Mathew T. Mangino
December 2, 2106
A popular phrase among zealous law and order advocates is “Do the crime, do the time.” Many law abiding citizens would be surprised to know that there are thousands of people in this country who have done their time and remain behind bars indefinitely.
Civil commitment gained support in state capitols around the country a quarter century ago as cable news channels brought high profile sex offenses into living rooms nationwide. A crime across the country had the same emotional effect on viewers as a crime across the street.
Today, 20 states, along with the federal government, detain some sex offenders for treatment beyond their prison time.
Minnesota has the highest population of civilly committed offenders per capita in the nation, and the lowest rate of release. Costs have soared as well. According to the New York Times, it costs about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota.
Pennsylvania currently has eight men locked-up who have served their complete sentence for a crime committed years ago. These men are considered sexually violent predators, as determined by a civil court, and are being detained indefinitely.
Pennsylvania’s neighbor to the west, Ohio, does not have a civil commitment statute for sex offenders.
Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently it has been applied to sex offenders with a diagnosable mental abnormality and a likelihood to re-offend.
In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. The high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, or ex post facto, punishment through a law applied retroactively.
In 2006, the federal government got into the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of “sexually dangerous persons” already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences, or incompetent to stand trial, remain in federal custody indefinitely as a result of their “sexually dangerous” status.
To secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual “is a sexually dangerous person.” If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.
In 2010, the Supreme Court ruled that the federal government has the authority under the U.S. Constitution to require the civil commitment of individuals already in federal custody. According to the Washington Post, during the argument before the court, Justice Ruth Bader Ginsburg said, “You are talking about endangering the health and safety of people. The government has some responsibility.”
Just how far does the concept of protecting the health and safety of the public reach? The state of Virginia uses risk assessment to determine the duration of sentences. The Pennsylvania Commission on Sentencing has been charged with incorporating risk assessment into the state’s sentencing guidelines. The City of Philadelphia uses risk assessment to determine appropriate supervision of probationers. Couple a high risk for violent re-offending with a mental abnormality and could the civil commitment of extremely violent predators be far off?
Stephen McCallister, a law professor and Kansas solicitor general does not think it implausible. He told NPR in 2010, “Constitutionally, it might be possible,” to extend the rationale for civil commitment to other kinds of crimes. “I don’t have a constitutionally limiting line for what kinds of mental disorders might be permissible and what (might) not. If they lead to danger to others, potentially, they could be covered under such a law.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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