CATO UNBOUND-A Journal of Debate: Galen Baughman, June 1, 2015
There is a young man in Virginia sitting behind tall fences and razor wire, guarded by men with guns, and never allowed to leave. According to the state, he isn’t in prison, and he is not being punished for a crime. Instead, he’s being held because the government says he might commit a crime in the future.
Against a backdrop of mass incarceration in America and a growing public understanding that the land of the free locks up more people than any other nation in the world, little attention has been paid to the evolving civil mechanisms that allow the state to deprive individuals of their liberty – often forever – under the guise of treatment. These systems represent a growing medicalization of crime, where criminal behavior is supposed to be caused by a mental problem rather than the person’s free will. If we commit crime because we are sick, then it would make sense for society to help make us better. This is dangerous thinking: It opens a door to a world in which we start to punish the criminal instead of the crime; a world in which the government is justified in imprisoning people because of who they are – and what they might do in the future – instead of only punishing crimes that we can prove they have committed beyond a reasonable doubt. In many ways, that world is already here.
Civil commitment is the legal practice of detaining individuals who are suffering from acute symptoms of severe mental illness so that they can be treated, often in a secured environment. In this model, the state is providing care for individuals who are unable to care for themselves, while protecting the public from individuals who are dangerous due to their psychiatric condition. Sounds reasonable, right? Over the past 25 years, however, new laws have been created, designed to use the traditional model of civil commitment as a way to create secondary prison sentences for people who have already paid their debt to society, dramatically expanding the power of the state and blurring the lines between civil and criminal law.
Historically, the model of civil commitment (sometimes referred to as involuntary commitment) has been subject to gross abuse by the state. During the 17th century, members of the public were invited into these institutions for a penny apiece to view the ravings of the insane, chained to walls in their cells, through small windows in the doors. By one account in England 96,000 people paid their penny for the entertainment at a single institution in one year. Women were subject to commitment in insane asylums for “hysteria” during the 19th century, which was on occasion used by husbands as a way to get rid of their wives. Throughout the first half of the 20th century it was not uncommon for those suffering from Down Syndrome or persons on the autism spectrum to be institutionalized by their families, often for life. Today, the guise of treatment is being used to segregate a new category of socially undesirable people: sex offenders.
It’s important to start these discussions, as they always begin, with the “worst of the worst.” Bad laws often come from bad cases, and the worst cases are used to justify expanding the government’s power. And there is no group, class, or category more maligned and feared in our society today than those convicted of sexual offenses.
In Virginia, a nightmare began in 1973 for a 13-year-old boy named Paul Martin Andrews who was abducted by a man who lured him into his van with the offer of making a little extra money helping him move. Instead, Andrews was kidnapped, locked in a box underground, repeatedly raped over the course of a week, and left for dead. He was rescued by rabbit hunters who heard his screams from the box in the woods, and his assailant was sent to prison.
When Andrews learned that his kidnapper would soon be released from prison, he began to lobby Virginia to fund a civil commitment program that would divert the person who assaulted him into a secondary prison sentence – a legislative scheme designed to circumvent our constitutional protections against double jeopardy, allowing the person to be in effect punished twice for the same crime. Ironically, the man who brutalized Andrews would never be subject to civil commitment: He was murdered in his cell by another prisoner before his release.
A New Model
Twenty states and the federal government have laws that allow some people to be indefinitely detained based on government projections that they might commit a crime in the future, after they have completed their prison sentence. To be clear, there does not need to be any imminent intent or actionable plot to break the law – the assertion made by the government here is that these individuals are merely at risk to commit these offenses due to a psychological condition, which inhibits their ability to control their predatory behavior. Mostly these statutes require the person to have been previously convicted of a similar crime, but that is not always necessary – nor is it true that they must have established a pattern of such behavior.
These laws grew from a backlash to the truth-in-sentencing movement during the 1980s and 90s. State legislatures around the country had moved to abolish parole and create determinate sentencing structures – sentences that do not include a range, but call instead for a definite term of imprisonment and/or probation. Before this shift, the criminal justice system included mechanisms to hold those perceived to represent a greater risk to the public for longer: A person sentenced to 3-20 years for a rape might be released soon after they had completed their minimum sentence, or they might be held for the full 20-year term, depending on the judgment of the parole board.
In response to certain high profile, horrific crimes committed by persons who had been released from prison under these new sentencing models, lawmakers sought a way to impose a new term of imprisonment for those who were completing their sentences and would be released back into the community. Their answer was civil commitment.
In order to be committed after the completion of their prison sentence, the government must demonstrate three essential components about the person in order to justify their preventative detention:
- You suffer from some kind of psychological problem – often defined as a “mental abnormality or personality disorder”
- As a result, you experience difficulty controlling your predatory behavior
- And, due to that difficulty, you are likely to engage in future crimes.
Like a pyramid, these qualities must build on one another – the government cannot say that you are likely to engage in future criminal behavior unless it is caused by some difficult controlling your behavior, and that difficulty is (in turn) based on a defined psychological problem. That is a significant barrier for prosecutors to be able to reach in theory. In practice, however, these laws have begun to reach far beyond their written scope.
These new civil commitment laws differ from the traditional model of involuntary commitment in several key ways. First, traditionally the person subjected to civil commitment is not targeted after the completion of their prison sentence as a means to tack on additional incarceration to that which the court had already meted out – instead, the person who has committed an offense is either considered culpable for a crime and therefore punished in our criminal justice system or found to be in need of treatment and diverted to the civil system. The new civil-criminal hybridized version of civil commitment is designed to imprison the person again under a civil “sentence” after completing their criminal sentence.
Second, traditional civil commitment involves the medical diagnosis of a clear psychiatric illness accompanied by acute and severe symptoms, along with a finding that the individual would pose a danger to self or others – some jurisdictions require that danger to be imminent. By comparison, those targeted under these new category of civil detention laws are not individuals experiencing psychiatric distress or manifesting any inability to care for themselves. Rather, this new category focuses on individuals the state would merely prefer to segregate from society. This use harkens back to the origins of civil commitment during the middle ages when people suffering from mental illness were lumped in with all kinds of other individuals considered “undesirable” by society (beggars, the homeless, the unemployed) and institutionalized together.
Third, under traditional civil commitment as a response to an acute psychiatric emergency, it is common for patients to be hospitalized for up to 72 hours for treatment and observation; any longer period of institutionalization is subject to judicial review and due process in a court of law. But those held under these new laws are often held for years in jail after the completion of their prison sentences without a trial and before they are committed. After they have been formally committed by a court, it is almost always a de facto life sentence.
The Worst of the Worst
I opened this article by describing a young man sitting behind bars in Virginia. He isn’t a monster, and he isn’t insane. Alex is 25 now. He sits in the Virginia Center for Behavioral Rehabilitation, receiving treatment in a secured setting – a prison masquerading as a treatment facility – because when he was 14 he had sex with his girlfriend, who was 12. The state prosecuted Alex in adult court after he shared with his therapist that he had had his first sexual experience with another kid in his school, a crime under Virginia law because of the age of the younger party. Alex was in foster care at the time. He went to a prison for youth and was released 4 years later, shortly after his 18th birthday. Since he was now on the public sex offender registry and ineligible for any services because he had aged out of the foster care system, Alex found himself homeless and unable to keep a job. In Virginia, those required to register as a sex offender must also list their employers, and the address of their place of work is also displayed on the public sex offender registry, which effectively means no one would hire him. Alex’s probation officer violated him for not having suitable housing, his probation was revoked by a court, and he was sent back to prison – this time an adult prison – for 2.5 years. At the end of his sentence, the Attorney General’s office in Virginia filed a petition to civilly commit Alex as a sexually violent predator.
Alex’s story isn’t unique. At a federal district trial in Minnesota recently, Judge Donovan Frank heard testimony from four psychological experts who went into the civil commitment facilities in that state and interviewed the prisoner/patients, reviewed their files, and questioned staff. One of those court-appointed experts, Dr. Michael Miner, a clinician, forensic evaluator and researcher on human sexuality at the University of Minnesota and president-elect of the Association for the Treatment of Sexual Abusers (ATSA), testified that there were 62 individuals at the state’s civil commitment program who were committed based on behaviors that occurred while they were juveniles – that represents almost 10 percent of the population committed in that state, which has the highest per capita rate of civil commitment in the country. The experts sent a report to the judge highlighting these youth who have never been convicted of sexual crimes committed as adults, asserting that they “should never have been committed” and citing the extensive evidence that youth convicted of sexual offenses rarely reoffend as adults.
The court-appointed experts who testified also spoke of a “climate of despair” and pervasive sense of “hopelessness” at the “treatment facility.” The reason was simple: It’s very easy to be committed, and it’s almost impossible to get out. In the history of the program in Minnesota, no one has ever been fully released, and only three individuals have been allow to transfer to halfway houses where they are subjected to less restrictive conditions. In Kansas, nine times as many individuals have died while imprisoned in the treatment facility as have ever been released.
In 1997 the American Psychiatric Association (APA) concluded a 5-year study of the problem of sexually dangerous individuals. The official conclusion of the American Psychiatric Association was that there should be no such thing as the civil commitment of sex offenders. The report written by the APA’s Task Force on Sexually Dangerous Offenders found that psychiatrists should vigorously oppose these legislative schemes, “to preserve the moral authority of the profession and ensure continuing societal confidence in the medical model of civil commitment.”
Paul Appelbaum, M.D., chair of the APA’s Council for Psychiatry and the Law (of which the Task Force was a part) described the origins of the extensive study of these laws: “We were concerned that psychiatry was being used to preventively detain a class of people for whom confinement rather than treatment was the real goal. This struck many people as a misuse of psychiatry.”
The Task Force report describes the ways in which these statutes pervert the traditional model of civil commitment by defining those subject to preventative detention (the sexually violent predator) based on “a vague and circular determination that an offender has a ‘mental abnormality’ that has led to repeat criminal behavior. Thus, these statutes have the effect of defining mental illness in terms of criminal behavior. This is a misuse of psychiatry, because legislators have used psychiatric commitment to effect nonmedical societal ends.”
No one wants to allow a child to be hurt, and laws that create mechanisms to “keep bad men away” are seductive because they make us feel safer – but that safety is an illusion that comes at a great price. As a society we are not capable of predicting who will or will not reoffend, and we must not punish someone for imaginary future crimes. When we begin to define individuals as criminals for who they are or what they think, instead of holding them accountable for specific acts, we rob them of their constitutional right to due process and dangerously erode the barriers that are meant to keep the awesome power of the state, to take away our lives and our liberty, at bay.
Soon a federal judge in St. Paul will have the opportunity revisit the indefinite detention of 62 young people who should have been helped instead of warehoused in a hopeless situation. I believe he will make the right decision and, in doing so, begin to dismantle a system that has been designed to imprison people unjustly under the banner of “treatment.”
 The research for this article was supported in part through a Soros Justice Fellowship from the Open Society Foundations (OSF). The opinions expressed herein are the author’s own and do not necessarily express the views of OSF.
 While the details of his situation are accurate, the young man’s name has been changed to “Alex” to protect his identity.