Never Sentenced, Never ReleasedListen
ALLEN: Ok, when I was arrested in 1982, I wasn’t very knowledgeable about the law at the time. I didn’t hardly know anything about it until it was too late, and it went bad for me.
GREEN: Terry Allen was 23 when that arrest happened, and he was never convicted of the crime. But he wound up in an Illinois prison anyway. And he’s been there since, with no release date for almost four decades.
ALLEN: I was told that I would be going to a hospital. I didn’t go to one. I was told that I wouldn’t serve very much time. I’ve been locked up for 36 years. And if that’s not very much time I don’t know what you would call it.
CORRECTIONS OFFICER: Ok, if you need anything the officer’s gonna be right out here...
GREEN: I went to see Terry Allen in a prison where he’s housed. It’s in a small town, about five hours south of Chicago.
GREEN: Terry, Max.
ALLEN: You’re Max, yeah, I got your letter.
GREEN: Thanks for having us down here.
GREEN: We spoke in a small room with gray walls. Allen is 60. He’d recently broken his hip in a fall, and he was using a wheelchair.
ALLEN: OK. My name is Terry B. Allen and I’m incarcerated currently at the Big Muddy River Correctional Center, which is in southern Illinois.
GREEN: Allen was wearing his blue prison uniform. During the entire interview he was clutching a battered accordion file full of documents he said he wanted to show me, details from his case.
ALLEN: I was gonna tell you something Max I have something in here that my lawyer filed, a motion...
GREEN: Allen’s been incarcerated in a state prison for the past 36 years. And he’s not the only person in this kind of situation.
In Illinois alone, there are about 170 people like Allen. Most are at Big Muddy, a prison that also houses regular prisoners. There’s little difference in how they’re treated. They wear the same uniform, eat the same food, sleep in a cell, and everyone is subject to the same rules.
ALLEN: You got it. Let me show you something…
GREEN: Allen removes a badge from the breast pocket of his prison blues and wheels his chair in closer to me.
ALLEN: It says inmate on that ID. We’re not inmates. We’re at the department of corrections and that’s for people who are convicted felons.
GREEN: You’re probably wondering how this is possible. It’s called a civil commitment, and bear with me for a moment…it’s a confusing and unusual process that prosecutors in Illinois can use because of a law that originated in the 1930s. There are variations of the law across the country – more on that later – they allow prosecutors to lock up citizens without a criminal conviction.
In Illinois, the law is called the “Sexually Dangerous Persons Act.” That’s because it can only be applied to people who have been accused of sex crimes.
The idea is to lock somebody up who a judge finds is likely to commit a sex crime in the future, and give them treatment, for an indefinite amount of time.
For Allen, it began 36 years ago, with an alleged sexual assault. It took place in a car.
I tried for months to reach the woman involved. Finally, I heard from someone who said they were a relative. But they said she doesn’t want to relive what happened.
I was able to obtain court records from the time that include some of the woman’s testimony.
In it, she said she met Terry Allen at a McDonald’s in Peoria, Illinois, where she worked. The two sat in a booth for a while after her shift ended, and talked. At some point in the conversation, she said she told Allen about the kind of car she drove, and motioned to where it was parked. After they finished their conversation she went to the restroom and then out to her car. Allen was hiding in the back seat.
She testified that he demanded in a threatening tone that she drive to a quote “romantic place… or else”. They ended up in an airport parking lot where Allen insisted she perform oral sex on him. She testified that she asked Allen several times if she could leave, and each time she said he told her quote "not until he got what he wanted." She said she was scared of what he might do if she didn’t go along. She said Allen pushed her head down, and she tried to resist but wasn't able to because of a shoulder injury.
When I asked Allen about the details of that night he got cagey.
He acknowledged the encounter and said he could have scared her and forced her more than he realized at the time.
ALLEN: You know, well, the act that I did with the person I got in trouble with, a 21-year-old, 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’d hurt was wrong. I didn’t see it then but now I do see it.
GREEN: So, Allen is not claiming he’s innocent, but he’s also not admitting guilt.
Shortly after the encounter, the woman filed a police report and Allen was arrested and charged.
But, an unusual thing happened next.
Instead of pursuing a criminal trial and a conviction against Allen, prosecutors entered a petition to have him civilly committed under the Sexually Dangerous Persons Act.
Allen says he didn't know anything about what a civil commitment was, but it seemed like an okay deal.
The alternative was a criminal trial, which, if he was found guilty, could mean a minimum of 6 years of prison, and a maximum of 30.
ALLEN: You know, this was my first time ever being in any kinda big trouble like this. I felt scared.
GREEN: With the civil commitment, he was told he’d be getting temporary treatment instead of a possible prison sentence. He says his lawyer told him it would likely mean he’d do a short stint in a hospital, and the charges would be dropped.
Allen says his lawyer encouraged him to go along with it. That attorney got back to me after months of phone calls and messages to say he didn't want to talk for this story.
ALLEN: When I seen my public defender at the Courthouse, he told me he said that the sexually dangerous persons 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.
In order to be civilly committed in this way in Illinois, prosecutors need to prove to a judge that the person has a mental disorder, that the person has likely committed a sex crime, and that the person is likely to commit more in the future.
Allen decided to go for it. The first thing he had to do was talk to two psychiatrists hired by prosecutors.
ALLEN: Both interviews with both doctors lasted about, approximately an hour. And they asked me some questions, typical of what psychiatrists ask, you know like, do you know who the president is, you know...are you good at math...and so forth like that...not really much of a very long interview.
GREEN: Prosecutors used what Allen said in those interviews to help prove that he qualified as a sexually dangerous person.”
ALLEN: I incriminated myself. I made incriminating statements that were never true about me. I didn’t feel that I was a sexually dangerous person.
GREEN: I was able to obtain copies of the reports from the psychiatrists who evaluated Allen.
Allen told them he’d forced several women to perform sex acts on him. It's unclear whether anyone ever tried to verify those claims—there's no mention of efforts to investigate them in the court records. One of the psychiatrists noted that there were no police reports linking Allen to the alleged incidents. Allen told me that's because they never happened. He says he was lying about the them.
One of the psychiatrists wrote in his report that he thought Allen may have been lying at points throughout the interview. He also said Allen was unreliable and may have been suggestible.
He wrote, quote, “[Allen] wanted to be found sexually dangerous” because he felt it was better than facing criminal charges.
I tried to find both psychiatrists, to ask what they remembered about Allen. One has since died, and the other said he didn't remember the case and didn't want to comment.
ALLEN: They got the information, and they typed it all down, and they showed up to testify on behalf of the state.
Allen appeared for his civil commitment hearing and didn't put on any defense.
ALLEN: I think it was about two hours and the judge declared me to be a sexually dangerous person. And afterwards I was told that I was going to be going to a hospital.
GREEN: But he wasn’t taken to a hospital. He was taken to prison.
ALLEN: I didn’t know that much about the law at the time, I didn’t hardly know anything about it until it was too late.
GREEN: Almost immediately after arriving in prison, Allen realized being labeled a “sexually dangerous person”, or S-D-P for short, was not the get-out-of-jail-free card he thought it was.
ALLEN: I talked to a psychologist there, and she briefed me and she told me that sexually dangerous people had been locked up like 20 and 30 years.
GREEN: He started to think he would’ve been better off trying his luck in a criminal trial.
ALLEN: I talked to a few of the guys who were convicted felons, people who where, you know, sex offenders that got time. And ironically enough of the people that I talked to had short out dates. Three, four years. Five, six years. A lot of those people had the same kind of case as an SDP.
GREEN: But Allen has no sentence. So he has no release date. Instead, his way out of prison is through the treatment program there. He has to show he's better,
The therapy mostly consists of group sessions. They focus on getting the people committed in the program to acknowledge their offenses, and explore what led them to being labeled sexually dangerous.
Some of the groups meet as little as one hour per week. The rest of the time for SDPs is filled with homework, things like workbook assignments, questionnaires to fill out.
To be successful, they have to express remorse for what they did, apologize and show empathy and for their victims, they have to talk about how they can avoid re-offending in the future.
Once a year sexually dangerous persons are allowed to file a petition asking for a hearing, a chance to convince a judge or jury that they're "recovered." But there's no limit on how long SDPs can stay in treatment.
Allen started meeting SDPs in prison who’d done the therapy and were still there, after 35 or 40 years. He was hearing about guys who’d died there.
ALLEN: I felt like...who do I turn to for help? How do I get out now? It scared the hell out of me, it really did, if I can say it. So at that time, I constantly stayed in the law library so I could figure out what else I could do—to defend myself so that I wouldn’t die there.
GREEN: A couple of months after arriving in prison, Allen filed an appeal. The case made its way through the courts, until the only option left for him was the United States Supreme Court. That was a long shot, but on April 30th, 1986, the high court heard his case.
CHIEF JUSTICE WARREN E. BURGER: We will hear arguments first this morning in Allen against Illinois. Mr. Meinz, you may proceed whenever you are ready.
GREEN: Allen’s attorney was a public defender named Verlin Meinz.
It was the first and only time he argued before the Supreme Court—
A photo taken on the steps of the court that day shows Meinz smiling in a dark suit, a striped red tie, and aviator glasses.
MEINZ: Mr. Chief Justice, and may it please the Court, as I speak to the Court this morning, the petitioner, Terry Allen is incarcerated in a maximum security penal institution in the state of Illinois….
GREEN: The justices listened to Meinz lay out the basic nature of his client’s case: Terry Allen was being punished for an act that was never proven in a criminal court.
What’s more, the result of the civil commitment was an indefinite stay in a prison, arguably for longer than he’d be there had he actually been convicted.
Meinz said Allen was unquestionably being punished, without a trial.
JUSTICE POWELL: I think you said they were confined also with people convicted of a crime.
GREEN: Justice Lewis Powell, Jr. starts questioning Verlin Meinz.
JUSTICE POWELL: Is it a state prison?
MEINZ: It is a state prison, Your Honor.
JUSTICE: Is it indistinguishable from other prisons that do not have psychiatric cases?
MEINZ: It is indistinguishable in our judgment, Your Honor, from other institutions.
JUSTICE BYRON WHITE: This person confined in there is just not an outpatient. He is an inpatient. He stays there.
MEINZ: He stays there. He stays there indefinitely, Your Honor.
GREEN: The arguments that day focused a lot on the conditions Allen was being held in.
That’s important because the state says this kind of civil commitment is done for the benefit of the person being confined. It’s not supposed to be punishment, it’s supposed to be treatment. That’s why the state said it was ok that Allen had never been tried or convicted on the charges.
Supreme Court Justice Byron White asks Meinz if people like Allen were housed with convicted felons.
JUSTICE WHITE: Do they dine together?
MEINZ: Yes, they do.
JUSTICE WHITE: Do the psychiatric people, are they required to occupy cells at night?
MEINZ: Yes, Your Honor.
JUSTICE WHITE: They are?
MEINZ: Yes, Your Honor.
GREEN: Justice Powell again.
JUSTICE POWELL: May I ask this question: Would you rather have Terry Allen tried in a criminal case?
MEINZ: Absolutely, Your Honor. Absolutely I would.
JUSTICE POWELL: Oh, you would?
MEINZ: Yes...I wish that Allen had been prosecuted criminally as opposed to adjudicated—
JUSTICE POWELL: Is that because you think he would not have been convicted?
MEINZ: Because he would not have been convicted. I also think he would have been out by now if he had been prosecuted criminally. I believe he -- even if he had received more than the minimum sentence he would have a better chance of getting out.
JUSTICE POWELL: You would still rather have Mr. Allen run that risk?
MEINZ: Absolutely, Your Honor.
MEINZ: We are certainly talking about an indefinite period of time before he can prove that he has recovered—
JUSTICE BRENNAN: He may never be able.
MEINZ: —he may never be able to prove that he has recovered. That’s true. Thank you, your honors.
CHIEF JUSTICE BURGER: Mr. Rotert.
ROTERT: Mr. Chief Justice, and may it please the Court, there are several points on which respondents differ significantly from…
GREEN: In 1986, Mark Rotert was an assistant attorney general for Illinois. And interesting side note here: Rotert and Meinz – Allen’s lawyer – they’d been roommates in law school.
MARK ROTERT: So it was kind of an ironic, or at least coincidental thing, when he wound up on the other side of a Supreme Court case.
GREEN: Anyway, Rotert was arguing against Allen.
ROTERT: I do have a significant problem with the use of the word indefinite commitment. I concede the fact that this is indeterminate commitment. I don’t know how it could be anything other than indeterminate commitment...
ROTERT: I got up and I probably said about two syllables when Justice Thurgood Marshall took me to task a little bit…
JUSTICE THURGOOD MARSHALL: So this is a civil provision which ends up with a jail sentence.
ROTERT: It is a civil provision which ends up with nothing of the sort, Justice Marshall, and that is another very serious factual distinction between the parties.
ROTERT: The idea that this is a criminal sentence is simply not supported by the data that’s before the court.
JUSTICE MARSHALL: Well, it is a jail, isn’t it?
ROTERT: It is a facility for psychiatric care –
JUSTICE MARSHALL: It is a jail, isn’t it?
ROTERT: No, Your Honor, it is –
JUSTICE MARSHALL: It is not a jail?
ROTERT: It is not a jail.
JUSTICE MARSHALL: But it has bars?
ROTERT: It has bars.
JUSTICE MARSHALL: And you can’t get out?
ROTERT: You are not free to leave.
JUSTICE MARSHALL: And it is not a jail? (General laughter.)
ROTERT: Justice Marshall –
JUSTICE MARSHALL: It is an institution.
ROTERT: It is an institution.
JUSTICE MARSHALL: Like Sing Sing.
ROTERT: No, Your Honor, not like Sing Sing. (General laughter.)
JUSTICE MARSHALL: Well, isn’t Sing Sing an institution?
ROTERT: There are many institutions, not all of which are like Sing Sing, Justice Marshall.
JUSTICE MARSHALL: Well, it is a criminal institution.
ROTERT: I understand, Justice Marshall, that that is your belief, but I don’t believe that that is what you would conclude if you had an opportunity to examine all of the data.
JUSTICE MARSHALL: You assume I didn’t read that? I read all of that.
GREEN: Rotert – the lawyer arguing against Allen – wanted the court to focus on the treatment available at the prison.
ROTERT: I won’t deny that their liberty is restrained, but I will vigorously resist the implication that they are just as good as being in jail. The Illinois Supreme Court has insisted that the person committed under the
Sexually Dangerous Persons Act is not to be...treated like a prisoner...He is not to be kept down there without receiving psychiatric care. They have said, if you treat him like he is in prison, we will have a problem, but you will not so treat him...
GREEN: Rotert said there were plenty of safety mechanisms in place to ensure Allen was not being unconstitutionally punished. He said Allen was absolutely better off than a criminal defendant.
ROTERT: The punishment aspect can’t be found here. If the state of Illinois wants to punish Terry Allen, we have the weaponry to use in a criminal prosecution to far more severely sanction him for his conduct. The fact of the matter is that Terry Allen need not spend any more time in the Department of Corrections than is required for him to be receiving treatment and responding favorably.
GREEN: The arguments lasted an hour, and about eight weeks later the court delivered a decision. Allen lost. The majority decided that Illinois had demonstrated the Sexually Dangerous Persons Act was different enough from a criminal process that Allen's constitutional rights had not been violated.
But Allen found a glimmer of hope in the ruling. The justices referred to a part of the Illinois law saying people may be released after the briefest time in confinement, as soon as they're better. Allen hung on to that.
ALLEN: After hearing that I told myself this is good news, that was like a relief to hear that.
GREEN: The outcome meant Allen would have to prove he was cured before getting out.
Four justices, the minority, sided with Allen. They wrote in their dissent that if the SDP Act was allowed to stand in Illinois, the state could hypothetically extend the law to lock up wider classes of people without criminal trials or convictions.
The law's intent would be “treatment,” they wrote. But "the result would be evisceration of criminal law and its protections."
30-some years after he successfully argued the case, prosecutor Mark Rotert says he stands by the Supreme Court’s decision.
But he says what the dissenting justices were concerned about was valid.
ROTERT: They were worried that Terry Allen could go into the state system and essentially be there forever. And was it really true that these safeguards would actually provide some assistance or was it possible that people would just get warehoused in facilities? And looking back on, you know, the perspective of decades since then, I don’t know what to think now about whether those safeguards really apply.
GREEN: At least twenty states and the District of Columbia have laws that allow for indefinite civil commitments following alleged or convicted sex crimes.
The majority of those states only allow it for people who have been tried and sentenced for a crime—then the civil commitment begins after they've served their time, often in prison. In other words, they could finish their sentence, but instead of being released, be held indefinitely.
Other states have laws like the one imprisoning Terry Allen, a civil commitment that begins without a criminal trial or conviction.
Three states—Illinois, Massachusetts, and North Dakota—and the federal government, have provisions in their statutes that make it possible for those people to be held in prisons indefinitely under the designation of sexually dangerous person. In total, that currently amounts to about 400 people.
In Illinois, many of the people locked up under the law are there because of a retired prosecutor named Sheryl Essenburg.
ESSENBURG: 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 Essenburg Wing down at Big Muddy, to house, you know, the inmates I had sent there.
GREEN: Of the 171 SDPs in the state, about a quarter of them are from Sangamon County, the relatively small area where Essenburg used to work.
GREEN: I looked at the numbers, and most Illinois counties have like one, there’s a few have a handful, the second highest number is 13 in one county, but Sangamon is I think 43...
ESSENBURG: Well, I was aware of that. We kind of informally kept track of how many we had, what our percentage was, and it was usually between twenty-five and thirty, thirty-five percent.
GREEN: Essenburg and I talked in her living room. She has more books than her shelves can fit and the volumes are collected in neat stacks on the floor around the couch and coffee table.
And Essenburg is pragmatic about her more than three decades as a state’s attorney, and her approach to the SDP statute: she wanted to get the guys she thought were bad off the street any way that she could.
Her first time putting someone away through the SDP Act came in the early 90s.
ESSENBURG: The particular case that I used it in the first time was a case where a 14-year-old boy had been sexually abused over a period of time by this close family friend and the boy was very reluctant to talk to us and certainly very reluctant to testify.
GREEN: So Essenburg was trying to figure out a way to deal with this guy who she thought was dangerous, without having to put the victim of the abuse on the stand.
ESSENBURG: I specifically remember that it was a colleague, she was in the office. She actually brought the statute to my attention for the first time. It just really seemed to fit this case very well. And it was a way
that we could get this man out of the community into treatment if he wanted it, and it didn't seem like the traditional way of prosecuting would probably work in this case. So I thought well here's, here's an alternative.
GREEN: To Essenburg, the SDP Act seemed like a necessary solution when you can’t make a case work in court.
ESSENBURG: Over time, you know, it was always kind of in the back pocket. If a normal prosecution of this case was not feasible or was not going to really solve the problem, it was something to consider.
GREEN: Essenburg says she started teaching other prosecutors about the law, how it worked, how to use it. She became the go-to for questions about it—she even held trainings, driving across the state to get other prosecutors acquainted with the SDP Act.
In 2011, Essenburg wrote a manual called A Prosecutor’s Guide to the Illinois Sexually Dangerous Person’s Act.
It answers virtually every question a prosecutor might have about how to approach these types of cases.
The guidelines instruct prosecutors on how to find people sexually dangerous. The manual talks about how to argue against SDPs in court when they say they’re ready for release, how to frame the civil commitment to convince a judge or jury.
GREEN: It seems like in some instances someone could go the prosecution route and receive a conviction and actually do less time?
ESSENBURG: Oh absolutely. Oh absolutely. You have to realize the Sexually Dangerous Persons Act isn't intended for your run of the mill offender. It's intended for your really, really you know high risk offender, for the guy who's not going to stop until you stop him.
GREEN: The Supreme Court justices who sided with Allen called the Illinois statute a quote “shadow criminal law.” I asked Essenberg about that.
ESSENBURG: I don't think that's a fair characterization because it suggests that this is something that, if you’re just bound and determined to put this guy away, this is a way to do it. That is a complete distortion of how it works. It was a way that we could put away some people who otherwise might have either been you know put away briefly or not put away at all. So that’s true. I think the law has to be used carefully. But if there is a legal way that I can prevent a person who is 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 gonna do that.
GREEN: Allen's name shows up in the footnotes of Essenburg's manual a number of times—she cites his case throughout it, to help illustrate how the law works.
But she said she wasn't familiar with any of the specifics of his case. I told her some of the details.
ESSENBURG: That's…you know. Yeah, that's problematic. It's also, I mean it's not the same thing as somebody who's incarcerated for something they absolutely didn't do. I guess from the defendant's perspective maybe it feels kind of like that, that it was not in keeping with what he was actually proved to have done.
GREEN: I asked Essenburg if she knew what happened in that first sexually dangerous persons case she ever did—the guy who had been allegedly abusing a 14-year-old boy. She told me he had spent about 25 years in prison.
ESSENBURG: As a matter of fact, maybe a year or two years before I retired, he was conditionally released. And as far as I know, he was doing ok. But he was actually pretty much a success story.
From Essenburg’s perspective, the SDP Act was a way to get justice for victims. And she’s not the only one who feels that way. Sarah Layden is an advocate for survivors of sexual assault with a non-profit called Resilience. She says she's seen hard-to-prove cases first hand.
LAYDEN: I've been doing this work now for a decade and of the less than handful of cases where I've seen defendants charged with sexual assault but for whatever reason found not guilty in their criminal trial, I have seen those same defendants in those handful of cases charged again with new sexual assaults and subsequently sentenced to jail time.
GREEN: In general, Layden says, sex crimes are underreported and under prosecuted.
LAYDEN: I definitely think that laws like this are needed to have in the state's tool box in order to make sure that people who are unsafe are not able to continue to harm others. As with any criminal procedure, civil procedure, you want assure that that process is fair to every individual that's involved, just in upholding the integrity, I think, of our court system.
GREEN: She says civil commitments like the ones in this story may not be a perfect solution, but they can help stop people who might otherwise continue to offend, with the intention of treating rather than punishing.
LAYDEN: You know, it also kind of makes me wonder what kind of treatment they are receiving if they are in a jail.
GREEN: A report from a prison watchdog group said the treatment program where Allen is being incarcerated doesn't have the kind of resources it needs to provide effective treatment.
The report also raises questions about staffing at the prison, saying that there aren't enough staff psychiatrists.
State records show at times Big Muddy employed just one or two staff psychiatrists for a population of nearly 200 men. The watchdog report also raises the concern that many people in the program are low-IQ, many are diagnosed with intellectual and learning disabilities. Something that could make it harder for them to convincingly argue that they're better and should be released from prison.
Intelligence tests put Terry Allen on the border between low and extremely low IQ.
Mark Heyrman, a law professor at the University of Chicago, says he thinks these people shouldn’t be kept in prisons.
MARK HEYRMAN: If this is a civil commitment, why are they in a facility operated by the department of corrections? What sense does it make to have the department of corrections do this? Why aren’t they in the custody of the department of human services that runs our seven state psychiatric hospitals. And I think it’s partly because we want to say to these people, “Look, you did a bad thing, and you’re being punished.”
GREEN: When SDPs want to try to get out, they have to file petitions, asking to be evaluated and to get a hearing in court. The SDP is then examined by an outside psychiatrist.
The psychiatrist can either recommend to the court that the SDP be released or not.
The director of staff psychiatrists at the prison where Allen is held can recommend release for SDP's but it doesn't seem to happen very often.
He was recently questioned on the stand in a case unrelated to Terry Allen. He said he had never had occasion to recommend anyone for release.
Heyrman says that's telling.
HEYRMAN: I have sympathy for this guy who’s running this program—you know, suppose you’re running the program to deal with sexually dangerous persons for the state of Illinois. How can I determine whether or not these guys have gotten better? If I say no you can’t get out, no one will ever complain, if I say yes, it is almost certain that I will make a mistake. You can get six psychiatrists to come in and tell you this person is cured, and they can be wrong. I mean if he thinks he’s fixing them, why isn’t he recommending them for release? And the answer might be truthfully that he thinks he hasn't fixed anyone. Then it seems to me we should treat this as a criminal justice problem. Then we’re being honest with ourselves.
GREEN: Heyrman says the science that was once used to justify the law has essentially been debunked.
HEYRMAN: See, this is a public document…
GREEN: In his office on the UofC campus, Heyrman pulled out a report from 1988, more than 30 years ago, from a commission he led at the direction of the then-governor.
Two dozen experts, legislators, and law enforcement officials reviewed criminal and mental health law in Illinois, including the SDP Act.
HEYRMAN: We did a whole bunch of things that didn't get done, which I liked a lot. See here's all the people we consulted. Most of the members of the commission are now dead.
GREEN: The commission worked for over a year, and then made a series of recommendations based on what they found.
HEYRMAN: So among the recommendations is a recommendation about the Sexually Dangerous Persons Act, which as the report said had been in existence since the 1930s. And the commission recommended that it be abolished.
GREEN: Obviously, that didn't happen. Heyrman says one reason for that was optics.
The commission came up with dozens of recommendations, and he says he recalls a fair number of them being adopted by state legislators.
HEYRMAN: And I guess in retrospect I'm surprised that we got that many, in part because the sexually dangerous persons one and some of the other ones were in fact controversial, and there isn't a clear constituency for all these things, and as you know, people sometimes avoid voting on things that could make them unpopular.
GREEN: Heyrman says from a political perspective, lawmakers don't have a lot of incentive to reform controversial laws, especially laws involving accused sex offenders. Reforming outdated mental health and criminal laws tends to not be a winning issue for legislators seeking re-election. I reached out to the person who chaired the commission at the time to ask about that but I haven’t heard back.
HEYRMAN: The problem isn't just sort of thinking about what's the smartest thing to do, there are appearances. And those appearances sometimes are contradictory to what's the smartest thing to do.
GREEN: Heyrman says the law, and the way the system is set up in Illinois, is a reflection of society's ambivalence about what to do with people like Terry Allen.
Whether they should be punished, whether it's even possible to treat them.
GREEN: Here’s Allen again:
ALLEN: An SDP is told you go down there, if you recover we’ll let you go. You’ve had people here in group years and years and years and years and they’re still here and they can’t get out. I don’t know how you can explain that? The law says the briefest time possible. 30 or 40 years, I’m sorry, but it’s not a brief time. There’s nothing brief about it.
GREEN: Do you know people that have died here?
ALLEN: Yeah. A lot of them.
GREEN: People that were told if you go to group, if go through the program you’ll get better and you’ll get out but then they don’t?
ALLEN: That’s true. That’s the exact truth of it. I’m over there in the healthcare unit since I broke my hip, and we’ve had, let’s see...one, two, three, four, five SDPs die at healthcare since I’ve been over there. Five of em.
GREEN: Were some of them in here a long time?
ALLEN: Yeah. One guy was there for 38 years, guy named David Peterson. He was like, I don’t know, in his 70s or something like that, but he’d been locked up like 38 years. Now George Needs, a good friend of mine, is going on 41 years. 41 years.
GREEN: About ten people in the SDP program at Big Muddy have died since 2012. In that same time, ten were granted conditional releases. Two were fully discharged from the program. The average length of stay for SDPs currently incarcerated there is about 17 years.
The Illinois Department of Corrections refused multiple requests for interviews with the SDP program director, or any staff at Big Muddy.
In a written statement, a department spokesperson says the agency meets its legal obligation to provide care and treatment to all sexually dangerous persons civilly committed at the prison.
The spokesperson said criminally convicted inmates and SDPs have been housed in separate wings since 2015, but the groups can still intermingle in the dining room, on the yard, and in other parts of the prison.
The statement says IDOC is actively recruiting and hiring licensed sex offender treatment providers.
Over the past 30 plus years, Allen has filed a number of petitions asking to be released, and gone to court at least a dozen times. Every time his petitions were rejected.
His most recent petition was heard in 2015. He’d been in prison for 32 years.
At that hearing, a psychiatrist testifying on behalf of the state argued Allen wasn’t ready to be released. He said Allen had over 245 rule violations during his time in prison, far more than the average inmate.
For that hearing, Allen’s attorney had argued his client should have an expert appointed to testify on his behalf.
That psychiatrist said the state's findings were biased, intentionally deceptive, and a quote "hatchet job. "
The jury found he was fit to be released.
But, like many things in the criminal justice system, it isn’t so simple. It’s a conditional release, which means Allen needs to have a plan about where he’s going to go and the prison needs to sign off on that plan. That’s because when SDPs leave prison in Illinois, they’re put on the sex offender registry.
And that means they have to comply with the laws about where sex offenders can live.
ALLEN: If they are conditionally released with no place to go, then you remain incarcerated. The state says that an SDP is to be responsible for his own placement, I don’t see how that could be, if an SDP has been locked up for 20 or 30 years he’s out of contact with the free world. He doesn’t have any relatives or funds out there to get his own place.
GREEN: People on the registry in Illinois usually can't be placed in halfway houses. They can't live near schools, daycares, parks, bike paths.
And Allen would be required to wear a GPS tracker. That technology relies on having a landline, so he'd have to live somewhere that had one.
Allen says he just wants to get out and take care of himself.
ALLEN: What I want to do when I get out on my conditional release, is I hope to be successful at finding me a good job to where I can settle down and prove that I’m not a dangerous person. That I’m just a person out here living out here in society and trying to do the best I can to live my life for the rest of it, however many years I got left.
GREEN: Allen doesn’t know whether he’ll ever be able to do that. Technically a free man who was never found guilty of the crime that landed him behind bars, he’ll stay locked up until the state and the Department of Corrections permit him to leave.