In recent years a number of states have enacted laws allowing the perpetual imprisonment of sex offenders through a civil commitment process. Through these proceedings, those deemed a threat to public safety can be held indefinitely.
Currently 16 states have civil commitment laws on the books, including New Jersey, which in 1998 passed the Sexually Violent Predator Act. Under the SVPA, any prisoner who has ever been convicted of a sex crime and is found to have a "mental abnormality or personality disorder" making him or her likely (or thought to be likely) to re-offend, can be involuntarily committed.
Candidates for commitment in New Jersey are identified by the Department of Corrections (DOC) shortly before they are to be released. The attorney general's office then screens the cases and pursues commitment for about 45% of those referred, said assistant attorney general Barbara Waugh, who supervises the cases.
According to Waugh, the DOC has no written guidelines for the screening process. Affected prisoners have filed a class-action lawsuit contending that the process is arbitrary.
The hearings are held at the Northern Regional Unit (NRU), in Kearny, New Jersey, one of two maximum-security prisons housing 287 "sexually violent predators." They are based on civil commitment proceedings for the mentally ill, which usually focus on the patient's present state of mind and don't consider past crimes. Criminal history is a central focus of the NRU hearings, however, as authorities attempt to uncover the offenders' thoughts and behavior in an impossible effort to predict future dangerousness.
In some states the commitment hearings are open and resemble a criminal trial, sometimes lasting for weeks. Hearings at NRU, however, are shrouded in secrecy and may last less than a day. For confidentiality reasons, the offenders' names are never made publica ludicrous proposition considering that the names of convicted sex offenders are routinely entered into public databases and prominently displayed in newspapers and on the internet.
All commitment cases are handled by two Superior Court judges; the decisions sealed to prevent public scrutiny. Moreover, prisoners wanting to contest the state's findings are routinely denied expert witnesses.
Since authorities are trying to assess the person's state of mind, even information that would normally be barred in a criminal trial is admissible, including hearsay evidence, outdated police and psychiatric reports, statements made in therapy, and personal writings.
The Kafkaesque nature of these proceedings has drawn criticism from some unlikely sources, including those who backed the bill. John Kip Cornwell, a Seton Hall University law professor who testified in favor of the SVPA and still supports it, worries that hearings place too much emphasis on the offender's criminal history, "and then once you're in, it's tough to get out."
Cornwell is rightly concerned. Of the 302 committed in the last 5 years only 11 have been freed, and those for unknown reasons. The DOC has recommended none for release.
Other critics contend that the proceedings are unfairly biased, providing no legal protections and vague diagnoses. For example, one common diagnosis, "personality disorder, not otherwise specified," could apply to "anybody who's interesting," said forensic psychologist Dr. Timothy P. Foley, who has testified for both sides in commitment hearings. "I would diagnose myself with personality disorder, [not otherwise specified]."
A number of people familiar with the commitment process said that prosecutors sometimes shop for psychiatric opinions, provide exaggerated, even false testimony, and that in many cases swamped public defenders have no time to organize an effective defense. [Editor's Note: Just like criminal cases.]
To get a temporary commitment order, the state needs two medical recommendations. Dr. Gerald Groves, a psychiatrist who provided some of them, said that on occasion, if he did not recommend commitment, "the institution might go find another psychiatrist who would be willing to commit."
Criminologist Margaret Smith, one of the few outsiders who have attended hearings at NRU, compared the proceedings to those performed under socialist East European governments. "This is so much like everything that was criticized in the Soviet Union," said Smith, who works at the Prisoners' Self-Help Legal Clinic in Newark. "There's no way to contest any part of the official record without it being spun in a way that makes you look sicker. If you say you didn't do it, that's just evidence of how much you need treatment."
New Jersey's secret civil commitment process lacks any transparency or openness that should be required in a system that deprives people of their liberty, for the rest of their lives. This secrecy ensures here is no public accountability or other means of determining how the process functions. Unfortunately, this is the latest in a series of trends towards secret judicial hearings. See PLN, December 2003 for more on the trend toward secret court hearings and proceedings.
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