Judge denies state objection to treatment for jailed sex offenders

Department of Corrections says Superior Court Judge Larry Weeks' sentence is illegal

Posted: Sunday, July 31, 2005

More than five months after ordering the Alaska Department of Corrections to provide sex-offender treatment to a man convicted in a child-sex case, Juneau Superior Court Judge Larry Weeks let the agency know he meant it.

An assistant attorney general argued for DOC in June that Weeks handed down an "illegal sentence" in February when he ordered the agency to provide Richard Callahan with sex-offender treatment.

Thursday Weeks wrote that the state's attorney was wrong, denying the argument and once again ordering Alaska's prison system to provide something it hasn't provided since July 2003.

"The Alaska Supreme Court long ago determined there is a constitutional right to rehabilitation while incarcerated," he wrote.

DOC Deputy Commissioner Portia Parker told the Empire in February the decision was made because the treatment didn't work. When it was provided, inmates weren't completing it, she said.

This summer, the state has begun a post-release program for convicted sex offenders on a limited basis.

Weeks' sentence in the Callahan case ordered the 61-year-old Juneau man to serve eight years in prison after the man agreed to plead guilty to attempted sexual abuse of a minor. A grand jury indicted Callahan in 2004 on two counts of first-degree sexual abuse of a minor who was 10 and 11 years old at the time of the alleged acts.

Neither Juneau District Attorney Patrick Gullufsen nor defense attorney Thomas Nave asked Weeks to order in-custody sex-offender treatment for Callahan. But Nave noted that a psychologist reported Callahan could be successfully treated.

In June, Weeks ordered Donald Chase, 48, to serve 15 years in prison after an agreement to plead guilty to one count of sexual abuse of a minor in Gustavus. He also ordered DOC to provide sex-offender treatment in that case.

Weeks, noting that Chase had already sought the treatment at his own expense, suggested the defendant may have legal recourse against DOC if it refuses to provide it.

A few days later, state Assistant Attorney General Marilyn Kamm argued that Callahan's sentence should be modified to require sex-offender treatment "only if available."

"DOC does not dispute the fact that Callahan has a constitutional right to rehabilitation," she wrote. "However, the responsibility for providing sex-offender treatment lies with DOC."

Citing three Alaska court cases from the 1970s, she argued that the decision to offer such programs is a matter of "executive discretion" - leaving such programs in the control of departments under the governor's jurisdiction.

One case Kamm quoted said interfering with that discretion "would be a violation of separation of powers."

"The ultimate responsibility for classification and placement of prisoners lies with the Department of Corrections," she wrote.

In denying the DOC motion, Weeks wrote that state law "must yield to the requirements of the constitution."

Nearly three pages of his order quotes dialogue from delegates to the Alaska Constitutional Convention, which he wrote, "made it plain that penal institutions were not just for warehousing offenders."

He also wrote that a major issue is protection of the public. "It is rare for a court to impose a sentence that keeps defendants in jail for the rest of their lives. ... If no rehabilitation services are offered in jail, jail often becomes a crime school.

Providing treatment, he wrote, is not just the legal thing to do. It's the right thing to do. "This defendant desperately needs sex-offender treatment."

• Tony Carroll can be reached at tony.carroll@juneauempire.com.

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