The Unforgiven

The Florida statute is potentially wide-ranging: anyone accused of a sex crime, from flashing a child to committing multiple rapes, could fall within its jurisdiction. Since the law went into effect at the beginning of 1999, almost 5000 sex offenders completing their jail time have been flagged for evaluation. Of these, psychological evaluations have so far been completed on more than 2700. But O'Rourke maintains that the state has exercised extreme caution, filing petitions in only about 6 percent of the cases.

In one Broward County case that the DCF recommended prosecution under the Jimmy Ryce Act, the inmate, Oliver Cargill, had been convicted of exposing himself in front of kids. O'Rourke came to the conclusion that the man needed help for mental problems such as schizophrenia but was not a sexually violent predator. The Jimmy Ryce prosecution was dropped, and the inmate was referred to a mental-health facility.

"We want to be careful not to make the Jimmy Ryce Act a place where we warehouse people because they have mental problems and we don't know what else to do with them," says O'Rourke. "This should strictly be for people that are sexual predators, that we're comfortable in saying their mental problems are gonna cause them to go out and commit a violent sexual act."

The problem is, there is no cut-and-dried way to determine which inmates are "sexually violent predators" as compared to sex offenders. But O'Rourke and the mental-health specialists who make such determinations insist there are certain telltale signs that a prisoner will reoffend.

The most obvious characteristic is that the person has already committed multiple sexual crimes. There are other, less straightforward characteristics as well. In the case of pedophiles, for example, psychologists say that those who attack boys and those who commit crimes outside of their own households are more likely to be repeat offenders.

The most difficult sex offenders to predict, psychologists say, are "sexual sadists," those who have perpetrated particularly heinous and cruel crimes -- such as those committed by Troville. This is because there has not been as much research in that area.

Defense attorneys generally praise O'Rourke for being restrained in his decisions on when to invoke the Jimmy Ryce Act. But they fear that other prosecutors will not be so judicious. "Norman's an honorable guy," says Charles Kaplan, a defense attorney who briefly was assigned to Troville's case, "but there are not Norman O'Rourkes across the state of Florida."

Adds Warner Olds, who, through a contract with the Broward County Public Defender's Office, is representing most of the people held under the Jimmy Ryce Act: "You get the wrong person in there, and he could do a lot of damage."

O'Rourke concedes there is a potential for abuse from an overzealous prosecutor but believes judicial oversight provides a sufficient balance. "What if a police officer makes an arrest on very flimsy evidence? Eventually it's gonna get to a court, and they're gonna throw it out."

Virtually everyone agrees that the Jimmy Ryce Act has been a nightmare, administratively. The cases occupy a strange netherworld somewhere between criminal and civil litigation, presenting the classic criminal confrontation between offender and state but with civil rules of procedure. This means that defendants (or respondents, as they are referred to in court filings) are not entitled to such protections as the Fifth Amendment right against selfincrimination.

"This is all new to everyone," says Evan Baron, Troville's attorney. "It's new to the prosecutors, it's new to the defense attorneys, it's new to the judges."

Ken Johnson, of the Palm Beach County Public Defender's Office, is more candid. "Public defenders, defense attorneys, prosecutors, and judges hate this law," he says. "You might not get a lot of them to admit it publicly, but they hate this law."

Because the law involves several huge bureaucracies, communication has been a problem. O'Rourke notes that the last four cases referred to his office have all arrived at the last minute. He's had less than two days to review the materials for each and decide whether a petition for detention should be filed. "Obviously the more time we have the better," O'Rourke says.

This administrative confusion can play out in messy ways. In one Palm Beach County case, the family of an inmate traveled from Kansas to pick him up from prison in time for his mother's wedding. But when the family arrived in Florida, they found out that he was being indefinitely detained under the Jimmy Ryce Act.

In Troville's case he almost walked because of confusion over who would defend him in court. In July the Broward County Public Defender's Office withdrew from the case, claiming that the legislature had not appropriated sufficient funds for them to take on cases under the Jimmy Ryce Act. A private attorney, Charles Kaplan, was appointed to the case, but he too withdrew because of questions over how he would be paid.

In the meantime, on his own, Troville had filed a writ of habeas corpus with the Fourth District Court of Appeals in West Palm Beach complaining that he was unconstitutionally being denied counsel. The court agreed and issued an order that Troville be provided with an attorney within five days or be released. Evan Baron finally agreed to take the job.