a bird and a bottle

Civil Commitment, Punishment, and Sex Offenders
March 4, 2007, 2:58 pm
Filed under: criminal justice, feminism/s & gender, law, news, news & views, politics, sexuality

Update (Mon. 7:40AM): Looks like yesterday’s article was the first in a 3-part series. Today’s paper has part two.


The cover page of the NY Times today featured a long story about state proposals to civilly detain sex offenders after they have served their prison sentences. New York on Wednesday became the latest state to endorse such a program, with the introduction of a bill that would implement a new regime for punishing sex offenders in the State. The bill, which was negotiated behind closed doors by leaders of both houses of the State Legislature and the Governor, is sure to pass. When it does, New York’s approach to sex offenses and sex offenders will look something like this:

1.) a person is convicted of a sex offense, and is sentenced.
2.) That person serves his/her time in prison (during which he/she may or may not receive mental health treatment, though the new NY law mandates treatment during incarceration).
3.) Before release, that person is evaluated to determine whether he or she can be released, released with supervision, or should continue to be confined even after the end of his/her sentence.
4.) If the person continues to have the tendencies that got him/her into trouble in the first place, he/she can be civilly committed to a state hospital indefinitely — or, until he/she is “cured.”

I think most of us can agree on the following: sex offenders are unsympathetic, sex offenses and particularly child sex abuse are a real societal problem and issue for the criminal justice system, and our current system does not seem to be adequately handling offenders. Allowing all of this, I do not believe that a system of continuing civil commitment is the answer.

The NY Times’s article today provides a lengthy critique of the civil commitment system: it’s too expensive (8x more expensive than prison), it isn’t proven to work, and it is of questionable constiutionality. I will take each of these critiques in turn.

Regarding the cost: Yes, it is expensive. Very expensive, even compared to prison, which is expensive compared to community-based drug treatment and other alternatives to incarceration. But both victims advocates the the Times seem to assume that since treatment is so much more expensive, we should just make prison sentences longer. I am not sure that is the answer either. Treatment needs to be part of the program from day one. The NY Law calls for treatment for sex offenders while they are incarcerated; that’s an admirable step, but it is only that (and is here only included as part of a program that sanctions neverending civil commitment). Treatment while a person is incarcerated is itself expensive, but it is also imperative. What about treatment alone from the start of a person’s sentence instead of traditional incarceration? For many sex offenders, who are particularly prone to prison rape because of the nature of their crimes, jail time may sets them back psychologically instead of helping them heal. What if we sentenced offenders to treatment in place of jail. They would still have their liberty restricted, but they could begin to address the root causes of their behavior from the get go. Sure, it would still be expensive. But that doesn’t seem to be holding the state back here.

the Times next takes on the efficacy of post-release civil commitment programs. Unlike prisons (which are supposed to be held up to certain standards), treatment facilities often run unchecked and are not forced to adhere to any set of standards. This makes it difficult to measure success at all. As the Times points out, these treatment centers are neither prisons nor traditional psychological hospitals, so no rubric for measuring their success exists. Beyond this, facilities have been known to release men (and also women) who have not been found to be free of their tendencies and who reoffend. These centers are also filled with men with severe mental illnesses, and the facilities are not staffed or equipped to handle them. Often these people are unable to receive sex offender treatment because of their mental illnesses, but because they are in a sex offender treatment center and not a mental hospital, their illnesses go untreated.

Finally, and perhaps most problematic, is the fact that keeping someone committed after they have served a criminal sentence poses constitutional issues. A system like the one at issue here would include longer prison sentences capped off by “inpatient treatment” in place of post release supervision. These second sentences are not based on any new crime; instead, they are based on a judge’s evaluation, several years before this potential commitment, that a person is likely to reoffend and to be a danger to the community. By calling this treatment (though with its double locked doors, cell-like rooms with doors that lock at night, guards, and other prison-like conditions these centers are unavoidable carcerial), judges are able to ensure that a person will not only serve his sentence, but also continue to be confined. However, because this is “treatment” and not “a prison sentence,” the Supreme Court in 1997 held that these programs are not double jeopardy and upheld a Kansas law similar to New York’s new proposed policy. As the NY Times Reports:

The court…rejected the notion that civil commitment amounted to double jeopardy (a second criminal punishment for a single crime) or an ex post facto law (a new punishment for a past crime), noting that Kansas’s statute was not meant to punish committed men but, like other acceptable civil commitment statutes, intended “both to incapacitate and to treat” them therapeutically.

“We have never held that the Constitution prevents a state from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others,” Justice Clarence Thomas wrote for the majority, later adding, “By furnishing such treatment, the Kansas Legislature has indicated that treatment, if possible, is at least an ancillary goal of the act, which easily satisfies any test for determining that the act is not punitive.”

But I’m not convinced. And neither is TChris at TalkLeft. He writes:

Sexual predator laws deprive sex offenders of their liberty after they finish their sentences — a detention that seems to many (but not to a majority of the Supreme Court) to be a second punishment that isn’t moored to a new crime.


States are permitted knock the cap off sentences by changing the label from “punishment” to “treatment.” The state claims the power to detain and treat dangerous and disordered sex offenders to protect against future sex crimes that it fears the detainee will otherwise commit. The laws depend on the assumption that a court can accurately gauge the likelihood that a particular offender will commit a future sex crime — as if judges, or anyone else, can reliably predict an individual’s future behavior.

This supersentencing will apply in New York not only to adult sexual offenders, but also potentially to teenagers. When I was in college, I worked at an outpatient sexual offender treatment program for kids and teenagers. The vast majority of our patients had been sexually abused as children themselves. Are these young people so devoid of a chance for recovery that we should be essentially locking them up indefinitely (since release is based on subjective criteria of success)? Should others who commit low level crimes such as public exposure be subject to this civil commitment? Under current laws, which allow great prosecutorial discretion, they are.

There’s a lot wrong with these laws. Which is not to say that I know the solution. How to manage sex offenses is a troubling question. I’ve suggested intensive treatment for serious offenders and treatment for all from the beginning of their sentences. I think that mentally ill people who sex offend need to be treated as mentally ill patients before they are sentenced as criminals. Whatever the answer is, it is certainly not sidestepping the Constitution and making a person serve two sentences for a single crime.

An interesting note about treatment, gender, and sexuality. In the days of “hysteria,” women’s errant sexuality was treated by taming it — through orgasm. Doctors treated hysterical women with “massage” — clitoral stimulation until the women orgasmed (then known as hysterical paroxysm). This seems like an interesting parallel but for men. Women were confined because their hysterical sexuality needed to be treated (though they are not otherwise often incarcerated) and men are now confined to treat their sexual deviance. The argument that prison is the feminizing to men is an old one; this seems like an interesting new twist.


4 Comments so far
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I think that your link between pseudo-medical treatment and sexual “deviance” (whether hysteria or pedophilia) is spot on.
As psycho-pharmaceutic solutions are considered the panacea of our age, I would not be surprised if sex offenders are eventually released only on condition that they take certain drug cocktails that control their sexual desires.
Perhaps this is happening already…?

Comment by professorplum

Good point Plum. Some years ago, I knew of at least one case where an individual got a break on a sentence in exchange for agreeing to take a drug that was supposed to control his sexual impulses. Sadly, I do know that he was back in the system shortly thereafter.

There are some frightening aspects to this law (and the whole civil commitment movement). One is that those making the decisions to confine the individual after the prison term expires are usually doctors employed by the state who are predisposed to predicting continued deviant behavior and to keeping people locked up.

From an attorney’s perspective, it might be hard (and often improper) to convince someone charged with a sex crime to accept responsibility and plead guilty, even for a reduced sentence, when — no matter what the terms of the plea bargain are — the sentence could turn out to be life imprisonment. This reality could have profound effects on the criminal justice system.

Comment by RickyVermont

Ricky, thanks for pointing out the ramifications of laws like this on legal practice. I think your point about how unattractive — or even unethical — such laws would make guilty pleas is an important one, and one that has not yet been explored in the press about the laws. Maybe that fact in and of itself would be enough of a deterrent to the passage of these laws since trials are so expensive and so clog the courts.

Then again, making people feel scared and then safe (even if they are not any safer) always seems to trump common sense.

Comment by bean

[…] law, news I’ve written before about post-incarceration penalties for certain offenders, particularly sex offenders, whom society seems to believe are unable to be rehabilitated. Some states are civilly committing […]

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