Mathew T. Mangino
GateHouse Media
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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