HI- Hawaii felon in landmark case

There is no doubt this is a confusing case, first see earlier conviction and notice he (Jay) and his brother (Jed) were involved in that case, but we are following Jay only. This is another example of civil commitment following a FEDERAL court conviction, under the Adam Walsh Act.

7-21-2008 Hawaii:

'Sexually dangerous' man served sentence, but remains confined

Convicted of sending child pornography through the mail, sex offender Jay Abregana completed his federal prison sentence a year ago, but is still behind bars because authorities consider him a "sexually dangerous person" who should be committed to a mental institution, perhaps for the rest of his life.

Abregana is the first person in Hawai'i, and only the second in the country, to be tried under a 2006 federal law that allows the government to detain sex offenders for mental treatment after they have completed incarceration and parole.

His behavior after his criminal convictions — in prison and during brief releases from prison — contributed to the decision last summer by U.S. Bureau of Prisons experts to label him sexually dangerous, court records show.

Federal officials invoked a new section of the Adam Walsh Act — a federal law named after the murdered son of television's "Most Wanted" show host John Walsh — that allows for the involuntary commitment of dangerous sex offenders when they are due to be released from prison.

The federal civil commitment law is patterned after similar laws enacted by some 19 states around the country. Hawai'i has no such law.

Abregana's lawyer, Federal Deputy Public Defender Pamela Byrne, has argued in legal papers that Abregana is not the violent, predatory "monster" that Congress had in mind when it passed the civil commitment law.

Byrne declined to comment further on the case while it is pending before U.S. District Judge Helen Gillmor.

The prosecutor, Assistant U.S. Attorney Larry Tong, also declined to comment, but argued in legal papers that Abregana would have "serious difficulty refraining from" new crimes if he is released.

Multiple offenses

Abregana, 38, was convicted in March 2002 of a federal charge of transporting child pornography through the mail. He was sentenced to 44 months in prison plus another three years of supervised release, the federal form of parole.

He also was convicted in state court in May 2002 of misdemeanor sex assault after admitting that he exposed himself to 12-year-old boy in a Hilo movie theater in 2000.

The prison bureau invoked the federal statute (under the Adam Walsh Act) to commit Abregana to a mental institution in July 20, 2007, the day he was to be released back into the community from Hawai'i's Federal Detention Center.

When he was first convicted in 2002, Abregana was sent to Butner Federal Correctional Institute in North Carolina, where he briefly participated in a sex offender treatment program, court records show.

He was expelled from the program because he performed oral sex acts on five other inmates in the treatment program, according to court records.

-It seem rather STUPID to, first send him for sex offender therapy which officials believed he needed, THEN because he commits another sex act kick him out of therapy. The newer sex acts are obvious proof of the need for therapy. (UPDATE: A reader pointed out, that these may have been consensual legal acts, in that sense I would be incorrect saying "Obvious need for treatment.") So, is denying him therapy supposed to be PUNISHMENT, and is that in the best interests of society?

Abregana was then returned to Hawai'i to complete his sentence at the Federal Detention Center here.

He began his three-year supervised release term in late November 2004, but that was revoked in mid-2005. The revocation occurred after Abregana admitted having sex with a 17-year-old boy in a public restroom at Ala Moana Center. He also failed to report for drug testing and sex offender treatment.

Abregana was ordered back to prison for 20 additional months and was released again in mid-November 2006.

By April of last year, Abregana was behind bars again. His supervised release was revoked for a number of new violations, including use of a computer to make e-mail contact with three boys, ages 10, 12 and 14.

-Here is the obvious proof, that by kicking him out of therapy, a governmental decision, then allowing supervised release WITHOUT FINISHING THERAPY, Jay goes on to commit more offenses. While Jay committed the offenses, the government MUST TAKE RESPONSIBILITY for their plain DUMB decisions causing new offenses. Kicking someone out of therapy makes no sense whatsoever.

Results of first case
Abregana was not supposed to have access to a computer at all, let alone use it to communicate with minor children.

He had created a profile on a site called buddiespace.com, claiming to be a 14-year-old and posting someone else's photograph as his own.

In the e-mails, Abregana asked the boys about their interests, whether they had girlfriends and whether they would send him photographs of themselves, according to evidence presented to Gillmor.

Gillmor ordered Abregana held in custody until he had "maxed out" his criminal sentence.

Last month, after the defendant had been held almost a year past his final release date, Gillmor presided over a three-day hearing (civil commitment) to determine if Abregana should be committed for mental treatment. She heard testimony from prosecution and defense experts and told the lawyers she wanted to issue a ruling as soon as possible.

Defense attorney Byrne argued that the civil commitment section of the law (Adam Walsh Act), which is named after Jimmy Ryce, a 10-year-old Florida boy who was abducted, raped and killed in 1995, was not meant to target a non-violent offender such as Abregana.

She (Defense Attorney) asserted that there was little in the congressional record (because everything was done behind closed doors) to indicate lawmakers "intended the drastic, last-resort remedy of potentially lifelong 'civil incarceration' to apply to non-violent offenders who had engaged in consensual conduct with post-pubescent teenagers."

Tong argued that government experts had submitted sufficient proof to demonstrate that Abregana has a serious mental disorder, hebephilia, which "involves the sexual arousal to adolescents."

And he asserted the disorder would cause Abregana "serious difficulty in refraining from sexually violent conduct or child molestation if released."

Abregana said in a letter to the judge last year that "deep down inside, I am humbly sorry utterly remorseful for my past actions."

While in prison, he learned from therapists and counselors "that there is no cure for my actions or behaviors" but they had given him a tool to handle what he called his "deviancies."

"Your honor, that tool is knowledge. And because of that knowledge, I've grown to understand and be more aware of high risk situations which will lead to immoral crimes," he wrote.

"And I'm proud to say that I can now walk away from them even before I think about it," he said in his letter.

The federal government lost its only other attempt to involuntarily commit a sex offender for mental treatment earlier this year in Oklahoma.

In that case, the prison inmate had been convicted of sexually assaulting his 6-year-old stepdaughter and the 8-year-old daughter of a friend in the early 1980s.

The defendant, Carl Dowell, was repeatedly released and then returned to prison from 1998 through 2006. The revocations were always based on drug violations.

There was no evidence of sexual misconduct by Dowell during 44 months of release time, the judge in the civil commitment case found. In fact, Dowell had remarried and was frequently in contact with his wife's two young granddaughters, with no showing of improper conduct toward the little girls, according to court records in that case.

Dowell was released from custody in January. ..News Source.. by Jim Dooley, Advertiser Staff Writer