Criminal Law. Sex Offenders.

Civil Commitment for Psychiatric Treatment

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Source: Columbia Law Review, Vol. 39, No. 3 (Mar., 1939), pp. 534-544
Published by: Columbia Law Review Association, Inc.
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 RECENT STATUTES
Criminal Law-Sex Offenders-Civil Commitment for Psychiat-
ric Treatment.-An Act to provide for the commitment and detention
of criminal sexual psychopathic persons:
Section 1. All persons suffering from a mental disorder and not
insane or feeble-minded, which mental disorder has existed for a
period of not less than one year . . . coupled with criminal propensi-
ties to the commission of sex offenses, are hereby declared to be crim-
inal sexual psychopathic persons.
Section 3. When any person is charged with a criminal offense and
it shall appear to . . . the State's Attorney of the county wherein
such person is so charged that such person is a criminal sexual psycho-
pathic person then the . . . State's Attorney of such county may file
with the Clerk of the Court . . . a petition in writing setting forth
facts tending to show that the person named is a criminal sexual psy-
chopathic person.
Section 4. After the filing of the petition the court shall appoint
two qualified psychiatrists to make a personal examination of such
person, directed toward ascertaining whether such person is criminally,
sexually psychopathic; and said psychiatrists shall file with the court a
report, in writing, of the result of their examination together with their
conclusions and recommendations. A qualified psychiatrist, within the
meaning of this section is a reputable physician licensed to practice in
Illinois, and who has exclusively limited his professional practice to
the diagnosis and treatment of mental and nervous disorders for a pe-
riod of not less than five years.
Section 5. Before trial on the criminal offense a hearing on the
petition shall be held and a jury shall be impaneled to ascertain whether
or not the person charged is a criminal sexual psychopathic person.
. . .Upon such hearing it shall be competent to introduce evidence of
the commission by the said person of any number of crimes together
with whatever punishments, if any, were inflicted.
If the jury by their verdict determine that said person is a criminal
sexual psychopathic person, then the court shall commit such person
to . . . the Psychiatric Division of the Illinois State Penitentiary . . .
until such person shall have fully and permanently recovered from such
psychopathy.
Section 6. After commitment an application in writing setting
forth facts showing that such criminal sexual psychopathic person has
 RECENT STATUTES 535

recovered may be filed before the commiting court, and a jury shall
be impaneled to ascertain whether or not such person has fully re-
covered. . Upon a verdict of the jury that such person has fully
recovered . . . the court shall order that such person be discharged
. . . and committed to the custody of the Sheriff . . . to stand trial
for the criminal offense charged . . . Ill. Stat. Ann. (Jones Supp.,
Aug. 1938) ? 37.665.
Prior to the enactment of this statute in Illinois, a criminal sex
offender received no special treatment.1 Like any other offender, he
could be tried for violation of the criminal code, or committed because
of insanity. Most states have provisions for relatively severe penalties
after conviction for rape,2 sodomy,3 incest,4 seduction,5 abduction,6 and
carnal abuse of children.7 Less severe punishment is provided for in-
decent exposure,8 lascivious or lewd conduct,9 and impairment of morals
of minors.10 The procedure for determining insanity when pleaded as
a defense is rather similar in the various states,1" but the tests of re-
sponsibility are not the same.12
1 Michigan is the only other jurisdiction which reserves special treatment for
sex offenders. Mich. (Mason, Supp. 1937) ? 17329; see Note (1939) 37 MIcH. L.
REV. 613. Several states have sterilization statutes for sexual recidivists; for a list
of statutes see Note (1937) B. U. L. REV. 246, 260. Virginia reserves a prison
farm for this class, VA. CODE (1936) c. 202A, ? 5058(1). Indirectly insanity and
mental defective statutes may reach sex offenders, see notes 23, 24, infra.
2N. Y. PENAL LAW ? 2010 (1-20 years); CALIF. PENAL CODE ? 261 (1-50
years) ; ILL. STAT. ANN. (Jones, 1936) ? 37.449 (1 year-life) ; MINN. STAT.
(Mason, 1938) ? 10124 (7-30 years).
I N. Y. PENAL LAW ? 690 (up to 20 years); ILL. STAT. ANN. (Jones 1936)
? 37.105 (1-10 years).
'N. Y. PENAL LAW ? 1110 (up to 10 years); CALIF. PENAL CODE ? 285 (1-50
years); ILL. STAT. ANN. (Jones 1936) ? 37.301 (1-20 years), ? 37.303 (1-10 years).
'N. Y. PENAL LAW ? 2175 (up to 5 years, and/or $1000 fine).
6N. Y. Penal Law ? 70 (1) (up to 10 years, and/or $1000 fine) ; CALIF. PENAL
CODE ? 267 (up to 5 years).
N. Y. PENAL LAW ? 483a (up to 10 years); ALA. CRIM. CODE ? 5410 (10 years-
death); CALIF. PENAL CODE? 288 (1-life); ILL. STAT. ANN. (Jones 1936) ? 37.083
(1-20 years).
8 N. Y. PENAL LAW ? 1140 [misdemeanor, but see People ex rel. Pinchback v.
Warden, 184 App. Div. 777, 172 N. Y. SupP. 382 (lst Dep't, 1918) in which there
was imposed an indeterminate sentence up to 3 years]; ILL. STAT. ANN. (Jones
1936) ? 37.124 (fine up to $300); MINN. STAT. (Mason, 1938) !? 10186 ($5 or 10
days).
I N. Y. PENAL LAW ? 244 (assault in third degree; up to 1 year and/or $500);
ILL. STAT. ANN. (Jones 1936) ? 37.124 (fine up to $300).
10N. Y. PENAL LAW ? 483 [misdemeanor, but People ex rel. Kipnis v. McCann,
234 N. Y. 502, 138 N. E. 422 (1922) upheld the imposition of an indeterminate sen-
tence up to 3 years]; CALIF. PENAL CODE ? 273g (not more than 1 year).
" WEIHOFEN, INSANITY AS A DEFENSE IN CRIMINAL LAW (1933) 266 et seq.
For Illinois rules, Hynning, Mental Disorder in Illinois Criminal Law (1933) 12
CHI-KENT REV. 19.
12 MICHAEL AND WECHSLER, CASES ANID MATERIALS IN CRIMINAL LAW AND rrs
ADMINISTRATION (1936) c. IV. For historical and critical discussion of the tests
see Tulin, The Problem of Mental Disorder in Crime: A Survey (1932) 32 COLUM-
BIA LAW REV. 932, 935-944; Wechsler and Michael, A Rationale of the Law of
536 COLUMBIA LAW REVIEW

Although publicity following the recent wave of sex crimes gave

impetus to this enactment,13the inadequacies of the applicable criminal
code played no minor role. For many years, psychiatrists and neu-
rologists have criticized the tests of responsibility because they create
a no-man's land between the sane and the insane with the result that
many individuals are not accorded the special treatment they ought to
have.'4 While the tests are intended to serve the purpose of determin-
ing the type of treatment to be applied,15the medical expert has been
so hampered by the hypothetical question,'6 the battle of experts,17 the
jury of laymen,18 the tests themselves19-that he has been able to con-
tribute little toward the isolation of the irresponsible. Another criti-
cism leveled against the usual criminal proceedings when a sex offense
has been charged is that there is a very low percentage of convictions,20
and that a light sentence is imposed upon those who are convicted of
petty sex offenses.21 As a result, those who may be dangerous in-
dividuals are either allowed to remain at liberty or to return, uncured,
after a brief prison term to menace society.
To escape the rigidity of criminal proceedings, the instant statute
Homicide (1937) 37 COLUMBIA LAW REV. 701, 752-757. For right-wrong test,
M'Naghten's Case, (1843) 10 Cl. & F. 200 (H. of Lds.); WEIHOFEN, INSANITY AS
A DEFENSE IN CRIMINAL LAW (1933) 32 et seq. For irresistible impulse test,
People v. Lowhone, 292 Ill. 32, 126 N. E. 620 (1920); WEIHOFEN, id. at 44-64. For
New Hampshire test, State v. Jones, 50 N. H. 369 (1871) ; WEIHOFEN, id. at 79-84.
1 Report of a Committee of Neurologists and Psychiatrists Called by the Hon-
orable Thomas J. Courtney, State's Attorney of Cook County, Illinois, on Recom-
mendations for the Treatment of Sex Psychopaths (1938) 4-5; Sex Offenses in
New York City (Report by the Staff of the Citizens Committee on the Control of
Crime in New York) (1938) 3-6.
'1 GLUECK, MENTAL DISORDER AND THE CRIMINAL LAW (1925) 438 et seq.;
HOLLANDER, THE PSYCHOLOGY OF MISCONDUCT (1924) 185, 186, 199; Tulin, The
Problem of Mental Disorder in Crime: A Survey (1932) 32 COLUMBIA LAW REV.
932; Wholey, Psychiatric Report of Study of Psychopathic Inmates of a Peniten-
tiary (1937) 28 J. CRIM. L. 52; Wertham, Psychiatry and the Prevention of Sex
Crimes (1938) 28 J. CRIM. L. 847, 849. Two typical cases revealing the rigid con-
fines of the tests are People v. Moran, 249 N. Y. 179, 163 N. E. 553 (1928) ; see
People v. Marquis, 344 Ill. 261, 267, 176 N. E. 314, 316 (1931).
5 Wechsler and Michael, A Rationale of the Law of Homicide (1937) 37
COLUMBIA LAW REV. 701, 728: Overholser, The Place of Psychiatry in the Criminal
Law (1936) 16 B. U. L. REV. 322, 341.
1Lind, The Cross Examination of the Alienist (1922) 13 J. CRIM.L. 228.
' See People v. Moor, 355 Ill. 393, 395, 189 N. E. 318, 319 (1934) where 9
experts claimed that the defendant was insane, and 18 claimed he was sane; see
Tulin, The Problem of Mental Disorder in Crime: A Survey, (1932) 32 COLUMBIA
LAW REV. 932, 944.
'8 Infra note 56.
19Supra note 12.
' SEX OFFENSES IN NEW YORK CITY (1938) 6, reveals that one out of every
five charged is punished. Besides the malicious suits, one of the leading factors
making for this low percentage is the necessarily stringent requirement of proof;
People v. Deschersere, 69 App. Div. 217, 74 N. Y. Supp. 761 (1902).
2 See supra notes 8, 9, 10. SEX OFFENSES IN NEW YORK CITY (1938) 7, notes

that "bargain pleas" are allowed in 82% of the statutory rape cases, 75% of the
incest cases, 52% of carnal abuse cases and 57% of the sodomy cases.
 RECENT STATUTES 537

utilizes the flexible procedure employed in determining the necessity for

civil commitment. A state legislature has the power to exercise re-
straint of the liberty of individuals who are found to be dangerous to
the health and safety of the people.22 Most states have provided for
commitment to institutions of the insane,23 the feeble-minded or men-
tally defective,24 the inebriate,25and the delinquent child.26 The pur-
pose is two-fold: first, to safeguard society by removing the sources
of danger; second, to reform or protect the individuals committed. In
this statute the Legislature has decided to commit persons who are
found to be criminal sexual psychopaths.
Psychiatrists and neurologists are not agreed as to what constitutes
a sexual psychopathic personality.27 While it was recognized that any
definition would be subject to criticism,28it was felt that certain danger-
ous behavior by a certain type of individual warranted special treatment.
In order to reach dangerous individuals, the statute attempts a defi-
nition of the sexual psychopathic personality by setting up three
criteria: (1) possession of a mental disorder amounting neither to
insanity nor feeble-mindedness; (2) the existence of the disorder for
more than a year; and (3) possession of criminal propensities to the
commission of sex offenses.
The first criterion serves to exclude those who are already marked
out for treatment under the rules of responsibility and to include those
who suffer f rom mental disorders in the middle zone between legal
sanity and insanity. An exact definition of the particular mental dis-
orders included is not available.29 In advance of action by the agencies
responsible for the enforcement of this act, the most that can be said

22The power is explained under different names. Cf. People ex rel. Peabody v.
Chanler, 133 App. Div. 159, 162, 117 N. Y. Supp. 322, 325 (1909); TREDEMANN,
STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY, VOl. I, pp. 126-165 (police
power). People v. Neisman, 356 Ill. 322, 190 N. E. 664 (1934) (welfare of so-
ciety). In the Matter of Ferrier, 103 11. 367 (1882) (parental power).
'N. Y. MENTAL HYGIENE LAW ? 74; ILL. STAT. ANN. (Jones 1936) ? 77.001;
MASS. GEN. LAWS (1932) c. 123, ? 99, 100A, 113; PENN. MENTAL HEALTH ACr
? 48.
4 N. Y. MENTAL HYGIENE AcTf ? 121; ILL. STAT. ANN. (Jones 1936) ? 77.075,
77.076; TENN. CODE (1932) ? 4519.
'
PENN. MENTAL HEALTH ACT ? 52 (inebriate), ? 56 (epileptics) ; see EX parte
Liggett, 187 Cal. 428, 202 Pac. 660 (1921).
'MASS. GEN. LAWS (1932) c. 119, ? 52; see Recent Statute (1938) 38 COLUM-
BIA LAW REV. 1318.
7 Illinois Report, supra note 13, 1, 12-16;EAST, FORENSIC
PSYCHIATRY (1927)
c. 4; KRAFFT-EBING, PSYCHOPATHIA SEXIJALIS; and Thompson, The
Bromberg
Relation of Psychosis, Mental Defect and Personality Types to Crime (1937) 28
J. CRIM.
'
L. 70, 75.
Illinois Report, supra note 13, at 1, 16.
29 The sexual psychopath is one type of psychopathic personality, in which group
is also included the drug addict, schizoid, paranoid and epileptoid. East, Responsibil-
ity in Mental Disorder (1938) 84 T. MENTAL Sci. 203, 210.
538 COLUMBIA LAW REVIEW

is that from certain characteristics, universally accepted as sympto-

matic,30such as emotional instability, lack of response to social standards
and general lack of control, working definitions can be evolved. The
requirement that the mental disorder must have existed for one year
points to the desire to include recidivists31 as well as to make certain
that the disorder is serious in nature.
Not all sex deviators are dangerous to society in the sense that they
are prone to commit vicious and criminal offenses.32 In the group
usually classified as not dangerous, as distinguished from those who
commit rape or lust murder, are homosexuals,33 exhibitionists,34voyeurs
and fetishists.35 The danger to society from sadists and sodomites36
depends upon the nature of the individual offender. In fact, the prob-
able danger to society from any class can be dealt with only in generali-
ties, for even the homosexual may be dangerous in that he may debauch
the young or attack in jealousy.37 The requirement that the offender ex-
hibit propensities for the commission of sex offenses makes it possible
to deal with each case on its own facts. If it be true that a propensity
for the commission of sex offenses is in itself a mental disorder, then
the third requirement in the definition is merely descriptive of the
kind of mental disorder within the scope of this statute.
It cannot be gainsaid that the definition which has been given to
"criminal sexual psychopath" is vague. While it is desirable that leg-
islation incorporating the knowledge of mental science adopt that which
is certain, it would fetter expansion and experimentation if absolute
certainty were the prerequisite to change. Where there is a compara-
tively well-defined mental disorder such as dementia praecox, it is pos-

'Illinois Report, supra note 13, at 12; HOLLANDER, THE PSYCHOLOGY OF MIS-
CONDUCT (1924) 144 et seq.
31 Despite the newspaper publicity of the danger of recidivists, SEX OFFENSES
IN NEW YORK (1938) 7-14, shows that only 3.3% of those convicted for sex offenses
are recidivists.
32Adlow, The Sex Crime (1937) 7 LAW Soc. 1082, 1085; Illinois Report, supra
note 13, at 2-4. The greatest danger exists in the tendency to attack the young, and
the penal measures reflect this in their severity; see supra note 7.
3 KRAFFT-EBING, PSYCHOPATHIA SEXIJALIS (1901) 542-7; Two recent works
of fiction present a realistic picture of the plight of the homosexual and lesbian who
try to exist in a hostile society. HALL, THE WELL OF LONELINESS (1929) ; NILES,
STRANGE BROTHER (1931).
' KRAFFT-EBING, PSYCHOPATHIA SEXUALIS (1901) 477, especially cases 163,
164, 165, 171.
35Id.at 517.
East, Responsibility in Mental Disorder (1938) 84 J. OF MENTAL Sci. 203,
211 et seq. for a detailed study of the numerous variables in the sadist's behavior.
Sodomites who perpetrate their acts upon animals are not dangerous as compared
with those who ensnare children, People v. Smith, 258 Ill. 502, 101 N. E. 957
(1913).
T KRAFFT-EBING, PSYCHOPATHIA SEXUALIS (1901) 547, case no. 204; Adlow,
The Sex Crime (1937) 7 LAW SOC. 1082, 1086.
 RECENT STATUTES 539

sible to refer to it by name in a statutory definition.38 But where psy-

chiatrists do not clearly understand or agree as to the nature of the
malady, a legal definition must of necessity be a broad one.39 Perhaps
through experience derived from enforcing the statute itself, a more
satisfactory definition can be evolved.
It is notable that "any person . . . charged with a criminal of-
fense" is made subject to the act. This provision is an improvement
upon the Briggs Law of Massachusetts40 which limits the class to be
examined to persons indicted for a capital offense or those indicted more
than once, or previously convicted of a felony.41 Frequently, those
charged with house-breaking, robbery, murder, manslaughter or as-
sault have committed the offense in the attempt to carry out a sex
offense.42 Thus, by providing a broader net, there is greater certainty
that the potential sex offender will be reached.
Other provisions of the Act warrant mention for criticism. The
State's Attorney is expected to take the initial step in singling out from
those charged with a criminal offense persons who "appear" to him to
be psychopathic. His ability to do so will depend upon the availability
of records and reports as to the offender's nature and previous offenses.
The absence of provision for compulsory coordination with probation
officers, clinics, hospitals and other agencies which may have helpful
data is significant, and may require amendment as did a similar weak-
ness in the Briggs Law.43
When the State's Attorney has petitioned the court, stating facts
to establish that a particular offender comes under this statute, the
judge must appoint two psychiatrists to conduct a personal examina-
tion. Appointment of psychiatrists is no longer a novel procedure; it
has been one of the marked advances towards an harmonious coordina-
tion of psychiatry with the criminal law.44 It would have been more
desirable had the Briggs Act been emulated on this point by making
W
Wechsler and Michael, A Rationale of the Law of Homicide (1937) 37
COLUMBIALAW REV. 701, 759.
S Ibid.
4 MASS. GEN. LAWS (1932) c. 123, ? 100A. This statute, which makes provi-
sion for compulsorymental examination of all persons falling within a specifically
limited group (infra note 41), has many similarities to the principal statute. For
general discussion see Overholser, Thze Massachusetts Procedure Relative to the
Sanity of Defendants in Criminal Cases (The Briggs Lazv) (1935) 19 MINN. L.
REV.308; WEIHOFEN, INSANITYAS A DEFENSE IN CRIMINAL (1933) 401 et seq.
I Note that examination is routine when these conditions are met, and is not
dependent upon the State's Attorney as in the principal statute.
I KRAFFT-EBING, PSYCHOPATHIA SEXUALIS (1901) 517 (a fetishist may be ap-
prehended as a robber, or thief).
' Mass. Acts of 1925, c. 169; Mass. Acts of 1927, c. 59; Werthan, Psychiatry
and the Prevention of Sex Crimes (1938) 28 J. CRIM.L. 847, 852.
4 Dession, Psychiatry and the Conditioningof CriminalJustice (1938) 47 YALE
L. J. 319, 321.
540 COLUMBIA LAW REVIEW

provision for examination, or appointment of examiners, by a per-

manent psychiatric board. Continuity in personnel of the examiners
would make it possible for a body of individuals to specialize in the
study of sex offenders, to improve scientific and procedural methods of
examination, and to develop understanding of the nature of the mental
disorders encompassed by the statute. However, any apprehension that
the judges may employ their appointive powers for patronage,45 or
choose incompetents, and so disserve the scientific purpose of the act
is reduced to a minimum since the statute defines in detail a "qualified
psychiatrist".46
The written report of the psychiatric examination, which is to in-
clude conclusions and recommendations, is to be filed only with the
court and not with the interested parties. There is no provision stating
whether such report shall be introduced as evidence. On these points
the Briggs Law is explicit:47 all interested parties must receive copies
of the report, and while the report is not admitted in evidence, the
examiners may be called to testify. Peculiar to Illinois and Michigan,
the court is not allowed to summon experts to testify for fear that the
jury will be unduly impressed.48 To strictly adhere to such a position
would in effect nullify the provisions for psychiatric examination. Such
a result appears improbable if the court considers the obvious intention
of the Legislature to effect the remedial purpose of the act by means
of a psychiatric examination and report. Moreover, it is possible that
the court would no longer follow its precedent in this regard since the
great weight of authority is in opposition.49 The absence of provision
concerning the method of presentation of the report can be seized upon
to allow a free hearing either of the report or the examiner.50 The pro-
45Overholser, The Briggs Act of Massachuisetts: A Review and an Appraisal
(1935) 25 J. CRIM. L. 859, 863; Note (1936) 16 B. U. L. REV. 216.
' This was long sought for to improve the caliber of medical witnesses, Over-
holser, The Place of Psychiatry in the Criminal Law (1936) 16 B. U. L. REV. 322,
333; see Note (1937) 37 COLUMBIA LAW REV. 151, 154.
4 Overholser, The Briggs Law of Massachusetts: A Review and an Appraisal
(1935) 25 J. CRIM. L. 859, 864.
4 People v. Dickerson, 164 Mich. 148, 129 N.W. 199 (1910); see People v.
Scott 326, Ill. 327, 345, 157 N. E. 247, 255 (1927).
4 Jessner v. State, 202 Wis. 184, 231 N. W. 634 (1930) ; Colo. Laws c. 90, ? 2;
R. I. Gen. Laws (1923) ? 5002; Wis. Stat. (1931) ? 357.12(1). See for criticism of
Michigan ruling, 5 WIGMORE EVIDENCE (2d ed. 1933) 436.
? Specifically this would mean the elimination of the hypothetical question,
(supra note 16) and the battle of experts (sutpra note 17). The Briggs Law has
shown a very desirable absence of the battle of experts. Lawyers have been, in
general, willing to accept the finding as to their clients' mental condition. Over-
holser, The Briggs Law (1935) 19 MINN. L. REv. 308, 312. But this may be true
only when the defendant is declared insane when charged with a capital offense or
a felony or has been indicted for a second time. It is unsafe to infer from this ex-
perience that no experts will be called by the defendant charged with a light offense
and reluctant to submit to a long commitment. The room for honest difference by
experts is also greater here.
 RECENT STATUTES 541

vision permitting introduction of "evidence of the commission of ...

any number of crimes together with whatever punishments, if any, were
inflicted", drives home the flexibility of the non-criminal commitment
procedure.51 In a statute such as this, freedom of inquiry into the in-
dividual's background is necessary if the best results are to be obtained.
A jury of laymen is vested with the ultimate decision as to whether
the person is to be committed; the age-old problem of its ability to de-
termine medical questions is present.52 The possibility of nullification
of the statute by the jury is another weakness.53 A jury may be re-
luctant to commit one accused of a sordid sex offense to a state hospital
and allow him to escape with what they believe to be a comparatively
light punishment. On the other hand, nullification may result from
reluctance to commit, for what may be an indefinite period, one who has
been charged with a trivial offense; the alternative may be chosen of
refusing to commit so that the individual can have a criminal trial and
serve his short term. It should be noticed that the absence of jury
trial might not have been a constitutional fatality.54
Under this statute, while the sexual psychopath loses his liberty
until cured, society may be benefited through the incapacitation of the
offender to commit further offenses,55 and secondly, through the cure
of the individuals treated.56 But in the present state of knowledge re-
'
People v. Gibson, 255 Ill. 302, 99 N. E. 599 (1912) is typical of the difficulty
in introducing previous conviction. The ability to introduce previous offenses, where
there has been no conviction is even more doubtful.
a3Attempts to eliminate the jury in the responsibility trial have been struck
down, State v. Lange, 168 La. 958, 123 So. 639 (1929). BRASOL, THE ELEMENTS OF
CRIME (1927) 330: "It is erroneous policy to place twelve men, selected at random
in the position of independent judges of facts whose nature, legal significance, and
psycho-biological effect they usually cannot comprehend. . The assumption that
jurors . . . are capable of conceiving the intricate elements of psychic disorders is
an arbitrary inference and a legalistic atavism." See also Tulin, The Problem of
Mental Disorder in Crime: A Survey, (1932) 32 COLUMBIA LAW REV. 932, 958
(jury of experts suggested).
5 Overholser, The Place of Psychiatry in the CriminalLaw (1936) 16 B. U. L.
REv. 322, 328, 341.
" Ex
parte Liggett, 187 Cal. 428, 202 Pac. 660 (1921) ; In re Bresbee, 82 Iowa
573, 48 N. W. 991 (1891); Marlowe v. Commonwealth, 142 Ky. 106, 133 S. W. 113,7
(1911); State v. Linderholm, 84 Kan. 603, 114 Pac. 857 (1911); Wissenberg v.
Bradley, 209 Ia. 813, 229 N. W. 205 (1929). Cases such as State v. Lange, 168 La.
958, 123 So. 639 (1929) and State v. Strasbourg, 60 Wash. 106, 110 Pac. 1020
(1910) which stressed the jury requirement as a requisite of constitutionality may
be distinguished as pertaining to criminal defenses.
5 People ex rel. Peabody v. Chanler, 133 App. Div. 159, 117 N. Y. Supp. 322,
(1909); KRAFFT-EBING, PSYCHOPATHIA SEXUALIS (1901) 472; Letter from Office
of State's Attorney of Cook County, Illinois, dated November 3, 1938.
w Illinois Report, supra note 13, at 8, reveals that the bulk of the mental cases
is found among the petty offenders, who are usually not incarcerated for a period
long enough to effect any reform. See Matter of Ferrier, 103 Ill. 367, 372 (1882)
where the court speaks of the necessity to improve society by improving the indi-
vidual; East, Responsibilityin Mental Disorder (1938) 84 J. MENTAL Sci. 203, 220;
Letter, supra note 59.
542 COLUMBIA LAW REVIEW

lating to mental ailments, a commitment until a cure has been effected

may be so severe as to result in life imprisonment.57 A balance must
be struck between the loss of liberty of the individual on one hand and
the improvement of society on the other.58 If it should become highly
doubtful that society is being substantially protected through enforce-
ment of the statute and if treatment should prove to be of no avail in
prophesying whether an offender will continue his irregular conduct
after release, then a constitutional objection could be raised; it is axio-
matic that when the means employed to reach a legitimate end are ar-
bitrary or have a remote relationship to that end, there is a resulting
violation of the Fourteenth Amendment.
After the sexual psychopath has been adjudged cured, he is to be
remanded for trial for his criminal offense. No principle of treatment
seems to favor this provision, which was enacted despite the recommen-
dation of the Committee of Psychiatrists and Neurologists that the cured
offender be freed.59 Further refornmationand incapacitation would be
unnecessary. Although it may be claimed that the purpose of deter-
rence could be served by the subsequent trial and imprisonment, there
are repeated statements in the report that the criminal psychopathic
person is not deterrable.60 Perhaps the consideration of constitutional-
ity is the touchstone. This statute would be constitutionally vulnerable
if a court were to conclude that it is a criminal statute, for if it were
criminal, the rigid form of procedure could not be relaxed.6' It would
be a fatal contradiction if the commitment, while nominally civil in
nature, were found to be a substitute for trial and conviction.62 If a
person charged with a crime were freed without trial after commitment,
the claim that this is a civil proceeding would be frivolous. It may be
that the Legislature sought to protect the statute from attacks upon the
ground of unconstitutionality, expecting trial judges in exercising dis-
7
Hollander, in THE PSYCHOLOGY OF MISCONDUCT (1924) 145 notes certain
difficulties in cure, although the svmptoms are known. East, Responsibility ilt
Mental Disorder (1938) 85 J. MENTAL Sci. 203, 210 indicates that the ability to
cure will depend largely on whether the ailment has been caused by environmental
or constitutionalfactor, the former, of course, having the better prognosis.
58See Buck v. Bell, 274 U. S. 200, 207 (1927).
w Illinois Report, supra note 13, at 18.
e Illinois Report, supra note 13, at 10, 11, 13, 15, 18; HOLLANDER, THE PSY-
CHOLOGYOF MISCONDUCT (1924) 166, 189; KRAFFT-EBING, PSYCHOPATHIA SEXUALIS
(1901) 472, Case no. 174.
e' Commitment statutes have generally been deemed civil. People ex rel. Pea-
body v. Chanler, 133 App. Div. 159, 117 N. Y. Supp. 322 (1909), aff'd, 196 N. Y.
525, 89 N. E. 1109 (1910); In re Clark, 86 Kan. 539, 121 Pac. 492 (1930) ; compare
In the Matter of Ferrier, 103 Ill. 367 (1892) with People ex rel. O'Connell,55 Ill.
280 (1870) ; Wissinberg v. Bradley, 209 Ia. 813, 229 N. W. 205 (1929).
62See Robison v. Wayne, Circuit Judge, 151 Mich. 315, 326, 115 N. W. 682,
(1908) where court looked beyond the mere declarationof non-criminalityto find
that the effect of the act was criminal.
 RECENT STATUTES 543

cretion to take into account the previous commitment and give suspended
or minimum sentences where merited.
In the recent case of People v. Frontczak,63the retroactive provision
of a similar Michigan statute was held unconstitutional as an ex post
facto law. The majority pointed out that the proceedings were criminal
because (1) the inquest occurred only after conviction or the plea of
guilty to a list of specific offenses, (2) the period of commitment was
to be deducted from the regular sentence and (3) the statute was in
the criminal code. The three dissenting judges took the position that
the non-criminal nature of the statute allowed the relaxation of require-
ments which the majority deemed vital. Since the Illinois statute can
be said to suffer from only one of the three enumerated infirmities-
it is found in the criminal code-, and since this is a rather specious ar-
gument to clothe a procedure with a criminal character,64it is reasonable
to hope that the constitutionality of the statute will be upheld.
In the past, provisions almost arbitrary have been tolerated in civil
commitment statutes on the ground that expeditious action was necessary
to protect society from the dangerous.65 Despite the opportunity to re-
lax the usual safe-guards, the present statute has been drawn to allow
for ample checks against arbitrary action by officials. The psychiatrist's
finding is not made conclusive; there is provision for a hearing with
ten days' notice; a jury of laymen makes the ultimate decision.
Although the manifest purpose of the act is to incapacitate sex
offenders who are dangerous when at liberty, none the less it makes
several contributions in the realm of individualization of treatment. The
psychiatric examination given to all who may fit into the defined class
will lead to discovery of the individual's psychosis and irregularities.
The report which follows the examination includes conclusions and
recommendations and may be valuable beyond the purpose it serves in
guiding the jury. It can be valuable to the judge who must sentence
those not warranting commitment, but guilty of the offense ;66 it is a per-

<286 Mich. 51, 281 N.W. 534 (1938) ; see Note (1939) 37 MICH. L. REV. 613.
' Commitment provisions for those who become insane during the trial are
found in the criminal code and are not thereby bereft of their civil nature; N. Y.
CODE OF CRIMINAL PROCEDURE836: ILL. CRIM. CODE 593. See dissenting opinion of
Judge Butzel, People v. Frontczak, 286 Mich. 51, 281 N. W. 534 (1938); Note
(1939) 37 MICH. L. REV. 613, 623-4.
'In re Dowdell, 169 Mass. 387, 47 N. E. 1033 (1897) ; see Chavennes v.
Priestly, 80 Iowa 316, 321 (1890).
' This would serve a function similar to the Psychiatric Clinic set up in New
York Court of General Sessions which renders a psychiatric report on all con-
victed or pleading guilty to aid in sentencing, Bromberg and Thompson, The Rela-
tion of Psychosis, Mental Defect and Personality Types to Crime (1937) 28 J.
CRIM. L. 70.
544 COLUMBIA LAW REVIEW

manent record of one who may appear in the criminal courts again;
finally, it may be a guide to treatment of those who are committed to
the psychiatric hospital.
In conclusion, it should not be overlooked that commitment pro-
ceedings are revealed as fertile fields for further procedural and sub-
stantive innovation. It should be appreciated that these pioneer efforts
are directed towards a very complex problem, but one nevertheless, of
increasing importance to society.