Civil commitment in the U.S. is not well-understood, beginning with what it is: A sentence to be served at a facility in order to receive treatment or therapy, though that itself is often scientifically questionable. A civil commitment is also frequently, though not always, mandated in civil court proceedings after a sexual offender has served his or her criminal sentence. In many states a prisoner who has served his time goes directly from prison to a civil commitment facility to be held until a civil court hearing for re-sentencing.
Why does civil commitment exist? Why lock someone up again after he has paid his debt to society? Many point to the high-profile abductions, rapes and murders of children which occurred in the last decades of the 20th century, prompting politicians to enact laws such as the Amber Alert and The Three Strikes Act. Creating the environment for lawmakers to enact “Sexually Violent Persons” (SVP) laws and civil commitment policy were senseless tragedies like the 1981 rape and murder of Adam Walsh, 6, after his abduction from a Sears department store in Florida. His severed head was recovered 120 miles away from the Walsh’s home. The rest of his body was never found. Ottis Toole, a self-proclaimed cannibal, murderer and arsonist confessed but later recanted.
Then there was Polly Klaas, 12, who was abducted from her Southern California bedroom in 1993 during a sleepover. Bags were placed on all the girls’ heads, though only Polly was carried off. She was found fatally strangled, with her legs splayed and her skirt pushed up around her waist. Richard Allen Davis remains imprisoned in California for her killing. A recidivist criminal, Davis inspired the nation’s first “three-strikes” enhanced sentencing law.
No one was ever arrested for abducting Amber Hagerman, 9, off her bicycle in 1996, leaving her naked corpse to be found four days later near a neighborhood creek in Texas. But the iconic Amber alert for missing children bears her name—a “backronym” for America’s Missing Broadcast Emergency Response.
Beginning in the late 1990s, 20 states, D.C. and the federal government passed SVP laws, creating a way to confine individuals who had already served a sentence for a sexual offense by transferring them to a civil commitment facility for treatment and therapy upon release from prison—with no clear end to their detainment. As of 2022 there are an estimated 6,000 people in civil commitment in the U.S., according to the watchdog group Prison Policy Initiative (PPI).
While trying to ease collective anxiety about sex crimes by promising to rehabilitate sex offenders, civil commitment infrequently achieves its purpose, detractors say. Residents confined to civil commitment must move progressively through treatment tiers to be eligible for release. PPI claims there is “minimal evidence” to prove the treatments are effective, and “moving through treatment tiers is difficult, if not impossible.” Staff in these facilities report roadblocks when trying to advance “residents” toward release and difficulties coordinating treatment, given the high turnover of graduate students who run the clinical side and are there only temporarily to finish residencies. Detainees complain of being demoted to a previous tier by new graduate school residents who disagree with the findings of the resident who came before.
Another false premise for detaining sexual offenders after they serve their time is the predicted risk that they will “re-offend,” even though federal Bureau of Justice Statistics (BJS) data show that those convicted of sex offenses are less likely to be re-arrested than others reentering society after incarceration. In Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), BJS found that within nine years after release “people who served sentences for sex offenses were much less likely to be rearrested for another sex offense (7.7%) than for a property (24%), drug (18.5%), or public order (59%) offense (a category which includes probation and parole violations).”
Another criticism of civil commitment is the risk-assessment evaluation used by many states to determine if an individual should be kept locked up post-release. These assessments use actuarial data from previously incarcerated people and predict that groups with specific characteristics are likely to re-offend. The trouble is that group data applied to individual cases frequently results in incorrect predictions. As Chicago criminal defense attorney Daniel Coyne points out, “[A]ctuarial data might say I am due for a heart attack, but does that mean I will have one?” Answering his own query, Coyne says that risk assessments “in the sex offender world” have just a 58% accuracy rate— “not much better than a coin toss.”
The UCLA School of Law Williams Institute 2020 report discusses the risk assessment tool Static-99/99R that is used to justify detaining sex offenders a second time. The report points out the tool is drawn from unpublished studies and has serious design flaws, the major one being discrimination. It is homophobic, assigning a higher danger score to men with same-sex victims than men with female victims. It also gives a higher risk score to people who have never lived with a romantic partner, a factor which also discriminates against LGBTQ+ individuals who often never had opportunity to live safely with a loved one.
Another troubling aspect of civil commitment facilities is that they are not subject to the same type of oversight as prisons and jails because they usually do not fall under the administration of a state department of corrections. This means they receive very little news coverage, and there are no checks and balances to prevent medical neglect or abuse of the residents. Some critics of civil commitment facilities refer to them as “shadow prisons,” because they do not form part of the criminal justice news ecosystem and because of the way staff in the facilities treat the “residents.” PPI claims “horrific medical neglect and abuse proliferate in these shadowy facilities.”
The report highlights data and practices from the civil commitment facility in Rushville, Illinois. Despite claims of therapy and healing, two-thirds of Rushville residents have spent time in solitary confinement, a psychologically damaging practice for a person supposedly being treated for a mental health issue. The authors note the obsolete treatment and evaluations that Rushville residents undergo, such as a penile plethysmograph that measures blood flow to the penis when the patient is shown “sexually suggestive content.” Rushville detainees are also subjected to chemical castration, or hormone injections that prevent erections and have been linked to long-term health impacts. The progress “residents” make is measured by questionable evaluation tools including polygraph lie detector tests, results of which have been inadmissible as evidence in Illinois courts since 1981.
PPI investigated the disturbing practices in civil commitment facilities that prove post-release detainment is a hellish limbo between prison and the outside. The facilities have high rates of violence and are controlled by staff who administer punishment like prison guards do. In a survey administered by PPI researchers to “residents” of the Rushville facility, “three-quarters of detainees report[ed] being discriminated against by staff, and one-quarter report[ed] being physically harmed by staff. Eight percent of detainees said they were sexually harmed by staff.” Investigators also heard from “residents” about physical or sexual harm they suffered at the hands of fellow detainees. Ironically, “civil commitment facilities are tasked with ‘treating’ sexual violence, but they create physical environments that foster sexual, physical, and emotional violence,” the report found.
Just as the entire criminal justice system does, civil commitment disproportionately impacts Black and Brown people. The UCLA report showed that on average Blacks were detained in civil commitment facilities at twice the rate of whites.
PPI summarized its research by calling civil commitment facilities “legally and ethically dubious” and their operation “based on biased and error-filled algorithms and risk assessment tools.” The group also pointed out the troubling trend of private prison contractors taking over publicly funded civil commitment facilities to create a new revenue stream, as populations in both state and federal prison systems have leveled off.
The watchdog group also pointed out that opposition to ineffective sex offender policies in the U.S. is not new. But it is under-resourced and continues to stand against the sex offender registry system and civil commitment.
PPI concluded by noting there are initiatives that can contribute to lessening sexual violence, but they logically would occur before the individual commits a crime. The group advocates for preventing child abuse and sexual violence by working towards economic justice and providing accessible mental health care, comprehensive sex education and community-based restorative and transformative justice initiatives.
Additional sources: East Asian Archives of Psychiatry, Truthout
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