Sex Crimes

Civil Commitment of Sex Offenders Pretends Prisoners Are Patients

The practice evades constitutional constraints by casting punishment and preventive detention as treatment.


"It was my understanding that I was to do the treatment, then be released," says Mike Whipple, who recently participated in a 14-day hunger strike at the Minnesota Sex Offender Program's facility in Moose Lake. "Twelve years later, I'm still here, doing the same thing, over and over and over."

So far the civil commitment program has incarcerated Whipple three times longer than the prison sentence he served. The hunger strike, which involved a dozen of the program's 737 "clients," ended last week after state officials promised meetings where protesters could air their complaint that there is no "clear pathway" to release from their indefinite confinement. But those meetings surely will not resolve the fundamental problem with programs like this, which evade constitutional constraints by pretending that prisoners are patients.

Twenty states, the District of Columbia, and the federal government have laws that authorize civil commitment of sex offenders who would otherwise be released after serving their prison terms. The Supreme Court upheld the practice in 1997, saying it was appropriate for people who "suffer from a volitional impairment rendering them dangerous beyond their control."

That logic is puzzling. The state punishes people who commit sex crimes based on the assumption that they could and should have controlled themselves. But when it is time for them to be released after completing the punishment prescribed by law, the state says that was not actually true; now they must be locked up precisely because they can't control themselves.

If the government decided to retroactively increase an offender's penalty, it would be clearly unconstitutional, amounting to double jeopardy or an ex post facto law. The trick is to cast continued confinement as treatment rather than punishment.

But what if treatment almost never produces a cure that allows a detainee's release? In Minnesota, only 13 detainees have been unconditionally released since the program was established in 1994; more than six times as many have died in custody.

Back in 2015, when not a single "client" had been certified as fully cured, U.S. District Judge Donovan Frank concluded that Minnesota's "treatment" was a sham designed to conceal "a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system." In the United States, he said, "we do not imprison citizens because we fear that they might commit a crime in the future."

Yet that is manifestly what laws like Minnesota's do, confining more than 6,000 people not for what they did but for what they might do. Even if that rationale were constitutionally valid, studies from across the country indicate that recidivism among sex offenders, including those who qualify for civil commitment, is far less common than the Supreme Court assumed.

While condemning Frank's ruling, then-Gov. Mark Dayton conceded that civil commitment decisions are no better than guesswork, because "it's really impossible to predict whether or not [sex offenders] are at risk to reoffend." That did not faze the U.S. Court of Appeals for the 8th Circuit, which overturned Frank's decision on the ground that people "who pose a significant danger" do not have "a fundamental liberty interest in freedom from physical restraint."

Virginia, which began civilly committing sex offenders in 2003, has a much better track record than Minnesota. While Minnesota has conditionally released less than 4 percent of its detainees, meaning they are no longer imprisoned but are still subject to supervision, Virginia has granted that status to 60 percent of its detainees.

State Sen. Joe Morrissey (D–Richmond) nevertheless argues that Virginia's program is "abhorrent to everything that our democracy and our criminal justice system believes in." Morrissey recently introduced a bill that would have abolished the program.

Last month the Senate Judiciary Committee derailed Morrissey's bill, referring it to the Virginia State Crime Commission for a study. "We don't sentence people because of what they might do," Morrissey says. For now, that remains an aspiration rather than a reality.

© Copyright 2021 by Creators Syndicate Inc.

NEXT: Trump's Dubious First Amendment Defense Against Impeachment

Sex Crimes Psychology/Psychiatry Criminal Justice Due Process double jeopardy Civil Liberties Minnesota Virginia

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41 responses to “Civil Commitment of Sex Offenders Pretends Prisoners Are Patients

  1. I know if I was a journalist, the constitutional treatment of pedophiles would be at the top of my list of topics right now. All other fronts regarding the constitution are quite right now.

    Open borders Uber Alles.

    1. Quiet.

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    2. To people with YUUUUGE punishment boners, the 18-years-and-2-days-old guy who had consensual sex with the 17-years-and-363-days-old young woman is a “pedophile”, and MUST be punished-punished-punished-punished-PUNISHED for the rest of their lives! And then punished some MORE, if we could!

      Self-righteous jerks with YUUUUGE punishment boners are a YUUUUGE threat to trying to run a civilized, decent society!

      Lawn Odor Worshippers are LOW! And people who automatically assume that Government Almighty will always practice “good judgment” on issues like this, enable these LOW justice-abusers!

      LOW people are NOT willing to “put themselves in the shoes of others”!

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    5. I actually am somewhat ok with this story (even if there are so many major stories they are actively ignoring.) Of course we can debate the proper sentence for sex crimes, but serving out the criminal sentence should end all confinement. I actually lean towards some of these people deserving the bullet. When Reason writers don’t explain the details of what landed someone in prison it’s often because that person is not any sort of sympathetic victim. My assumption is going to be that this person raped a toddler (until proven otherwise) so I’m leaning towards him deserving the bullet.
      This is just how much trust Reason writers have earned.
      Indefinite detention is a major problem and I’m shocked to be hearing about this case of it after years of loud complaints about indefinite detention of terrorists.
      I also think much of the issue here is the left trying to defend pedophiles and sex criminals as being mentally compromised and not responsible for their actions.

      1. I’m anti-death penalty in general because I don’t believe our government is infallible, but in a perfect world I’d be pro-capital punishment for certain sex crimes, especially those similar to ones you mention in your post. To me, the perp has taken a life just as if they killed that person, so the just punishment seems obvious.

        Though again – in general terms I don’t trust our government or any government giving people the death penalty fairly and without mistakes.

        1. I accept and agree with that position on the death penalty. However, when vigilantism and the death penalty are illegal then there is no method for justice to be served. The penalty for the most heinous crimes SHOULD be death. Anti-dp activists lose sight of that. Libertarians especially should be concerned about the massive costs to taxpayers keeping serial killers alive and offering them more opportunities at freedom.
          Crimes should be punished. Those who have made mistakes should have the opportunity for rehabilitation, but that isn’t the proper primary role for a justice system. However, the callous and egregious violation of another’s life does not entitle the aggressor to a life with fewer comforts. It’s an unbalanced set of principles that favors aggressors over victims

          1. Completely agreed that lots of people need to die (Bin Laden, the Cheshire criminals, Aurora CO theater shooter, etc, etc, etc). Life w/o parole is too good for some, but in the end the best we can do in most cases.

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          2. Taking cases to trial where the prosecution is asking for the death penalty, on average, costs substantially more money than simply locking someone up and throwing away the key. Unless you want to get rid of that whole due process and appeal thing. If you like the death penalty because of “feelz” (i.e., just deserts), then just say that. Don’t try to back it up with an economic argument, because the data just doesn’t support that argument.

      2. I believe that this is the guy:

        I think an injection of about half an ounce of steel and lead into the back of his skull at approximately 900 feet/second a couple of decades ago would have saved a lot of people a lot of grief.

        The problem is that the government often gets policies like this in place by showcasing the utter scumbags that they are going after TODAY (such as this POS).

        It starts with the least sympathetic amongst us. It rarely ENDS with them.

      3. It’s about subjecting one set of criminal offenders to a standard of treatment that no other class would be allowed to be. The same courts that uphold this treatment for sex offenders is the same court that would make this type of process and confinement unconstitutional for any other class of felons.

        Once the sentence is served, the obligation to the state should be OVER. PERIOD. It is abhorrent to lock someone up indefinitely FOR WHAT WE’RE AFRAID THEY MIGHT DO IN THE FUTURE.

        The real motive behind this type of sham process is that those who brutally violate children deserve to be locked up for the remainder of their natural lives. Since that is the case, the sentencing laws should reflect this with a life without parole sentence up front. You don’t give someone 10 or 20 years in prison after finding them fully competent to stand trial and then when they have served out the adjudged sentence conveniently find them to have some sort of “anti-social personality disorder” and mentally unfit to release back into society. It needs to be one way or the other from start to finish; not being able to move the goal post just to impose a sentence that’s currently lacking in statute. Again, if you want to make the crime life without parole, the by all means petition your legislators to do so, but stop playing this cruel game with people’s lives. That’s what this is intended to be; mental torture of indefinite duration.

    6. It’s not like Sullum obsessively defends pedophiles and wrote a half dozen articles supporting a pedophile stag flick on Netflix or anything like that. He’s a purely disinterested third party who definitely isn’t a twisted pedophile.

    7. The victim didn’t matter in this case, because the problem is the undermining of culpability for a crime. Either someone is responsible for their crimes and their punishment must end when their sentence is carried out, or they are not responsible for their crimes and it is right to indefinitely detain them in mental health facilities until such a time we can reasonably believe that they will not hurt another person again.

      We can’t have it both ways in a just system. Which is not the same as saying that any of these people don’t deserve to be locked away for life. Just if being locked away for life is the right punishment, it must be part of their sentencing and explicitly a punishment.

      1. Very well-said! Thank you. I said the same exact thing before reading your comment.

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  2. Civil Commitment of Sex Offenders Pretends Prisoners Are Patients
    The practice evades constitutional constraints by casting punishment and preventive detention as treatment…….used this site………MORE DETAIL.

  3. I am not against civil commitment when done with Constitutional protections.

    A substantial portion of those taken through a due process hearing for civil commitment do not get civilly committed.

    The defendants are given lawyers, a trial, evidence presented, a sworn in jury and rights to appeal. They also get periodic reviews after commitment. I realize the system is abused by some States.

    However, it should be noted a sex offender registry is also a civil law. It curbs protected rights. It is extremely burdensome, and for most only causes hard.. The registry is based upon the assertion of future dangerousness BUT there are zero hearings, no challenges or appeals and a legislature has unlimited ability (none has ever been shown) to add any person on a registry regardless of when the unerlyjng crime happened or without any regard to whether a person actually poses any future danger.

    In short, the civil commitment system should be applied to those on a registry.

    The Constitution doesn’t require known dangerous people to be unregulated. It does require safeguards to ensure that those who do get regulated have a fair system to determine whether a person actually does pose a future danger and if he does, what the process that is created so that a path can be made so a person does not pose a danger..

    1. There is a zero chance the government, through any set of experts, juries, or whatever, can possibly predict future behavior of someone else. That is just ridiculous thinking.

      We have legislation which states for X crime you spend Y time confined. Once that time is over, that person should be able to move on, as much as is possible, with the remainder of their lives.

      If a majority of people believe some of those penalties are too lax, they should make their voices heard and vote for representatives accordingly to enact change.

      But putting someone in prison for years, then upon release putting them in a different kind of prison is just wrong.

      1. We have legislation which states for X crime you spend Y time confined.

        No, we actually don’t. Juries and judges issue sentences, and thanks to fuckhole criminal advocates like you and Sullum, we did away with mandatory minimums.

        1. Depending upon the state and the crime, mandatory minimums still exist for many crimes. These were put in place as a backlash to lenient punishments handed down in the 70s & 80s. Those same lenient punishments also pushed forward things like the 3 strikes and your out laws.

          Aside from that – I think you’ve misread me as I’ve stated in this thread that if I were pro-death penalty in general, I’d be pro-death penalty in sex crime cases involving young children and adults. I just don’t have faith in our system to the extent that the death penalty would ever be handed down fairly and without any mistakes.

          My point above was if we’ve decided a crime requires X time in prison, then that’s all it should be. If we think that’s too lenient, then we should change those laws. We shouldn’t be using second prison instead. That’s a cop-out allowing us to shirk responsibility for doing what needs to be done.

      2. “There is a zero chance the government, through any set of experts, juries, or whatever, can possibly predict future behavior of someone else”

        That is simply untrue. We all have patterns to our behavior. You can’t predict behavior based upon a “beyond a reasonable doubt” standard, but you certainly can based upon “clear and convincing” evidence required for most commitment hearings.

        20% of those locked up could be clinically diagnosed as a psychopath. There are certainly different degrees of psychopath. But there are some, who hit the streets after prison, who are so dangerous, they did their whole stint in solitary. Most of them are not sex offenders and most will not be evaluated for regulation upon release. Those guys make it only weeks on the outside and create a havoc of destruction in their wake.

        I did time. I left the sex offender registry. It was destroying any hope for a life. I want and I demand the exact same protections afforded to those being civilly committed after their time is up. The registry is applied without ANY due process and ex-post facto. That is much harder to defend than a jury deciding the guy couldn’t control himself in prison, probably can’t when released.

        Until you actually have to live with criminal psychopaths, then you would understand. The Constitution doesn’t force the State to ALWAYS be reactive. Under a standard of proof, and by a jury, and appealable and fair, YES, civil commitment is not just Constitutional, but reasonable when faced with untenable circumstances.

      3. Amen. Some states have recently enacted life without parole sentences for those who sexually abuse young children. In TN, if someone molests a child under 8 years of age, they go away for the remainder of their natural lives. It’s a mandatory minimum law.
        However, much child sexual abuse occurs within the family and such strict laws actually work against the abuse ever being disclosed because even though the parents will want their child’s abuser held accountable, they may not want them to be sent away for the remainder of their natural lives, which DISINCENTIVISES REPORTING THE CRIME.

    2. Do you realize in Minnesota you can be placed on it even if you’re found not guilty of a sex crime? You think we should expand that to also locking people up?

  4. Sullum has a very, very vested interest in ensuring the mentally ill are spared involuntary commitment.

  5. Even before considering the proper punishment for sex crimes, shouldn’t we first consider how they are prosecuted? Unlike every other crime I can think of, including robbery and murder, some charged with a sex crime is presumed guilty until proven innocent. And, especially if the accused is a student, the “proved innocent” part might not be a viable option because no defence is permitted.

    I’ve never understood why the legal responsibility to “believe women” doesn’t apply to every other possible crime. What if a particular woman claims her store has been held up by a particular suspect? That person is still presumed innocent and gets to defend himself in court. But if she claims to have had non-consensual sex with the suspect, even if it was consensual up until she regretted it a week later, well then the suspect is guilty, period. To date, no one has been able to explain the logic of this to me.

    1. You have a lot of misconceptions on how sex crimes are prosecuted. First off, in any jurisdiction in the country between 33 and 50% of allegations are prosecuted.

      Next, you confuse a judicial “presumption of innocence” with a social presumption. They are two different things.

      Finally, most sex crimes have no evidence They convict based upon believability of testimony. They also acquit based upon the believability of testimony. Prosecuting sex crimes many times are a gamble that can, in an acquittal, be as harmful as the offense. Prosecutions are not only about strength of case, but also culpability, responsibility and future dangerousness. It is why most sex crimes are over-charged and are plead down. It is also why, even in the face of a zillion years, most end in a plea where a much less sentence is handed down.


  6. This is all a consequence of a sex offense’s being considered a mental illness, unlike the vast majority of other antisocial behavior. I’m not sure whether we’d even be having this discussion if all crimes were treated as symptoms — whether the path to that type of thinking would’ve normalized such thinking to a degree where it was nearly unassailable (like the concept of punishment or restraint of criminals) or would’ve led to a backlash.

  7. From 2nd linked article:

    How are offenders released from the program? Treatment in the program is “indefinite,” and MSOP technically does not have authority to let anyone out. Clients must petition the Supreme Court Appeal Panel — commonly called the “SCAP process” — before they can either move to CPS or be discharged from their commitment altogether. As of June 30, 26 clients have successfully petitioned to move into the final phase of treatment, but the panel has never granted anyone permanent release from the program.

    This is a psych hold gone wild.

  8. Cheers to Sullum for taking a stand for sex criminals. There is no more hated or less sympathetic a class of people than those who commit child abuse. Every time they are brought up, the suggestions range from death by firing squad, to burning at the stake. I think it’s a bit odd: arguably, murder is the greater crime, and yet we don’t see the kind of vitriol for murderers that we see for abusers. Americans are obsessed with sexuality.

  9. America just spent four very long years letting a mentally ill reality TV show host run this country. If anything, we’ve learned Americans are quite good at pretending something is necessary that is clearly worthless, like sex offense registries. Rest assured, while we continue to suffer during this panic over COVID, legislators are still finding time to exploit tried-and-true Predator Panic ™.

  10. ‘the U.S. Court of Appeals for the 8th Circuit, which overturned Frank’s decision on the ground that people “who pose a significant danger” do not have “a fundamental liberty interest in freedom from physical restraint.”‘

    IMO, these judges pose a significant danger – so according to their own decision, they should be locked up, along with 99% of politicians, judges, and prosecutors. Perhaps we should just lock up everyone who applies to law school, because they might graduate and become an abusive prosecutor like Kamala Harris, or a terrible Senator like Biden.

  11. Ah, yes. Joe Morrissey. Fighting for the oppressed sex offender.
    From his Wiki:
    “ In August 2013, police found Morrissey in his Henrico County home with a 17-year-old girl,..”
    “ Morrissey was indicted on felony charges of indecent liberties with a minor, possession and distribution of child pornography, and electronic solicitation of a minor, in addition to a misdemeanor charge of contributing to the delinquency of a minor”
    “Morrissey had sex with the girl multiple times in his law office in August 2013, and possessed a nude photograph of the girl, which he also sent to a friend.“

    That’s who I want fighting for me!

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