WASHINGTON - The federal government has sharply scaled back a controversial effort to keep dangerous sexual predators in prison past their sentences after losing more than half the detention cases it filed.
The U.S. Justice Department has said its program is critical for protecting the public, but it has been beset by problems since it began seven years ago. Most of its attempts to keep accused predators locked up have failed. Along the way, it kept dozens of men in prison for years without a hearing, relied on medical determinations that proved faulty and faced a succession of legal battles over whether it even has the power to keep people locked up indefinitely.
Even as courts are increasingly signing off on that power, prosecutors are using it far less.
Neither prosecutors nor prison officials could explain why that pace has slowed. Lawyers for some of the detainees say the government appears to be focused on bringing stronger cases it's more likely to win. "They're being much more careful in the cases they're certifying," said William Webb, a Raleigh lawyer who represents several of them.
In the first two years of the program, which began in 2006, court records show the U.S. Justice Department asked judges for permission to keep 86 men locked up after prison psychologists concluded they were too dangerous and mentally ill to safely be released. In the past year, it has tried to detain only nine, including one man prosecutors had previously tried and failed to keep in prison.
Justice Department lawyers anticipate filing more cases soon. Thomas G. Walker, the U.S. attorney in Raleigh, N.C., where nearly all of the cases are filed, said he expects "a steady flow of new cases," probably totaling 15 to 20 a year - still less than half the pace when the program began.
Ed Ross, a spokesman for the federal Bureau of Prisons, whose psychologists and lawyers make the initial decision about which prisoners should be detained, said he "can't speculate as to why the numbers have declined." He said the agency has not changed the way it makes those decisions, though he said the process is guided in part by federal court opinions clarifying the diagnoses and evidence that the law requires.
The detention effort targets the most dangerous and mentally ill among the thousands of convicted sex offenders serving time in federal prison. It allows prosecutors to seek a court order that will keep them in prison until psychologists or a judge decides it's safe to let them out.
"This is a very serious matter, and you don't want to do this except in cases where it's crystal clear that it's necessary," said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital. "If we're going to do it, we have to be very careful about it. You don't want to just put people in a place where they stay indefinitely."
One recently filed case involves a man who had broken into a house and sexually assaulted a 7-year-old girl, who was sent to federal prison for an unrelated gun possession charge; another involves a man serving a five-year prison sentence for trying to lure someone he thought was a 13-year-old girl into a sexual relationship. Psychologists diagnosed both as pedophiles and concluded that both should remain in prison.
Defense lawyers said they find the case against Michael McBride particularly troubling. Prison officials certified that McBride was "sexually dangerous" in 2011, the first step in the legal process that leads to indefinite detention. Prosecutors dropped the case six months later and released him, in part because their own outside expert concluded that he didn't meet the legal requirement to be detained.
Three months after that, McBride was kicked out of a New Hampshire halfway house for yelling at staff members. That was enough for a judge to send McBride back to prison, where officials again decided that he should be detained, citing much of the same evidence they had relied on a year earlier.
"It really just illustrates that nobody knows what's going to happen to them, even if they get out," said Suzanne Little, a federal public defender in Raleigh.
Prison officials also are making a second attempt to recommit prisoner Frederick Springer, even though a judge concluded last year that he wasn't sufficiently dangerous to be detained under the law. The new case has not yet been filed.
Officials have acknowledged that the predator law has not worked out like they hoped. Since Congress approved the Adam Walsh Act, prosecutors have persuaded federal judges to commit only 51 of the 132 men whose cases have been resolved by federal courts. Seventy-two cases ended after judges found insufficient evidence or prosecutors dismissed their cases. Many of those decisions were the result of flimsy evidence or flawed psychological assessments. A handful of cases are pending.
The department's more recent cases have fared better; prosecutors win more than they lose. Courts have since untangled most of the legal delays that left detainees to wait years for a hearing. Walker said his lawyers have "worked diligently to move these matters to resolution," though he acknowledged "we have more work to do."
Court records and interviews suggest that some of the people the government has successfully committed have refused to participate in treatment. One has gone to court to complain that his condition "regressed" so badly since he was committed that officials put him on suicide watch.