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|SCOTUS upholds Congressional powers in granting Adam Walsh Act Civil Commitment US v. Comstock
|Civil Commitment: A very uncivil proposal
Derek “The Fallen One” Logue
May 17, 2009
“There’s a little bit of confusion. What is this place? Is it a prison? Is it a mental health center? A residential treatment
facility where people are clients? What is it? We ask that question sometimes too. We really don’t have a lot of guidance
around what it is the state wants the facility to be, and we would encourage the state to look at that.” – Susan Keenan
Nayda, VP of operations at Liberty Behavioral Health Corp., in a court deposition in Arcadia, FL
Civil commitment is the practice of confining individuals considered a “significant risk to the community” for an
indeterminate period of time. The practice has preceded public registries, practiced as far back as the 1930s. But the
landmark decision of Kansas v. Hendricks in 1997 has made this practice “constitutional” when used properly. The
Adam Walsh Act now demands every state pass civil commitment laws. But are these laws merely another tool to
circumvent the constitution and detain these individuals beyond their original sentences? The evidence strongly
suggests civil commitment laws have been used more for detention than for treatment.
THE CIVIL COMMITMENT LAWS
The modern concept of civil commitment arose from the “sexual psychopath laws” of the 1930s, which stressed
rehabilitation of the individual they believed were more likely to offend than other convicted sex offenders. However, by
the 1970s this policy fell out of favor for a variety of reasons, including doubts to effectiveness and the changing of
emphasis on punishment rather than rehabilitation. The 1990s saw the rise of the modern civil commitment laws with a
lower standard of commitment . A number of lawsuits followed, leading up to the landmark Supreme Court case
Kansas v. Hendricks.
The Kansas v. Hendricks  decision opened up a disturbing trend of lowering strict standards that existed in the past.
The decision upheld the Kansas statute which allowed civil commitment for a lesser standard of “mental abnormality” or
“personality disorder.” The Court stated the legislature have the discretion to determine the standard for civil
commitment and the legal definition of mental illness or similar definitions . Seeing the punitive nature of these laws
and criticizing the lack of the medical standard of mental illness, the National Association of State Mental Health Program
Directors (NASMHPD) offered opposition to modern civil commitment practices for many reasons, including:
CIVIL COMMITMENT PROCESS
The state of Minnesota’s process of civil commitment is a typical procedure for confining certain convicted sex offenders.
The commitment petition is filled before the release date from prison, and goes before a civil judge. The defendant is
granted the right to counsel, cross-examine, and present evidence, but is not allowed the right to a jury trial.
Furthermore, allegations not leading to an arrest or criminal charge can be considered (thus a false allegation could be
considered). The judge then makes his decision using the lower standard “clear and convincing evidence.” If a person
is civilly committed, s/he will remain at the civil commitment center during the appeal, and a review hearing is conducted
to determine the need for further commitment. The patient, the patient’s attorney, or the facility medical director can
start the process for a hearing before a special review board. The review board makes the recommendation, but the
Commissioner makes the final decision, though that decision can be appealed through the courts .
Civil commitment laws, as currently practiced, open up many concerns beyond the medical community. One article
criticizing the New York civil commitment laws posed the question in light of a state study on recidivism asked how exactly
we determine which 8% of the sex offenders released from prison will re-offend in the next eight years and commit them
accordingly. The article also cites numerous concerns of civil commitment, including:
An article by Dr. Joseph D. Bloom, a mental health professional with 35 years experience with civil commitment laws, also
notes the civil commitment laws are losing their prominence. The evolution from the medical model to the criminal justice
method is lamented as anti- therapeutic  and diminishing the ability to effectively use the statutes . The prisons
have become the dumping ground for the mentally ill .
A series of New York Times articles have reinforced the perception of civil commitment as dumping grounds for
offenders who have completed their sentences. Of the nearly 3,000 convicted sex offenders sent to civil commitment
centers in 18 states from 1990 to 2007, only 50 “graduated” from the courses, while 115 have been released due to
legal technicality, old age, or terminal health; and even those few who were released wind up living on state prison
grounds because communities shun the released .
An investigation into one center run by a private company in Arcadia, Florida described the facility as a “free-for-all
prison.” The poor record of failures included escapes, murders, sex, and drug use within the facility. Only one of the
committed ever graduated from the program during the tenure of the program run by Liberty Behavioral Health
Corporation. The state of Florida accused Liberty of mismanagement, while Liberty accused the state of not funding the
program sufficiently .
The state of Florida spent an average of $41,835 per committed individual; by contrast, the state spent $19,000 per
prison inmate per year. By contrast, Pennsylvania spent $180,000 per year per committed individual and $31,363 per
inmate per year. The cost of civil commitment is exponentially higher than prison time . While civil commitment is
more expensive than prison, the fact is, those who are civilly committed have completed their sentences before entering
a civil commitment center.
While the Hendricks decision upheld the practice of civil commitment, the constitutionality of civil commitment hinged on
applying the law without serving a punitive purpose. A recent essay by Eric S. Janus suggests the possibility of “facial
invalidity” of the current civil commitment laws as currently practiced. The constitutionality of an SVP law “depends on its
purpose, the contours of its target (mentally disordered and dangerous), its procedures, and the provision of treatment
and conditions of confinement .” The Hendricks case was upheld but could be challenged under the following
Janus’s rationale is that the law is inapplicable because of how it is used. It would be reasonable to assume based upon
the many reports listed thus far, the law should be invalidated.
At least two recent court decisions found civil commitment unconstitutional under certain circumstances. In May 2008, a
federal judge in Minnesota ruled congress exceeded authority in confining people past their sentences , a ruling
preceded by a similar court ruling in North Carolina . The North Carolina federal court also determined the standard
of proof for civil commitment should be “beyond a reasonable doubt,” not the lesser standard of “clear and convincing
evidence . Both cases involved the controversial Adam Walsh Act.
Other legal issues involving civil commitment:
CIVIL COMMITMENT RELATED ISSUES
There are other issues with civil commitment outside of the civil commitment process. Many civilly committed offenders
are subjected to psychological and risk assessment tests, polygraphs, plethysmographs (“peter readers”), and even
castration. Below is a synopsis of each of these provisions.
Risk Assessment Tests
Actuarial risk assessment tests try to determine which individual is more likely to re-offend based upon the score they
earn on each test. Some of the known actuarial tools are the Violence Risk Appraisal Guide (VRAG), the Sex Offender
Risk Appraisal Guide (SORAG), the Rapid Risk Assessment of Sex Offense Recidivism (RRASOR), the Static-99, the
Minnesota Sex Offender Screening Tool-Revised (MiSOST-R), and the Multifactorial Assessment of Sex Offender Risk
for Recidivism (MASORR). One recent study determined all but the MiSOST-R and the MASORR to be fairly effective at
predicting sexual recidivism .
All actuarial risk assessments measure “static” or factors in a person’s life that do not change over time (or doesn’t
change easily), such as age of offense, presence of mental illness or substance abuse, prior sex offenses, childhood
events such as single parent raising or trouble in school, or relationship status. And scoring utilized by the tests assign
group risk to the individual based on people with similar scores. Below is a basic breakdown of the various tests:
Of course, it should be noted that recidivism rates were low even in the survey of the clinical tests, and personal bias
and difficulty in scoring can hinder evaluation results . Bias can also extend to those in charge of determining civil
commitment, as judges or assessment committees can reject the test results.
Penile Plethysmographs (a.k.a., “Peter Readers”)
Penile plethysmographs (derogatorily known as “Peter Readers”) are devices which measure blood flow to the penis
and measure arousal. While widely used in risk assessments, plethysmographs have not been proven scientifically
accurate, as it is possible for a person to “manipulate mental images” to override visual cues . One study found
about 16% of tests was indeed manipulated .
A few court cases have set precedents for rejecting the practice. In US v. Powers , the Court found the tests lead to
a number of false positives and was not determined to be scientifically valid under the Daubert standard, a decision
shared by a North Carolina appeals court . More recently, the Virginia Supreme Court rejected the plethysmographs,
again citing lack of scientific evidence .
Polygraphs are popular thanks in part to television shows like The Maury Povich Show, but from a scientific standpoint
the practice is controversial. William Moulton Marston, the creator of the systolic blood pressure test, also created the
comic book character “Wonder Woman,” who wields the “Lasso of Truth” or “Magic Lasso” which compels people to tell
the truth as a special power . Much like Wonder Woman, the polygraph is little more than a piece of fiction.
Polygraphs don’t actually detect lies; they just detect bodily changes, but that fact does little to deter the myth of the lie
detector. One 1997 study suggests polygraphs are little more accurate than chance (61%), and certain techniques
could help fool polygraph tests . Another study found that those subjected to a polygraph will agree with whatever
the polygrapher asks around 90% of the time, even if the polygrapher suggests something completely untrue . This
is particularly dangerous as polygraphs are not lie detectors, but interrogations, and results could be determined by the
amount of deception committed by the examiner . While the tests may not detect lies, it may be valuable as
“psychological manipulation,” acting as a tool to force confessions or provide self-incriminating evidence .
Polygraphs are wholesale rejected in courts for many of the same reasons as plethysmographs, particularly lack of
scientific evidence . Furthermore, polygraphs are not even considered reliable for screening in security positions
Castration is another controversial technique for high-risk offenders. A few states have chemical castration laws on the
books (California, Florida, Georgia, Iowa, Montana, Oregon, Texas, and Wisconsin), while Alabama is trying to become
the first state with a mandatory surgical castration law, while Texas has a voluntary surgical castration law .
Castration is not without harsh criticisms. “Researchers have found that chemical castration, or using hormonal drugs to
curb sexual appetite, can be problematic, too. But while some consider antiandrogens crucial for the most predatory
offenders, the drugs remain controversial, not least because they are expensive and can cause weight gain,
osteoporosis and breast development. It is also hard to ensure that released offenders keep taking the drugs .” In
addition there are other criticisms with castration laws, including:
The few research studies available originate mostly from Denmark and Nazi Germany from around the World War 2 era,
and their validity is questionable at best, especially since non-sex crimes were usually included in the mix, and no control
group was tested. In fact, none of the studies were entirely comprised of sex offenders. Furthermore, in studying people
castrated for the medical purpose of removing testicular cancer, the researchers found that patients could still have
erections and respond to sexually stimulating materials. Some of the medical side effects can be countered with
hormone injections, which in turn, increases the sex drive. Only one study (California Legislative Report, 1952) claimed
a 0% sexual recidivism rate, but only 11 of the 60 in the report were convicted of sex crimes. Finally, in one case study,
the patient still displayed aggression towards women, which was attributed to his misogynist belief system as opposed to
sex hormones. Not all factors involving criminal sexual behavior can be attributed to sex hormones .
Legally, surgical castration would not appear to pass constitutional muster, as the Courts have declared the lesser
punishment of a forced vasectomy “cruel and unusual punishment .” The Council of Europe’s committee for the
Prevention of Torture recently found two psychiatric hospitals in the Czech Republic to be a cause for grave concern.
The Council questioned the issue of voluntary consent for castration where the only other alternative was indefinite civil
commitment. Also, there are no standardized methods for determining appropriate treatment for sex offenders .
Civil commitment is invalidated as currently practiced. It is self-evident that current civil commitment laws are used as
detainment rather than treatment, as few individuals ever leave civil commitment centers in anything outside a body bag.
There is currently no solid plan to determine who is at risk for re-offending, as risk assessments are subject to human
bias and misinterpretations. Furthermore the scores can simply be ignored by the judges presiding the civil commitment
hearing. Other methods of assessing risk, such as penile plethysmographs and polygraphs, are largely rejected by the
courts yet are commonly used in civil commitment centers. These tests are not considered scientifically valid and ample
evidence suggests these tests are largely interpreted by human bias rather than fact and may lead to large numbers of
false positives. And castration leads to a number of negative consequences including physiological side effects that may
ultimately rule the practice cruel and unusual punishment.
If civil commitment is to ever be utilized, the practice should be used only to handle only the “worst of the worst,” utilizing
scientifically and non-intrusive means to achieve the goal of rehabilitating the truly ill. Unfortunately, “predator panic”
has led to the abuse of a safeguard against the worst of the worst, a trend sure to only worsen with the advent of the
Adam Walsh Act.
WCVB News 5 : Sex Offender Registry Board Workers Questioned Over Facebook Use Team 5 Investigates Uncovers
Bias, May 19, 2009. http://www.thebostonchannel.com/investigative/19505809/detail.html
"He's expressing opinions about how these hearings have been conducted, essentially showing that he's made up his
mind before they're finished," said attorney Eric Tennen [regarding Tyson Lynch, who works on the Mass. SOMB]. For
example, Lynch wrote on his Facebook account how he gets "great satisfaction" out of denying motions and that: "It's
always a mistake when people testify because they get destroyed in cross examination." Fellow hearing examiner Mel
Maisel used her Facebook account to comment, "But it's so entertaining...."
Once he bragged about "putting the smack-down on some crazy attorney." Without naming anyone he called others
"incompetent." One morning he wrote: "It's always awkward when I see one of my pervs in the parking lot after a
"Every single one of his decisions has to be redone and looked at," Noonan said.
"Every case that he's heard has to be re-examined to determine whether or not he was biased, whether or not he was
fair and whether or not he gave the person a legitimate hearing and classification," Tennen said.
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