Civil Commitment of Sex Offenders

Sexual violence in the United Stated has become a significant problem over the past decade. Besides being a health problem for the individual, it is a crime that every State punishes in accordance to their laws. In an effort to decrease the incidents of sexual assault, many states and legislators have passed laws geared towards reducing recidivism among convicted sex offenders. As a result, sex offenders living in the United States are subject to different laws, including sex offender registration, community notification, monitoring via a global positioning system (GPS), and loitering and internet restrictions. In addition to these boundaries, sex offenders are subject to civil commitment under the Sexually Violent Predator Laws. Civil commitment among sex offenders is a very controversial issue within the Criminal Justice System, as many argue its ineffectiveness and the violation of the individual’s civil rights. The following paper will discuss civil commitment of sexual offenders, including the costs versus the benefits, issues presented by civil commitment programs, safety it brings to society and strategies that could be implemented for these programs to work better.

In addition, this paper begins discussing what civil commitment is, which States currently implement these practices, and relevant cases pertaining to civil commitment programs and Sexually Violent Predator Laws. Civil commitment of sexual offenders is a program implemented under the Sexually Violent Predator Laws. Civil commitment of sexual offenders holds that upon release from prison a sexual offender, based on the likelihood of they reoffend, are hold upon release, and instead of going back to the community, are sent to hospitals or special institutionalized “homes” where they can continue to receive treatment for their condition. As of April of 2008, there are 20 States that implement civil commitment laws, these States are Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington and Wisconsin (Deming, 2008). The courts have reviewed different cases to investigate the constitutionality behind civil commitment programs. One of the first cases to be reviewed by the courts was Allen vs. Illinois (1986).

In this case, Allen was charged with committing crimes of unlawful restraint and deviant sexual assault (Find Law, n.d.). The state filed a petition to have him declared a sexually dangerous person within the meaning of the Illinois Sexually Dangerous Persons Act. The question that raised controversy in this case was whether the proceedings under the Illinois Sexually Dangerous Persons Act were “criminal” within the meaning of the Fifth Amendment’s against compulsory self-incrimination (Find Law, n.d.). In order for the court to decide whether the statute was criminal or not, they decided to evaluate the purpose and the effect of the act and see if these where considered punishable. While reaching a decision, the court ordered for the act to give concise information on whether “the State serves its purpose of treating rather than punishing sexually dangerous persons by committing them to an institution expressly designed to provide psychiatric care and treatment” (Smith, 2008, par. 17). Another notable case was Kansa vs. Hendricks (1997).

Like the previously mentioned case, the court addressed the constitutionality of Kansas’ Sexually Violent Predator Act which “established procedures for the civil commitment of individuals who had a “mental abnormality” or a “personality disorder” that caused them to engage in “predatory acts of sexual violence” (Smith, 2008, par. 21). The Kansas Supreme Court was concerned that such act violated the due process of individuals because it did not require for the individual to suffer from a mental illness before they were subject to civil commitment, the mere mental abnormality was enough to be placed under the program (Smith, 2008). The court also stated that it violated due process because the state was not providing proper treatment (Smith, 2008). Even though this ruling was decided by the Kansas Supreme Court; Justice Thomas wrote a decision for a divided court which overruled the prior ruling (Smith, 2008). He stated that the civil ruling could be overwritten on a civil context if the offender was unable to control his/her behavior and as a result, put society and the public in danger (Smith, 2008). One of the first states to adopt civil commitment programs was Washington State.

Enacted in 1990, Washington State passed a law authorizing the civil commitment of individuals who they found to be “sexually violent predators” at the end their criminal sentence (Lieb, 1996). The state created a special team called Joint Forensic Unit (JFU) which is a pre-selected group of expert forensic psychologists who specialize in sexually violent predator and sex offense risk evaluations (Civil Commitment of Sexually Violent Predators, n.d.). The JFU team conducts a psychological evaluation of the individual, once they determine whether the offender meets the requirements for a sexually violent predator he/she is recommended to a prosecutor’s office for civil commitment consideration (Civil Commitment of Sexually Violent Predators, n.d.). Under the statute, an offender is a sexual violent predator if “….convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility” (Lieb, 1996).

In comparison with other statutes, states such as Illinois, Kansas, New Jersey, Arizona and many others have statutes that authorize the confinement and treatment of sex offenders upon their release from prison (Lieb, 1996). For instance, Illinois Sexually Violent Predator Law defines a sexually dangerous person as “someome suffering from a mental disorder continually for at least one year, coupled with criminal propensities to the commisition of sex offenses, and who has demostrated propensities toward acts of sexual assault or acts of sexual molestation of children.” (Lieb, 1996, p. 16). Unlike Washington State, Illinois requires the individual to have at least one year of displaying a mental disorder. Illinois also has the option of either sentencing the individual for the crime committed, or offer treatment under the Civil Commitment Statute (Lieb, 1996). Unlike Illinois, Washington punishes the individual first and upon release he/she is evaluated to see if the individual fits under the category of a sexually violent predator.

The state of Illinois appoints two qualified psychiatrists to determine whether the individual meets the criteria to be placed under civil commitment (Libel, 1996). Another notable statute is the one from the State of Kansas. This state defines a sexually violent predator as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence” ((Kansas Statutes: 59-29a02: Commitment of sexually violent predators; definitions, 2009). According to this definition, Kansas takes into consideration the personality disorder of the convicted individual. This is something, Washington and Illinois do not mention in their definition of a sexually violent individual. Sexually violent predator laws tend to have five components in most states: 1) an individual must be convicted for a sexually violent crime, 2) the individual must have a mental disorder, 3) it most be proven that the offender is likely to engage in more sex crimes in the future, 4) a connection between the disorder and the way the individual behaved, and 5) the individual’s incapacity to control his/her behavior (Bartol & Bartol, 2011).

The commitment process or the first phase of the eligibility process is similar in every state. Eligible sex offenders are reviewed for civil commitment programs. They are then given a psychological assessment including clinical interview, psychometric testing, and an assessment which measures their risk of reoffending. Once professionals have made a final decision, an attorney general files a petition with the courts showing probable cause that the individual must be under civil commitment. With the proper paperwork filed and probable cause being established, a new hearing takes place where the state and the defense evaluators discuss possible civil commitment interventions for the offender. Once the courts determine that the offender is a sexually violent predator and what kind of treatment he/she will receive, they are evaluated usually once a year to see if the individual is safe to return to the community. Depending upon the state, the person can file a petition right away, but in some other states they must stay in treatment for at least 1-2 years (Lieb, 1996).

Civil commitment programs are considered involuntary, and participation is taken into consideration during re-evaluation and offenders who do not participate in these programs are rarerly released from prison. Depending upon the state, some offenders are sent to State hospitals, mental institutions or stay in prison. Treatment usually consists of rehabilitation groups and invidual sessions which focus on relapse prevention programs and cognitive behavioral therapy (Connolly, 2011).Many sex offenders also receive medication as part of their treatment, this is to calm and lower their sex drive (Connolly, 2011). Civil commitment programs can be quite costly. For instance, in the state of California $27 million is spend on psychologists and psychatrists practitioners alone (Kennedy, 2010). Doctors are paid $3,500 for initial evalution of possible SVP commitment as January 2009 (Kennedy, 2010).

The greatest benefit behind civil commitment programs is community safety. Are civil commitment programs guaranteed to reduce the recidivism rate among sex offenders? No one really knows. According to an article published by Journal of Psychiatry & Law “Some studies of recidivism after treatment have shown that people who complete sex-offender treatment have lower recidivism rates than people who were not treated, but due to methodological weaknesses it has been impossible to determine whether treatment has caused a decrease in recidivism risk” (DeClue, 2005, p. 10). This article also adds that some offenders who go through civil commitment programs and do not finish are expected to show some improvement. Although they are expected to improve, the improvement rate is higher if compared to those who finish the entire program (DeClue, 2005). Other factors that influence for the ineffectiveness of these programs might be lack of motivation, unable to control their sexual desires, and extreme hostile attitude to the programs being offered to the individual (DeClue, 2005). Many also argure that civil commitment programs are a violation of individuals civil rights.

Legal issues remain because many argue commitment programs violate the due process of the individuals. Some argue that civil commitment programs are a tool of double jeopardy (Vess, 2008) because individuals are in a sense being “convicted” again for a crime they already paid for while in jail. Others argue that civil commitment programs subject individuals to proportionality (Vess, 2008), where they are punished more severly than the law itself requires. Lastly, ex post facto challenges (Vess., 2008) also raise civil rights controversy among many people because these laws tend to overule what was previously in place, and the Criminal Justice System is able to increase punishement for past crimes, in accordance to current laws. An example of this issue can be seen in Kansas vs. Hendricks (1997), where Hendricks was convicted of sex crimes in 1984 and sentenced. During his stay in jail, the state of Kansas passed their civil commitment law in 1994.

After Hendricks served his criminal sentence, the state was able to keep him in a state hospital due to his past conviction and othe past acts being the ground root for finding him to be dangerous to the community, allowing his continued incarceration. Strategies that might work better within civil commitment programs are using better intrusments and guidelines when testing individuals and finding the possiblity of their danger to society and the need to place him/her on a civil commitment program. Combining the properly trained practitioners and bringing those who are professionally capable of studying and conduct risk assessments on the offenders, is good way of not only improve the process but reducing civil rights violation.

In addition to these programs, community re-entry programs should be offered to these individuals in order to find housing, employment and gain counseling after they are released from prison. At least a 1 year of supervision should be required for all newly released sex offenders. Civil commitment is necesssary for the protection of the public, since these individuals are a threat to society. Who wants to know that their next door neighbor is a violent sex offender? This is why it is important that these individuals receive proper care, treatment and stay in hospitals for as long as they need it. Re-evaluting these individuals upon the end of their treatment is by far the most important step of this process, because the Criminal Justice System will be held liable if sex offenders are returning to their communities and continue commiting heinous crimes. Keeping the community safe is by far the most important aspect of the Criminal Justice System, and with the right laws, processes, programs, and people in the field this can be achieved.

References

Bartol, A.M. & Bartol, C.R. (2011). Criminal behavior: A psychological approach, 9th ed. Boston, MA: Pearson Learning Solutions. Civil Commitment of Sexually Violent Predators. (n.d.). Retrieved May 12, 2012, from Department of Corrections Washington State: http://www.doc.wa.gov/community/sexoffenders/civilcommitment.asp Connolly, L. M. (2011, December). Civil Commitment and Authorization of Medical Treatment for Mental Illness. Retrieved May 12, 2012, from Commonwealth of Massachusetts : http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/mental-health-standards.pdf Deming, A. (2008). Sex offender civil commitment programs: Current practices, characteristics, and resident demographics. Retrieved May 12, 2012, from Journal of Psychiatry & Law [Serial Online], 36(3), p.