Local Offender Challenges "Sexually Violent Predator" Label

James Brasch, a sex offender who suffers from schizophrenia and has served two stints in prison, is challenging a 2009 decision by a St. Charles County court to deem him a "sexually violent predator." The label would require him to be held by the state mental health agency.

The Missouri Sexually Violent Predator Act requires sex offenders who have completed their prison sentences to be detained further by the Missouri Department of Mental Health if they are found to have a mental illness or are suspected to offend again.

Under the act, a sex offender can be deemed a sexually violent predator by a jury if it has been determined by the Missouri Department of Mental Health that, when that sex offender completes a prison sentence, he or she has a mental abnormality that might cause them to offend again.

Courts differ on constitutional claims at heart of Brasch case

Brasch, 45, says the law is unconstitutional as it applies to him, as the state has not provided him with the treatment he needs to rejoin society.   

But Wednesday, during oral arguments before the Missouri Supreme Court, judges questioned Brasch's claim that his rights had been violated when he was ordered into the custody of the Missouri Department of Mental Health. The law states that sexually violent predators must remain in detention until officials determine they no longer threaten society.

The Missouri Sexually Violent Predator Act became law in 1999. It is similar to laws in other states. Concerns about the confinement of a sex offender after they have served their jail time and before they have committed another crime has brought such measures under judicial scrutiny in the past.

The courts have, for the most part, found that sexually violent predator laws do not violate the constitutional rights of sex offenders, and that the laws serve the public interest by keeping potentially dangerous criminals in secure facilities.

But the courts have also maintained that the commitment of sex offenders into mental health programs after they have served their time in prison should not be tantamount to a second prison sentence.  States are required to provide treatment to offenders who have been deemed sexually violent predators so the they can eventually go free.

Lawyers spar over treatment issue

During oral arguments Wednesday, the judges repeatedly asked Brasch's lawyer, Emmett Queener, to clarify his arguments about the effectiveness of the treatment Brasch would receive while in the custody of the  Missouri Department of Mental Health. The judges wanted to know if this issue formed the basis for the constitutional challenge.

As he began his arguments, Queener said the state was attempting to "minimize" its obligation to provide treatment to sex offenders in this case.

"They're moving to warehouse these men simply to keep them off the street," Queener said.

Chief Justice William Ray Price, Jr. asked if Brasch's commitment with the Missouri Department of Mental Health was "wrong" because the treatment was "not right." Queener said yes.

In its response to the Brasch case, the Missouri Attorney General's office has said dismissing the case from the St. Charles Court is not the best way to address effectiveness of the treatment provided to Brasch by the Missouri Department of Mental Health.

The state has an obligation to provide treatment, said state attorney Jayne Woods during oral arguments, but is not required to ensure the success of that treatment.

"All it is, is a challenge to the adequacy of the treatment," Woods said of Brasch's challenge to the St. Charles County court's decision.

Price then asked if Brasch had tried to compel the Department of Mental Health to change his treatment through the courts, to which Queener replied no.

In his appeal, Brasch also claims that during the 2009 court proceedings, a lawyer for the Missouri State Attorney General's office made statements that played upon the "passion" of jurors, and that the case should have been declared a mistrial.

According to court documents, a state lawyer in the 2009 proceedings commented to the jury about Brasch's confinement, saying "this type of behavior is going to repeat itself" and that Brasch was "more likely than not he is going out and make another victim."

That claim drew no questions from the judges. The Missouri Attorney General's office said there was nothing wrong with the statements made by its lawyer to the jury during the St. Charles County court proceedings.

During oral arguments Wednesday, Queener did not disagree that Brasch is a "danger to himself and others."

History of sex offenses, mental illness decades-old

Brasch has a long history of sex offenses, beginning when he was just 14 years old, and a resident at the Edgewood Children's Center. In 1984, when he was 19, a woman accused him of breaking into her home while she was sleeping, climbing into bed with her, and touching her breasts. No charges were filed.

Court documents show that after a string of crimes, which included burglary and forgery, Brasch was sentenced to prison and released in 1993. That same year he was arrested for first-degree sexual abuse, third-degree assault and first-degree burglary after he broke into the home of a former girlfriend, fondled her 10-year-old daughter, and attempted to climb into bed with the mother after removing his clothes. He pleaded guilty to the assault charge, spent 15 days in jail, and the other charges were dropped.

A few months later, Brasch broke into another home, and fondled another 10-year-old girl. Sexual abuse charges were dropped when he pleaded guilty to first-degree burglary, and he was sentenced to five years in prison.

When he was granted parole in 1996, Brasch went on what court documents called a one-night "spree of offending." He tried unsuccessfully to break into two houses, but was successful in breaking into a third house, where he digitally penetrated a woman who sleeping on a couch. He broke into a fourth house, where a woman awoke finding a drunken Brasch standing over her bed and drooling, according to court documents. He left the house at the woman's behest.

Brasch was eventually charged with three burglaries and one count of sodomy for his actions that night.

When he was in prison for the 1993 first-degree burglary charge, he had become consumed with "bizarre religious beliefs," according to court documents. It was at that point that he began to express the belief that he had been implanted with a device that gave him the ability to "talk to God."

Before his second stint in prison, in 1996, Brasch's mental condition had worsened. Court documents show that Brasch believed during an appendectomy he underwent when he was nine, and during surgery to repair a broken jaw, the CIA had implanted devices in his body that both the CIA and St. Charles County officials could manipulate to control his body. A state mental health professional said that Brasch was unfit to stand trial at that time, and was he not sentenced to prison until 1999.

Brasch was finishing up his second prison sentence in 2008 when a petition was filed to turn him over to the Missouri Department of Mental Health upon his release. He had been receiving treatment for multiple mental illnesses while he was in prison, but according to court documents, his treatments had gone largely unchanged since 1996, and some of the symptoms of his schizophrenia persisted.

Because of his schizophrenia, he was unable to participate in a sex offender treatment program while he was in prison, which was one argument for the dismissal of his case.

Woods argued Wednesday that the Department of Mental Health is better equipped to handle Brasch's mental illnesses than the Missouri Department of Corrections.

"It doesn't have the budget for the newest and most advanced treatment options, whereas DMH does," Woods said.