---

20th Century Civil Commitment: Concept -vs- Law, A Discussion.

---

Civil Commitment: The Concept!:
The concept of civil commitment is that, in society there are persons who by virtue of their actions, are a danger to society, and society in an effort to protect itself, has a right to remove these persons from society. We agree with this general concept. However, today the concept has crossed the lines of, clear and present danger based upon current actions, to, a perceived future possible danger based upon actions occurring before a criminal sentence of imprisonment. The latter refuses to recognize that, a criminal sentence of imprisonment, could ever effect a change in a person.

On Victims:
This discussion does not address victims, and, never would we want anyone to believe or feel that their pain, and what they have gone through, should ever be minimized or negated. However, the victims' stories, pain, agony and views, are separate topics from our discussion here. Those issues as they relate to "amount or kind of punishment" were addressed in the offender's punishment phase of his/her criminal prosecution.

While the concept of the civil commitment appears to have good purpose, traditional protections afforded persons under laws, from which civil commitment has been carved, have been withdrawn and convoluted. Only one type of offender is subjected to this process, and the process has no foreseeable end for the life of the person subjected to it except in hollow words put forth by the state, and these words have been changeable with every session of legislatures!

The underlying principle of civil commitment is, treatment and restoration of the person committed. Accordingly, when legislators design systems such as civil commitment, they must not allow themselves to be fueled by the John Wayne Gaseys of the world, thus turning civil commitment systems into a system of further punishment.

Legislation must take the reasoned route, one that encompasses all of our traditional legal protections recognizing that such may, one day have a Gasey to deal with; and not convolute the process so that it loses even the appearance of treatment and restoration; today this has happened. Systems need to be driven focusing on 'long term' what is best for society, which includes needs of victims and offenders, as both will ultimately take their place in society.

In order to more fully understand today's process one must have knowledge of the threshold issues, and how even they have been so convoluted as to lose all appearance of fairness which all people believe is fundamental to our system of laws in the United States. The intent of this discussion is to make folks aware of the major threshold issues.


Sex Offender Recidivism; the basis of civil commitment::
The first threshold problem lies with "sex offender recidivism rates," society believes them to be very high, higher than all other offenders. This has been a myth for a long time, while legislators commission researchers to perform studies of sex offender recidivism rates, when they are done, legislators have ignored the results, still publically claiming they are high.

See "RECIDIVISM-2003 November: Recidivism of sex offenders released in 1994. Washington, DC: Bureau of Justice Statistics Special Report, Langan, P. A., & Levin, D. J. (November 2003)." That recent study found recidivism rate to be 5.3% as to all crimes, and only 3.5% as to committing another sex crime. Other crimes types go upwards to 30-40%.

Yes, there is a problem, but it is with the "claims of high recidivism rates!"


Therapy, the goal of civil commitment::
During an Offender's Sentence; or the absence thereof:
The second threshold problem lies with the states, following the offender's criminal conviction and during the offender's sentence, only some states actually provide any therapy during the offender's sentence. An Iowa federal judge recently discussed, in his opinion declaring Iowa's sex offender residency laws unconstitutional, why therapy issues should govern state actions. The long term effect of overcontrol of sex offenders has a negative effect on society, in that, sex offenders are more likely to recidivate! (see pgs 23-36 of that opinion)

If all states would provide qualified relevant therapy during a person's sentence, then the state would be more qualified to say, a certain offender, is or isn't, a candidate for the civil commitment process following the end of the offender's sentence. An unbiased qualified therapist, after spending 1 or more years with an offender in group and private sessions, should be more than qualified, to recommend or not recommend, that a offender be subjected to the civil commitment process at the end of their sentence.

Unfortunately far too many states provide no therapy during a person's sentence. (See State of Colorado, Department of Corrections, 2000 survey entitled "State Sex Offender Treatment Programs: a 50 State Survey") (caution this is a 495 pg report covering 50 states; load time is long) That Colorado study proved there is an acceptable method of treatment that is effective, it is called Cognitive Behavioral Therapy.

If -ALL STATES- provided such therapy during an offender's sentence, first the offender would benefit, second the state would benefit, in that costs of therapy in prison is far less than treatment in a civil commitment facility, hence society as a whole benefits.

As to those offenders who are forced into the civil commitment process when the state failed to provide them therapy DURING their sentence, this raises a legal question which is best explained by understanding the legal definition of "Laches." In essence, when a party fails to raise a claim when they have the opportunity to, they are later barred from raising that claim after the fact. In other words, the state failed to provide the therapy or even raise the issue during the offender's sentence, then the state cannot raise it after the offender's sentence due to the Doctrine of Laches.

Some folks would argue that, the state brings the civil commitment process nearing the end of the sentence so the doctrine of laches is not applicable. It is interesting how the English language can be perverted to overcome the spirit and intent of laws. I will leave that issue there as the Doctrine of Laches is still relevant.

As to offenders who refuse therapy provided by the state during their sentence (if provided), these folks should be subjected to the civil commitment process. There is but one exception to that belief:

When Therapeutic Goals and Environment Are Compromised:
When therapy is conditioned on admissions of past incidents (incidents may be crimes), which the offender, now in custody, has not been charged or convicted of, and no immunity from further prosecution is granted, then the therapeutic goals and environment is destroyed. Society does not benefit, past unknown victims are not helped, neither is the offender helped.

It simply does not make any sense, once the offender is in custody and convicted, to be bent on further convictions and retribution, rather than focusing on long term needs of society, helping, all the victim/s and the offender, restoring them to again be productive members of society. If society truly wishes to solve sex abuse, the therapeutic environment should never be compromised or conditioned, and immunity should be granted.

The Civil Commitment Process and Risk Assessments::
Next is the civil commitment process itself, preceding that process is some form of a risk assessment of the sex offender, to determine if that offender should or shouldn't be placed into civil commitment for TREATMENT! The civil commitment trial follows this risk assessment.

There are problems with risk assessments, first, every state and even within the states, they use different methods of risk assessments. I.e., different risk assessment tools. The sheer number of different tools tells us that there is no one perfect tool; that is one problem. If you were to use facts from anyone's life (a non-offender) and answer the questions on any risk assessment tool, you would find that, the tool will rate that person at a minimum of, a low risk to society. Hence, they could be the subject of a civil commitment process.

Little known is the fact that, the rating system is skewed to arrive at that result. The theory is, it will only be applied to a sex offender, and they all need treatment forever; no one will admit this though. You could insert the facts of a dead person and come up with the same result. See our page on the various tools used today. These are but two issues related to risk assessment tools; many others are known.

The point being, risk assessment tools are not perfected yet, and like in a criminal matter a person must proven guilty "beyond a reasonable doubt" before convicting him/her, likewise should be risk assessments. After-all aren't the tools saying, this person is likely to go out and commit another crime (not necessarily a sex offense either)? The tool is foretelling the future, do any of us know what we will wear tomorrow, or what we will eat, or the many other things of life that are conditioned on inner human characteristics, desires and environment among other factors?

Which crime types should be subject to civil commitment::
More and more today we hear of folks being wrongly convicted, and some even based upon false testimony or fraudulent evidence, and what about the biases or prejudices of those involved in the civil commitment process, even a therapist. How do we assure ourselves as a society that we are not destroying a life rather than subjecting one to necessary therapy?

Are you aware that there are folks in prison for sex offenses like, urinating in the park, teenage experimentation (Romeo & Juliet cases), victimless crimes, sometimes multiple convictions (or combinations of lesser convictions including three strikes-your-out [stealing a slice of pizza]) making them felons, who because of the wording of civil commitment laws today, will be subjected to the civil commitment process? For folks like these, it is a waste of taxpayer funds, and more importantly, a life. No, I do not have a good resolve for these folks, but civil commitment is not the answer. Serious crimes should be considered but not these.

Sexual Predators::
The cry is, "Civil Commitment for sexual predators," however society uses the term "predators" to include all sex offenders regardless of the actual crime committed. You will find far more than "predators" being subjected to the civil commitment processes today. It may mean that "predator" needs to be defined, however, states have not done that either. The issues abound with sex offenders, and explode in civil commitment.


Within the civil commitment facility itself there is a world of issues::
Today states say they are treating the offenders, yet there is overwhelming proof that, the states are just warehousing offenders under the pretext of treatment. One proof of that is the news articles which are showing that, nationwide, only a handful of offenders have ever been released from programs, running now over ten years. States are constantly hiring new directors, new therapists, and changing programs claiming there is a better way of treating, then the offenders must again be classified, and they never seem to reach the end of the treatment program; Florida is but one example.

For the handful that have been released, society where they live spends all its time trying to get the offender to move elsewhere. Elsewhere being anywhere, it's the -not in my backyard scenario-. If offenders have no place to go when released, long term they will resort to new crimes, out of a survival need having nothing to do with a sexual issue. President Bush has promised special funding to help felons in their reentry into society. Although I haven't checked it yet, it is likely that sex offenders will be excluded, as they have been from so many programs.

Definition of "sick" -vs- Appropriate Legal Process::
One final point, if it is true that, these offenders are "sick," what does "sick" mean, under the law a person is `sick' mentally or physically, but there is a new area of law for sickness and it only applies to previously convicted sex offenders. Does that statement trigger any thoughts of unequal treatment under the laws?

Not to confuse the issue, but, if a person is "sick," excepting sex offenders, our criminal justice system has permitted them to be sent to a mental health facility, under mental health laws, rather than being convicted of a crime, to permit appropriate treatment. However, civil commitment as we know it today, only for sex offenders, prescribed both punishment and treatment for being "sick." Is this a double standard?

What this signals is, our criminal justice system needs to be overhauled from the guilty phase, on!


In conclusion::
Fear, hatred, and resentment does not resolve society's problems, neither does the death penalty! If there are any sex offenders in prison, it is a sign that society has not solved the issue of sexual abuse, which is a Public Health problem.

Earlier we said, the civil commitment concept, we agree with (the John Wayne Gasey offender will always exist in society), however the current laws are a product of knee-jerk legislation and hatred, and have not been well thought out, individuals are being hurt, and society is not being helped, instead, they have a perception of safety. Proof, have sex crimes stopped? Are the sex offender registries getting smaller? No to both, approximately 96% of the new sex crimes are being committed by non-recidivists. How much time do legislators spend on the 96%?

This barely touches the tip of the iceberg. However, hopefully this enlightens, or at least provokes thought. Laws governing this process need to be changed, and refocused to help for all involved in this public health issue; victim/s and offenders, only then will society have a better chance of becoming whole again.

eAdvocate