Tuesday, December 19, 2006

Patient Or Prisoner?

I guess you could say that this post is a teaser for our next podcast. During our taping we (meaning "I") got on a roll about civil commitment for sex offenders. I mentioned something in passing about the history of these laws but since I had already dominated the topic for a bit on the podcast I didn't go into detail about that. I think it's important to have a background on this issue because there are still states trying to pass these laws.

Here's the background:

One of the earliest commitment laws for criminals was adopted in Minnesota in 1939. It was known as the "psychopathic personality" statute and it allowed for commitment of people who suffered from:

'...conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons'.
The statute was promptly and unsuccessfully challenged as unconstitutionally vague and a violation of equal protection in the 1940 case Pearson v Probate. The United States Supreme Court responded: "But we have no occasion to consider such abuses here, for none have occurred." In other words: Nice try but you lose.

In 1997 the United States Supreme Court decided Kansas v Hendricks. Hendricks was an admitted pedophile who was scheduled to be released from prison. He was civilly committed under the state's Sexually Violent Predator Act which allowed for commitment of people with mental abnormalities or personality disorders who were "likely to engage in predatory acts of sexual violence". Hendricks appealed his commitment alleging that the commitment should have been based on "mental illness" rather than "mental abnormality". He also made a claim of double jeopardy---two punishments for one crime. He lost on both counts. The Supreme Court said that it would leave the states to determine their own definition of mental illness, and also said that a civil commitment was not a punishment since the purpose of confinement was beneficent (for treatment).

Within three months of the Hendricks decision the National Association of State Mental Health Program Directors adopted a position statement objecting to the decision. They did not acknowledge sexual paraphilias as a legitimate diagnosable mental illness and objected to the idea that confinement was for the purpose of treatment. Clearly, sex offenders were not welcome in hospitals.

The followup to Hendricks came in the 2002 case Kansas v Crane. Crane was a committed exhibitionist who challenged his confinement because the judge at his commitment hearing did not make any finding about him being unable to control his dangerous behavior. Traditional commitment laws require that the patient be both mentally ill and dangerous. The Sexually Violent Predator Act required that the dangerousness be based on a "difficulty or inability to control" the dangerous behavior. The Kansas Supreme Court overturned his commitment because the trial judge never said Crane was unable to control his behavior. The US Supreme Court found that this interpretation of the statute was overly strict---that it was enough just to show the patient had difficulty or impairment in his behavioral control. Bottom line: courts now had to prove a volitional element during the civil commitment hearings in addition to proving that a mental abnormality existed.

Rapidly coming up to date (and to keep this post shorter), we now have 17 states with commitment statutes. There is considerable variation in the construction of the laws with regard to who makes the release decision and the standard of proof for commitment. The consistent experience with these laws is that hundreds of people have been confined over the past ten years but only a handful have been released. Committed sex offenders are requiring more of each state's budget. Costs for treating sex offenders range from $30,000 to $125,000 per inmate per year, and more is being requested.

The problems with sex offender commitment laws were summarized nicely in this law review article.

Sex offender commitment laws are a failure. They are expensive and ineffective. They consume resources intended for those with serious psychotic illnesses. As states trend away from commitment policies they will likely continue to pursue other options such as enhanced criminal sentences, sex offender registries, mandatory reporting laws and extended home monitoring programs. If sex offender legislation is coming to your region, be aware of these issues.

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By the way, I'm rather disappointed in Time magazine for picking a short grey-haired nun-type nobody as Person of the Year. What were they thinking?