POSTED ON JANUARY 7, 2009:
Defending the Defenseless
Oklahoma sex offenders punished according to cognitive abilities
In 2002, two children, aged 10 and 11, accused Joe Arthur Sims of molesting them in his home. Within six months, he was back on Tulsa's streets, having avoided trial because mental retardation made him incompetent to aid in his own defense.
Five years later, Sims again was locked up, having been caught propositioning an undercover police officer who was posing as a 13-year-old girl online. Sims, whose IQ is 55, according to court documents, told a detective that he planned to have sex with the 13-year-old girl, though he knew that would be wrong.
This time, Sims was found competent to stand trial and sentenced to eight years in prison. He is expected to spend an estimated 18 months in a sex-offender rehabilitation program and then be released on probation, with the remainder of his sentence suspended.
If Sims had been found incompetent to stand trial for the Internet crime, however, he would not have been released again. In 2001, the state legislature passed the Oklahoma Public Guardianship Act, which called for creation of the Public Guardian office, when funds became available. The office was established in April 2005 to oversee placement of individuals who were charged with a crime but found incompetent to stand trial.
Public Guardian Gail Wettstein said most of her wards are affected by both mental retardation and mental illness and are therefore initially sent to the Robert M. Greer Center in Enid, which specializes in caring for people with that dual diagnosis. Other individuals who have been found incompetent for trial but are considered dangerous are sent to one of four alternative group homes across the state. Those homes each house four wards in their own bedrooms, where they are supervised 24 hours a day and are kept inside the home with locked and alarm-protected doors, windows and fences.
Most Public Guardian wards are kept in alternative group homes, but less dangerous wards live in daily-living support homes. The daily-living support homes also have 24-hour staff and alarms on the doors and windows, but unlike the more dangerous wards, those in daily-living support homes are taken out into the community for recreation.
All wards are kept in the custody of Public Guardian until they are deemed competent to stand trial or are determined to be no longer dangerous. Wettstein said someone accused of the crimes Sims allegedly committed in 2002 would be unlikely to ever gain release from Public Guardian.
"If a person committed sex crimes against a kid, I don't know any judge in the state who would find that person to not be dangerous anymore," she said. "Sex-offender counselors can't give any guarantees. We're dealing with human behavior."
Since 2005, only one ward has been found to be no longer dangerous and released, and one additional ward was found competent to stand trial, where he entered a guilty plea and was returned to an alternative group home.
Public Guardian wards receive competency training at the Greer Center, and some are able to learn and become competent, Wettstein said. Wards also receive vocational training and they are given sex counseling if they are suspected of committing a sex crime, which is the most common reason a mentally retarded person would be considered dangerous.
"Most of the people who commit sexual offenses were victims of sexual offenses at some point," she said. "If you can address those acts, their level of danger may go down. It's inexact, but there are days when I actually think some of my wards are getting genuine help as human beings with the problems they have, which means the public is safer."
Prior to the establishment of Public Guardian, state facilities were often faced with dilemmas when mentally retarded individuals were found incompetent for trial. For instance, one of Wettstein's wards, a pedophile, was sent to the Oklahoma Forensic Center (formerly known as Eastern Oklahoma State Hospital) after being found incompetent because of mental retardation. The hospital, however, deals with mental illness, not retardation. Therefore, when the hospital found the pedophile was not mentally ill, it was required to release him. Before long, the pedophile came face-to-face with his victim in a convenience store where he was buying beer.
"As a result, I had many unhappy days and hours in Osage county, explaining that that would not happen again," Wettstein said.
With the help of the district attorney, that pedophile was put in the custody of Public Guardian, which had been established by that point.
Court records from Sims' 2002 case indicate he was to be released into the full-time custody of Broken Arrow's Gatesway Foundation, which cares for people with developmental disabilities. Gatesway Executive Director Judi Myers, however, said the foundation never agreed to take Sims, and Sims never received any services from Gatesway.
"Our patients are much too vulnerable to be around anyone with any type of predatory background," she said.
Instead, Sims was released into the custody of a friend or family member, and Sims eventually ended up in the care of a friend of his family's, who also cared for Sims' disabled brother, Myers said. She noted that Sims' work history as a janitor in a Tulsa church and his ability to correspond online indicated he may have been only moderately or mildly retarded, despite the fact that he was found incompetent to stand trial in 2002.
"He's got some really good skill going for himself," she said. "A lot of folks we have [at Gatesway] may be able to communicate verbally, but some can't use a computer or read or write."
While protecting the public from violent or sexual offenders is the state's top priority, Oklahoma Chief Public Defender Pete Silva said cases involving mentally retarded or mentally ill perpetrators are difficult to handle because the criminals themselves are at great risk if treated like competent criminals.
"Someone like that would be horrifically brutalized if they were locked up in prison," he said. "They are victimized by other inmates whenever they get the chance."
He said victims of sexual abuse and their families often feel no more compassion for a mentally retarded perpetrator than for one who is mentally competent, but the state still needs to look after those individuals.
"If someone's mentally retarded, they may have the body of a 25- to 30-year-old, but might have the mind of an 8-year-old, and we don't want those people to be victimized either," he said. "We have to provide security and safety for the community but recognize there are individuals who don't have the mental capacity to defend themselves if they're incarcerated, and depending on your attitude, they don't deserve punishment by the full brunt of the law because of their mental problems."
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