Involuntary civil commitment, defined as a psychiatric confinement of a mentally ill and dangerous sex offender, has been in existence for over 70 years, but gained a new focus and popularity during the 1990s, the same era that influenced a national sex offender registration and community notification act. Several high-profile child victimizations by sex offenders who had recently been released from prison led to the creation of sexually violent predator (SVP) laws; today’s civil commitment legislation permits a civil commitment of risky and mentally disordered sex offenders after completion of a prison term. SVP laws are different from the sexual psychopath laws of earlier generations that used civil commitment and treatment in lieu of prison, instead of or in addition to incarceration. At last count, 17 states and the District of Columbia have SVP laws, and at least 20 others are considering creating similar preventive detention statutes for sex offenders.
Civil commitment remains controversial, despite the U.S. Supreme Court supporting its constitutionality, with or without treatment for detained sex offenders. Because the commitment process varies from state to state, it is not entirely clear what factors must be present to qualify a sex offender for preventive detention or release from a civil commitment. The necessary evidentiary level to establish an offender’s mental illness and future dangerousness is not consistent across all state statutes. Rather, it vacillates between the highest standard of proof required of criminal proceedings (i.e., beyond a reasonable doubt) to the less stringent evidentiary requirement of civil trials (i.e., clear and convincing evidence).
Contemporary and historical civil commitment laws have also been criticized for linking mental illness to sex offending, a fact that has not been scientifically established. Skeptics fear that a medical conceptualization of the problem allows offenders to escape personal accountability and negates the importance of social and cultural contributors to sexual violence. Another concern with SVP laws is their dependence on clinicians to make accurate predictions of future behavior, a notoriously difficult task and something that most experts believe leads to over prediction of an offender’s actual level of risk.
Preventive detention programs are also expensive. The cost to civilly detain a convicted offender can be 4 to 5 times greater than traditional incarceration. The efficacy of civil detention as a way to reduce sexual recidivism has not been assessed due in part to the fact that only a handful of detainees have ever been released from a civil commitment. The totality of concerns with SVP laws have many scholars questioning whether civil commitment is the best way to respond to dangerous sex offenders.
- Alexander, R. J. (2004). The United States Supreme Court and the civil commitment of sex offenders. Prison Journal, 84, 361–378.
- Fitch, W. L. (2003). Sexual offender commitment laws in the United States: Legislative and policy concerns. Annals of the New York Academy of Sciences, 989, 489–501.
- Janus, E. S. (2000). Sexual predator commitment laws: Lessons for law and the behavioral sciences. Behavioral Sciences & the Law, 18, 5–21.
- La Fond, J. (2000). The future of involuntary civil commitment in the U.S.A. after Kansas v. Hendricks. Behavioral Sciences & the Law, 18, 153–167.
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