our findings or conclusions.

34 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 LEGISLATIVE DIVISION OF POST AUDIT

KANSA,S DEPARTMENT OF CORRECTIONS KATHLEEN SEBEUUS, GOVERNOR ROGER WERHOLTZ, SECRETARY April 6, 2005

Ms. Barbara J. Hinton Re: Performance audit entitled Legislative Post Auditor Larned State Hospital: Legislative Division ofPost Audit Reviewing the Growth in 800 Southwest Jackson Street, Suite 1200 the Sexual Predator Program Topeka, Kansas 66612-2212

Dear Ms. Hinton:

This letter is the Kansas Department of Corrections response to the referenced performance audit. The Department has only commented on those areas of the audit report that have an apparent impact on its programming and operations.

Figure 1-6, page 13 Although the Kansas Department of Corrections noted no apparent errors in the reporting of the data we provided, we would like to qualify Figure I-6 on page 13 ofthe Performance Audit Report. As stated by the title of the report, the anticipated growth in the program is a ''Projected Maximum" based on several very volatile factors. As the agency indicated when we provided those numbers, the parameters are as follows: ·

• The numbers are based on the CURRENT Kansas Department of Corrections population as of 12/16/04 [and does not reference subseql,lent admissions]. • The term "candidate" has been qualified to mean those offenders with the category of Sexually Motivated Indicator marked "YES" and the designation of "C" meaning "current" pursuant to IMPP 11-116 (IXA}(1}(a) or "H", meaning "history" pursuant to IMPP 11-116 (I)(A)(1)(a). • The term "earliest possible release date" reflects the earliest possible release to supervision for "new law'' offenders (those subject to the provisions of the Kansas Sentencing Guidelines Act] or it is the parole eligibility-date for "old law" offenders [those with indeterminate sentences and whose release is controlled by the Kansas Parole Board]. It does not necessarily mean that an offender will be released on that date. • The term "release" refers to an individual's status of no longer being maintained in a Kansas Department of Corrections correctional facility. The individual subject to "release" may or may not be on post-rele~se supervison. • The number of candidates for release could be affected by factors including but not limited to:

900 SW Jackson- 4'h Floor, Topeka, KS 66612~1284 Voice 785-296-3310 Fax 785-296-0014 http://www.dc.state.ks.us/

PERFORMANCE AUDITREPORT 35 Legislative Division ofPost Audit Apri/2005 Convictions for additional crimes, resulting in a longer prison sentence Inmate death Kansas Parole Board determinations shortening or extending the time for inmate release Convictions/Sentences being overturned on appeal The earliest possible release date includes the guidelines offender. The earliest possible release date could be changed due to loss of good time.

The longer the amount of time the numbers are extended, the more likely it is for factors such as those listed above to impact the accuracy of the projected number of candidates to be released.

• Establishment of a community containment model Insofar as the reference in the community containment model to lifetime parole and the possibility of revocation of that parole having an offender return to prison, we would note that the structure ofthat model could potentially affect the department's operations from a staffing and fiscal perspective. There would be a need to evaluate that impact at the time such a model is being developed.

• Taking fewer offenders into the Program Although the issue of extending sex offenders' prison terms would definitely impact the Kansas Department of Corrections, the Department suggests that the issue be referred for further consideration, possibly to the Kansas Sentencing Commission.

• Providing more treatment for sex offenders in prison The current Kansas Department of Corrections Sex Offender Treatment Program is a comprehensive, well-researched and successful program. The foremost reason that it maintains its current level of integrity is not only the variety ofways it identifies candidates for treatment, but also in its research-based factual and procedural methods for determining when not to treat candidates. The Sex Offender Treatment Program as it is currently designed has a high level of success with candidates who are amenable to that level of treatment. It maintains assessment tools and treatment protocols for all manner of offenders. Those offenders who are diagnosed as likely to re-offend receive instruction, engagement and follow-up to succeed to the degree that is possible within any program. Current research and practice does not provide treatment protocols for an interim course. Those individuals who do not benefit from the current program require a level of treatment that is only available via programs such as the one at Larned State Hospital. The Kansas Department of Corrections is not aware ofthe existence of any research or practice in support of the type of program discussed in the audit report.

Sincerely, ~~-·,.__.-or

Secretary

36 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 ; fB) I IE (C lE B\VI lE ff\\ lf\1 APR 6 Dl5 lW

LEGISLATIVE DIVISION GARY J. DANIELS, ACTING SECRETARY K A N S A S KATI-t£!1K'SEBIR.IUS GOVE R

SOCIAL AND REHABILITATION SERVICES

April6, 2005

Ms. Barbara J. Hinton [Hand Delivered] Legislative Post Auditor 800 SW Jackson Street, Suite 1200 Topeka, Kansas 66612

Dear Ms. Hinton:

Thank you for the opportunity to review and comment on the draft copy of your performance audit, Lamed State Hospital: Reviewing the Growth in the Sexual Predator Treatment Program. The review conducted by your office was very thorough and the report is informative.

We concur with the conclusl.on that the Sexual Predator Treatment Program (SPTP) is operated in an efficient and effective manner, and is managed consistent with SRS's understanding of state public policy that strives to avoid any new offenses by people determined to be sexual predators. This overriding goal keeps as its focus the past and potential victims of sexual predators, and the devastating impact of their offending behavior. Over the past decade, as we have worked in partnership with the Legislature to manage the increasing challenges of the sexual predator population, we have learned many lessons and will continue working hard to effectively discover and efficiently implement appropriate ways to meet this critical public need.

Next, because of the somewhat erratic nature of the SPTP census growth, SRS (in cooperation with the Division of the Budget) has sought funds to support the SPTP census growth on a "just in time" basis to meet the needs of the program. In this way we have avoided committing more funds to the program than absolutely and presently necessary. However, SRS agrees with the report's recommendation that we should provide a multi~year forecast of possible program census so the long term residential capacity and budget needs of the program can be anticipated by the Governor and Legislature.

Finally, we would like to make a few clarification or context points related to the report:

0 Instructive to the resident profiles included in the report, and informing as to the nature of sex offender treatment and public safety in general, we want to emphasize that most sexual predators have committed far more sexual offenses than those for which they are convicted. Overwhelmingly, victims of sexual offenses do not report the crime- for example, only 16% of rape victims, only 11% of child victims, only 2% of incest victims- and when the victim is young and knows the perpetrator, the likelihood of reporting

DOCKING STATE OFFICE BUILDING, 915 SW HARRISON STREET, 10th FLOOR, TOPEKA, KS 66612-1570 Voice 785-296-4552 Fax 785-296-5507 www.srskansas.org

PERFORMANCE AUDIT REPORT 3 7 Legislative Division ofPost Audit Apri/2005 Ms. Barbara J. Hinton April 6, 2005 Page Two plummets. This is in large part because these offenders carefully choose victims who cannot or will not (due to fear, shame, uncertainty about family impact, and so on) report the crime. Thus, by the time a crime is actually reported - and then makes its way through the system to arrest, prosecution and conviction (each with its own series of hurdles) -it is typically one of many. And through effective sex offender treatment, including the use of polygraph examinations, the more real victim picture emerges.

0 Related to the increases in staffing and funding for the SPTP as highlighted in the "Question 2" portion of your report: In addition to the increase in resident population you note, two funding factors are important. First, as the program got underway, Kansas was one of very few states getting its arms around this set of public policy issues -with, as you note, no standards for staffing or other program criteria available. As the number of people receiving treatment grew, the staffing ratio ebbed to 0.6 staff per resident. On careful consideration and experience we determined this to be an insecure and inadequately safe level. That staffing ratio has been increased to a safer, more effective and more manageable level of 1.15 staff per resident. In addition, some of what appeared to be funding increases were the result of attributing actual program costs to the SPTP budget, including such things as psychiatry, pharmaceuticals, outside medical expenses, repair and maintenance, and food expenses.

0 SRS is not recommending that persons in the SPTP who are frail and elderly be placed in a nursing facility. Instead, SRS is actively developing a service option based in a community residence where several persons eligible for that level of care can live together, with 24 hour in-home staff support and supervision, provided in much the same way as services funded by the developmental disabilities or frail elderly home­ and community-based services waivers. This, we believe, would be a safer option than placing such persons in nursing facilities where many other persons who are elderly reside and receive visitors of all ages.

0 As to the community containment model option being explored, SRS believes that key elements of this model can be successfully used in Kansas without first requiring direct court supervision or establishing lifetime parole. While lifetime parole and criminal court supervision are potential options for future offenders, and are used with containment models associated with criminal justice entities, those features could not be applied retroactively to offenders already released and being treated in a civil commitment context, due to constitutional prohibitions. However, treatment and/or supervision structures which implement the substantive purpose of the containment model could be requested for court approval as part of civil- commitment outpatient care. SRS looks forward to working with the Legislature, perhaps through the use of a J:?ilot project, to explore effective use of containment model strategies.

0 A cautionary consideration related to the possibility of having "outside evaluators conduct the annual reassessment of the sexual predator." While you note that some contend outside evaluators might be more objective and assign a lower level of risk, research in this area is limited and what does exist suggests that outside evaluations would recommend the release of fewer residents. This would be predictable, in that an assessment of risk related to someone you do not know well- when public safety is at issue - would lend itself to a more risk aversive conclusion.

38 PERFORMANCE AUDIT REPORT Legislative Division ofPost Audit Apri/2005 Ms. Barbara J. Hinton April 6, 2005 Page Three

0 In the chart, "Sexual Predator Treatment Program At a Glance", the FY 2005 Expenditures columns would be more accurately labeled FY 2005 Governor's Budget Recommendation, since FY 2005 is not yet over and some one,time extraordinary medical expenses are being incurred in this program.

We appreciate the work your office has done on the evaluation of the SPTP, and we look forward to exploring alternative public policy and program management options with the Legislature. We support your recommendation of additional study and dialogue during the 2005 interim. =Z;y, JLQ Garyj.i Acting Secretary

PERFORMANCE AUDITREPORT 39 Legislative Division ofPost Audit Apri/2005