After more than a decade of litigation, a settlement has been reached in a federal class action challenging the adequacy of mental health treatment given sex offenders civilly committed to the state Special Treatment Unit in Avenel.
The settlement in Alves v. Main, 01-cv-789, approved Tuesday by U.S. District Judge Dennis Cavanaugh, increases the amount of therapeutic programming provided to residents, requires the hiring of additional staff, sets standards for treatment plans that are narrowly tailored to each resident’s needs and calls for the appointment of an independent monitor to assess the state’s compliance with the settlement for a five-year period.
The chances of residents being released from Avenel hinge on receiving counseling to treat the personality disorders resulting in their confinement. But few residents ever are released.
Out of 525 persons civilly committed under the 1999 Sexually Violent Predator Act, only 28 have been discharged after completing a five-stage treatment program and 19 others have been released by court order, usually over the objection of the STU staff.
The primary form of treatment provided is therapy in the form of “process groups,” augmented in some cases by individual therapy “modules” on topics such as victim empathy, relapse prevention and arousal reconditioning.
The suit claimed class members are offered a maximum of two, 90-minute group therapy sessions per week, but the groups are often overcrowded, start late or end early, thereby reducing therapy time. Residents’ progress is also hindered by the fact that required modules are not offered at all or offered rarely.
The settlement requires every resident to be offered a minimum of 20 hours per week of professionally led or professionally monitored therapeutic programming, requires each class member to have his own treatment plan narrowly tailored to his needs, with the plan reviewed every six months by his treatment team; calls for preparation of a discharge plan for residents in phases 4 and 5 of treatment, which requires the staff to help residents find housing; requires hiring of additional staff until there are 8 therapists for every 50 residents; calls for appointment of a treatment ombudsman, who will establish a resident complaint system for treatment issues and the appointment of an independent monitor.
The settlement also calls for the state to pay $78,000 in attorney fees to the Center for Social Justice at Seton Hall University School of Law.
“To the extent the future of the STU residents depends largely on mental health treatment, this court finds that the settlement agreement does an excellent job of increasing the quantum and quality of available care,” Cavanaugh wrote. “This should provide each resident with an increase opportunity to show that he has successfully treated his mental abnormality and should be considered for a conditional discharge.”
The suit began in February 2001 with a pro se complaint filed by resident Raymond Alves. From 2003 to 2005, approximately 30 other suits by residents of the STU were consolidated with the Alves case. The defendants are Merrill Main, director of the STU; Jennifer Velez, commissioner of the Department of Human Services; Lynn Kovich, assistant commissioner of the Division of Mental Health and Addiction Services; and Attorney General Jeffrey Chiesa. The STU is operated by the Department of Corrections but counseling of residents is under the auspices of the Department of Human Services.
Starting in late 2004, the parties concentrated on settlement negotiations with the goal of solving all cases on a classwide basis. In 2008, the parties reached an impasse as to what would constitute adequate mental health treatment in the STU. The parties retained Judith Becker as a joint neutral expert, who was assigned to review the existing treatment program and offer her opinion for purposes of breaking the stalemate. She issued a report in December 2008. The tentative settlement was reached in September 2011. In March 2012, Cavanaugh certified a class of persons committed or confined pending commitment at Avenel.
The class members were represented by Lawrence Lustberg of Gibbons in Newark and Barbara Moses, director of the Civil Rights and Constitutional Litigation Clinic at the Center for Social Justice. Moses was assisted by Seton Hall law students Lisa Savadijian, Rose Harper and Kyle Bruno. Cavanaugh approved the settlement Tuesday after reviewing objections that came from roughly 156 of the 471 class members.
One group of objectors, represented by Ian Marx of Greenberg Traurig in Florham Park, complained that the settlement failed to incorporate many of Becker’s recommendations. But Cavanaugh rejected that claim, noting that Becker’s report did not adhere to the standard for minimally adequate mental health treatment set forth by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307 (1982).
Those objectors also argued that the settlement is dependent on funding by the state, which is not guaranteed. But Cavanaugh said the plaintiffs could resume litigation if funding is not secured. Four class members argued that the Center for Social Justice cannot represent the class due to a conflict based on certain Seton Hall professors’ support of passage of the Sexually Violent Predators Act. Cavanaugh called that rejection “frivolous,” noting that none of the professors in question were involved in the present case or in the Center for Social Justice.
Nicole Brossoie, a spokeswoman for the state Department of Human Services, said her office would not comment on the settlement. Marx, the Greenberg Traurig lawyer representing the objectors, did not return a call.
Moses says the state took the position during much of the negotiations that it was meeting the “minimally adequate” treatment standard required by law. She says the stalemate over that issue was resolved “the old fashioned way, back and forth, with proposals and counterproposals and meetings and emails,” adding that U.S. Magistrate Judge Mark Falk, who presided over settlement negotiations, took an active role.
Moses declines to offer predictions about whether the number of persons graduating from the program will increase as a result of the settlement.
“What we tried to do here is give [STU residents] the treatment the statute promises and the constitution requires, and thereby give them the tools to progress through treatment and give them the opportunity to be re-integrated into society. There are no guarantees,” she says.