Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

March 10, 2007

VIOLENT SEX OFFENDERS: IS CIVIL COMMITMENT A LEGITIMATE SOCIAL RESPONSE?

Houston Criminal Attorney John Floyd Discusses Civil Commitment for Sexually Violent Offenders

The New York Times reported last year (March 4, 2007) that there are approximately 2,700 pedophiles, rapists, and other sexual offenders being held indefinitely by 19 states, mostly in medical treatment centers. The NY Times report was in response to the State of New York joining the parade of states that use “civil commitment” as a way of “protecting” society from “dangerous” sexual predators. Several New York legislators hailed the state’s decision to adopt civil commitment as an opportunity to create a “national model” for not only in isolating dangerous sex offenders but in treating them as well, including “intensive supervision” of those who secure release from their commitment. The following bullet points from the Times report offers a glimpse of “civil commitment” programs nationwide:

18 – youngest offender committed
102 – oldest offender committed
$41,173 – the cheapest annual average per inmate cost (South Carolina)
$421,845 – most expensive annual average per inmate cost (Florida)
$1.9 million – smallest annual state budget for civil commitment (Pennsylvania with 9 committed offenders, the fewest nationwide)
$147.3 million – largest annual state budget for civil commitment (California with 443 committed offenders, the most nationwide)

Texas utilizes civil commitment on a very limited basis in dealing with dangerous sex offenders but it does not indefinitely incarcerate them. It treats them on an out-patient basis. Last March, according to the Times, Texas had only 86 sex offenders under “civil commitment.” The reason is that the state has elected to pursue long-term penal incarceration as a way of dealing with its most violent sex offenders. As this column reported last year (September 14, 2007), the 2007 Texas Legislature enacted a number of measures that severely increased the punishment for sex offenders. One of those measures makes second convictions for first-degree "sexually violent offenses" involving victims 14 years of age or younger a capital crime punishable by death or life without parole. A "sexually violent offense" is indecency with a child involving contact, sexual assault, aggravated sexual assault, sexual performance by a child, aggravated kidnapping involving intent to violate or abuse sexually, and first-degree burglary committed with intent to commit one of the sex offenses in this list.

Costs certainly played a significant role in the decision by Texas to utilize long term penal incarceration over medical treatment through civil commitment in dealing with dangerous sex offenders. The average annual costs to the State is $32,000 per offender to handle on an out-patient basis through civil commitment while it costs an average of $15,527 to incarcerate an inmate in the state’s penal system.

Although not a prominent component of the nation’s criminal justice system, a number of states in the early 20th century had civil commitment statutes designed to isolate dangerous offenders. For example, the State of Minnesota in the 1930s enacted a statute that allowed the state to civilly commit a person proven to have a “psychopathic personality.” The Minnesota Supreme Court upheld this statute, construing it to mean “those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or evil on the objects of their uncontrolled and uncontrollable desire.” See: 205 Minn. 545, 287 N.W. 297. See also: Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 271 (1940).

The statute itself defined the term “psychopathic personality” as meaning:
"the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters, and thereby dangerous to other persons." See: Minn. Jud.Code § 237(a).

Section 2 of that statute set forth the proceedings that would be utilized to commit such a personality: “ … except as otherwise therein or thereafter provided, the laws relating to insane persons, or those alleged to be insane, shall apply with like force to persons having, or alleged to have, a psychopathic personality. There is a proviso that, before proceedings are instituted, the facts shall first be submitted to the county attorney, who, if he is satisfied that good cause exists, shall prepare a petition to be executed by a person having knowledge of the facts and shall file it with the judge of the probate court of the county in which the ‘patient’ has his ‘settlement or is present.’ The probate judge shall set the matter down for hearing and for examination of the ‘patient.’ The judge may exclude the general public from attendance. The ‘patient’ may be represented by counsel, and the court may appoint counsel for him if he is financially unable to obtain such assistance. The ‘patient’ is entitled to compulsory process for the attendance of witnesses in his behalf.” Id. See also: 309 U.S. at 273.

The court was required to appoint two licensed doctors of medicine to assist in the examination of the “patient.” The proceedings had to be transcribed to permit the patient an opportunity to appeal to the district court.

In upholding the statute, and its underlying commitment procedures, the Minnesota Supreme Court cautioned: “It would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct, nor even to persons having strong sexual propensities. Such a definition would not only make the act impracticable of enforcement and, perhaps, unconstitutional in its application, but would also be an unwarranted departure from the accepted meaning of the words defined."

A constitutional challenge to the statute made its way to the U.S. Supreme Court on the grounds that it violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The court rejected this dual challenge, saying:

“Equally unavailing is the contention that the statute denies appellant the equal protection of the laws. The argument proceeds on the view that the statute has selected a group which is a part of a larger class. The question, however, is whether the legislature could constitutionally make a class of the group it did select. That is, whether there is any rational basis for such a selection. We see no reason for doubt upon this point. Whether the legislature could have gone farther is not the question. The class it did select is identified by the state court in terms which clearly show that the persons within that class constitute a dangerous element in the community which the legislature in its discretion could put under appropriate control. As we have often said, the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. If the law ‘presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’

“There remains the question whether, apart from definition and classification, the procedure authorized by the statute adequately safeguards the fundamental rights embraced in the conception of due process. In this relation, it is important to note that appellant has challenged the proceeding in limine by seeking to prevent the probate judge from entertaining it. To support such a challenge, the statute, in its procedural aspect, must be found to be invalid on its face, and not by reason of some particular application inconsistent with due process. In that light, the argument on this branch of the case also fails.

“As we have seen, the facts must first be submitted to the county attorney, who must be satisfied that good cause exists. He then draws a petition which must be ‘executed by a person having knowledge of the facts.’ The probate judge must set the matter for hearing and for examination of the person proceeded against. Provision is made for his representation by counsel and for compelling the production of witnesses in his behalf. The court must appoint two licensed doctors of medicine to assist in the examination. The argument that these doctors may not be sufficiently expert in this type of cases merely invites conjecture. There is no reason to doubt that qualified medical men are usually available. Laws as to proceedings where persons are alleged to be insane are made applicable. Appellant says that the patient cannot be released on bail. The State contests this, insisting that he may be so released pending hearing or on appeal, pointing to Mason's Minnesota Statutes, 1938 Supplement, § 8992-178. Appellant contends that, if the court finds the patient to be within the statute, he must be committed ‘for the rest of his life to an asylum for the dangerously insane.’ Mason's Minn.Stat., 1938 Supp., § 8992-176. The State also contests this conclusion, maintaining that the commitment is without term and subject to the right of the patient, or any one interested in him, to petition the committing court for release at any time. Mason's Minn.Stat., 1938 Supp., § 8992-143; Laws of 1935, Chap. 72, § 143, as amended by Laws of 1939, Chap. 270, § 8. The statute gives a right of appeal from the finding of the probate judge upon compliance with certain specified provisions of the Minnesota laws. Appellant contends that this excludes other provisions of laws relating to appeals in insanity cases. Again, appellant's position is contested by the State upon the ground that there is no express limitation or exclusion in the language of the statute, and that other provisions governing appellate procedure apply. These various procedural questions and others suggested by appellant do not appear to have been passed upon by the state court.

“We fully recognize the danger of a deprivation of due process in proceedings dealing with persons charged with insanity or, as here, with a psychopathic personality as defined in the statute, and the special importance of maintaining the basic interests of liberty in a class of cases where the law, though ‘fair on its face and impartial in appearance,’ may be open to serious abuses in administration, and courts may be imposed upon if the substantial rights of the persons charged are not adequately safeguarded at every stage of the proceedings. But we have no occasion to consider such abuses here, for none has occurred. The applicable statutes are not patently defective in any vital respect, and we should not assume, in advance of a decision by the state court, that they should be construed so as to deprive appellant of the due process to which he is entitled under the Federal Constitution. On the contrary, we must assume that the Minnesota courts will protect appellant in every constitutional right he possesses. His procedural objections are premature. Id., 309 U.S. at 275-77 [Internal citations omitted].

In 1994 Minnesota adopted a new civil commitment statute designed to incapacitate dangerous sexual predators. The Times reported it now has 342 sex offenders indefinitely confined under civil commitment at an annual per inmate average cost of $141,255 as compared to $29,240 annually to incarcerate an inmate in its penal institutions. The state’s annual budget for civil commitment is $54.9 million.

The 1994 Minnesota statute followed the modern “civil commitment” statute enacted by the State of Washington following a series of high profile and horrific sex-murders in the 1980s and 1990s. After the Washington Supreme Court upheld that state’s civil commitment law, Minnesota, Kansas, and Wisconsin in 1994 followed suit with their own versions of the law. California soon boarded the civil commitment train.

But it was the Kansas statute that first made its way to the U.S. Supreme Court under a constitutional challenge. The Kansas statute was called the “Sexually Violent Predator Act” which essentially provided for the civil commitment of offenders who, due to a “mental abnormality” or a “personality disorder,” are likely to engage in “predatory acts of sexual violence.” See: Kan.Stat.Ann. § 59-29a01. See also: Kansas v. Hendricks, 521 U.S. 346, 350 (1997).

The Kansas Legislature, in the preamble of the statute, set forth the need to deal with “sexually violent predators” in this manner:

"[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] . . . . In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure . . . is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the [general involuntary civil commitment statute]."

The statute defined a “sexually violent predator” as:

"any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." See: § 59-29a02(a).

A "mental abnormality" was defined, in turn, as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." See: § 59-29a02(b). See also: 521 U.S. at 351.

The Act's civil commitment procedures pertained to: (1) a presently confined person who "has been convicted of a sexually violent offense" and is scheduled for release; (2) a person who has been "charged with a sexually violent offense" but has been found incompetent to stand trial; (3) a person who has been found "not guilty by reason of insanity of a sexually violent offense"; and (4) a person found "not guilty" of a sexually violent offense because of a mental disease or defect. § 59-29a03(a), See also: 521 U.S. at 352.

In 1984 Leroy Hendricks was convicted of taking “indecent liberties” with two 13-year-old boys. It was the last of his long list of convictions for violent sex offenses:

In 1957 he was convicted of lewdness involving a young girl and received a brief jail sentence.

In 1960 he molested two young boys while he worked for a carnival. He served two years before being paroled.

He was soon re-arrested for molesting a 7-year-old girl. He was committed to a psychiatric hospital. In 1965 the hospital determined that he was “safe to be at large” and released him.

Shortly after his released from the hospital, Hendricks sexually assaulted another young boy and girl, performing oral sex on the 8-year-old girl and fondling the 11-year-old boy. He was imprisoned again in 1967 where he remained until he was paroled in 1972.

Diagnosed as a pedophile, Hendricks entered into a voluntary treatment program only to abandon the program.

Shortly after his 1972 parole, Hendricks started sexually abusing his own stepdaughter and stepson for a period of approximately four years.
Hendricks was then arrested and convicted in 1984 for the “indecent liberties” charge with the two 13-year-old boys. After serving ten years, he was scheduled to be released to a halfway house. The State of Kansas decided to put its new “Sexually Violent Predators’ Act” to work by filing a petition to have him civilly committed. Hendricks appeared in court represented by counsel and challenged the new law on several federal constitutional grounds. Finding that there was probable cause to support that Hendricks was a sexually violent predator, the court deferred ruling on the Act’s constitutionality and ordered that the sex offender be evaluated at a state security hospital. Hendricks, supra, 521 U.S. at 353-54.

Hendricks requested, and was granted, a jury trial to determine if he qualified as a sexually violent predator under the Act. He told the jury that when he “gets stressed out,” he “can’t control the urge” to molest children and that he had repeatedly abused children when he was not confined. He also told the jury that while he hoped he would never molest children again because of the harm it caused them, he admitted the only sure way to make certain it wouldn’t happen again would be for him “to die.” Finally, he embraced the state psychiatrist’s diagnosis that he suffered from pedophilia, informed the jury that he had not been cured of the condition during his 10-year incarceration, and sarcastically ridiculed the state’s “treatment [program as] bull.” Id., 521 U.S. at 355.
The jury unanimously found beyond a reasonable doubt that Hendricks was a sexually violent predator. Armed with the jury verdict, the trial court found as a matter of law that Hendricks suffered from the “mental abnormality” of pedophilia and ordered him civilly committed to the state’s Secretary of Social and Rehabilitation Services for "control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large" as required by § 59-29a07(a). Id., 521 U.S. at 355-56.

In upholding the Kansas “Sexually Violent Predators Act,” the Supreme Court made the following conclusions:

“States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.” 521 U.S. at 357.
The Court said that “we have consistently upheld such involuntary commitment statutes” when (1) “the confinement takes place pursuant to proper procedures and evidentiary standards,” (2) there is a finding of “dangerousness either to one’s self or to others,” and (3) proof of dangerousness is “coupled … with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality’.” 521 U.S. at 357-58.
The Kansas “Act unambiguously requires a finding of dangerousness either to one’s self or to others,” and then “links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.” 521 U.S. at 358.

The Court determined that the Kansas Act’s “requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of … other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” 521 U.S. at 358.

The Court responded to Hendricks’ claim that those “other statutes” required a finding of “mental illness” and not of “mental abnormality” or “personality disorder” by saying that it has “traditionally left to legislators the task of defining [such] terms.” 521 U.S. at 359.

The Court then held that to “the extent that the civil commitment statutes we have considered set forth criteria relating to an individual’s inability to control his dangerousness, the Kansas Act sets forth comparable criteria.” 521 U.S. at 360.

The Court added that Hendricks’ own condition “doubtless satisfies those [other] criteria,” because (1) he suffers from pedophilia, (2) “the psychiatric profession itself classifies” that condition “as a serious mental disorder,” and (3) Hendricks conceded that he cannot “’control the urge’ to ‘molest children’.” 521 U.S. at 360.

The Court concluded that Hendricks’ own “admitted lack of volitional control coupled with a prediction of future dangerousness, adequately distinguishes [him] from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” 521 U.S. at 360.

See also: Kansas v. Crane, 534 U.S. 407 (2002)[rejecting an effort by the State of Kansas to extend the commitment of a dangerous sexual offenders without a “lack-of-control” determination being made]. Accord: Seling v. Young. 531 U.S. 250 (2001)[upholding Washington State’s Community Protection Act of 1990 which authorizes the civil commitment of “sexually violent predators,” persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Wash. Rev. Code §71.09.010 (1992)].

Leroy Hendricks is now 73 years of age. He has been confined through his civil commitment under the Kansas Act for fourteen years at a cost of $85,000 a year – more than eight times it would have cost to keep him in prison. The Times reported that he spends most days in a wheel chair or leaning on a cane “because of diabetes, circulation ailments and the effects of a stroke.” He probably will not live long enough to “graduate” from the state’s “treatment” program. Nationwide only 250 civilly committed sex offenders have been released unconditionally since the Washington Act was enacted in 1990.

The staggering costs of civil commitment has not deterred most states from pursuing the goals of these community protection acts. California, for example, is spending $388 million on a facility that will allow the state to increase its number of sex offender civil commitments to 1500 while Florida, Minnesota, Nebraska, Virginia, and Wisconsin are also expanding their capacity to commit more such offenders. At the federal level the Bush administration is offering money to the states to house “dangerous sex offenders” beyond their prison terms while the Justice Department is, according to the Times, “creating a civil commitment program for federal prisoners.” This expansion gusto is occurring despite the shortcomings of a number of these existing civil commitment programs described by the Times:

Sex offenders selected for commitment are not always the most violent; some exhibitionists are chosen, for example, while rapists are passed over. And some are past the age at which some scientists consider them most dangerous. In Wisconsin, a 102-year-old who wears a sport coat to dinner cannot participate in treatment because of memory lapses and poor hearing.
The treatment regimes are expensive and largely unproven, and there is no way to compel patients to participate. Many simply do not show up for sessions on their lawyers’ advice – treatment often requires them to recount crimes, even those not known to law enforcement – and spend their time instead gardening, watching television or playing video games.
The cost of the programs is virtually unchecked and growing, with states spending nearly $450 million on them [in 2007]. The annual price of housing a committed sex offender averages most than $100,000, compared with about $25,000 a year for keeping someone in prison, because of the higher costs for programs, treatment and supervised freedoms.

Unlike prisons and other institutions, civil commitment centers receive little standard, independent oversight or monitoring; sex among offenders is sometimes rampant, and, in at least one facility, sex has been reported between offenders and staff members.

Successful treatment is often not a factor in determining the relatively few offenders who are released; in Iowa, of the nine men let go unconditionally, none had completed treatment or earned the center’s recommendation for release.

Few states have figured out what to do when they do have graduates ready for supervised release. In California, the state made 269 attempts to find a home for one released pedophile. In Milwaukee, the authorities started searching in 2003 for a neighborhood for a 77-year-old offender, but have yet to find one.

Supporters of civil commitment are not concerned about these shortcomings. They are concerned only that several thousand “dangerous sex offenders” are confined beyond any meaningful hope for release, no matter that it costs $450 million a year to keep them so confined.

While civil commitment has some due process protections attached to it, the process nonetheless has the unconstitutional smell of the WWII Japanese “internment camps” and the modern “enemy combatant” detention facilities. In all three situations, individuals are confined indefinitely not for what they have been convicted of doing but what it is believed they may do in the future.

Preventive confinement, no matter the reason, is a dangerous concept – far more dangerous than the individuals it supposedly protects society from.

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