Professional Documents
Culture Documents
02-26-08 WFP Civil Commit
02-26-08 WFP Civil Commit
The New York Times reported last year (March 4, 2007) that there are
approximately 2,700 pedophiles, rapists, and other sexual offenders being
held indefinitely by 19 states, mostly in medical treatment centers. The NY
Times report was in response to the State of New York joining the parade of
states that use “civil commitment” as a way of “protecting” society from
“dangerous” sexual predators. Several New York legislators hailed the
state’s decision to adopt civil commitment as an opportunity to create a
“national model” for not only in isolating dangerous sex offenders but in
treating them as well, including “intensive supervision” of those who secure
release from their commitment. The following bullet points from the Times
report offers a glimpse of “civil commitment” programs nationwide:
Section 2 of that statute set forth the proceedings that would be utilized to
commit such a personality: “ … except as otherwise therein or thereafter
provided, the laws relating to insane persons, or those alleged to be insane,
shall apply with like force to persons having, or alleged to have, a
psychopathic personality. There is a proviso that, before proceedings are
instituted, the facts shall first be submitted to the county attorney, who, if he
is satisfied that good cause exists, shall prepare a petition to be executed by
a person having knowledge of the facts and shall file it with the judge of the
probate court of the county in which the ‘patient’ has his ‘settlement or is
present.’ The probate judge shall set the matter down for hearing and for
examination of the ‘patient.’ The judge may exclude the general public from
attendance. The ‘patient’ may be represented by counsel, and the court may
appoint counsel for him if he is financially unable to obtain such assistance.
The ‘patient’ is entitled to compulsory process for the attendance of
witnesses in his behalf.” Id. See also: 309 U.S. at 273.
The court was required to appoint two licensed doctors of medicine to assist
in the examination of the “patient.” The proceedings had to be transcribed to
permit the patient an opportunity to appeal to the district court.
A constitutional challenge to the statute made its way to the U.S. Supreme
Court on the grounds that it violated the due process and equal protection
clauses of the Fourteenth Amendment to the United States Constitution. The
court rejected this dual challenge, saying:
“Equally unavailing is the contention that the statute denies appellant the
equal protection of the laws. The argument proceeds on the view that the
statute has selected a group which is a part of a larger class. The question,
however, is whether the legislature could constitutionally make a class of the
group it did select. That is, whether there is any rational basis for such a
selection. We see no reason for doubt upon this point. Whether the
legislature could have gone farther is not the question. The class it did select
is identified by the state court in terms which clearly show that the persons
within that class constitute a dangerous element in the community which the
legislature in its discretion could put under appropriate control. As we have
often said, the legislature is free to recognize degrees of harm, and it may
confine its restrictions to those classes of cases where the need is deemed to
be clearest. If the law ‘presumably hits the evil where it is most felt, it is not
to be overthrown because there are other instances to which it might have
been applied.’
“As we have seen, the facts must first be submitted to the county attorney,
who must be satisfied that good cause exists. He then draws a petition which
must be ‘executed by a person having knowledge of the facts.’ The probate
judge must set the matter for hearing and for examination of the person
proceeded against. Provision is made for his representation by counsel and
for compelling the production of witnesses in his behalf. The court must
appoint two licensed doctors of medicine to assist in the examination. The
argument that these doctors may not be sufficiently expert in this type of
cases merely invites conjecture. There is no reason to doubt that qualified
medical men are usually available. Laws as to proceedings where persons
are alleged to be insane are made applicable. Appellant says that the patient
cannot be released on bail. The State contests this, insisting that he may be
so released pending hearing or on appeal, pointing to Mason's Minnesota
Statutes, 1938 Supplement, § 8992-178. Appellant contends that, if the court
finds the patient to be within the statute, he must be committed ‘for the rest
of his life to an asylum for the dangerously insane.’ Mason's Minn.Stat.,
1938 Supp., § 8992-176. The State also contests this conclusion, maintaining
that the commitment is without term and subject to the right of the patient,
or any one interested in him, to petition the committing court for release at
any time. Mason's Minn.Stat., 1938 Supp., § 8992-143; Laws of 1935, Chap.
72, § 143, as amended by Laws of 1939, Chap. 270, § 8. The statute gives a
right of appeal from the finding of the probate judge upon compliance with
certain specified provisions of the Minnesota laws. Appellant contends that
this excludes other provisions of laws relating to appeals in insanity cases.
Again, appellant's position is contested by the State upon the ground that
there is no express limitation or exclusion in the language of the statute, and
that other provisions governing appellate procedure apply. These various
procedural questions and others suggested by appellant do not appear to
have been passed upon by the state court.
The 1994 Minnesota statute followed the modern “civil commitment” statute
enacted by the State of Washington following a series of high profile and
horrific sex-murders in the 1980s and 1990s. After the Washington Supreme
Court upheld that state’s civil commitment law, Minnesota, Kansas, and
Wisconsin in 1994 followed suit with their own versions of the law.
California soon boarded the civil commitment train.
But it was the Kansas statute that first made its way to the U.S. Supreme
Court under a constitutional challenge. The Kansas statute was called the
“Sexually Violent Predator Act” which essentially provided for the civil
commitment of offenders who, due to a “mental abnormality” or a
“personality disorder,” are likely to engage in “predatory acts of sexual
violence.” See: Kan.Stat.Ann. § 59-29a01. See also: Kansas v. Hendricks,
521 U.S. 346, 350 (1997).
The Kansas Legislature, in the preamble of the statute, set forth the need to
deal with “sexually violent predators” in this manner:
"[A] small but extremely dangerous group of sexually violent predators exist
who do not have a mental disease or defect that renders them appropriate for
involuntary treatment pursuant to the [general involuntary civil commitment
statute] . . . . In contrast to persons appropriate for civil commitment under
the [general involuntary civil commitment statute], sexually violent
predators generally have anti-social personality features which are
unamenable to existing mental illness treatment modalities and those
features render them likely to engage in sexually violent behavior. The
legislature further finds that sexually violent predators' likelihood of
engaging in repeat acts of predatory sexual violence is high. The existing
involuntary commitment procedure . . . is inadequate to address the risk
these sexually violent predators pose to society. The legislature further finds
that the prognosis for rehabilitating sexually violent predators in a prison
setting is poor, the treatment needs of this population are very long term and
the treatment modalities for this population are very different than the
traditional treatment modalities for people appropriate for commitment
under the [general involuntary civil commitment statute]."
"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 the predatory acts of sexual
violence." See: § 59-29a02(a).
The Act's civil commitment procedures pertained to: (1) a presently confined
person who "has been convicted of a sexually violent offense" and is
scheduled for release; (2) a person who has been "charged with a sexually
violent offense" but has been found incompetent to stand trial; (3) a person
who has been found "not guilty by reason of insanity of a sexually violent
offense"; and (4) a person found "not guilty" of a sexually violent offense
because of a mental disease or defect. § 59-29a03(a), See also: 521 U.S. at
352.
Hendricks was then arrested and convicted in 1984 for the “indecent
liberties” charge with the two 13-year-old boys. After serving ten years, he
was scheduled to be released to a halfway house. The State of Kansas
decided to put its new “Sexually Violent Predators’ Act” to work by filing a
petition to have him civilly committed. Hendricks appeared in court
represented by counsel and challenged the new law on several federal
constitutional grounds. Finding that there was probable cause to support that
Hendricks was a sexually violent predator, the court deferred ruling on the
Act’s constitutionality and ordered that the sex offender be evaluated at a
state security hospital. Hendricks, supra, 521 U.S. at 353-54.
The jury unanimously found beyond a reasonable doubt that Hendricks was
a sexually violent predator. Armed with the jury verdict, the trial court found
as a matter of law that Hendricks suffered from the “mental abnormality” of
pedophilia and ordered him civilly committed to the state’s Secretary of
Social and Rehabilitation Services for "control, care and treatment until such
time as the person's mental abnormality or personality disorder has so
changed that the person is safe to be at large" as required by § 59-29a07(a).
Id., 521 U.S. at 355-56.
See also: Kansas v. Crane, 534 U.S. 407 (2002)[rejecting an effort by the
State of Kansas to extend the commitment of a dangerous sexual offenders
without a “lack-of-control” determination being made]. Accord: Seling v.
Young. 531 U.S. 250 (2001)[upholding Washington State’s Community
Protection Act of 1990 which authorizes the civil commitment of “sexually
violent predators,” persons who suffer from a mental abnormality or
personality disorder that makes them likely to engage in predatory acts of
sexual violence. Wash. Rev. Code §71.09.010 (1992)].
Leroy Hendricks is now 73 years of age. He has been confined through his
civil commitment under the Kansas Act for fourteen years at a cost of
$85,000 a year – more than eight times it would have cost to keep him in
prison. The Times reported that he spends most days in a wheel chair or
leaning on a cane “because of diabetes, circulation ailments and the effects
of a stroke.” He probably will not live long enough to “graduate” from the
state’s “treatment” program. Nationwide only 250 civilly committed sex
offenders have been released unconditionally since the Washington Act was
enacted in 1990.
The staggering costs of civil commitment has not deterred most states from
pursuing the goals of these community protection acts. California, for
example, is spending $388 million on a facility that will allow the state to
increase its number of sex offender civil commitments to 1500 while
Florida, Minnesota, Nebraska, Virginia, and Wisconsin are also expanding
their capacity to commit more such offenders. At the federal level the Bush
administration is offering money to the states to house “dangerous sex
offenders” beyond their prison terms while the Justice Department is,
according to the Times, “creating a civil commitment program for federal
prisoners.” This expansion gusto is occurring despite the shortcomings of a
number of these existing civil commitment programs described by the
Times:
• Sex offenders selected for commitment are not always the most
violent; some exhibitionists are chosen, for example, while rapists are
passed over. And some are past the age at which some scientists
consider them most dangerous. In Wisconsin, a 102-year-old who
wears a sport coat to dinner cannot participate in treatment because of
memory lapses and poor hearing.
• The treatment regimes are expensive and largely unproven, and there
is no way to compel patients to participate. Many simply do not show
up for sessions on their lawyers’ advice – treatment often requires
them to recount crimes, even those not known to law enforcement –
and spend their time instead gardening, watching television or playing
video games.
• The cost of the programs is virtually unchecked and growing, with
states spending nearly $450 million on them [in 2007]. The annual
price of housing a committed sex offender averages most than
$100,000, compared with about $25,000 a year for keeping someone
in prison, because of the higher costs for programs, treatment and
supervised freedoms.
• Unlike prisons and other institutions, civil commitment centers
receive little standard, independent oversight or monitoring; sex
among offenders is sometimes rampant, and, in at least one facility,
sex has been reported between offenders and staff members.
• Successful treatment is often not a factor in determining the relatively
few offenders who are released; in Iowa, of the nine men let go
unconditionally, none had completed treatment or earned the center’s
recommendation for release.
• Few states have figured out what to do when they do have graduates
ready for supervised release. In California, the state made 269
attempts to find a home for one released pedophile. In Milwaukee, the
authorities started searching in 2003 for a neighborhood for a 77-year-
old offender, but have yet to find one.
While civil commitment has some due process protections attached to it, the
process nonetheless has the unconstitutional smell of the WWII Japanese
“internment camps” and the modern “enemy combatant” detention facilities.
In all three situations, individuals are confined indefinitely not for what they
have been convicted of doing but what it is believed they may do in the
future.