The Failed Experiment of Sex Offender Civil Commitment

By Professor Deirdre M. Smith

Professor Deirdre SmithToday, more than 4000 people are being held in indefinite detention in the United States. They are not serving criminal sentences. Nor are they being hospitalized for treatment. They are unlikely to be released at any time soon, and many of them will grow old and die in detention. They are not terrorists, although they are part of a group nearly as despised as that one. They are people (nearly all of them men) previously convicted of sex-related offenses who were involuntarily committed after completing their sentences.

Twenty states and the U.S. Congress have enacted civil commitment laws to allow such indefinite detention. The rationale of such laws is that the detention is preventive, not punitive, and it is reserved for only a small subset of sex offenders at risk for committing future acts of sexual violence: those who have been adjudicated as “Sexually Violent Predators.”  As I discuss in my recent article, “Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of ‘Sexually Violent Predator’ Commitment,” the U.S. Supreme Court upheld this unusual and extraordinary deprivation of liberty against a due process challenge in Kansas v. Hendricks (1997) on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators” with the aid of testimony from mental health professionals. In the Article, I evaluate those assumptions and conclude that, because they were seriously flawed, the due process rationale used to uphold the SVP laws is invalid. The “Sexually Violent Predator” is a political and moral construct, not a medical classification.

The first SVP civil commitment law was enacted by the State of Washington in 1990, at a time when it was consumed by news of a highly publicized, violent sexual crime committed against a young child by an offender with prior convictions for violence against children. In response to public outcry, the Washington legislature enacted a statute allowing the state to continue to detain certain sex offenders after they had completed their criminal sentences. Several other states followed suit, modeling their SVP laws after Washington’s (Maine was not among those states and does not have an SVP commitment law).  Since their inception, the laws have been the subject of sharp criticism from legal and medical scholars, as well as court challenges to their constitutionality; however, they have all remained in place.

Twenty-five years later, a review of the implementation and impact of these laws reveals the essential flaws in the statutory model. Many of the individuals classified as SVPs are detained in SVP programs for periods far longer than their original criminal sentences, yet they do not resemble the serial “predator” in the minds of the legislatures and public. Many were convicted of a single offense, including juvenile offenses or non-contact crimes such as possession of child pornography or exhibitionism. Many were convicted in plea deals in which they had no warning that they could face decades of additional detention after their prison terms ended. Very few are receiving any form of treatment in such detention. And because they have been removed from the public, it is nearly impossible for them to demonstrate that they do not pose a risk of committing a further offense. As a result, they remain in detention for years, with almost no prospect of release.

How did these men come to be classified as SVPs in the first place? In nearly every instance, the court was aided by testimony from a mental health professional. However, mainstream psychiatry has never claimed an ability to predict accurately who is at risk of committing acts of sexual violence and has never conceptualized sexual aggression as the product of some form of mental disorder. Indeed, the American Psychiatric Association (APA), the leading professional organization in American psychiatry, and other voices from within the mental health profession have vociferously opposed SVP laws since their enactment precisely because of the role assigned to psychiatric expertise to identify those who should be committed.

The controversies regarding admission of expert testimony in individual SVP cases reveal the troubling consequences of the Supreme Court’s failure in Hendricks to heed the APA’s warnings. Trial courts permit prosecution experts to offer diagnoses and predictions of risk in support of these commitments notwithstanding the fact that such testimony often strays far from the current scientific understanding of the relationship between acts of sexual violence and psychopathology. In so doing, courts distort and disregard key values in our justice system, such as limiting the admission of expert testimony to that based on scientifically sound methodology and reliable facts and data.

The Supreme Court expected mental health professionals to help courts and fact finders discriminate between the typical recidivist and the truly ill, thereby ensuring that the new laws did not reach too far. These expectations stemmed largely from courts’ longstanding reliance on psychiatric expertise to help answer difficult questions about the mental status of persons appearing before them. However, the actual use of such expertise in SVP proceedings reveals that such faith in psychiatry was, in fact, misplaced.

In practice, courts base SVP commitments largely on the respondents’ criminal records because the expert opinions themselves are based on little else. As a result, expert opinions in SVP cases are not in fact “medical” but moral. And because such conclusions are essentially normative ones, courts are improperly delegating commitment decisions to psychiatric professionals, which flies in the face of both legal principles and psychiatric practice. This is not merely a problem of labels and professional realms; this experiment has resulted in the indefinite detention of thousands of people at an enormous monetary cost to governments and an enormous personal cost to those committed and their families.

Although the states that enacted these programs find that they are becoming increasingly burdensome to maintain, public officials likely fear public outcry if the programs are scaled back or eliminated.  At the same time, the programs are coming under increased scrutiny in the courts and the media.  In 2015, a U.S. District Court judge ruled that the entire Minnesota SVP Program was unconstitutional, largely because the 700 men held in a program that is punitive, not therapeutic or rehabilitative, have dim prospects for release because they are not reassessed for continued risk. The New York Times issued a strongly written editorial soon after calling for the end of sex offender civil commitment programs nationwide.

As I explain in the Article, the Supreme Court must revisit its rationale in Hendricks in light of what the past quarter-century of SVP commitment has revealed regarding the laws’ effects both within and outside of the courtroom. However, lawmakers should not wait for the Court to act; they must respond to the urgent need to eliminate SVP civil commitment. The laws do not enhance public safety. They reflect the public’s fears and groundless beliefs and thereby feed distorted views about both sexual violence and mental illness. SVP laws are dangerous, harmful, and unconstitutional, and the experiment must be shut down.