Critics Look For Alternative to Sex Offender Civil Commitments

Learning that a child has been abducted by a predator who was just let out of prison is a state official's worst nightmare.

So states have been under pressure to create laws to keep violent sexual predators off the street. No law, however, seems to be as controversial as that which allows civil commitments, a term describing the confinement of sex offenders to mental health facilities after they've completed their prison sentences.

The purpose of civil commitments is to attempt treatment on prisoners who are considered liable to commit their crimes again, and to release them after they have been deemed safe for society. For many of the country's most heinous offenders, this could mean a life sentence in lock-up.

While civil commitments is a popular idea for many law-abiding citizens, critics are grappling with the implications. They say, ethically and even constitutionally, these convicts should either be let go after doing their time or given longer minimum sentences at trial.

"We think [civil commitment] is the wrong way to go," said Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento, Calif. "Not because they shouldn’t hold on to these people, but we see it as a cumbersome way to do it."

"You don't want to mix violent sexual predators with people who have severe mental disorders," said Jeff Keller, deputy director of the National Alliance on Mental Illness of New York State.

"We understand that these people are dangerous and violent and shouldn’t be walking on the street, but we don’t want them thrown in with the mentally ill," he said.

Still other opponents, like the American Civil Liberties Union, say that civil commitments could lead to unfair confinements, taking sentencing out of the hands of a judge and jury and putting it into the hands of state lawmakers.

State officials appear to appreciate the concerns of these groups, but say they need to find an immediate solution to the challenge of releasing potential repeat offenders into local communities. The U.S. Supreme Court has upheld civil commitments for sex offenders.

"Are we supposed to wait and see if they go back and molest another child and then put them back into prison? I think government needs to have a reasonable response in these circumstances," said Chauncey Parker, New York State Director of Criminal Justice.

New York Gov. George Pataki has been trying to join the ranks of 16 other states and the District of Columbia in getting a civil commitments statute for sex offenders, and proposed legislation is pending in New York's Senate and General Assembly.

In the meantime, Pataki has been using the state's general civil commitments statute, which allows for the confinement of persons considered a danger to themselves and others, to apply to sex offenders.

The New York State Defenders Association says the legislation on the table is not acceptable in its current form.

"The proposed bills lack meaningful standards to guide judges and juries charged with applying the law, and would result in arbitrary lifetime confinement of persons with a low risk of re-offending," NYSDA said in a statement released June 6.

States Debate Civil Commitments

In Nebraska, Gov. Dave Heineman signed legislation in April that requires sex offenders to be evaluated for a mental illness or personality disorder that would suggest he or she is more likely to commit future acts of sexual violence and is unable to control his or her conduct. The law also requires notification of appropriate officials of an impending sex offender's release from prison so that a recommendation for civil commitment can be made.

As it continues its seven-year-old program of civil commitments, Virginia lawmakers are looking at ways to build separate facilities to house more offenders. However, the cost of the program is now aggravating the debate as more dangerous sex offenders finish their time.

Meanwhile, Parker said Pataki wants to build separate facilities for civil commitments to accommodate the concerns of the mental health community and to reduce cost. But with upwards of 5,000 sex offenders due for release this year, the governor will continue to commit the most dangerous of them to mental health facilities for now, said Parker.

"If there is a sexually violent predator who is such a risk to others that they are going to molest or rape again, what do the people expect government to do?" he asked, noting that under the law, it takes a total of three doctors and a series of hearings to have someone committed, and the offender is allowed to have an attorney. Treatment is continued throughout the confinement.

But detractors say confining sex offenders to mental health facilities after they have done their time is a misguided drain on resources and has the potential for abuse.

It also adds to the unfair stigma already attached to the mentally ill, say many mental health professionals who argue that not all sex offenders are mentally ill nor can all sex offenders be cured.

Putting predators into state mental facilities would be expensive and dangerous to others, said Keller, at New York's mental illness alliance.

Longer Jail Sentences

Federal studies comparing sex offender and non-sex offender recidivism rates are rare, and a November 2003 study by the Justice Department's Bureau of Justice Statistics cites data collected from 15 states only up until 1994.

It finds that within three years following their release from state prisons, 5.3 percent of sex offenders — men who had committed rape or sexual assault — were rearrested for another sex crime, and 43 percent were rearrested for other general crimes. That rate is lower than non-sex offenders, of whom 68 percent were rearrested for any offense. But of those non-sex offenders, only 1.3 percent were arrested again for sex offenses.

In a 2003 study of 89 released sex offenders who had qualified for the Washington State's civil commitment program but were never confined, researchers found that 57 were re-arrested on new felony charges, with 40 percent of them arrested for contact crimes, including a sexual offense. At the end of the six-year follow-up period, almost half were incarcerated

"There is an ethical question there, but we do know that sex offenders are the most likely of offenders to recidivate," or repeat their crimes after release, said Joe de Raismes, vice chairman for public policy for the National Mental Health Association, which is a proponent of keeping dangerous sex offenders in a criminal setting.

Rushford and others say stiffer minimum sentences, perhaps including "indeterminate" jail time, would allow states to keep offenders in prison if they felt the individuals might repeat their crimes once on the outside. State officials say they are increasingly looking toward revising the state penal codes to allow for that option or to avoid civil commitments altogether.

"We're moving in that direction," said Brian Relay, who works in the office of the ombudsman for Minnesota's Mental Health and Developmental Disabilities division.

Minnesota has been confining sex offenders to prisons since 1990, and has not yet released any of them, according to Relay.

"It was for the protection of society that they needed to further incarcerate [sex offenders] and attempt to treat them," he said, adding that the state has increased minimum sentencing requirements in recent years and is also looking at separate facilities for civil confinements.

Congress Weighs In

Though courts have found the practice of civil commitments legal, critics still wonder if people who are further confined for a crime they have not yet committed is a form of "double jeopardy."

The 17 state legislatures that now engage in civil commitments aren't willing to take a risk.

Neither is the U.S. House, which last fall passed the Children's Safety Act. The legislation not only includes civil commitments and stiffer minimum sentences for sex offenders under federal jurisdiction, but dictates a more thorough sex offender registry program at the state level. The bill is now in the Senate Judiciary Committee.

John Walsh, creator and host of the television program America's Most Wanted and the father of Adam Walsh, who was abducted and murdered in 1981 when he was age six, told he has no doubt that the states and Congress are headed in the right direction with these new provisions.

"It's been tragically proven time and time again that these predators just don't stop — not even after being locked up for a long time," Walsh said. "Some people may be willing to take a chance on these offenders. I'm not."