Danielle Pappas is a 2nd year Master of Public Health student with a concentration in Global Health Leadership at the University of Southern California. As a progressive degree student, Danielle began her MPH in her senior year of undergraduate (2014-2015) at USC in which she obtained a B.S. in Health Promotion and Disease Prevention and a Minor in Psychology and Law. She graduated Summa Cum Laude and is 1 of 10 Global Scholar Honor Award recipients from USC’s class of 2015.
Pervasive cases of child sexual abuse, rape, kidnapping, and murder have terrorized American news reports for a number of years (Terry 2011). As a result, these repugnant crimes engendered a widespread moral panic and an urgent call for justice. States have tried to impose this justice by passing an increasing number of restrictions to regulate the behaviors of sex offenders (Terry, 2011). Examples of these sex offender restrictions range from sexual psychopath laws, to indeterminate sentencing, to current civil commitment statutes (Terry 2011). Overall, solutions to sex crimes are motivated by hatred, as society endorses the view that sex offenders do not deserve to be treated as human beings because they are “monsters” and “fiends” (Terry, 2011). While it is natural for people to be outraged by the unjustified evil encompassed by crimes such as child molestation, this dehumanizing mentality only perpetuates evil. Still, there is a “‘special depravity’ associated with sexually related crimes, to the extent that sex offenders are perceived as ‘especially vile and loathsome people who really do not deserve to be treated like defendants in other crimes’”(Friedland, 1999, p. 81). These sentiments have ultimately propelled states to confine sex offenders indefinitely through civil commitment (Friedland, 1999). In doing so, however, society responded to heinous sex crimes with heinous retribution. The civil commitment of sex offenders is simply criminal treatment masked as civil, making rehabilitation unattainable. Furthermore, both the misuse of psychiatry and the vague standards for commitment proceedings are detrimental to the mental health community. On these grounds, the civil commitment of sex offenders is unconstitutional.
What is Civil Commitment?
Civil commitment is the “admission of individuals against their will into a mental health unit” (Reisner, Slobogin & Rai, 2009). The American civil commitment system dates back to the 1800’s. During the 1800s, the United States underwent widespread institutionalization of those with psychiatric illnesses (Testa & West, 2010). Because the mentally ill were treated as “lunatics” who lacked the capacity to make decisions, all commitments were involuntary. This system proved problematic, as the only criteria for commitment was the existence of mental illness and the recommendation for treatment (Testa & West, 2010). Consequently, unbridled discretion differentiated the insane from the sane, putting those without mental illnesses at risk of improper confinement.
Consequently, 20th century America saw drastic reforms of involuntary hospitalization standards. As focus shifted from the need for confinement to the need for procedural protections, stricter commitment standards were imposed (Testa & West, 2010). Deinstitutionalization and the civil rights movement catalyzed these initiatives, as the legal standard for civil commitment moved away from the need-for-treatment model to a dangerousness model (Appelbaum, 2006). The dangerousness model identified that a person must be mentally ill in order to be hospitalized against his or her will. Furthermore, the person must “pose an imminent threat to the safety of him- or herself or others or be shown to be ‘gravely disabled,’ meaning that he or she could not provide for the necessities for basic survival”(Testa & West, 2010, p. 37). In 1975, The US Supreme Court further solidified civil commitment criteria in the landmark O’Connor Vs. Donaldson case. This case adopted the dangerousness model, but added that a non-dangerous mentally ill person who could care for oneself could not be kept confined “without more” (Testa & West, 2010). The word “more” is generally understood as treatment, as there must be an attempt to remedy the illness in order to justify confinement. By the late 1970s, every state restricted its substantive standard to dangerousness (grave disability falls under dangerousness to self) and established procedural protections such as “the rights to notice, to counsel, to confront and cross-examine witnesses, to exclude hearsay (in many states) etc.” (Appelbaum, 2006, p.18). These standards are at the heart of civil commitment today.
During civil commitment proceedings, the state considers two interests, or legal principles: parens patriae and police power (Testa & West, 2010). Parens patriae is Latin for “parent of the country”, an English common law doctrine that delegates responsibility to the state “to intervene on behalf of citizens who cannot act in their own best interest” (Testa & West, 2010, p.31). This principle applies to those who are gravely disabled, in which civil commitment is necessary to care for the person’s needs. On the other hand, police power is the responsibility of the state to act in the best interests of it citizens, including protecting them from harm. If a mentally ill person is dangerous to him or herself, or others, the state utilizes civil commitment to ensure safety (Testa & West, 2010). In so far as civil commitment is justifiable for this reason, individual liberty, that is, the desire to not be confined, is often overlooked.
Civil Commitment of Sex Offenders
Between 1930 and 1960, states passed “sexual psychopath laws” that subjected sex offenders to indefinite hospitalization instead of incarceration (Zonana, 1997). However, treatment did not prove to be effective, and the goal of retribution took primacy over rehabilitation. When states realized this, the sexual psychopath statutes were repealed, as the purpose of hospitalization is not retribution (Zonana, 1997). As a replacement, states utilized indeterminate sentencing to issue very long sentences to sex offenders. Opportunities for earlier release were only met if parole boards deemed the offender “safe” (Zonana, 1997).
The 1980s saw a shift from indeterminate to determinate sentencing, based on the average time offenders spent in jail for a specific crime (Zonana, 1997). Ultimately, this shift reintroduced moral panic because some sex offenders repeated heinous crimes after serving relatively brief fixed sentences. In response, Washington passed the first of the “sexual predator” statutes in 1990 (Zonana, 1997). Since then, states have had the power to civilly commit sex offenders at the end of their prison sentences so long as the offenders are dangerous and meet the criteria for “sexual predator”. In order to be labeled a sexual predator, sex offenders must have a “mental abnormality” or “personality disorder”, rendering them prone to re-offending (Zonana, 1997). Thus, a simple psychiatrist declaration of mental abnormality or personality disorder coupled with dangerousness could potentially confine sex offenders for the rest of their lives.
Kansas vs. Hendricks (1997)
The thought of this lifetime confinement is both daunting and unsettling, especially because the requirement of “mental abnormality” is vague and questionable for its failure to encapsulate the need to prove the existence of a mental illness (Friedland, 1999). In addition, because many sex offenders serving prison sentences were later relocated to a second form of confinement for the same crime, sex offender statutes were immediately challenged in courts as unconstitutional double jeopardy and ex post facto violations (Friedland, 1999). Double jeopardy “prohibits multiple punishments for the same offense, whereas the Ex Post Facto Clause voids ‘any new [retroactive] punitive measure to a crime already consummated’” (Friendland, 1999, p. 90).
Ultimately, the US Supreme Court Kansas vs. Hendricks (1997) decision upheld the statutory scheme that “permits the hospitalization of sex offenders who have been found to be ‘sexually violent predators’” after their criminal sentence (Zonana, 1997, p.1248). In addition, the court said that “hospitalization can be based on remote past behavior coupled with some ‘mental abnormality’ or ‘personality disorder’ that makes an individual likely to engage in predatory behavior” (Zonana, 1997, p.1248). This ruling made it constitutionally permissible because the commitment was civil rather than criminal.
Civil commitments are distinguished from criminal incarceration because they are “intended to benefit the respondent through treatment and to protect society from a dangerous individual”(Friedland, 1999, p.85). On the other hand, the primary goals of criminal incarceration are retribution and deterrence. According to the court, Hendricks was not punished twice or punished retroactively for the same crime because civil proceedings are non punitive (Friedland, 1999). Because the commitment goal was treatment, the involuntary hospitalization of sex offenders in Kansas was civil and therefore constitutional (Zonana, 1997). This landmark case set the standard, as there are now 20 states with similar civil commitment statutes for sex offenders (Milby, 1995).
The Dangerousness Criteria- Commitment is Imprisonment
Based on the O’Connor vs. Donaldson decision, mentally ill persons who are not dangerous and are capable of surviving on their own cannot be civilly confined without “more”. Civil commitment is a fundamental deprivation of liberty that ultimately requires some kind of treatment to justify the confinement (Testa & West, 2010). Because this set the precedent for civil commitment, it is important to examine how this affects sex offenders.
Although many sex offenders can survive on their own following the completion of their prison sentences, many do not meet the O’Connor vs. Donaldson criterion of non-dangerousness. This creates a loophole whereby sex offenders could potentially be confined without treatment rendering civil commitment just another form incarceration. Proponents claim that it is in the best interest of these individuals and those around them that they remain confined (Friendland, 1999). However, if these sex offenders are deprived of their liberty and confined indefinitely without the provision of treatment, there is no clear distinction between the civil and criminal nature of confinement with retribution rather than rehabilitation taking center stage.
Furthermore, are all of these sex offenders still dangerous? A major difference between civil detentions and criminal incarcerations is that civil detentions are “preventive in nature, aimed at protecting against future dangerousness” and “intended to benefit the respondent”, whereas criminal incarceration is backwards-looking, punishing a person because of prior actions” (Friedland, 1999, p.85). As a concerned community, it seems logical to commit sex offenders in order to prevent future dangerousness. This rationale aligns with the preventive forward-looking nature of civil detention. Thus, one can argue that the commitment of sex offenders is indeed “civil”. However, this logic assumes future dangerousness based upon previous actions of these sex offenders. If the determination of dangerousness is based upon the act that sent the sex offenders to jail, it is impossible for them to avoid the “dangerous” label. This heightens the risk of unlawful civil commitment of sex offenders who are no longer dangerous. Thus, sex offenders are trapped in their transgressions, with no opportunity to move forward. This focus on prior actions means that the civil commitment is indeed backwards looking, which is criminal and not civil in nature (Friendland, 1999).
Furthermore, the hateful sentiments directed at sex offenders blurs the line between civil and criminal intent, as communities clearly want to punish sex offenders for their crimes. It is hard to say that the intention behind civil commitment is purely based on dangerousness and the desire to benefit the sex offender when these negative sentiments are incredibly pervasive (Terry, 2011). At the very least, there is a critical need to establish current dangerousness or threat in order to say the commitment is truly civil and aimed at preventing future dangerousness.
The Problem With Treatment- Commitment is Imprisonment
Fortunately, the US Supreme Court in Kansas vs. Hendricks identified the constitutional threat that the lack of treatment fosters. Thus, the Kansas statute was only constitutional in the context of treatment, because “without the nonpunitive aim of treatment, commitment would constitute additional penal incarceration in violation of substantive due proves and the double jeopardy and ex post facto clauses of the Constitution” (Miller, 2010, p. 2013). However, the Court also recognized that lack of treatment did not violate the statute when treatment for a condition was not possible or when treatment was an ancillary state concern (Miller, 2010). This finding is problematic, as it lessens civil commitment standards as constitutional so long as they provide some level of treatment, even if treatment is “not provided in every case or is not the primary goal of the commitment” (Miller, 2010, p.2016). This opens the door to the devastating realities of inadequate or nonexistent treatment, raising constitutional concerns previously noted.
Based on this discussion, the civil commitment of sex offenders requires treatment to retain its civil nature. However, only ½ of the states with civil commitment statutes for sex offenders identified treatment as the main goal, while other states had no clear goals (Milby, 1995). Without a defined sense of dedication to treatment, the treatment is likely to be ineffective or inadequate in these programs. Furthermore, program improvements cannot be made if goals are vaguely identified, leaving treatment stagnant in these facilities.
However, even when goals are identified, sex offenders are subject to an unfair system. For example, the civil commitment release standards are typically based on reduction of risk or the completion of the treatment program (Deming, 2008). The programs with treatment completion as the goal have a near zero release rate, even when sex offenders complete the program (Deming, 2008). In Minnesota, no civilly committed sex offenders have been released since the program began in 1994 (Yunker, Starr &Roskopf, 2011). This is detrimental and discouraging, as freedom and rehabilitation seem unattainable to patients. Sex offenders who do not see treatment completion as their ticket to freedom and rehabilitation are less likely to engage in treatment and consequently get better.
Sadly, the outcome is grim even when treatment is provided within the context of potential discharge. In fact, treatment typically harms sex offenders and increases the likelihood that they will never be released (Miller, 2010). Because the commitment process is civil rather than criminal, sex offenders are not protected by the procedural safeguards of criminal proceedings such as the “Fifth Amendment right against self-incrimination, the 6th Amendment rights to jury trial and to assistance of counsel, and the requirement of proof beyond a reasonable doubt” (Miller, 2010, p. 2095). In particular, the ability to self-incriminate runs the risk of confining sex offenders for the rest of their lives. Sex offenders need to actively participate in treatment in order to rehabilitate themselves and consequently re-enter society. To do this, they must admit to guilt and endure polygraph testing, sexual history documentation, dream logs, etc. (Miller, 2010). Participating in treatment is crucial for demonstrating how they learned from past transgressions and are rehabilitated beings ready to re-enter society. However, this same active participation helps psychiatrists accumulate evidence against them to ensure their further commitment (Miller, 2010). Thus, a treatment system designed to help sex offenders ultimately hurts them, as treatment records are used to prove mental abnormality and dangerousness. The solution is also the problem.
To make matters worse, the evidence of mental abnormality and dangerousness does not need to be proven beyond a reasonable doubt (Miller, 2010). This discourages sex offenders from participating in treatment at all, as their chances of freedom appear better without the existence of self-incriminating evidence (Miller, 2010). Without treatment, sex offenders will not get better and will continue to be retained. With treatment, sex offenders will possibly get better and will continue to be retained. This is a catch-22 that ultimately depicts civil commitment as a way to warehouse sex offenders rather than a viable solution to treat them. Because the treatment required for civil commitment is a mere illusion, civil commitment is punitive and therefore unconstitutional.
The Detrimental Effects to Mental Health World
It is important to identify a deeper issue engrained within the initial premise of these commitment statutes: the misrepresentation of mental illness. The civil commitment structure implicitly communicates the idea that all sex offenders are mentally ill. Even though this is untrue, the marriage between dangerousness and mental illness criteria perpetuates stigmatized beliefs about the mentally ill as dangerous persons. The term “sexually violent predator” is emotionally charged, as it maintains a menacing perception among the general public (Deming, 2008). However, anyone can be sexually violent and predatory. Sexual violence is not limited to mental illness, yet the term sexually violent predator is associated with mental illness. These standards encourage stigmatized disgust for those with mental illnesses as the only people capable of being sexually violent and predatory. Consequently, the civil commitment criteria for sex offenders are an inappropriate “medicalization of deviance” that convolutes understanding of mental illness. This is an abuse of psychiatry to reach criminal ends (Zonana, 1997).
Based upon these findings, the civil commitment structure accomplishes punitive rather than civil goals. The lack of treatment immediately raises punitive concerns and prevents offenders from rehabilitating, yet the provision of treatment is a double-edged sword. Even if sex offenders improve through treatment, that same treatment is used to justify their indefinite confinement. This prevents civil commitment from truly rehabilitating sex offenders and assimilating them back into communities, in which case the program becomes “nothing more than a fancy substitute for imprisonment” (Friedland, 1999, p.78). The treatment might as well be nonexistent. In addition, the civil commitment guidelines foster inaccurate and stigmatized perceptions of those with mental illnesses. This abuses the mental health system in order to secure further confinement of sex offenders who, if anything, should have longer prison sentences instead. Consequently, the civil commitment of sex offenders is unacceptable.
Moving forward, society should address the need for protection from sex offenders through the criminal system rather than the civil system. Indeterminate sentencing can achieve this goal of protection, while also providing treatment within the prison. This way, sex offenders are aware of their circumstances and can choose to participate in treatment in order to get better and re-enter society.
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