Today, Explained - Life sentence, no trial

Episode Date: May 13, 2019

Terry Allen has been in prison for over 30 years without a conviction because of a little-known rule that was meant to reform the criminal justice system. Learn more about your ad choices. Visit podcastchoices.com/adchoices

According to the good people at Calm, more than 40 million people around the world use Calm to reduce anxiety and stress and improve their sleep. And right now, Today Explained listeners get 25% off a Calm premium subscription at Calm.com slash Explained. One of the world's best websites, C-A-L-M dot C-O-M slash Explained. Unlimited access to all of Calm's content at comm.com slash explained. Heads up, this episode starts out with a graphic story about a sex crime, and it deals with lots of heavy stuff after that. We'll start in a few seconds. My name is Max Green, and I'm a news producer with WBEZ in Chicago.

In 1982, Terry Allen is 23. He lives in Peoria, Illinois, and one night he is sitting at a McDonald's and starts to talk to a woman who works there. She's 21, and once she gets off work, he invites her to sit down with him in a booth. They sit and chat for a little bit, and at some point in the conversation, she gestures to where her car was parked in the parking lot outside of this McDonald's.

When she goes out to her car a few minutes later, she gets in, starts it up, and realizes that Terry Allen is sitting in the backseat of the car. She's scared, and she says that he tells her to drive to a secluded area or else. She drives to an airport parking lot. Allen begins to get physical with her, and it ultimately results in him forcing her to perform oral sex on him.

She takes him home, they part ways, and a couple of days later, she files a police report that eventually leads to Alan being arrested and charged with what at the time was called days later, she files a police report that eventually leads to Alan being arrested and charged with what at the time was called deviant sexual assault and unlawful restraint. The only other thing he has on his record at this point is a misdemeanor for a theft. So prosecutors next do something that is kind of rare and somewhat unexpected. They basically say to him, we're going to do something called a civil commitment where you will receive treatment

for whatever behavior it was that led you to do this alleged crime. No conviction, no criminal trial, and my charges will ultimately be dropped, is what he was told. When I seen my public defender at the courthouse, he told me, he said that the sexually dangerous person route might be a better route for you to go to because if you do, chances are you won't serve no more than a year at the most. The main thing that prosecutors needed to do to have Allen put into this treatment program was to have him declared what is called in Illinois law

a sexually dangerous person. There's sort of three things that they're looking for. They had to show that Allen had some signs of a mental disorder. They need to show that he has the propensity to commit sex crimes. And they also need to prove that he has demonstrated that propensity in some way. Allen is asked to speak with two psychiatrists who are hired by the state. He knows what they're looking for, and he says, I incriminated myself. I made incriminating statements that were never true about me. I didn't feel that I was a sexually dangerous person. So Alan tells the psychiatrists that what he is accused of doing to this woman that he met in the McDonald's, he had in fact done

to a number of other women. One of the psychiatrists actually wrote in his report that he thought that Alan was indeed lying throughout the interview about various parts of his past and that Alan wanted to be found sexually dangerous because he thought it would be a better alternative than a criminal trial. So Alan is awaiting a hearing where a judge will determine if there is enough evidence to declare him to be a sexually dangerous person and put him into a treatment program. The judge, in a matter of a few minutes, decides that Alan is a sexually dangerous person and put him into a treatment program. The judge, in a matter of a few minutes, decides that Alan is a sexually dangerous person and that he should be civilly committed for treatment.

This is sort of when Alan realizes that he misunderstood something really critical about this process. As soon as the judge decides this, Alan is taken to a state prison. This treatment program was actually administered inside of a state prison. In fact, he would be bunking with, eating lunch with, going to the yard with convicted felons, even though he was supposed to be there as a patient receiving treatment. There's no limit on how long Alan can be kept in this type of program. The way that Alan is supposed to leave prison

is by filing a petition, which he can do once a year, and getting a hearing before a judge. He needs to be able to show that I've made progress and I am no longer a judge. He needs to be able to show that I've made progress and I am no longer a sexually dangerous person. At those hearings, however, the state is allowed to have a psychiatrist argue against Allen's release.

And you could imagine it might be difficult for a judge to make a call that I believe this guy is ready to go with a sense of certainty that Terry Allen is not going to get out and hurt someone else. So Allen is in prison. He doesn't really feel like he has any options. He says he's meeting other people, SDPs, sexually dangerous persons, who have been there for many decades, who are basically hopeless, and there's no way out of the situation that they're in. I talked to a psychologist there, and she briefed me in. She told me that sexually dangerous people had been locked up like 20 and 30 years.

But Alan is able to file an appeal. He begins working with a public defender, and that appeal moves from court to court. And eventually in April of 1986, it gets all the way to the Supreme Court of the United States. There are arguments first this morning in Allen against Illinois. They're sort of arguing around this narrow part of Allen's case, which is because this whole process looks so much like a criminal process, but is technically not because there was never a criminal trial, should Allen have the same protections that criminal defendants have? Had you rather have Terry Allen tried in a criminal case? Absolutely, Your Honor. Absolutely, I would. Is that because you think he would not have

been convicted? Because he would not have been convicted? Because he would not have been convicted. I also think he would have been out by now if he'd have been prosecuted criminally. I believe even if he had received more than the minimum sentence, he would have a better chance of getting out. The justices tore into the attorney for the state a little bit, particularly Justice Thurgood Marshall. So this is a civil provision which ends up with a jail sentence. It is a civil provision which ends up with nothing of the sort, Justice Marshall,

and that's another very serious factual distinction between the parties. But it's a jail, isn't it? It is a facility for a psychiatric... It's a jail. No, Your Honor, it is not. It's not a jail. It is not a jail. But it has bars. It has bars. And you can't get out. You're not free to leave if you want. And it's not a jail. No, Your Honor, it is not. It's not a jail. It is not a jail. But it has bars.

It has bars. And you can't get out. You're not free to leave if you want. And it's not a jail. I understand that, Justice Marshall, that that's your belief, but I don't believe that that's what you would conclude if you had an opportunity to examine all of the data. And so there's sort of a lot of discussion around the fact that this statute,

even though it is technically not a criminal process, looks and feels in so many ways like a criminal process. But nonetheless, they basically decided that what was happening to him was constitutional. Essentially, as long as Illinois is stating clearly, we intend to treat, we do not intend to punish, then what is happening here is constitutional. It is treatment. It is not a punishment. It's been over 30 years since the Supreme Court case. It's been nearly 40 years since Allen was first arrested for this alleged crime.

And he is sort of still stuck in this treatment program, essentially without an outdate. He is still in prison today, despite, again, no conviction, no trial. And had he not talked to the psychiatrists, and had he perhaps found a way to go to a criminal trial, even if he'd been convicted, he probably would have been out a very, very long time ago. But instead, we have someone who was first taken into state custody at the age of 23 and is now 60 and still behind bars. A civil commitment might sound a whole lot like a life sentence without a trial, but it actually started as a progressive reform, a way to treat people rather than lock them up.

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There's also soothing music and much more. That website again, I know you remember it. That's right, calm.com slash explained. 25% off a premium Calm subscription at calm.com slash explained. Max, why do civil commitments like this even exist? They sound just like prison sentences without the sentence. So this is a special type of civil commitment. Not many states have laws like this. A civil commitment generally and more traditionally is a way for a government to say,

we are intervening to limit someone's liberty with the understanding that it's not because this person committed a crime, but with the understanding that this person is a danger to themselves or to others. If I show up to a hospital and I have an infectious disease, a doctor can say, you are a danger to the public. We can't let you leave until we deal with this. Because that is such a serious thing for the state to do, there's a lot of safeguards. There's a lot of rules around how far the state can extend those powers. What this law does in Illinois is actually create a special kind of criminal commitment that people like Terry Allen get stuck with. And how long has Illinois been using civil commitments like this? The Illinois Sexually Dangerous Persons Act actually dates back to the 1930s. But the understanding of criminality and what leads to criminal behavior has changed pretty significantly since then.

The underlying motivation is basically something that might have even been considered progressive at that time, which was we don't want to necessarily criminalize behaviors that may have a mental health root to them. Maybe there's a treatable thing here. Basically, researchers today will say that the idea that there are underlying mental health issues that lead to sort of diagnosable, treatable criminality is pretty outdated. If this were some progressive, idealistic criminal justice reform, who started using it this way in which Terry Allen goes to prison for 40 years with no end in sight? There is one retired prosecutor in Illinois who helped popularize, to some extent, the use of the law in the state.

Cheryl Essenberg was a prosecutor in Sangamon County, which is where Illinois' capital, Springfield, was for many years. She said that the first time the law came to her attention was on a case where a close family friend had allegedly been molesting a young boy. And the boy was very reluctant to talk to us and certainly very reluctant to testify. And she was looking for a way to deal with that guy that wouldn't require those things in a criminal trial. She said that a colleague of hers actually pointed out the fact that, you know, Illinois does have this law on the books that isn't used very often,

but it seems like it might be a good fit for this case. It just really seemed to fit this case very well. It didn't seem like the traditional way of prosecuting would probably work in this case. So I thought, well, here's an alternative. At that point, Esenberg sort of became a crusader for it. She drove across the state giving trainings to other prosecutors. She actually wrote a manual in 2011 called The Prosecutor's Guide to the Illinois Sexually Dangerous Persons Act.

She really worked to help prosecutors across the state understand that this was a tool that they had in cases where it might be more difficult to get a criminal conviction. And when we spoke with Cheryl Esenberg, she very openly acknowledged the fact that using this law can actually result in a longer prison sentence than a criminal prosecution. So when she looks at this case of Terry Allen, what does she say? So it's very important to her, she says, that the law is used carefully. She says it should be used for the worst types of offenders.

But if there's a legal way that I can prevent a person who's, in my mind, pretty clearly going to commit that next offense, if I can intervene before he commits that next offense with a high degree of certainty, then I'm going to do that. She said that, you know, on the face of it, some things about Terry Allen's case might seem problematic, but to her, it is not the same in her eyes as someone who is in prison for something they absolutely didn't do. Are there other cases like Terry Allen's in Illinois, or is he sort of a total exception? So in Illinois, there's 171 people incarcerated under this law

that's including Terry Allen, and they're all kept in the wing of this one prison, Big Muddy River. About a quarter of those 170 plus cases today come from Sheryl Essenberg's Old County, where she was a prosecutor for many years, which is something that she actually joked about when I spoke with her. I don't remember who started this story, and it's not true, of course, but there was a story for a long time that there was the Sheryl Esenberg wing down at Big Muddy to house the inmates I had sent there. Nationwide, the numbers are higher. It's closer to 400. There are only three states that we found, that's Illinois, North Dakota, and Massachusetts, and the federal government that have these laws that allow for those indefinite civil commitments in prisons without the conviction or criminal trial. There are some people we found who do manage to get out in a short span of time, but we did find that the average person is in for 17 years, which is, again, in many cases, potentially longer than they would have been in had they been tried and convicted of their crimes. I assume most of the

people who've been deemed sexually dangerous and have received civil commitments are men. Are there any other kinds of demographic similarities in these groups of people who are given these sentences? So most of the people that we looked at through the prison database are white. It doesn't seem to disproportionately impact people of color. But many of the people in this program, many of the inmates incarcerated under this law, have learning disabilities or intellectual

disabilities. One issue that came up in Terry Allen's case is that a recent IQ test puts him at about 76, which is in the low to extremely low range. At times, the population has come close to 200 sexually dangerous persons, and there might only be one or two staff psychiatrists. So it doesn't seem that the prison is really equipped with staff or resources to handle a population that might actually need extra care. Why prisons? Why not just put them in a treatment facility or a mental health facility? We spoke with Mark Hyreman. He's a University of Chicago clinical law professor, and he basically says that that's sort of the central question. Are we putting these people in prisons to make everyone feel better?

Is this akin to saying, we know that we're saying you are here for treatment. We know that we're saying we think you have a diagnosable mental disorder, but we also want to communicate to you that you did something bad. And so even though we technically can't punish you, we are going to punish you because we're going to put you in a prison. I guess when you hear about sexual assault, sexual abuse cases, the onus is always so much on the accuser and some of these incidents are so hard to prove

that you can understand why there might be this way to help prosecute people who might be quote unquote sexually dangerous. But is this sort of like the dark side of making it too easy to prosecute something like this or to just say to label someone sexually dangerous and then throw them in prison and throw away the keys? People who are critical of the law, I think, would certainly say that. I mean, these prosecutors are able to secure what, you know, for all intents and purposes, does look like a criminal conviction without all of the sort of protections that are built into that process in America. A standard criminal sentence doesn't include a clause about when this person

is rehabilitated, quote unquote, we'll let them go. It's just a set number of years. And if things go according to plan, you get out. Someone like Terry Allen has to make a case on his own behalf to a court that if you let me out, I'm not going to do anything bad. And judges are taking a risk if they let someone like him go. So Terry Allen's been in prison for 40 years now. He's, what, in his 60s? Does he think he's better? Terry Allen thinks that he has been ready to be released for some time. He said he felt like he was saying the same things over and over again. He was doing what the program asked him, expressing remorse for his crime.

I was accused of making her perform a sex act, and that's what happened. I see what I did toward the person that I had hurt was wrong. I didn't see it then, but now I do see it. He says this is the only time that he's done something like that, and he thinks that he is long past due to be released. What's going to happen to him? Allen actually was able to get a hearing in 2015. And something different actually happened at that hearing, which was that his attorney argued that for Allen to get a fair chance, he should be appointed his

own expert. Because at all of these hearings, the state gets to have a psychiatrist look at Allen. But this was as far as we could tell the first hearing where Allen had his own expert evaluate him and testify on his behalf. That expert called the state's report on Allen a hatchet job. He basically said that this is not right. He's ready to be let go. And the judge finally listened to him. He was able to get approved for what's called conditional release. But even though he was never convicted of this sex crime, Allen has to register now as a sex offender. Illinois has these notoriously sort of stringent rules

around where people who are on the sex offender registry can live. And the prison has to approve any address that someone like Terry Allen says, here's where I want to go. The prison has said, you can leave when you find a place that we approve of. And he hasn't yet been able to do that. So Alan is sort of stuck now. a story was published from the prison asking me if I knew of anywhere he could live. And they told me that I'm one of only three people on his contact list. It's me, a pastor, and a third person who they wouldn't tell me who it was. That's how little contact Alan has with the outside world. He doesn't have much family. So now, even though he's been approved, he has nowhere to go.

You've had people here in group years and years and years and years and years and they're still here and they can't get out. I don't know how you explain that. Thanks for watching. of this story on the Frontline podcast. It's called Frontline Dispatch, and the episode is called Never Sentenced, Never Released. I'm Sean Ramos for him. This is Today Explained. A Calm Premium subscription includes things like guided meditations, sleep stories, soothing music, and more. Calm.com slash explained is the place to get 25% off all of that. That is calm.com slash explained for unlimited access to all of Calm's content today with a 25% off discount.

Arrivederci.