VIOLENT SEX OFFENDERS: IS CIVIL COMMITMENT

A LEGITIMATE SOCIAL RESPONSE?

Houston Criminal Attorney John Floyd Discusses Civil Commitment

for Sexually Violent Offenders

The New York Times reported last year (March 4, 2007) that there are
approximately 2,700 pedophiles, rapists, and other sexual offenders being
held indefinitely by 19 states, mostly in medical treatment centers. The NY
Times report was in response to the State of New York joining the parade of
states that use “civil commitment” as a way of “protecting” society from
“dangerous” sexual predators. Several New York legislators hailed the
state’s decision to adopt civil commitment as an opportunity to create a
“national model” for not only in isolating dangerous sex offenders but in
treating them as well, including “intensive supervision” of those who secure
release from their commitment. The following bullet points from the Times
report offers a glimpse of “civil commitment” programs nationwide:

• 18 – youngest offender committed

• 102 – oldest offender committed
• $41,173 – the cheapest annual average per inmate cost (South
Carolina)
• $421,845 – most expensive annual average per inmate cost (Florida)
• $1.9 million – smallest annual state budget for civil commitment
(Pennsylvania with 9 committed offenders, the fewest nationwide)
• $147.3 million – largest annual state budget for civil commitment
(California with 443 committed offenders, the most nationwide)

Texas utilizes civil commitment on a very limited basis in dealing with

dangerous sex offenders but it does not indefinitely incarcerate them. It
treats them on an out-patient basis. Last March, according to the Times,
Texas had only 86 sex offenders under “civil commitment.” The reason is
that the state has elected to pursue long-term penal incarceration as a way of
dealing with its most violent sex offenders. As this column reported last year
(September 14, 2007), the 2007 Texas Legislature enacted a number of
measures that severely increased the punishment for sex offenders. One of
those measures makes second convictions for first-degree "sexually violent
offenses" involving victims 14 years of age or younger a capital crime
punishable by death or life without parole. A "sexually violent offense" is
indecency with a child involving contact, sexual assault, aggravated sexual
assault, sexual performance by a child, aggravated kidnapping involving
intent to violate or abuse sexually, and first-degree burglary committed with
intent to commit one of the sex offenses in this list.

Costs certainly played a significant role in the decision by Texas to utilize

long term penal incarceration over medical treatment through civil
commitment in dealing with dangerous sex offenders. The average annual
costs to the State is $32,000 per offender to handle on an out-patient basis
through civil commitment while it costs an average of $15,527 to incarcerate
an inmate in the state’s penal system.

Although not a prominent component of the nation’s criminal justice system,

a number of states in the early 20th century had civil commitment statutes
designed to isolate dangerous offenders. For example, the State of
Minnesota in the 1930s enacted a statute that allowed the state to civilly
commit a person proven to have a “psychopathic personality.” The
Minnesota Supreme Court upheld this statute, construing it to mean “those
persons who, by a habitual course of misconduct in sexual matters, have
evidenced an utter lack of power to control their sexual impulses and who,
as a result, are likely to attack or otherwise inflict injury, loss, pain or evil on
the objects of their uncontrolled and uncontrollable desire.” See: 205 Minn.
545, 287 N.W. 297. See also: Minnesota ex rel. Pearson v. Probate Court,
309 U.S. 270, 271 (1940).

The statute itself defined the term “psychopathic personality” as meaning:

"the existence in any person of such 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." See: Minn. Jud.Code § 237(a).

Section 2 of that statute set forth the proceedings that would be utilized to
commit such a personality: “ … except as otherwise therein or thereafter
provided, the laws relating to insane persons, or those alleged to be insane,
shall apply with like force to persons having, or alleged to have, a
psychopathic personality. There is a proviso that, before proceedings are
instituted, the facts shall first be submitted to the county attorney, who, if he
is satisfied that good cause exists, shall prepare a petition to be executed by
a person having knowledge of the facts and shall file it with the judge of the
probate court of the county in which the ‘patient’ has his ‘settlement or is
present.’ The probate judge shall set the matter down for hearing and for
examination of the ‘patient.’ The judge may exclude the general public from
attendance. The ‘patient’ may be represented by counsel, and the court may
appoint counsel for him if he is financially unable to obtain such assistance.
The ‘patient’ is entitled to compulsory process for the attendance of
witnesses in his behalf.” Id. See also: 309 U.S. at 273.

The court was required to appoint two licensed doctors of medicine to assist
in the examination of the “patient.” The proceedings had to be transcribed to
permit the patient an opportunity to appeal to the district court.

In upholding the statute, and its underlying commitment procedures, the

Minnesota Supreme Court cautioned: “It would not be reasonable to apply
the provisions of the statute to every person guilty of sexual misconduct, nor
even to persons having strong sexual propensities. Such a definition would
not only make the act impracticable of enforcement and, perhaps,
unconstitutional in its application, but would also be an unwarranted
departure from the accepted meaning of the words defined."

A constitutional challenge to the statute made its way to the U.S. Supreme
Court on the grounds that it violated the due process and equal protection
clauses of the Fourteenth Amendment to the United States Constitution. The
court rejected this dual challenge, saying:

“Equally unavailing is the contention that the statute denies appellant the
equal protection of the laws. The argument proceeds on the view that the
statute has selected a group which is a part of a larger class. The question,
however, is whether the legislature could constitutionally make a class of the
group it did select. That is, whether there is any rational basis for such a
selection. We see no reason for doubt upon this point. Whether the
legislature could have gone farther is not the question. The class it did select
is identified by the state court in terms which clearly show that the persons
within that class constitute a dangerous element in the community which the
legislature in its discretion could put under appropriate control. As we have
often said, the legislature is free to recognize degrees of harm, and it may
confine its restrictions to those classes of cases where the need is deemed to
be clearest. If the law ‘presumably hits the evil where it is most felt, it is not
to be overthrown because there are other instances to which it might have
been applied.’

“There remains the question whether, apart from definition and

classification, the procedure authorized by the statute adequately safeguards
the fundamental rights embraced in the conception of due process. In this
relation, it is important to note that appellant has challenged the proceeding
in limine by seeking to prevent the probate judge from entertaining it. To
support such a challenge, the statute, in its procedural aspect, must be found
to be invalid on its face, and not by reason of some particular application
inconsistent with due process. In that light, the argument on this branch of
the case also fails.

“As we have seen, the facts must first be submitted to the county attorney,
who must be satisfied that good cause exists. He then draws a petition which
must be ‘executed by a person having knowledge of the facts.’ The probate
judge must set the matter for hearing and for examination of the person
proceeded against. Provision is made for his representation by counsel and
for compelling the production of witnesses in his behalf. The court must
appoint two licensed doctors of medicine to assist in the examination. The
argument that these doctors may not be sufficiently expert in this type of
cases merely invites conjecture. There is no reason to doubt that qualified
medical men are usually available. Laws as to proceedings where persons
are alleged to be insane are made applicable. Appellant says that the patient
cannot be released on bail. The State contests this, insisting that he may be
so released pending hearing or on appeal, pointing to Mason's Minnesota
Statutes, 1938 Supplement, § 8992-178. Appellant contends that, if the court
finds the patient to be within the statute, he must be committed ‘for the rest
of his life to an asylum for the dangerously insane.’ Mason's Minn.Stat.,
1938 Supp., § 8992-176. The State also contests this conclusion, maintaining
that the commitment is without term and subject to the right of the patient,
or any one interested in him, to petition the committing court for release at
any time. Mason's Minn.Stat., 1938 Supp., § 8992-143; Laws of 1935, Chap.
72, § 143, as amended by Laws of 1939, Chap. 270, § 8. The statute gives a
right of appeal from the finding of the probate judge upon compliance with
certain specified provisions of the Minnesota laws. Appellant contends that
this excludes other provisions of laws relating to appeals in insanity cases.
Again, appellant's position is contested by the State upon the ground that
there is no express limitation or exclusion in the language of the statute, and
that other provisions governing appellate procedure apply. These various
procedural questions and others suggested by appellant do not appear to
have been passed upon by the state court.

“We fully recognize the danger of a deprivation of due process in

proceedings dealing with persons charged with insanity or, as here, with a
psychopathic personality as defined in the statute, and the special
importance of maintaining the basic interests of liberty in a class of cases
where the law, though ‘fair on its face and impartial in appearance,’ may be
open to serious abuses in administration, and courts may be imposed upon if
the substantial rights of the persons charged are not adequately safeguarded
at every stage of the proceedings. But we have no occasion to consider such
abuses here, for none has occurred. The applicable statutes are not patently
defective in any vital respect, and we should not assume, in advance of a
decision by the state court, that they should be construed so as to deprive
appellant of the due process to which he is entitled under the Federal
Constitution. On the contrary, we must assume that the Minnesota courts
will protect appellant in every constitutional right he possesses. His
procedural objections are premature. Id., 309 U.S. at 275-77 [Internal
citations omitted].

In 1994 Minnesota adopted a new civil commitment statute designed to

incapacitate dangerous sexual predators. The Times reported it now has 342
sex offenders indefinitely confined under civil commitment at an annual per
inmate average cost of $141,255 as compared to $29,240 annually to
incarcerate an inmate in its penal institutions. The state’s annual budget for
civil commitment is $54.9 million.

The 1994 Minnesota statute followed the modern “civil commitment” statute
enacted by the State of Washington following a series of high profile and
horrific sex-murders in the 1980s and 1990s. After the Washington Supreme
Court upheld that state’s civil commitment law, Minnesota, Kansas, and
Wisconsin in 1994 followed suit with their own versions of the law.
California soon boarded the civil commitment train.

But it was the Kansas statute that first made its way to the U.S. Supreme
Court under a constitutional challenge. The Kansas statute was called the
“Sexually Violent Predator Act” which essentially provided for the civil
commitment of offenders who, due to a “mental abnormality” or a
“personality disorder,” are likely to engage in “predatory acts of sexual
violence.” See: Kan.Stat.Ann. § 59-29a01. See also: Kansas v. Hendricks,
521 U.S. 346, 350 (1997).

The Kansas Legislature, in the preamble of the statute, set forth the need to
deal with “sexually violent predators” in this manner:

"[A] small but extremely dangerous group of sexually violent predators exist
who do not have a mental disease or defect that renders them appropriate for
involuntary treatment pursuant to the [general involuntary civil commitment
statute] . . . . In contrast to persons appropriate for civil commitment under
the [general involuntary civil commitment statute], sexually violent
predators generally have anti-social personality features which are
unamenable to existing mental illness treatment modalities and those
features render them likely to engage in sexually violent behavior. The
legislature further finds that sexually violent predators' likelihood of
engaging in repeat acts of predatory sexual violence is high. The existing
involuntary commitment procedure . . . is inadequate to address the risk
these sexually violent predators pose to society. The legislature further finds
that the prognosis for rehabilitating sexually violent predators in a prison
setting is poor, the treatment needs of this population are very long term and
the treatment modalities for this population are very different than the
traditional treatment modalities for people appropriate for commitment
under the [general involuntary civil commitment statute]."

The statute defined a “sexually violent predator” as:

"any person who has been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality or personality disorder
which makes the person likely to engage in the predatory acts of sexual
violence." See: § 59-29a02(a).

A "mental abnormality" was defined, in turn, as a "congenital or acquired

condition affecting the emotional or volitional capacity which predisposes
the person to commit sexually violent offenses in a degree constituting such
person a menace to the health and safety of others." See: § 59-29a02(b). See
also: 521 U.S. at 351.

The Act's civil commitment procedures pertained to: (1) a presently confined
person who "has been convicted of a sexually violent offense" and is
scheduled for release; (2) a person who has been "charged with a sexually
violent offense" but has been found incompetent to stand trial; (3) a person
who has been found "not guilty by reason of insanity of a sexually violent
offense"; and (4) a person found "not guilty" of a sexually violent offense
because of a mental disease or defect. § 59-29a03(a), See also: 521 U.S. at
352.

In 1984 Leroy Hendricks was convicted of taking “indecent liberties” with

two 13-year-old boys. It was the last of his long list of convictions for
violent sex offenses:

• In 1957 he was convicted of lewdness involving a young girl and

received a brief jail sentence.
• In 1960 he molested two young boys while he worked for a carnival.
He served two years before being paroled.
• He was soon re-arrested for molesting a 7-year-old girl. He was
committed to a psychiatric hospital. In 1965 the hospital determined
that he was “safe to be at large” and released him.
• Shortly after his released from the hospital, Hendricks sexually
assaulted another young boy and girl, performing oral sex on the 8-
year-old girl and fondling the 11-year-old boy. He was imprisoned
again in 1967 where he remained until he was paroled in 1972.
• Diagnosed as a pedophile, Hendricks entered into a voluntary
treatment program only to abandon the program.
• Shortly after his 1972 parole, Hendricks started sexually abusing his
own stepdaughter and stepson for a period of approximately four
years.

Hendricks was then arrested and convicted in 1984 for the “indecent
liberties” charge with the two 13-year-old boys. After serving ten years, he
was scheduled to be released to a halfway house. The State of Kansas
decided to put its new “Sexually Violent Predators’ Act” to work by filing a
petition to have him civilly committed. Hendricks appeared in court
represented by counsel and challenged the new law on several federal
constitutional grounds. Finding that there was probable cause to support that
Hendricks was a sexually violent predator, the court deferred ruling on the
Act’s constitutionality and ordered that the sex offender be evaluated at a
state security hospital. Hendricks, supra, 521 U.S. at 353-54.

Hendricks requested, and was granted, a jury trial to determine if he

qualified as a sexually violent predator under the Act. He told the jury that
when he “gets stressed out,” he “can’t control the urge” to molest children
and that he had repeatedly abused children when he was not confined. He
also told the jury that while he hoped he would never molest children again
because of the harm it caused them, he admitted the only sure way to make
certain it wouldn’t happen again would be for him “to die.” Finally, he
embraced the state psychiatrist’s diagnosis that he suffered from pedophilia,
informed the jury that he had not been cured of the condition during his 10-
year incarceration, and sarcastically ridiculed the state’s “treatment [program
as] bull.” Id., 521 U.S. at 355.

The jury unanimously found beyond a reasonable doubt that Hendricks was
a sexually violent predator. Armed with the jury verdict, the trial court found
as a matter of law that Hendricks suffered from the “mental abnormality” of
pedophilia and ordered him civilly committed to the state’s Secretary of
Social and Rehabilitation Services for "control, care and treatment until such
time as the person's mental abnormality or personality disorder has so
changed that the person is safe to be at large" as required by § 59-29a07(a).
Id., 521 U.S. at 355-56.

In upholding the Kansas “Sexually Violent Predators Act,” the Supreme

Court made the following conclusions:

• “States have in certain narrow circumstances provided for the forcible

civil detainment of people who are unable to control their behavior
and who thereby pose a danger to the public health and safety.” 521
U.S. at 357.
• The Court said that “we have consistently upheld such involuntary
commitment statutes” when (1) “the confinement takes place pursuant
to proper procedures and evidentiary standards,” (2) there is a finding
of “dangerousness either to one’s self or to others,” and (3) proof of
dangerousness is “coupled … with the proof of some additional
factor, such as a ‘mental illness’ or ‘mental abnormality’.” 521 U.S. at
357-58.
• The Kansas “Act unambiguously requires a finding of dangerousness
either to one’s self or to others,” and then “links that finding to the
existence of a ‘mental abnormality’ or ‘personality disorder’ that
makes it difficult, if not impossible, for the person to control his
dangerous behavior.” 521 U.S. at 358.
• The Court determined that the Kansas Act’s “requirement of a ‘mental
abnormality’ or ‘personality disorder’ is consistent with the
 requirements of … other statutes that we have upheld in that it
narrows the class of persons eligible for confinement to those who are
unable to control their dangerousness.” 521 U.S. at 358.
• The Court responded to Hendricks’ claim that those “other statutes”
required a finding of “mental illness” and not of “mental abnormality”
or “personality disorder” by saying that it has “traditionally left to
legislators the task of defining [such] terms.” 521 U.S. at 359.
• The Court then held that to “the extent that the civil commitment
statutes we have considered set forth criteria relating to an
individual’s inability to control his dangerousness, the Kansas Act sets
forth comparable criteria.” 521 U.S. at 360.
• The Court added that Hendricks’ own condition “doubtless satisfies
those [other] criteria,” because (1) he suffers from pedophilia, (2) “the
psychiatric profession itself classifies” that condition “as a serious
mental disorder,” and (3) Hendricks conceded that he cannot “’control
the urge’ to ‘molest children’.” 521 U.S. at 360.
• The Court concluded that Hendricks’ own “admitted lack of volitional
control coupled with a prediction of future dangerousness, adequately
distinguishes [him] from other dangerous persons who are perhaps
more properly dealt with exclusively through criminal proceedings.”
521 U.S. at 360.

See also: Kansas v. Crane, 534 U.S. 407 (2002)[rejecting an effort by the
State of Kansas to extend the commitment of a dangerous sexual offenders
without a “lack-of-control” determination being made]. Accord: Seling v.
Young. 531 U.S. 250 (2001)[upholding Washington State’s Community
Protection Act of 1990 which authorizes the civil commitment of “sexually
violent predators,” persons who suffer from a mental abnormality or
personality disorder that makes them likely to engage in predatory acts of
sexual violence. Wash. Rev. Code §71.09.010 (1992)].

Leroy Hendricks is now 73 years of age. He has been confined through his
civil commitment under the Kansas Act for fourteen years at a cost of
$85,000 a year – more than eight times it would have cost to keep him in
prison. The Times reported that he spends most days in a wheel chair or
leaning on a cane “because of diabetes, circulation ailments and the effects
of a stroke.” He probably will not live long enough to “graduate” from the
state’s “treatment” program. Nationwide only 250 civilly committed sex
offenders have been released unconditionally since the Washington Act was
enacted in 1990.
The staggering costs of civil commitment has not deterred most states from
pursuing the goals of these community protection acts. California, for
example, is spending $388 million on a facility that will allow the state to
increase its number of sex offender civil commitments to 1500 while
Florida, Minnesota, Nebraska, Virginia, and Wisconsin are also expanding
their capacity to commit more such offenders. At the federal level the Bush
administration is offering money to the states to house “dangerous sex
offenders” beyond their prison terms while the Justice Department is,
according to the Times, “creating a civil commitment program for federal
prisoners.” This expansion gusto is occurring despite the shortcomings of a
number of these existing civil commitment programs described by the
Times:

• Sex offenders selected for commitment are not always the most
violent; some exhibitionists are chosen, for example, while rapists are
passed over. And some are past the age at which some scientists
consider them most dangerous. In Wisconsin, a 102-year-old who
wears a sport coat to dinner cannot participate in treatment because of
memory lapses and poor hearing.
• The treatment regimes are expensive and largely unproven, and there
is no way to compel patients to participate. Many simply do not show
up for sessions on their lawyers’ advice – treatment often requires
them to recount crimes, even those not known to law enforcement –
and spend their time instead gardening, watching television or playing
video games.
• The cost of the programs is virtually unchecked and growing, with
states spending nearly $450 million on them [in 2007]. The annual
price of housing a committed sex offender averages most than
$100,000, compared with about $25,000 a year for keeping someone
in prison, because of the higher costs for programs, treatment and
supervised freedoms.
• Unlike prisons and other institutions, civil commitment centers
receive little standard, independent oversight or monitoring; sex
among offenders is sometimes rampant, and, in at least one facility,
sex has been reported between offenders and staff members.
• Successful treatment is often not a factor in determining the relatively
few offenders who are released; in Iowa, of the nine men let go
unconditionally, none had completed treatment or earned the center’s
recommendation for release.
 • Few states have figured out what to do when they do have graduates
ready for supervised release. In California, the state made 269
attempts to find a home for one released pedophile. In Milwaukee, the
authorities started searching in 2003 for a neighborhood for a 77-year-
old offender, but have yet to find one.

Supporters of civil commitment are not concerned about these shortcomings.

They are concerned only that several thousand “dangerous sex offenders”
are confined beyond any meaningful hope for release, no matter that it costs
$450 million a year to keep them so confined.

While civil commitment has some due process protections attached to it, the
process nonetheless has the unconstitutional smell of the WWII Japanese
“internment camps” and the modern “enemy combatant” detention facilities.
In all three situations, individuals are confined indefinitely not for what they
have been convicted of doing but what it is believed they may do in the
future.

Preventive confinement, no matter the reason, is a dangerous concept – far

more dangerous than the individuals it supposedly protects society from.