For four days in March 2007, Charles Small had all the worst details of his life picked over: In his early 20s, just back from Vietnam, he'd been arrested twice for indecent exposure. More than a decade later, as a surgical aid, he got caught fondling a woman's breast. When he was 53, he molested a 9-year-old girl who, along with her father, was sharing a room with Small at a San Diego hostel. He had a history of alcoholism, a rough childhood and was twice divorced.
“The inmate seemed quite apprehensive about the interview, the fourth he'd had in a matter of four days,” wrote psychologist Hy Malinek about Small. It was Saturday, March 24, 2007, and Small was set to be released from prison the following day. Malinek had been called in by the California Department of Mental Health (DMH) for an emergency evaluation that would determine whether Small should be committed to a state hospital under California's recently revised sexually violent predator law.
Malinek conducted the interview that morning, at the California Rehabilitation Center in Norco. By 1:47 p.m., DMH faxed a letter, signed by director Steven Mayberg, to the San Diego County District attorney's office recommending that Small be committed.
Three of the four psychologists brought in by DMH to evaluate Small diagnosed him with paraphilia NOS—“not otherwise specified”—a catchall sexual-disorder diagnosis for behavior that's either too rare to warrant its own diagnostic category or, like in Small's case, all over the map.
As Mark Schwartz, another psychologist who evaluated Small, put it in his report, “Seen individually, the variety of sexually deviant acts are below the diagnostic threshold for a specific disorder…. Taken together, however, they form the basis of the diagnosis.”
The morning of Monday, March 26, District attorney Bonnie Dumanis filed a sexually violent predator petition against Small in state court, the first step in civilcommitment legal proceedings.
But Small was never committed—not because the diagnosis failed to hold up in court but because the DA's office filed its petition one day too late, when Small should have been a free man. State law says the civil-commitment process, from the evaluations to the petition, must be done while a person's lawfully in custody.
In August 2007, a state judge ruled that because Small should have been released on March 26 the DA's petition wasn't valid. An appeals court later agreed and Small was released on March 10, 2008, but not before he'd spent an additional 349 days in prison.
The Department of Corrections and Rehabilitation (CDCR) agreed earlier this year to offer him a settlement; his civil case against CDCR was dismissed last week.
Small has moved out of state, and CityBeat was unable to contact him for this story.
His case offers a snapshot of California's flawed sex-offender law that has repeatedly come under scrutiny, most recently in a state audit that found the civil-commitment program to be overburdened and inefficient.
Passed by voters in November 2006, Prop. 83, known as Jessica's Law, contained a number of provisions intended to crack down on sex offenders. Among them were changes to the Sexually Violent Predator Act, a decade-old law intended to protect the public from the “sickest and most dangerous criminals,” as then-Gov. Pete Wilson put it when he signed the law in 1996.
Under the SVPA, a person who committed certain offenses against two or more people and was found to have a mental illness that drove criminal behavior could be committed to a state hospital for a two-year term. Jessica's Law changed the two-year commitment period to “indeterminate,” added to the list of crimes considered to be “sexually violent” and required that a person with one victim be evaluated for hospitalization; under the SVPA, it was two victims.
In 2006, the year before Jessica's Law took effect, DMH evaluated 1,850 offenders for civil commitment. In 2007, the number jumped to 8,871. According to a 2008 report by the L.A. Times, the increase has proven lucrative for the mental-health evaluators DMH contracts with, who are paid roughly $3,000 per evaluation.
Small had been released from prison in 2003 after serving four years for molesting the 9-year-old girl. On Aug. 10, 2006, he was arrested for possessing alcohol and failing to report to his parole officer. He was set to be released again on Feb. 5, 2007, 36 days after Jessica's Law took effect. It didn't matter that his most recent offense was a parole violation; Jessica's Law required he be flagged for an evaluation. State law allows CDCR to hold an inmate for an additional 45 days if there's “probable cause” the person might qualify as a sexually violent predator. Small's release date was pushed to March 23. Another state law gave CDCR the ability to hold him two more days, which moved his release to March 25.
DMH didn't schedule Small's first evaluation until March 20 and sent the psychologist to the wrong prison. Another evaluation was scheduled for March 21. That psychologist, Christopher North, found that Small didn't qualify for commitment. “Mr. Small does not have a diagnosed mental disorder that predisposes him to the commission of criminal sexual acts,” North wrote.
A second evaluator, brought in the next day, disagreed. This triggered another round of evaluations by two more psychologists—Schwartz, who met with Small on March 23 and Malinek's last-minute evaluation on March 24. Both agreed that Small should be committed.
Evaluations are supposed to include a full review of the inmate's history—criminal records, probation reports, medical and prison records, including correspondence—a thorough in-person interview and a lengthy report.
Jay Adams, spokesperson for the California Coalition on Sexual Offending, said rushed evaluations of the sort Small was subject to are “unconscionable.”
“Of course, such sloppy work is likely to result in errors, a wrong decision and unnecessary cost to the taxpayers,” she said.
Small's public defender, Michael Ruiz, challenged the DA's petition, arguing there was “no evidence of good faith to explain the delay” in having Small evaluated. Dumanis' office asked the court to consider how overwhelmed the system was by Jessica's Law, which Dumanis had championed. Prior to Jessica's law, DMH received roughly 50 evaluation referrals per month, according to a statement submitted by DMH records clerk Ben Parisi.
“After Jessica's Law,” Parisi wrote, “we received 721 [referrals] in January 2007, 740 in Febuary 2007, 673 in March 2007.”
A judge—and later an appeals court—didn't agree this was good cause for delay. By statute, they ruled, Small needed to be in lawful custody when the DA filed her petition on March 26.
“The increased workload does not amount to a mistake of law or fact,” the appeals court wrote in its decision, “and is something that the Department of Corrections and Mental Health could have anticipated and prepared for.”
For the additional 349 days Small spent in prison, CDCR offered him a settlement described by his attorney, Dwight Ritter, as “not a large amount.”
Ritter said Small—who told one of the psychologists that he considered Jessica's Law “a very good law”—agreed to a settlement “because he wants to move on with his life.”