September 19, 2018 01:32 PM
Leo Gutierrez has a healthy kidney waiting for him in El Salvador. But he can’t get to it.
Despite his pleas to be deported to his home country, where relatives have offered their organs for transplant, the state of California pays thousands of dollars for him to receive dialysis three times a week at Coalinga State Hospital.
Gutierrez is a sexually violent predator, among nearly 1,300 men in a special class of sex offenders who, under state law, are sent to the Fresno County mental health hospital after serving their prison sentences. He’s also one of at least 30 men at the hospital who are undocumented.
“I asked (Immigration and Customs Enforcement) why they don’t pick me up. They said the hospital says I’m still paying for a crime. But that’s not true. I finished my time in 2001,” Gutierrez, 49, said. “I don’t know why I did what I did then, but I can’t correct it. And all this time, I’ve been in this place.”
Sitting in the visitors room in his khaki uniform, he rubs a bandage-covered clump of swollen arteries and veins on his arm from the treatment, and wonders aloud: “How is this place different from Guantanamo? We’re here forever.”
The undocumented men at Coalinga State Hospital are in a unique predicament that seems to be nobody’s jurisdiction. They aren’t prisoners, they are “civil detainees.” They entered the country illegally, committed crimes and served their prison sentences. But a state-mandated mental evaluation of sex offenders – a policy that went into effect in 1996 – put them in Coalinga instead of back into society.
The Department of State Hospitals says that it does not track patients’ immigration status, and that only a judge can decide if patients are ready to be released; ICE says the decision is up to the state.
While federal immigration authorities claim to put undocumented felons like these men at the top of the list for deportation, their predicament poses tough questions regarding a group for whom advocates are scarce. What if they re-enter the U.S. and reoffend? Is the U.S. at fault if they reoffend in another country once deported? Is the high financial cost of keeping them at Coalinga State Hospital worth the public’s peace of mind?
“The state government takes the position that if he’s deported, we cannot ensure that he’s not committing sex offenses in his home country,” said Rudy Kraft, Gutierrez’s attorney. “In a sensible system, we would work out a supervision program with the home country and let them decide how to keep an eye on him. But there’s no consideration of that.”
Kraft is grim about the options he sees for people like his client under current policies.
“There is no way out other than death for undocumented SVPs,” he said.
Pariahs of society
Gutierrez said he feels “tired most of the time.” His kidneys are shutting down.
His health alone should be enough of a reason to convince a judge that he is not a threat to society, his attorney said, but no luck so far. Earlier this year, he was denied compassionate release, which allows prison sentences to be recalled if an inmate likely has only six months to live.
“The law is not set up for these people,” said Kraft, a San Luis Obispo attorney who has been representing sex offenders for nearly 20 years. “The system is rigged against releasing people at all, but for people who are undocumented, the philosophical approach seems to be that no country supervises sex offenders better than we do, so therefore, we must keep them here.”
Gutierrez was convicted in 1998 and released early from prison for good behavior, serving three of six sentenced years. He was sent to Atascadero State Hospital before moving into Coalinga State Hospital’s custody after it opened in 2005. The hospital is a maximum security facility dedicated to treating the state’s SVPs.
Gutierrez would not speak with The Bee about the details of his crimes, which include “lewd and lascivious acts” with a child under 14 years old, according to the Megan’s Law website, the state database that tracks sex offenders.
“I don’t like to talk about that. I wouldn’t do something like that again. I read my Bible a lot now,” he said. “Sometimes I understand why nobody wants to help us, but the law is supposed to be there for us. They are ignoring the law.”
Twenty states have similar civil commitment programs, including Washington, where a facility on an islandhouses SVPs, many of whom have been there for more than a decade.
But the constitutionality of the programs have been questioned. In 2015, England refused to extradite a California man who had fled there after committing sex crimes, saying the civil commitment program at Coalinga, where he would have been sent, violated his human rights.
The state’s convicted sex offenders are referred to the Department of State Hospitals within six months of their parole to undergo a mental health evaluation to determine if they are an SVP. The men at Coalinga have been diagnosed with a mental disorder and are likely to reoffend, according to the state.
They aren’t sentenced to live in the hospital for a specific amount of time, meaning they could live there indefinitely if a judge never decides that they are rehabilitated. Therapy offered at the hospital is meant to be the key to their release, but experts across the country have cast doubt on its effectiveness, pointing to low rehabilitation and release rates. In the history of the hospital, fewer than 200 patients have been released to live freely as registered sex offenders.
Also controversial, the cost: Taxpayers spend more than $250 million a year out of the state’s general budget to operate Coalinga State Hospital — nearly $110 million more than it costs annually to operate Pleasant Valley State Prison, which is located next door. The facilities share a barbed wire fence.
In Gutierrez’s case, the cost is greater. A year of dialysis treatment costs about $89,000 on average, according to the U.S. Renal Data System. It also costs to transport him each time he leaves the hospital for dialysis. He has been undergoing treatment for kidney disease for a year and a half.
“It’s a really difficult situation, and it’s costing the taxpayers hundreds of thousands of dollars. But you’re balancing community safety against the cost of ‘treatment,’” said Richard Quintino, a deputy public defender in Riverside County, who has represented Gutierrez. “It’s like you’re a criminal defendant with a life sentence without the possibility of parole. You have an opportunity to petition for release if you complete treatment, but the problem is the treatment has been substantially ineffective over the last 20 years.”
Quintino – who can call someone’s crimes “horrendous” and label that offender “a good guy” in the same breath – has represented more than 60 SVPs in his career but only once has a jury determined that one of his clients could be released from the hospital.
Immigration status adds another layer of confusion to an already gray area of the law for a group of people who lack support, he said. In many ways, it would be easier to be a prisoner than a civil detainee, including in deportation cases, according to Quintino.
“In essence, the case represents a challenge as to whether these laws apply to somebody like Leo,” Quintino said. “Even if his request was granted somehow, there is a substantial risk that if he were turned over to ICE, he would not get the medical care that he needs. At the same time, there’s a substantial risk to his health and welfare that he may never get deported and could die in custody.”
Gutierrez is doubtful that “someone like” him will make it to the top of a transplant list in the U.S.
He said that he was told by the hospital’s medical director that no transplant centers would operate on him because he is incarcerated.
“It looks like I’m just going to die here,” Gutierrez said.
When asked about his case, state hospitals spokesman Ralph Montano said that if a patient needs an organ transplant, staff will do their “due diligence” to get him on a transplant list.
“Transplant centers, however, have their own criteria for determining whether to accept or reject patients,” Montano said.
‘Take us instead’
Juan Cordero, a patient aiming to be deported to Mexico, gets frustrated at the irony, thinking of the emotional immigration debates he’s watched on TV over the past year from inside Coalinga State Hospital.
“Take us instead. Leave the innocent families,” Cordero said in the hospital’s visitors’ room, which is nearly empty except for attorneys who are meeting with their clients. There are a few vending machines and a small bookshelf holding the Bible, the Koran, Scrabble and Battleship.
“You said we should be a priority,” he said, seemingly talking to President Donald Trump.
While California law limits the state’s cooperation with ICE, it doesn’t apply when dealing with people convicted of serious or violent felonies, including sexual abuse and crimes endangering children.
ICE did not answer specific questions about undocumented patients at Coalinga State Hospital, but a spokesman said the decision regarding their custody is determined by the state of California.
“If ICE has an interest in an individual after being released from custody, our agency would review the case and make appropriate decisions regarding next steps,” spokesman Richard Rocha said in an email.
Gov. Jerry Brown’s office deferred questions to the Department of State Hospitals, which said only the court that committed the patient to Coalinga State Hospital can release him from state custody.
“DSH will treat a patient at Coalinga State Hospital until the end of his mandated commitment or an intervening court order is received,” Montano said in an email. “Patients can be released from the hospital only by a court order.”
Cordero has had a court order for deportation more than once yet continues to live at Coalinga.
Los Angeles Immigration Court Judge Rose Peters ordered Cordero be deported back to Mexico in 2001, according to court documents.
After serving two years in prison for raping a woman in 1988, he returned to Folsom State Prison for a longer stint after fleeing the state following a breaking and entering he committed in 1992.
The owner of the house said that he had penetrated her by force with his finger, but he denies that part of the charge. He said he took a deal, and was sentenced to eight years in prison.
After serving his time, he was sitting at an immigration detention center in San Pedro waiting to be deported. But that never happened.
“They went and snatched me from Immigration just to put me under this law. But this law doesn’t apply to illegal immigrants,” said Cordero, now 62. “I want to be deported but they won’t deport me. Immigration says I have to finish my prison sentence, but I paid for the crimes I did. They just want to keep me locked up here for the rest of my life, and they’re getting away with it.”
The Los Angeles County District Attorney’s Office filed a petition in 2001 asking ICE officials not to deport Cordero, and instead allow him to be treated for two years at a mental health facility.
Since then, he’s spent 17 years in state custody as a civil detainee, first at Atascadero State Hospital and then at Coalinga once it opened.
In the petition, LA County deputy district attorney Sue Lasicka called Cordero “a violent sex offender who has previously absconded the state” and said he should remain in state custody until his case ends, at which time he would be immediately returned to federal custody for deportation to Mexico.
“Mr. Cordero has been in the United States since he was 13 years old. He was deported on May 16, 1987, only to return again and perpetrate rapes in this country,” Lasicka said then. “Treatment would be in the best interests of the citizens of California.”
The LA County DA’s Office declined to comment, saying Cordero’s case is still pending.
Cordero has corresponded several times with federal officials since then. On Feb. 24, 2015, the ICE office in Fresno sent an immigration detainer to Coalinga State Hospital, requesting that Cordero be released from custody within 48 hours and deported to Mexico, according to documents obtained by The Bee.
The Department of Homeland Security checked several boxes as to why Cordero is subject to removal then: he has a prior felony conviction; he has illegally re-entered the country after a previous removal and he “poses a significant risk to national security, border security or public safety.”
In December 2017, Cordero wrote a letter to the FBI in Los Angeles, asking why orders for his deportation had been ignored and questioning “under whose authority” is he being kept at Coalinga.
He thinks that he was released from prison at just the wrong time – after the sexually violent predator law was passed and while Coalinga State Hospital was being built.
“They’re making an example out of us,” he said. “We’re guinea pigs, and this is just a warehouse. I really don’t want to die here.”
Who’s in charge?
Dr. Deirdre D’Orazio, a psychiatrist who has worked with Coalinga patients, helped author a report by the California Coalition of Sexual Offending that breaks down the history of the SVP law and the arguments for and against it.
Those who oppose it say that it’s still unclear if the therapy programs actually work, and that money would be better spent toward preventing the crimes from happening instead of trying to repair them after the fact.
“The labeling of a sub-group of sex offenders as ‘Sexually Violent Predators’ conveys to the public that these individuals are dangerous and inhuman ‘monsters’ who can never change,” the report says on behalf of critics. “It is very costly, dangerous and difficult for these individuals to reintegrate into the community no matter how much treatment they complete.”
But supporters of the law say the state should do whatever it takes to protect people from rapists and child molesters.
“The community cannot allow violent sex offenders to walk among us preying on others simply because it requires taxpayer money…” the report says. “Some may claim that the civil commitment is not fair. It is fair when considering the impact that sex offending has upon an individual and our society, and fairness is guaranteed by law.“
But for D’Orazio, the solution for the undocumented SVPs is much more simple.
“If their safety needs and rehabilitative needs could be met in their country of origin, they should be deported,” she said. “And it’s less cost to California.”
D’Orazio said the existence of undocumented SVPs at Coalinga puts into question the basic premise of the hospital.
“If we have a system to prevent recidivism in California – from reoffending sexually when they’re released – and they’re just going to be deported when they’re released, that’s an issue,” she said.
Several immigration and prison rights advocates did not return requests for comment for this story. Fresno Assemblyman Joaquin Arambula, a Democrat, and Sen. Anthony Cannella, a Republican, who both represent Coalinga, also did not comment.
Sully Bryan, an immigration attorney in Fresno, said in a typical case, when an undocumented person commits a serious crime, ICE takes over once the felon has served his time. But these stories aren’t typical, she said, noting the seriousness of sex crimes, especially against children.
“I think the question here is, who’s in control? Who’s in charge?” Bryan said. “ICE has the authority to put a hold on them after they’ve served their sentence. They can take them into custody. It’s just whether they want to or not.”
Like Cordero, Dougal Samuels has had a few close calls with ICE. But never close enough to get him back to Jamaica.
Samuels, 62, was released from prison in 1997, after being sentenced nine years in prison for raping a child under 14 years old.
But “nine years turned into 31 years,” he said, pointing to his time in state mental health hospitals since then.
Samuels, who entered the U.S. illegally when he was young, said he was in ICE custody after prison, and had signed papers saying he understood he was about to be deported, but then “the state told them I should be under this new law.”
After that, it’s been years of confusing phone calls with immigration authorities, attorneys, Jamaican counsel – anybody who can give him answers about how he can get out.
“Everybody seems to agree with me, but nobody is doing anything. Everybody passes the bucket,” Samuels said. “I’ve tried every way I can to get Immigration to turn me over. For 20 years, they’ve given me the runaround.”
Samuels said he knows there is no sympathy for SVPs, but that the law is the law.
“It’s hard to amend a mistake like that. But after, you try your best to live your life. And God forgives,” he said. “Because what we have done is wrong, everyone has just turned their back on us.”
How we reported this story
The reporting for this story happened over the course of about three months. Access to sources was restricted: The reporter had to conduct interviews by phone during certain windows of time, and couldn’t easily reach interviewees, since patients at Coalinga State Hospital often share a land line phone among four men per unit. They are not allowed access to the internet or cell phones. Court documents and personal files were sent to a reporter from the hospital via standard mail by patients who wanted to share their stories. The reporter then sent copies of the documents to verify their legitimacy with the court or agency they were connected to.
The Department of State Hospitals would not allow the reporter to interview patients inside the hospital unless it was in the visitors’ room. The reporter was not allowed to bring a phone, recording device or camera – only her ID for a background check and the keys to her car. The hospital provided the reporter with a pen and paper to take notes.
Many of the court cases involving SVPs are sealed, so the reporter worked with attorneys in several counties across the state to tell the stories of patients now residing in Fresno County. Some attorneys chose not to return emails or phone calls regarding their clients.
Many immigrant rights groups, elected officials and prison rights groups did not return requests for comment on this issue. The Bee reached out to the American Civil Liberties Union, the Immigrant Legal Resource Center, the National Prison Project, the National Lawyers Guild-Central Valley Chapter, the California Immigrant Policy Center, Centro Legal de la Raza and more.
The first question posed to ICE officials about this matter was May 1. An official statement was given on Sept. 6