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States Consider Sex Offender Commitment Laws
by W. Lawrence Fitch, J.D.
In recent years, several states have enacted laws for the
special psychiatric commitment of convicted sex offenders who are
about to be released from confinement after having completed a jail
or prison sentence. A 1990 Washington state statute has served as the
template for legislation in many other states.
The law is aimed, in the statutory language, at "a
small but extremely dangerous group of sexually violent
predators...who do not have a mental disease or defect that renders
them appropriate for involuntary treatment" based on general
involuntary civil commitment law. It provides for the indeterminate
commitment of "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
predatory acts of sexual violence."
Today, seven states have laws similar to the
Washington statute: Arizona, California, Illinois, Kansas, Minnesota,
North Dakota and Wisconsin. All but one of these laws were enacted
since 1994 and modeled on the Washington law. Minnesota's law, the
exception, has been on the books since 1939. A number of other states
are considering such legislation.
Historical Overview
In the United States, laws for the special commitment of sex
offenders first appeared in the 1930's. Unlike the recent statutes,
which provide for civil commitment after completion of a prison term,
these early laws were designed to provide an alternative to
imprisonment for persons found to be "mentally disordered sex
offenders." The laws were grounded in the belief that "sex offenders
were ill and psychiatrists could cure them."
During the 1950's more than half of the states in
the nation had special sex offender commitment laws. By the 1970's,
however, the "optimism of earlier decades that psychiatry held the
cure to sexual psychopathy no longer shone so brightly," and these
laws began to fall out of favor. By the mid-1980's, all but a few
states either had repealed their sex offender commitment laws or had
halted new commitments under the laws.
Resurgence of Commitment Legislation
Does the recent resurgence of sex offender
commitment legislation reflect a new-found optimism about the
efficacy of treatment? Not according to a report by the American
Psychiatric Association's Task Force on Sexually Dangerous Offenders.
Although the task force acknowledged that some sex offenders-those
with a diagnosed paraphilic disorder-may be reasonable candidates for
treatment, it questioned the notion that treatment is a primary
purpose of the recent laws. If treatment were the aim, the APA task
force observed, commitment would not be delayed until offenders have
completed their sentences. Moreover, the laws' reach would be
narrower, targeting offenders with diagnosable mental disorders. The
real purpose of the statutes, the task force concluded, is
"preventive detention of offenders who have completed their criminal
sentences. The medical model of long-term civil commitment is used as
a pretext for extended confinement that would otherwise be
constitutionally impermissible."
Cautioning that "sexual predator statutes distort
the traditional meanings of civil commitment, misallocate psychiatric
facilities and resources, and constitute an abuse of psychiatry," the
task force recommended that punishment and incapacitation be
addressed through sentencing alternatives within the criminal justice
system, not through involuntary civil commitment laws that "exclude
adequate diagnostic and treatment considerations."
Impact of Sentencing Reform
Recent support for the civil commitment of sex offenders, the APA
task force noted, appears to be a by-product of sentencing reforms
that have occurred throughout the country during the past decade,
particularly the repeal in many states of indeterminate sentencing
laws that prescribed lengthy prison terms for some crimes but also
allowed for early release on parole. In their place, many states have
enacted laws establishing fixed sentences with no possibility of
parole. In these states, most offenders now serve somewhat longer
terms than would have been the case under indeterminate sentencing,
but some-high-risk offenders who in all likelihood would have been
denied parole in the past-are released much sooner. "One obvious
solution," according to the APA task force, would be to return to
indeterminate sentencing.
Kansas v. Hendricks
Laws for the commitment of sex offenders have been controversial
on legal as well as clinical grounds. Following a series of cases in
which courts in different states expressed radically different views
on the constitutional questions raised by these laws, the U. S.
Supreme Court in 1997 agreed to hear the matter of Kansas v.
Hendricks, a case involving Kansas' sexual offender commitment
statute. The Kansas Supreme Court had struck down the statute on the
ground that it violated due process rights. "The provisions of the
act for treatment appear somewhat disingenuous," the state high court
observed.
The U. S. Supreme Court, however, took a different
view. In a 5-to-4 decision delivered in June 1997, the Supreme Court
overturned the Kansas high court ruling, declaring the law
constitutional. Writing for the majority, Justice Clarence Thomas
dismissed the notion that civil commitment requires a showing of
mental illness, or any mental condition defined or officially
recognized by the mental health professions. Moreover, he rejected
the argument that treatability was a prerequisite for commitment.
"Where accompanied by proper procedures," he wrote, "incapacitation
may be a legitimate end of the civil law."
In a separate, concurring opinion, Justice Anthony
Kennedy agreed that the civil commitment of the offender in the case,
Leroy Hendricks, was constitutional. However, he broke ranks with his
colleagues in the majority by suggesting that meaningful treatment
was, indeed, essential to the constitutionality of the Kansas law.
"If the object or purpose of the Kansas law had been to provide
treatment but the treatment provisions were adopted as a sham or mere
pretext," he wrote, commitment would be unconstitutional. Expressing
concern that the term "mental abnormality" may be "too imprecise a
category" to serve as the basis for commitment, Justice Kennedy
noted, "In this case, the mental abnormality-pedophilia-is at least
described in the DSM-IV."
Because Justice Kennedy's vote was the tie breaker,
his opinion limits the scope of the Court's decision. The decision,
he wrote, "concerns Hendricks alone," suggesting that the case should
not be read as a blanket endorsement of the Kansas statute. If a case
arises involving an offender for whom treatment were shown to be a
"sham or mere pretext," it appears likely that Justice Kennedy's
stand with the majority would change, tipping the balance of the
Court. The message for states crafting sexual predator commitment
legislation, or implementing laws already on the books, seems clear:
to avoid constitutional uncertainty, civil commitment should be
reserved for people with a legitimate mental disorder and should be
for the real purpose of treatment.
State Mental Health Agency Concerns
Since the Supreme Court rendered its decision in
Kansas v. Hendricks, there has been renewed momentum for sex offender
commitment legislation in many states, including Delaware, Georgia,
Missouri, New Jersey, New York, Ohio, Pennsylvania, Tennessee and
Virginia. Some states, however, appear to be reconsidering the issue
in view of both its financial and clinical implications.
According to a survey of state mental health
agencies by the National Association of State Mental Health Program
Directors (NASMHPD),6 the annual cost of providing inpatient services
in state mental health agency (SMHA) forensic units ranges from
$60,000 to more than $125,000 per person, compared with $25,000 to
$35,000 per person for inpatient services in state corrections
facilities. Anticipated operating costs for proposed SMHA commitment
programs range from $1 million a year to operate a 12-bed unit in
Indiana to $1.6 billion over five years in Illinois.
State mental health officials and others in the
mental health community caution that increased civil commitment of
high-risk sex offenders could skew the entire mission of state mental
health agencies and drain resources from services for persons with
diagnosable mental illness.
With these concerns in mind, NASMHPD issued a
policy statement warning of the "significant risks" that sexual
offender commitment legislation poses for public mental health
systems and urging policymakers to address concerns about the "threat
that criminally violent sex offenders may pose upon release from
prison through sentencing or other alternatives within the criminal
justice system." If commitment legislation is adopted, the policy
statement urges, "every effort should be made to fund, administer and
provide services outside the state mental health agency."
In light of the U.S. Supreme Court's decision in
Kansas v. Hendricks, it is inevitable that policymakers will be
forced to consider whether involuntary civil commitment represents an
appropriate response to the dangers sex offenders may pose when
released from jail or prison. Both public safety and the integrity of
the public mental health system demand a full exploration of the
implications of all possible options.
W. Lawrence Fitch, J.D., is Director of Forensic
Services for the Maryland Mental Hygiene Administration. He is also
an Adjunct Professor at the University of Maryland Schools of Law and
Medicine and Secretary of the Executive Committee of the National
Association of State Mental Health Program Directors' Forensic
Division. Mr. Fitch is a recipient of the "Amicus Award" of the
American Academy of Psychiatry and the Law in recognition of his
scholarship and service in the field of mental health and the
law.
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Date Last Modified: 5/7/01