Civil commitment: Treatment or extended punishment?

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By J.D. Tuccille . . . Sold as a means of giving potentially dangerous sex offenders treatment for their conditions while indefinitely confining them, civil commitment programs invite skepticism about their motivation and effectiveness. While courts have signed off on the practice, keeping people locked up after they’ve served their prison sentences raises sticky legal and ethical questions. Now a lawsuit and a recent hunger strike by Minnesota prisoners offers new opportunities to reconsider and reform the practice.

At the end of February, the United States Court of Appeals for the Eighth Circuit gave the green light to a lawsuit challenging Minnesota’s civil commitment program for sex offenders. Importantly, the court allowed the plaintiffs to argue that civil commitment as practiced in the state is punitive in nature—something that’s not permitted of a supposedly therapeutic program.

The current case reboots an earlier legal challenge making similar allegations. The first case resulted in a 2015 U.S. District Court ruling that “Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” While that ruling was reversed on appeal, the new decision revives hope that such arguments will prevail, and that such programs will be found unconstitutional.

That’s possible because the over 730 Minnesota prisoners subject to commitment have already served prison sentences for their crimes. They continue to be held under a state law providing for the confinement of “a sexually dangerous person or a person with a sexual psychopathic personality … to a secure treatment facility unless the person establishes by clear and convincing evidence that a less restrictive treatment program is available.” They can be held until they convince authorities “that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of treatment and supervision.”

Civil commitment has its roots in 1990s concerns that some sexual offenders are especially dangerous and prone, because of mental illness, to reoffend if released. The practice spread to 20 states, the federal government, and the District of Columbia, involving, at this time, roughly 6,300 inmates. Despite the potential for sentences without end, the U.S. Supreme Court signed off on civil commitment in 1997 on the grounds that it is permissible to continue to confine a person with a “mental abnormality” or “personality disorder” and that it is “not punishment”.

So, the basis for civil commitment is treatment of people who are ill, not extra punishment of people who have already served their sentences. Except that treatment facilities are awfully punitive, as the judge behind the 2015 decision ruled. News stories in Minnesota and elsewhere refer to “prisonlike treatment centers” and “prison by any other name.” The conditions, rules, and guards are entirely recognizable to anybody familiar with the corrections system, though the terminology is a bit fuzzier.

Read the remainder of the piece here at Reason.

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