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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 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 [1]. A number of lawsuits
followed, leading up to the landmark Supreme Court case Kansas v. Hendricks.

The Kansas v. Hendricks [2] 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
[3]. 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:

1. Since the laws are strictly punitive, civil commitment undermines treatment
2. Takes away resources from those who are truly mentally ill and need and desire treatment
3. Endangers the safety of those in facilities who have treatable illnesses [4]


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 [5].


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:

1.        Promoting and basing decision-making on mass hysteria
2.        The high probability of committing innocent people
3.        Inability and overconfidence in ability to determine risk
4.        Mistakes in assuming what works or doesn’t work in reducing recidivism
5.        Gender inequality in sex crime convictions [6]

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 [7] and diminishing the ability
to effectively use the statutes [8]. The prisons have become the dumping ground for the mentally ill [9].

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 [10].

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 [11].

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 [12]. 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
[13].” The Hendricks case was upheld but could be challenged under the following conditions:

1. If civil commitment was used punitively
2. If civil commitment “threatens the primacy of criminal law as the tool for addressing antisocial
behavior-” they must make distinctions between those subject to civil commitment and those
dangerous persons better handled by the criminal justice system
3. If the one civilly committed is not “dangerous” and does not exhibit a constitutionally adequate
mental disorder, i.e, so dangerous they cannot control their behavior to the degree that separates
them from those in the justice system
4. If the committed individual is held beyond the time necessary for treatment
5. If the right to treatment and the conditions of confinement are violated [14]

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 [15], a ruling preceded by a similar court ruling in North Carolina [16]. 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 [17]. Both cases involved the
controversial Adam Walsh Act.

Other legal issues involving civil commitment:

1. The committed still possess the right not to incriminate themselves during the course of any
proceeding where it may be used against them in future proceedings [18]
2. A person on supervised release cannot be forced to detail sexual history in treatment without being
given immunity against future prosecution; cannot be forced to submit to a polygraph [19]
3. 5th Amendment rights continue through sentencing; silence cannot be used to draw adverse
inference, cannot be compelled to admit facts beyond evidence [20]


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 [21].

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:

* Violence Risk Appraisal Guide (VRAG): The VRAG looks at 12 static factors and scores test from
-26 to +38, falling into a risk scale from 1 (low) to 9 (high)
* Sex Offender Risk Appraisal Guide (SORAG): The SORAG looks at 14 items, 10 of those similar to
the VRAG, and scores test from -27 to +51 and falling into a similar scale of 1 (low) to 9 (high)
* Rapid Risk Assessment of Sex Offense Recidivism (RRASOR): A more simplified risk assessment
based on 4 high risk factors: Multiple offenses, male victims, age of offender, and unrelated victims.
Scores are on a scale of 0 to 6, and study was developed using a sample of those with prior sex
* Static-99: Uses 10 risk factors including the 4 RRASOR factors, scores range from 0 to 12, with a
score of 6+ considered high risk.
* Minnesota Sex Offender Screening Tool-Revised (MiSOST-R): Uses 16 factors, 12 historical factors
(like prior sex offenses) and 4 institutional factors (such as cooperation with prison sex offender
treatment). This test is unique in not taking related or “incest” victims into consideration in scoring.
Total scores of -10 to +30 determines risk on a scale of 1 (low) to 6 (high)
* Multifactorial Assessment of Sex Offender Risk for Recidivism (MASORR): Individual ratings of 1 to 5
are initially assessed, and a separate score is assessed after treatment, measuring motivation to
participate in treatment, degree of change achieved, and impressions made upon the treatment
provider. The test scores are combined to determine risk [22].

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 [23]. 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 [24]. One study found about 16% of tests was indeed manipulated [25].

A few court cases have set precedents for rejecting the practice. In US v. Powers [26], 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 [27]. More recently, the Virginia
Supreme Court rejected the plethysmographs, again citing lack of scientific evidence [28].


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 [29]. 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 [30]. 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 [31]. 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 [32]. 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 [33]. Polygraphs are wholesale
rejected in courts for many of the same reasons as plethysmographs, particularly lack of scientific
evidence [34]. Furthermore, polygraphs are not even considered reliable for screening in security
positions [35].  


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 [36].  

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 [37].” In addition there are other criticisms with castration laws,

* Assumption all sex offenders are likely to commit another sex crime;
* Castration does not necessarily eliminate sexual drive and function;
* Both types of castration are reversible thus never accomplishing intended purpose, and
* Not all sex crimes spring from sexual urges (such as the anger rapist), some sex crimes are result of
social and cultural forces, such as desire for domination or power or desire for revenge for harms
done [38].

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 [39].
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 [40].” 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 [41].


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.


1. Nathan James, Kenneth Thomas, Cassandra Foley. “CRS Report for Congress: Civil Commitment of
Sexually Dangerous Persons.” Congressional Research Service, July 2, 2007. http://assets.opencrs.
com/rpts/RL34068_20070702.pdf, retrieved May 8, 2009, pp. CRS-2 to CRS-4
2. Kansas v. Hendricks, 521 US 346 (1997)
3. Hendricks Syllabus, found at
4. National Association of State Mental Health Program Directors, “Position Statement on Laws
Providing for the Civil Commitment of Sexually Violent Criminal Offenders.” Sept. 9, 1997, http://www.
5. “Sex Offender Civil Commitment Fact Sheet.” Minnesota Office of the Ombudsman for Mental Health
and Mental Retardation, Civil Commitment Training and Resource Center, January 2004. http://www., Retrieved May 13, 2009
6. Jeanne Curran and Susan R. Takata. “Civil Commitment of Sex Offenders.” Dear Habernas,
February 6, 2006., Retrieved May 8, 2009
7.  Joseph D. Bloom. “Thirty-Five Years of Working With Civil Commitment Statutes.” The Journal of
the American Academy of Psychiatry and the Law, Vol. 32, Vol. 4, 2004, pp. 433
8. Ibid., pp. 430
9. Ibid., pp. 438
10. Monica Davey and Abby Goodnough, “Doubts Rise as States Hold Sex Offenders After Prison.” New
York Times, March 4, 2007,, Retrieved May 8,
11. Monica Davey and Abby Goodnough, “A Record of Failure at Center for Sex Offenders.” New York
Times, March 5, 2007., Retrieved May 8, 2009
12. “A Profile of Civil Commitment around the Country.” [Chart] New York Times, March 3, 2009. http:
//, Retrieved May 8,
13. Eric S. Janus and Brad Bolin. “An End-Game for Sexually Violent Predator Laws: As-Applied
Invalidation.” Ohio State Journal of Criminal Law, Vol. 6, 2008, pp. 28. http://moritzlaw.osu.
edu/osjcl/Articles/Volume6_1/Janus-Bolin-PDF.pdf, Retrieved May 9, 2009
14. Ibid., pp. 28-30
15. Larry Oakes. “Judge rules federal civil commitment law unconstitutional.” Minneapolis Star-Tribune,
May 29, 2008., Retrieved May
13, 2009
16. Sarah Ovaska. “Sex crime terms have a limit.” The News-Observer, Sept. 13, 2007. http://www., Retrieved May 13, 2009
17. US v. Comstock, Case 5:06-hc-02195-BR [US Dist. Ct. ED N. Car. Sept. 9, 2007)]
18. Lefkowitz v. Turley, 414 US 70, 77 (1973)
19. US v. Antelope, 395 F. 3d 1128 (9th Cir. 2005)
20. Mitchell v. US, 526 US 314 (1999)
21. Howard Barbaree, Michael Seto, Calvin Langton, and Edward Peacock. “Evaluative the predictive
accuracy of six risk assessment instruments for adult sex offenders.” Criminal Justice and Behavior,
Vol. 28, No. 4, August 2001, pp. 490
22. Ibid., pp. 498-502
23. Ibid., pp. 517
24. DSM-IV, pp. 524
25. Blanchard, R., Klassen, P., Dickey, R., Kuban, M. E., & Blak, T. (2001). Sensitivity and specificity of
the phallometric test for pedophilia in nonadmitting sex offenders. Psychological Assessment, 13,
26. US v. Powers, 59 F. 3d 1460 (4th Cir. 1995)
27. North Carolina v. Spencer, 459 S.E.2d 812, 815 (N.C. Ct. App. 1995)
28. Billips v. Commonwealth, No. 062180 (Va. Sup. Ct. Nov. 7, 2007)
29. “William Moulton Marston.” Wikipedia, 2009.,
Retrieved May 17, 2009
30. Dan Vergano. “Telling the truth about lie detectors.” USA Today, Sept. 9, 2002. http://www.usatoday.
com/news/nation/2002-09-09-lie_x.htm. Retrieved May 17, 2009
31. Ron Kokish, Jill Levenson, and Gerry Blasingame. “Post-Conviction Polygraph Examination: Client-
Reported Perceptions of Utility and Accuracy.” Sexual Abuse: A Journal of Research and Treatment,
Vol. 12, No. 5, Apr. 2005.
32. George W. Maschke and Gino J. Scalabrini. “The Lie behind the Lie Detector, 4th Digital Ed.”, 2005, pp. 20, 86, 129
33. Theodore P. Cross and Leonard Saxe. “Polygraph Testing and Sexual Abuse: The Lure of the
Magic Lasso.” Child Maltreatment, Vol. 6, No. 3, Aug. 2001
34. US v. Scheffer, 523 US 303 (1998); US v. Henderson, F. 3d 1293 (11th Cir. 2005), US v. Antelope,
395 F. 3d 1128 (9th Cir. 2005)
35. “Polygraph Test Too Flawed for Security Screening.” The National Academies, Oct. 8, 2002.
36. Stephanie Taylor. “Bill calls for castrating sex offenders.” Tuscaloosa News, Feb. 8, 2009. http://www., Retrieve May 17, 2009
37. Abby Goodnough and Monica Davey. “For Sex Offenders, a Dispute over Therapy’s Benefits.” New
York Times, March 6, 2007.
_r=2&pagewanted=all, Retrieved May 17, 2009
38. John Q. La Fond. “Preventing Sexual Violence: How Society Should Cope With Sex Offenders.”
American Psychological Association, 2005, p. 184 -5
39. Weinburger, Sreenivasan, Garrick, et al. “The Impact of Surgical Castration on Sexual Recidivism
Risk Among Sexually Violent Predatory Offenders.” The Journal of the American Academy of
Psychiatry and the Law, Vol. 33, No. 1, 2005
40. La Fond. “Preventing Sexual Violence,” p. 179, citing Weems v. US, 217 US 349 (1910), Oklahoma
v. Skinner, 316 US 535 (1942), Williams v. Smith, 131 N.E. 2 (Ind. 1921), Davis v. Berry, 216 F. 413
(S.D. Iowa 1914) rev’d, 242 U.S. 468 (1917)]  
41. Rob Cameron, “Council of Europe expresses concern at Czech castration of sex offenders.” Radio
Prague, July 16th, 2007


WCVB News 5 : Sex Offender Registry Board Workers Questioned Over Facebook Use
Team 5 Investigates Uncovers Bias, May 19, 2009

"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 hearing..."

"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
(c) 2007-2013 Derek  W. Logue. No part of this website may be used in any way without expressed written consent of the site owner.
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