Civil Commitment of Sexually Violent Predators

ATSA Position Paper:

Adopted by the ATSA Executive Board of Directors on August 17, 2010

History

Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws permitting the civil commitment of sexual offenders. In addition, the Adam Walsh Child Protection and Safety Act of 2006 authorized the federal government to institute a civil commitment program for federal sex offenders (42 USC 16971). Typically, these laws provide a legal mechanism for the confinement of a limited number of adult sexual offenders in a secure treatment facility after incarceration when a court determines they are likely to engage in future acts of sexual violence. Texas has an exclusively community-based commitment program and Pennsylvania has a civil commitment program only for juvenile offenders aging out of the delinquency system. To meet the criteria for commitment, the offender must suffer from a mental abnormality or personality disorder predisposing the offender to commit future acts of sexual violence.

The use of civil commitment for sexual offenders has generated considerable debate in legal and clinical professions, and it continues to be debated even among professionals who work with and conduct research on sexual offenders.

Proponents argue that such provisions offer an important community protection safeguard by incapacitating a high risk subgroup of sex offenders. In addition, civil commitment can provide opportunities for these individuals to receive treatment interventions that may reduce their potential to recidivate upon release to the community, particularly offenders for whom specialized treatment was not available in the prison setting.

Objections to civil commitment are generally threefold. First, the legal mechanism by which the offenders are detained when civilly committed depends on clinical criteria primarily created or defined by legislative bodies rather than by the scientific or mental health communities. Second, there is concern about the legitimacy of detaining someone as a mentally ill person when there is some doubt about the accessibility of effective treatment. And third, questions exist about the potential diversion of mental health resources away from individuals diagnosed with severe, persistent, and debilitating mental health difficulties in order to serve a limited population of sexual predators who tend not to have such diagnoses and for whom the use of correctional resources may be more prudent. ..Continued.. by ATSA

Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws

Excellent Paper

9-9-2012 National:

Abstract:
Sexually violent predator laws are not the first wave of American legislation aimed at committing sex offenders to locked mental hospitals; they are the second. Preceding them by half a century were the sexual psychopath laws, which differed in significant detail but provided the same basic framework of indeterminacy and dangerousness.

This article looks at the history of the sexual psychopath laws. It begins by critically examining the popular belief that there was a sex crime wave. It then discussed different solutions proffered to solve the sex crime problem. Finally, it provides an overview of the sexual psychopath laws and discusses the reasons for their demise. ..Source.. by Tamara Rice Lave, University of Miami, School of Law

Focusing on sex offenders

2-2-2010 North Carolina:

CHAPEL HILL — The term "deviant sex offenders" might seem redundant. How could anyone who commits a sexual offense be anything but deviant?

In reaction to such sentiments, there has been a federal attempt since 2006 to create a policy that allows federal officials to civilly commit offenders deemed too sexually dangerous to release even

after they have served their federal prison terms. The feds' push for civil commitment authority was challenged and is now being weighed by the U.S. Supreme Court.

At least 20 states already have civil commitment laws in place, and although no such law exists in North Carolina there has been interest in one. The high court's ruling could potentially force our state to accept and commit sex offenders from federal prisons, a costly expense that according to different studies could range anywhere from $60,000 to nearly $139,000 per inmate each year.

If the court does not uphold this ruling, North Carolina could still pass its own state civil commitment law, following in the footsteps of states that already have such laws in place but have not produced evidence that there has been a drop in the rate of sex crimes as a result of such policies.

Recent research has now questioned the efficacy of policies designed to identify and intensely monitor sex offenders. In a 2008 study from New York State's Department of Corrections, rates of sex crimes were compared for the 10 years prior to the passage of Megan's law (sex offender registry) to the 10 years after the registry was put into effect. This study found that even after the passage of the registration law, there was no change in the rate of sex crimes because more than 96 percent of all sexual crimes are committed by first-time offenders.

In other words, the law had no effect on reducing the number of sexual assaults because less than 4 percent of these crimes were committed by repeat offenders. So although state and federal governments have spent billions of dollars to contain and monitor offenders in the community, these efforts have not reduced the number of victims who have suffered through the experience of a sexual assault, as they do not capture the range of individuals at risk of committing a sex crime.

Victims of sexual assault deserve better laws that will effectively protect them and others from similar experiences.

Unfortunately, somewhat lost in the current debate and lawsuit is the effort to classify those with a mental illness as a higher risk for committing a crime. Currently, federal authorities identify individuals according to those who have "been found to have a mental illness or abnormality that makes them likely to strike again if they are released."

But mental illness is a term used to describe a wide variety of mental conditions, and while there is some evidence that people with particular disorders are more likely to be aggressive, including sexually aggressive, this category is ill-defined in the current law and could be interpreted differently by individual therapists.

At most, it is estimated that clinicians can predict with 10 percent accuracy the risk level of an individual sex offender striking again. For those already working with individuals who struggle with the stigma of mental illness, there will now be added consequences and a new battle to fight: the message that all those who are mentally ill are also dangerous sexual predators.

In addition to increasing survivor services, our state and the federal government would be better served to focus resources on:

Evaluating the effectiveness of civil commitment laws to see if they reduce the rate of sexual crimes

Understanding the factors that lead an individual to commit such a crime

Evaluating effective treatment programs

Those who work within the field of sexual violence are eager to prevent such violence from occurring. The U.S. Supreme Court and North Carolina would be more effective in their efforts if they first identified the causes of these crimes and then identified policies and programs that effectively reduce them. Currently, efforts are under way that would center the focus only on a few individuals, leaving the vast majority of sex crimes unaddressed.

The victims of sexual violence deserve better, including government policies that work, rather than a false sense of hope that the victims and others are safer. ..Source.. by Melissa D. Grady who teaches at the UNC-Chapel Hill School of Social Work.

Judge bars Static-99R risk tool from SVP trial

12-14-2012 National:

Developers staunchly refused requests to turn over data

For several years now, the developers of the most widely used sex offender risk assessment tool in the world have refused to share their data with independent researchers and statisticians seeking to cross-check the  instrument's methodology.

Now, a Wisconsin judge has ordered the influential Static-99R instrument excluded from a sexually violent predator (SVP) trial, on the grounds that failure to release the data violates a respondent's legal right to due process.

The ruling may be the first time that the Static-99R has been excluded altogether from court. At least one prior court, in New Hampshire, barred an experimental method that is currently popular among government evaluators, in which Static-99R risk estimates are artificially inflated by comparing sex offenders to a specially selected "high-risk" sub-group, a procedure that has not been empirically validated in any published research. 

In the Wisconsin case, the state is seeking to civilly commit Homer Perren Jr. as a sexually dangerous predator. Perren just completed a 10-year prison term for an attempted sexual assault on a child age 16 or under. ...continued... by Karen Franklin, In the News

Accuracy of Sexually Violent Person Assessments of Juveniles Adjudicated for Sexual Offenses

4-8-2013:

Abstract:
This study reviewed the records of 198 juveniles who were committed to secured custody after being adjudicated delinquent for a sexually violent offense that qualified them for possible commitment under a Sexually Violent Person’s (SVP) civil commitment law. For an individual to be committed, the statute requires that the individual have a qualifying mental disorder and is “likely,” to commit a future act of sexual violence.

Each youth was screened by at least two expert examiners in a two-step process. Fifty-four of the youth were found to meet the commitment criteria in an initial examination and were subject to an SVP petition. The remaining 144 were screened out. Subsequent criminal charges were collected over a 4.97-year mean follow-up.

The results showed that the prevalence rates for general sexual offending and felony sexual offending did not differ between youth who were screened out and those who were subject to a petition. Among petitioned youth, 11.76% were charged with a new sexual offense including 9.80% who were charged with a felony sexual assault.

By comparison, 17.36% of the youth that were screened out were charged with a sexual offense including 13.19% who were charged with a felony sexual assault, a nonsignificant difference. ..Source.. by Michael Caldwell, PsyD

Sexually Violent Predators Civil Commitment by State

2007 National:

Civil Commitment: As of March 14, 2007, 20 States civilly commit sex offenders. Of these 20 States 11 states civilly commit juvenile sex offenders. Pennsylvania is the only state that civilly commits juveniles but not
adults.

----On January 1, 2007, New Hampshire’s civil commitment law went in to effect, bringing the total
number of states that civilly commit sex offenders to 19.

----On March 14, 2007, Governor Elliot Spizer signed New York’s civil commitment bill into law, making
New York the 20th state to enact civil commitment legislation. The Act will go in to effect on April 14,
2007.

... ...Source.. by Nicole Pittman Esq, Juvenile Justice Policy Analyst Attorney, Defender Association of Philadelphia

The Science of Sex Abuse

1-14-2013 National:

Is it right to imprison people for heinous crimes they have not yet committed?

On a Saturday night in the summer of 1998, an undercover officer logged in to a child-pornography chat room using the screen name Indy-Girl. Within minutes, a user named John introduced himself and asked her, “Are you into real life or just fantasy?” Indy-Girl said that because of the “legality of it” she had never acted on her fantasies. But she soon revealed an adventurous spirit. She was a bisexual college sophomore, she said, and had learned about sex at an early age. “My mother is very European,” she explained.

John, a thirty-one-year-old soldier stationed in Fort Campbell, Kentucky, had been using the Internet for less than a year. He began downloading child pornography after watching a television special about how Internet child porn had become epidemic. He hadn’t realized that it existed. In the five months since he’d seen the show, he had downloaded more than two thousand images from child-pornography news groups. In the anonymous chat rooms, he felt free to adopt a persona repugnant to society. He told Indy-Girl that he was a “real-life pedophile,” adding, “At least here I can come out and admit it.”

“What’s the kinkiest you’ve done?” Indy-Girl asked. John said he’d had sex with a ten-year-old while her parents were skiing, and with a fourteen-year-old at a night club in Germany. Indy-Girl recognized that she was too old for him, which was “depressing,” but she offered that her little sister liked older men. “Maybe you could intro me,” John wrote. “We could meet somewhere discreet.”

John had been in the Army for eight years, serving in Desert Storm and Bosnia, and had graduated from Penn State with a degree in history. He was thinking of leaving the service, in part because he felt picked on by other soldiers. He had been commended for having a memory for technical details, but he was also nervous, nerdy, and eager to please. At all stages of his life, he had been afflicted with the sense that he was just a “wannabe.”

Unlike other people John met online, Indy-Girl seemed to like him. After a week of conversations, she asked John if he was “r/l” (real life) about the meeting, and when he said that he was she sent him a soft-focus digital image of a girl who she said was her fourteen-year-old sister. “Now don’t be mean when you see it,” she warned. “She still has some of her baby fat, she’s kinda embarrassed.” Undeterred, John described how the three of them would enjoy one another’s company: they could have sex in the shower or in a field of flowers. He encouraged Indy-Girl to “talk dirty” and “let your imagination go wild,” but she cut him off, explaining, “I’m not the cyber ...continued... by Rachel Aviv

Do Sexually Violent Predator Laws Violate Double Jeopardy and Substantive Due Process: An Empirical Inquiry

9-7-2012:

Abstract:
In Kansas v Hendricks, the Supreme Court held that it did not violate double jeopardy or substantive due process to commit a person indefinitely to a locked state-run facility after he had completed his maximum prison sentence. Although the state is barred from incarcerating such a person to condemn his past behavior or to deter future misbehavior, it may incapacitate him if he suffers from a mental illness that makes him likely to commit a new violent sex crime – characteristics the Supreme Court found to be true of so-called sexually violent predators (SVPs).

In this Article, we question a core empirical foundation for the Court’s holding – that SVPs are so extremely dangerous that they have a high likelihood of committing repeat acts of predatory sexual violence if they are not locked away. If SVPs are as dangerous as the Court asserts then we would expect to see an incapacitation effect – a negative impact on the incidence of sex crimes after passage of SVP laws. In conducting our analysis, we use original data that we gathered directly from states with SVP laws.

To examine whether the laws have had an impact on the incidence of forcible rape and sex-related homicide, we employ panel data on U.S. states for the last few decades. We also use data collected in the National Child Abuse and Neglect Data System (NCANDS) to examine the impact of SVP legislation on the incidence of non-fatal child sexual abuse. Finally, since underreporting poses problems in accurately measuring the incidence of sex crimes, we examine gonorrhea rates, a common proxy for the prevalence of sexual abuse. Our findings suggest that SVP laws have had no discernible impact on the incidence of sex crimes. These results imply that states could more effectively reduce sex crimes by allocating these resources elsewhere. More importantly, they challenge the only constitutionally permissible justification for SVP legislation. ..Source.. by Tamara Rice Lave, University of Miami, School of Law -and- Justin McCrary, University of California, Berkeley; National Bureau of Economic Research (NBER)

Symposium: Preventative Detention: Sex Offender Exceptionalism and Preventive Detention

September 2012:

Abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny.

While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.

Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed.

We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes.

To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad.

Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society. ..Source.. by Corey Rayburn Yung, University of Kansas School of Law

Diagnostic and Risk Profiles Among Civilly Committed Sex Offenders in Washington State

Washington 2007:

Abstract:
Since 1990, 17 states have passed legislation allowing for the civil commitment of a small number of sex offenders who are deemed at a particularly high risk for reoffense. Despite the very public and controversial nature of these laws, little is known about the individuals who are detained pursuant to them. The current article presents data on 190 civilly committed and detained sexually violent predators in Washington State. These sexual offenders suffer from a variety of mental illnesses. The modal offender is diagnosed with both an Axis I and an Axis II disorder. Furthermore, these offenders are at moderate to high risk for reoffense and present with a significant degree of psychopathy.

For the remainder of this paper: by Rebecca L. Jackson, Pacific Graduate School of Psychology, Palo Alto, CA -and- Henry J. Richards, Special Commitment Center, Steilacoom,WA