Civil Commitment for Sex Offenders

Some 20 states, the District of Columbia, and the federal government have laws that permit civil commitment proceedings for habitual or violent sex offenders. These laws permit the State to remove sex offenders from society for extended, and often indefinite, periods of time. 

Civil commitment for sex offenders may involve court-ordered treatment and confinement. Civil commitment happens after offenders have served a sentence for a criminal case. It is not based on new law violations, but on assessments of mental illness and a determination of the level of "dangerousness" the offender presents upon return to society.

The History of Civil Commitment Laws

In contrast with punishment for past crimes in the criminal justice system, involuntary civil commitment is based on concerns that an individual cannot care for his personal needs or poses a risk of harm to himself or others in the future. Historically, state civil commitment laws were not exclusive to sex offenders. These laws have existed in various forms since the 1800s. They permit civil confinement for a broad category of persons determined to pose a high threat to themselves or others. They can include people with:

  • Mental illness
  • Developmental disabilities
  • Chemical dependencies related to substance abuse

Unfortunately, the history of civil commitment laws has a checkered past. 

Today, involuntary civil commitment laws struggle to balance the individual's interest in liberty with the government's interest in public safety. In the 1800s, the focus of civil commitment centered on the State's need to care for those who could not provide for their basic needs. Proceedings during these years did not provide significant protection for individual rights. 

There were incidents of questionable commitment and involuntary treatment. An infamous case from 1860 involved a wife whom the State committed to hospitalization at the request of her husband under an Illinois law that allowed just that. States also had inconsistent standards for treatment facilities and hospitals. Although states passed reforms in the years to come, mental health institutions repeatedly garnered reports of overcrowding, patient abuse, and poor health care. 

By the 1960s and 1970s, a patients' rights movement called for reform. Medical care providers and patients' families pushed for change. This included the deinstitutionalization of many persons with mental illness. 

The cost of state hospitals and improved funding for human services also caused lawmakers to moderate their views on less restrictive alternatives in the community. This included the use of outpatient treatment for mental health services. Advocates also pushed for a higher level of proof in commitment cases than the "preponderance of the evidence" standard (more likely than not) used in most civil cases.

In 1975, the U.S. Supreme Court addressed legal concerns related to civil commitment cases in O'Connor v Donaldson. Florida state officials had confined Donaldson against his will as a mental health patient to a state hospital for 15 years. Donaldson challenged the state's action, claiming it amounted to an unconstitutional deprivation of his liberty. 

The Supreme Court agreed that the State violated Donaldson's due process right of liberty. In a unanimous decision, it held that the State cannot confine a non-dangerous mentally ill person to a psychiatric hospital when they can survive safely on their own with help from responsible friends or family without more justification for the confinement.

Civil Commitment Laws for Sex Offenders

The effort to establish civil commitment laws specifically directed towards sex offenders began with laws enacted in Washington state and Minnesota. In 1990, Washington passed the Community Protection Act. This law set directives for an end-of-sentence review committee. It created a process for identifying sexually violent predators who could be civilly committed after a court hearing. In 1995, Minnesota followed suit. As of 2023, some 20 states have these laws. 

Each state has its own commitment criteria. Most of these laws apply when the offender:

  • Has committed a sex offense
  • Has a mental disorder or abnormality 
  • Is likely to commit sexual violence in the future upon release

The U.S. Supreme Court upheld civil commitments of sex offenders in Kansas v HendricksThe Court concluded the state law was not a criminal proceeding, so the U.S. Constitution's double jeopardy and ex post facto clauses did not apply. The Court found the law complied with constitutional due process. It did not confine a person based only on their mental illness. The law required proof of a past sexually violent act and a medical condition or impairment that creates a likelihood of future sexually violent acts.

Civil commitment laws have continued to operate today. They exist at the federal and state levels and can vary depending on the jurisdiction.

How Does Civil Commitment Work?

The typical civil commitment process is guided by standards focusing on the level of danger that individuals pose, not only a need for treatment. There are usually two stages in the process: 

  • The commitment petition stage 
  • The commitment hearing stage

The State serves as the Petitioner and brings the request. The offender serves as the Respondent and can oppose the request and seek release.

Civil Commitment for Sex Offenders at the Federal Level

Under the Adam Walsh Act of 2006, which governs civil commitment by the federal government, the U.S. Attorney General or any law enforcement official in the Department of Justice or Bureau of Prisons can start the civil commitment process. They certify an individual as a "sexually dangerous person" under the law.

This can happen with prisoners who are pending release or with criminal defendants found incompetent to stand trial. Federal officials go through an evaluation process. They review inmates who have a recorded history of sexual violence or child molestation. They assess risk factors associated with their release which may lead to initiation of a civil commitment.

Once the federal agency determines an individual is a sexually dangerous person, it files a petition in court. The petition seeks a judicial determination in line with the petition that warrants involuntary confinement. Although a civil hearing, this process involves many legal protections found in a criminal case. This includes the person's right to:

  • Be represented by counsel
  • Testify and present evidence
  • Subpoena witnesses
  • Confront and cross-examine witnesses who appear at the hearing

These hearings also involve a psychiatric or psychological examination by a mental health professional.

Once both sides present their evidence, the court then makes a determination based on "clear and convincing" evidence. This is in contrast with the criminal trial standard requiring evidence that is "beyond a reasonable doubt." If the court finds the offender dangerous, the court will issue a commitment order. It will place the sex offender in the custody of the Attorney General who maintains custody until:

  • A state assumes responsibility for custody, and
  • The person's condition improves to the point where they are no longer sexually dangerous and the court approves a release.

Civil Commitment for Sex Offenders at the State Level

Many state laws mirror the federal process, but they can include different definitions of the mental conditions and mental illnesses that may lead to civil commitment.

Under Minnesota law, for example, the county attorney can petition for civil commitment of a sex offender. This usually occurs as the offender nears the end of their prison sentence. The commitment hearing happens before a civil judge. At the hearing, the county attorney must show that the sex offender qualifies for commitment. The offender can qualify as either a "sexual psychopathic personality," "sexually dangerous person," or both.

In meeting its burden to prove a person has a "sexual psychopathic personality," the state must show the individual:

  • Is irresponsible for personal conduct in sexual matters due to emotional instability, impulsive behavior, lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts
  • Has engaged in a "habitual course" of misconduct in sexual matters
  • Suffers from an "utter lack of power to control" sexual impulses
  • Is dangerous to other persons

To prove that someone is a "sexually dangerous person," the State must show that they:

  • Engaged in a course of harmful sexual conduct that creates a substantial likelihood of serious or emotional harm to another
  • Have a sexual, personal, or other mental disorder
  • Are likely to engage in acts of harmful sexual conduct in the future

State procedures for the petition and hearing are likewise similar to the federal process, with a judge making commitment determinations after considering evidence on both sides that shows, by clear and convincing evidence, the likelihood of future harm. Determinations may include a treatment plan for an offender to engage in on a voluntary basis.

States may also provide a process such as an annual review where the court can determine whether the offender remains a danger to commit a sex crime. The offender's attorney can present evidence of a treatment program completed by the offender. They may ask the court to consider outpatient treatment through a community mental health facility.

In contrast to Minnesota, Washington State provides for a "probable cause" hearing before a full trial. Washington also sets a higher burden of proof for commitment, using the criminal "beyond a reasonable doubt" standard.

Criticism of Sex Offender Civil Commitment

Some oppose sex offender civil commitment standards for a variety of reasons. To many, involuntary civil commitment resembles incarceration or an attempt to extend prison sentences without the basis of a new offense. They point to claims of limited mental health treatment available to persons while serving their criminal sentence. Once labeled as a sexually violent person, they say mental health treatment holds little promise. Success in treatment may not lead to release into a less restrictive alternative placement or a return to liberty.

Critics also point to evidence of disproportionate consequences. A 2020 study by the UCLA Law School's Williams Institute concluded that black sex offenders were two times more likely to be classified as sexually violent offenders subject to involuntary civil commitment than white sex offenders. Also, male offenders who engaged in sex crimes against other males were two to three times more likely to be committed than male offenders who sexually assaulted females.

Have Questions About Civil Commitment for Sex Offenders? Ask an Attorney

The consequences associated with a sex crime, criminal charges, and a sex crime conviction can be devastating. These offenses often become lifelong burdens for victims who try to move forward. The stigma of a conviction provides obstacles for offenders before and after they serve their sentence. If someone close to you is facing civil commitment proceedings, you can seek out legal help to get answers. A skilled criminal defense attorney in your area can help explain the law and legal options.

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