Wednesday, January 22, 2025

Creators: Keeping Sex Offenders Beyond Their Sentence

Matthew T. Mangino
Creators Syndicate
January 22, 2024

Twenty states, the District of Columbia, and the federal government have laws allowing for continued incarceration of some convicted sex offenders after they finish serving their criminal sentences.

The laws, commonly referred to as civil commitment statutes, seem an affront to basic ideals of justice, due process and human dignity.

The admissions processes for civil commitment programs vary from state to state, according to a recent article in Harper's Magazine. In most cases, when a person incarcerated for a sex offense approaches the end of his or her sentence, prosecutors can appoint a psychological evaluator to assess whether he or she should be classified as a sexually violent predator (SVP).

The findings of the evaluation are sent to the court where a determination is made whether the person meets the legal criteria of the respective SVP statutes.

If the offender meets the criteria, he or she may remain in prison indefinitely — for some it could for years after they "paid their debt to society."

According to the Williams Institute of the University of California, Los Angeles, there are more than 6,300 men, and some women, locked up across the country who have served their complete sentence for a crime committed years ago.

There are approximately 322 sex offenders currently being held indefinitely in New York who have completed their criminal sentences. By most estimates, Pennsylvania has a handful, and neighboring Ohio has zero.

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 with a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, 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, nor ex post facto, punishment through a law applied retroactively.

The high court held that a civil commitment statute is lawful if it protects individuals from being detained past the time they are no longer dangerous or no longer have a mental illness.

In 2006, the federal government entered 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.

In order 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.

There are few advocates for sex offenders, particularly those offenders who have been classified as still dangerous. It's easy and even comforting to take a "throw away the key" position.

In addition, the cost is enormous. New York is spending more than $55 million per year, or $175,000 to confine each person. 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.

For that kind of money, there should be a more thorough vetting process and a transparent proceeding for committing and keeping an offender who has already served his time.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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