KAREN TERRY
Department of Law, Police Science, and Criminal Justice Administration
John Jay College of Criminal Justice
kterry@jjay.cuny.edu
Word Count: 1500
Sexual Offender Civil Commitment
Several states have passed legislation requiring that sexual offenders be committed to a mental institution if they are assessed as having a mental abnormality or personality disorder and are dangerous. Labeled a “sexually violent predator” (SVP), the purpose of this legislation is to incapacitate recidivist sexual offenders until they are rehabilitated. This legislation assumes a relationship between mental disorder, risk and sexual violence, and is based largely upon the ability of clinicians to accurately predict the risk an offender may present to the public in the future. Risk assessments are controversial, though, and most experts agree that they produce high rates of false positives for sex offenders except in extreme circumstances (e.g., with psychopathic, violent sex offenders who have at least two previous offenses). Though the Supreme Court has declared SVP legislation constitutional, legal challenges against it are continuing.
The concept of civilly committing sexual offenders is not new. In the 1930s, a number of states passed sexual psychopathy statutes based on the idea that sexually deviant behavior is caused by a diagnosable disorder and is treatable. Individuals who were diagnosed sexual psychopaths were civilly committed to a mental institution until rehabilitated. These statutes were enacted after emotionally charged sex crimes occurred, like those of Albert Fish. Fish committed numerous assaults, sexual offenses and murders against children, culminating in the mutilation and cannibalism of a twelve-year old boy. Because such offenders are rare, however, the statutes fell into disuse and were repealed in most states by the 1980s.
Like the sexual psychopathy laws, SVP legislation was passed after emotionally charged sex crimes in the late 1980s. At this time, criminal legislation was ineffective at incapacitating dangerous sexual predators if they had a finite criminal sentence. Washington was the first state to enact SVP legislation in 1990, and this was largely a response to cases like that of Earl Shriner. Shriner had a history of sexual violence and murder, and had been in and out of institutions since the age of 15. During his time in prison, he bragged to inmates, staff, and confided in a journal that he fantasized about killing again. He explained that when he was released he would buy a van, kidnap boys, take them into the woods and torture them. There was nothing the state could do to keep him incapacitated, and once released he kidnapped a seven-year old boy, cut off his penis and left him for dead. Shortly after Earl Shriner’s crime of sexual mutilation, Washington passed the Community Protection Act of 1990, which contained 14 separate provisions for ensuring community safety against such predators. Sixteen states have since implemented similar statutes.
An SVP is generally defined as a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence. SVP statutes were enacted specifically to target “a small but extremely dangerous group of SVPs who do not have a mental disease or defect that renders them appropriate for involuntary treatment...” (Kansas SVPA § 59-29a). The statute requires proof of past sexually violent behavior and a present mental condition that is likely to cause similar violent behavior in the future.
The general format of a commitment process follows six steps. First, the correctional agency refers the sex offender to the court shortly before his or her release from prison. Second, the prosecuting attorney files a petition to incapacitate the offender as an SVP. Third, there is a hearing during which the prosecutor must show probable cause that the offender is an SVP. The offender has due process rights at this hearing that are similar to those in a criminal trial, including the right to notice of the hearing, an opportunity to be heard, right to counsel, right to present evidence, right to cross-examine witnesses, and the right to view and copy all petitions and documents in his or her file. Fourth, if the Court determines that probable cause does exist, the sex offender is transferred to a psychiatric facility for evaluation. If the psychiatrist then determines that the sex offender poses a high risk and does have a mental or personality disorder, the fifth step is a trial. During the trial, the offender has a right to counsel, a jury trial, and an examination by an expert of his or her choice. If the offender chooses to have a jury trial, the verdict must be unanimous. If a judge decides or the jury unanimously decides that the offender is an SVP, he or she is then transferred to a special containment facility (e.g., mental hospital, special secure unit) until rehabilitated.
The most crucial step of this process is the risk assessment. This is a subjective evaluation that aims to determine a person’s future behavior. Though each state differs in its method of evaluation, most combine clinical assessments and actuarial-based assessments. Actuarial-based instruments, such as the commonly used Static-99, measure the offender’s past offenses and personal characteristics. By measuring the base rate of reoffense for a particular cohort of sexual offenders, it is supposedly possible to determine whether an individual will reoffend.
Though based on the same concept and procedures, SVP statutes differ in each state in seven primary ways. The first difference is with the definition of a sexually violent predator. Most states use the three-pronged criteria of mental abnormality, dangerousousness, and no availability of less restrictive alternative to declare and individual an SVP; yet, other states replace mental abnormality with personality or mental disorder, thereby increasing the chance that an individual will be determined an SVP. A second difference is with the standard of dangerousness for commitment. These standards include “highly likely” to recidivate, an “extremely high” rating of dangerousness, if they are “most likely to reoffend”, or are “distinctively dangerous.” Similarly, the standard of proof for commitment differs. While most states require the same standard for commitment as with a criminal trial – proof beyond a reasonable doubt – other states (e.g., Florida) require the lesser standard of “clear and convincing evidence” that is generally required in civil trials. A fourth difference between states is the length of commitment. While most states require that the civilly committed sex offender remain incapacitated until rehabilitated, other states (e.g., California) require that the offender must be reevaluated every two years. The facilities for containment are a fifth difference, and they range from prisons to hospitals to special secure facilities. Cost is a sixth difference, and this is largely dependent upon the facility, the trial procedure, and type of treatment provided. Taking into consideration the cost of housing, treatment, and legal fees, the facilities range in cost from approximately $130,000 per offender per year (in Washington) to $238,000 per offender per year (in Iowa). A final difference between states is method of assessment. Though most states use clinical and actuarial risk assessments, not all do and the actuarial assessment scales vary by state. Because of all these differences, the number of incapacitated sex offenders varies in each state. California has committed the most sex offenders of all states at 370, with many others awaiting various stages of the commitment process. In total, nearly 5000 offenders have been referred for commitment in that state. Alternatively, only about 50 sex offenders have been referred for commitment in Iowa.
Almost immediately after its inception, claimants challenged the SVPA in the courts on several grounds, including ex post facto application, double jeopardy, due process, equal application, vagueness of the statute, and definition of an SVP. Though several cases went through state courts in Washington, Minnesota, and New Jersey, for instance, the US Supreme Court first examined the Kansas statute. In 1997, Court upheld the commitment of Leroy Hendricks, a recidivist pedophile, in Kansas v. Hendricks. Leroy Hendricks had a long history of sexual deviancy, with convictions of sexually abusing children beginning in 1955. He explained to psychologists that he harbored strong sexual desires for young children and was diagnosed a pedophile. The state assessed him as a sexually violent predator and incapacitated him, but Hendricks challenged his civil commitment on substantive due process grounds. The Court upheld Hendricks’ civil commitment and declared the Kansas SVP statute constitutional on all grounds, stating that it is a civil rather than criminal statute and therefore does not constitute punishment. Therefore, it does not violate double jeopardy or ex post facto application of the law. Additionally, the Court dismissed the idea that the term “mental abnormality” was vague a standard for commitment, and claimed that the statute does not, therefore, violate due process rights.
KAREN TERRY
Alexander, R. (1993). The civil commitment of sex offenders in light of Foucha v. Louisiana. Criminal Justice and Behavior. 20: 371-387.
Hanson, R.K. and Thornton, D.M. (1999) STATIC 99: Improving Actuarial Risk Assessments for Sex Offenders. Ottawa: Public Works and Government Services.
Hoberman, H.M. (2001). Dangerousness and sex offenders: Assessing risk for future sex offenses. In A. Schlank (ed.) The Sexual Predator: Legal Issues, Clinical Issues, Special Populations (Vol. II). New Jersey; Civic Research Institute.
Jenkins, P. (1998). Moral Panic: Changing Concepts of the Child Molester in Modern America. New Haven; Yale University Press.
Kansas Sexually Violent Predator Statute § 59-29a
Kansas v. Hendricks, 521 U.S. 346 (1997)