The future of involuntary civil commitment in the U.S.A. after Kansas v. Hendricks

This article examines new sexual predator commitment laws enacted recently in the United States to civilly commit dangerous sex offenders after they have served their prison sentences. It then examines Kansas v. Hendricks, a Supreme Court case that upheld these laws as constitutionally permitted. The article next describes the broad parameters that demarcate the government's civil commitment authority identified by the Supreme Court in that case. The author concludes that Hendricks establishes that the state has expansive civil commitment power much greater than our previous understanding. The government may use civil commitment solely to protect the public from dangerous individuals without proving a medically recognized mental disorder, recent evidence of dangerousness, or a treatment purpose or possibility. Moreover, this quarantine system may be justified by proving the same unlawful behavior for which the individual has already been criminally punished.     

Sexual predator commitment laws: lessons for law and the behavioral sciences

Sex offender commitment laws use a mental health commitment model to lock up the "most dangerous" sex offenders after their prison sentences expire. In Kansas v. Hendricks, the United States Supreme Court rejected the major constitutional challenges to these laws. The Hendricks case clarifies important ambiguities about the use of civil commitment to enforce "police power" interests, as opposed to "parens patriae" interests. Hendricks also clarifies the role of "treatment" in justifying civil commitment. While there remain some important legal issues to be resolved, the future direction of sex offender commitment schemes will turn most significantly on policy decisions. The behavioral sciences can play an important role in shaping these decisions. The most significant questions concern whether expensive commitment programs are the most effective use of scarce treatment and supervision dollars. Additional research should be directed to improving dynamic predictors of recidivism, operationalizing "inability to control" standards, judging the "social meaning" of commitment laws, and assessing the potential treatment disincentives of these laws.     

Expert Testimony and Sexual Predator Statutes after Hendricks

The recent decision of the United States Supreme Court in Kansas v. Hendricks (1997) upheld a sexual predator statute that authorizes civil commitment of certain sex offenders who have been convicted of sexual offenses and have served criminal sentences for those offenses. This case raises a variety of Constitutional questions in the United States, but it also raises a series of interesting questions about the appropriate scope of expert testimony by psychologists regarding commitments under these statutes. These issues regarding expert testimony are significant both in their own right and because addressing them confronts one with serious difficulties regarding the normative foundations of the statutes. This paper examines the significance of the Court's brief substantive due process analysis for the role of psychological expert testimony regarding commitment under these statutes, and it identifies but does not attempt to resolve the associated normative concerns regarding the justification for commitment under these statutes.     

Sexually Violent Predators: Toward Reasonable Estimates of Recidivism Base Rates

The sexual recidivism rate of sex offenders is a controversial issue. Perhaps as controversial is the sexual recidivism rate of the select group of sex offenders who are examined pursuant to sexually violent predator (SVP) statutes. At present, reliable estimates of SVP recidivism are unavailable. We propose that reasonable estimates of SVP recidivism can be reached by considering three available pieces of data: (i) a likely recidivism rate of the general population of sex offenders; (ii) procedures typically followed by jurisdictions that civilly commit sex offenders; and (iii) classification accuracy of procedures. Although sexual recidivism rates vary across jurisdictions, the results of our analyses suggest sex offenders referred for examination pursuant to SVP statutes recidivate at substantially higher rates than typical sex offenders. Our results further suggest that sex offenders recommended for commitment as SVPs recidivate at even greater rates than SVP respondents who are not recommended for commitment. We discuss practice and policy implications of these findings. Copyright © 2013 John Wiley & Sons, Ltd.     

societal reaction to sex offenders: a review of the origins and results of the myths surrounding their crimes and treatment amenability

Examination of societal reaction to sexual offenders reveals a history of harshness exemplified by the sexual psychopath laws of the 1930s. The latest round of legal attempts to control sex offenders uses Severe sentencing laws, civil commitment procedures and community notification statutes to confine and shame sex offenders. This paper shows these laws to be based on popular beliefs about the predatory nature of these men, the probability of their re-offense and their amenability to treatment rather than the facts about the sex offenses and offenders. The severe reaction to sexual offenders is a vindictive one based on myth and misunderstanding that serves many interests. The paper exposes the contradictory myths and skewed emotions that guide our view of sex crimes and compares these with the facts about re-offense rates and the effects of treatment.     

(Neuro)predictions,Dangerousness, and Retributivism

Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be more dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings.     

The medico-legal status of young sex offenders: forensic psychiatric evaluations in Sweden 1988-1995.

Young sex offenders (YSOs) attract significant public and professional concern. YSOs might be perceived as more psychologically deviant or dangerous than other offenders. This study focused on how often YSOs subjected to forensic psychiatric investigation (FPI) were declared medico-legally insane as compared to young non-sex offenders and adult sex offenders. Logistic regression models were applied to data from all major FPIs performed in Sweden between 1988 and 1995 (N=4354) to explore factors affecting the likelihood of receiving a medico-legal insanity declaration. When we adjusted for the statistical effects of age, sex offender status, and psychopathology, YSOs (n=47) were three to four times more likely to be declared insane in the medico-legal sense. The results indicate that YSOs in Sweden constitute a medico-legally distinct subgroup of forensic psychiatric examinees.     

An examination of the assumptions of specialization, mental disorder, and dangerousness in sex offenders

Sex offenders have been singled out for differential treatment by the legal and mental health systems. This article attempts to inform law reform efforts and criminal justice mental health policy by examining the assumptions underlying differential legal and mental health treatment of sex offenders. These assumptions include the theories that sex offenders are mentally disordered and in need of treatment, specialists in sex crimes, and more dangerous than other criminal offenders. Empirical findings demonstrate that sex offenders are not specialists in sex crimes and are not mentally disordered. Examination of past research suggests that sex offenders are not at more risk than other criminal offenders to commit future sex crimes. Implications of research findings for selective prosecution of sex crime cases, mental health policy, sex offender legislation, and predictions of future dangerousness are discussed. Proposals for future research needs and law reform are presented.     

Rotting with their rights on: why the criteria for ending commitment or restraint of liberty need not be the same as the criteria for initiating commitment or restraint of liberty, and how the restraint may sometimes justifiably continue after its prerequisites are no longer satisfied

That coerced treatment must end when the criteria for initiating coerced treatment cease to apply appears to be universally accepted by courts and commentators.2 Moreover, the consensus appears to be justified by a steel-trap argument. If coercion is justified only when the patient is mentally ill and incapable, because then the patient lacks autonomous capacities, or lacks practical reasoning abilities that undercut autonomous capacities, then these justifications have no force when the patient either is not mentally ill or is capable. A parallel claim holds for civil commitment. This received wisdom, or in = out thesis, rests upon a conceptual confusion: a failure to distinguish the criteria for initiation of intervention, those for cessation of intervention, and the purpose of the commitment or coerced treatment. If the criteria for commitment were mental illness and dangerousness, and the criteria for release were the same, then the purpose of commitment would be to restore persons to the point where they are either just barely not mentally ill, or just barely not dangerous. That is a silly and self-defeating purpose for that large class of patients who, because of lack of insight, or otherwise, do not become treatment compliant until they are substantially healthier than being barely not mentally ill or barely not dangerous. It sets them up to become revolving-door patients. The purpose of commitment is rather to maximize the patient's mental health, and minimize her dangerousness without unduly burdening her liberty. If society is going to violate a patient's liberty, it should do so in a way that will resolve the problem that justified the restriction on liberty in the first place, so long as the restriction of liberty is not too great in relation to the expected gains from the intervention. The criteria for releasing a patient from commitment are in this way responsive to the purpose of the commitment. For some revolving-door patients, this entails that the criteria for their release from commitment should be stricter than the criteria for initiating commitment in the first place. The criteria for release from commitment for revolving-door patients should be that the criteria for initiation for commitment is not met plus it being more likely than not that the patient will be treatment compliant after release, assuming the additional restriction on liberty is less than the gains from the additional restraint, and the restriction is not unduly burdensome. Spelling this out, the criteria for release should be either not mentally ill, or else not dangerous, or capable, and more likely than not to be treatment compliant after release. For those patients for whom such a test is overly optimistic, we might substitute that there is a reasonable probability of treatment compliance after release, or that the probability of treatment compliance has been enhanced. These criteria are to be thought of as rough and ready rules of thumb, and not as analytically precise tests.     

Forensic follow-up care for outpatients in Germany

Legislation has revived forensic psychotherapy for outpatients in Germany. Since 2007, in almost all 16 federal states of Germany forensic outpatient clinics have been and are being established for criminal and sex offenders who have been released from prison or secure detention under conditions imposed by the court. This paper reviews the consequences of this legislation for forensic outpatients, and will focus on some of the central organisational, institutional and social aspects that stem from the experience of the author. Although the conclusions may not be new, they require repeated reflection and well-considered political commitment.     

Adolescent sex offenders with mental retardation: Literature review and assessment considerations

Working with adolescent sex offenders can be a difficult challenge. When an offender also suffers from mental retardation, this challenge increases. Unfortunately, this has been a largely ignored population, and clinicians working with this group often find little empirical work to assist them. Yet, many theorists posit that addressing sexual offending behavior when the offender is an adolescent may help prevent that behavior from continuing into adulthood. This is important because adult sexual offenders are often very difficult to treat. The current paper begins by reviewing literature on social deficits of individuals who have mental retardation. These deficits may contribute to aberrant sexual behavior among adolescents. The focus of the paper is then a review of literature on adolescent sex offenders, including those with mental retardation. We conclude this review with suggestions for assessment of adolescent sex offenders and with recommendations for future directions.     

Megan's Law and its impact on community re-entry for sex offenders

Community notification, known as "Megan's Law," provides the public with information about known sex offenders in an effort to assist parents and potential victims to protect themselves from dangerous predators. The purpose of this study was to explore the impact of community notification on the lives of registered sex offenders. Two hundred and thirty-nine sex offenders in Connecticut and Indiana were surveyed. The negative consequences that occurred with the greatest frequency included job loss, threats and harassment, property damage, and suffering of household members. A minority of sex offenders reported housing disruption or physical violence following community notification. The majority experienced psychosocial distress such as depression, shame, and hopelessness. Recommendations are made for community notification policies that rely on empirically derived risk assessment classification systems in order to better inform the public about sex offenders' danger while minimizing the obstacles that interfere with successful community reintegration.     

Empathy,social skills,and other relevant cognitive processes in rapists and child molesters

Considerable theoretical and research efforts have gone into formulations which suggest that sex offenders differ from nonoffenders in their processing of sexual material. This article reviews the literature concerning patterns of empathy, social skills, and other cognitive processes (i.e., theories, attitudes, and distorted cognitions) of incarcerated sex offenders or those who have identified themselves as sex offenders. We choose these three general topic areas because many see these phenomena as central to the understanding of sex offending. First, we present general empirical findings relevant to the phenomena of empathy, social skills, and distorted cognitions. We then move to a discussion of specific cognitive models that have been offered to account for the data. We briefly discuss the available data relevant to these cognitive models. The next section of the article reviews the treatments that have been applied to sex offenders with the stated goal of modifying the processes we are examining. Our final section attempts to summarize and highlight some of the identified problems and weaknesses in the study of the aforementioned processes in sex offending. We argue that too little attention has been paid to basic cognitive psychology and the role that cognitions or conceptualizations can play in promoting our understanding of the sex offender. We suggest that following the information processing approach as a generalized model will help integrate and direct research efforts.     

What is to be done? future research on the assessment and behavioral treatment of sex offenders

Much progress has been made in the assessment and treatment of sexually aggressive men. There remains, however, a great deal of work to be done. Future research should move on three fronts simultaneously: the extension and refinement of assessment methods which will serve to discriminate sex offenders from other persons and different sorts of sex offenders from each other, the further development of, and comparison among, treatment techniques designed to change sex offenders on relevant dimensions, and long-term followups of sex offenders who have been treated with different methods. Basic research concerning not only sex offenders but also the development of human sexuality is also required for the formulation of a theory which will guide future research.     

Neuropsychology, neuroscience, volitional impairment and sexually violent predators: A review of the literature and the law and their application to civil commitment proceedings

The U.S. Supreme Court held in Kansas v. Crane, the person's mental abnormality or personality disorder must cause the individual to have “serious difficulty in controlling his sexual behavior,” rather than “total or complete lack of control.” While most state civil commitment statutes do not mandate this volitional impairment language relevant to loss of control, they instead incorporate the requirement of findings of “likely” or “likelihood” to reoffend. Yet in some of these state SVP hearings, the forensic mental health expert witnesses testify as to the offender's ability to control his sex offending behaviors. Occasionally, some of these experts are neuropsychologists and neurologists who testify about a sex offender's neurological and cognitive impairment resulting in sexually deviant behavior, volitional impairment, and likelihood of reoffending. This article's focus is to assess deviant sexual offending behaviors and volitional impairment through a neuropsychological and neurological lens. The author will provide an analysis of the literature as to the structural and functional neurocognitive processes of sex offending pertaining to neuropathology, neuropsychology, and neuroimaging data. The author will attempt to apply these findings to the legal requirements outlined in Crane necessitating commitment of sex offenders who experience some volitional impairment in their behaviors that lead them to be likely to sexually reoffend. The author will review state case law addressing neuroscience in SVP proceedings.     

Law and the confinement of psychopaths

Civil commitment in the United States historically has followed a medical, targeting individuals with serious mental disorders and providing for their treatment in the least restrictive setting. In the last decade, however, commitment laws have appeared in some states permitting the hospitalization of personality-disordered criminal offenders at the end of a penal sentence. The American Psychiatric Association has fiercely opposed these laws. The U.S. Supreme Court has given its qualified approval, although legal challenges persist. These laws, together with British proposals to permit the civil commitment of dangerous personality-disordered individuals, should be resisted by all professional disciplines.     

“Coming Clean” on Duty of Care: Australian Print Media’s Representation of Male Versus Female Sex Offenders in Institutional Contexts

Public opinion about sexual abuse of minors is greatly shaped by mass media and the way individual cases are reported. This paper examines Australian print media??s representation of sex offenders, focussing particularly on the sex of the offenders and aiming to shed light on some of the misconceptions and deep-rooted prejudices within the population at large. Given the multi-faceted nature of sexual offences, this paper focuses on sexual offences committed by both males and females against minors in the context of a companion breach of duty of care. In order to explore the effect that linguistic tools can have in the Australian print media??s way of reporting sexual abuse cases, twenty-nine newspaper articles published in Australian dailies were selected for analysis. The analysis of these articles reveals a marked bias in the manner in which sexual offences perpetrated by males, as opposed to females, are reported, suggesting a male monopoly on sexual abuse. We argue that this biased representation, which hinders adequate profiling of sexual offences against minors, may stem from an androcentric view of sexuality and from the systematic denial of female agency when it comes to sex.     

Rape and sexual assault in investigative psychology: the contribution of sex offenders' research to offender profiling

Research on sex offenders has mainly guided clinical practice for risk assessment and therapeutic intervention. However, the current scientific knowledge on these offenders and their crimes is, in many aspects, of great importance to criminal investigations. Consequently, there is a need to build bridges between investigative psychology and the research being conducted on sex offenders. Four areas of research on sex offenders that have clear implications to investigative psychology can be identified: (1) the consistency or ‘crime‐switching’ patterns of sex offenders; (2) the recidivism patterns of different types of sex offenders; (3) the police response to specific victim characteristics; and (4) the A → C equation of sexual assaults. This paper argues for a need to establish a dialogue between these two fields of research so that knowledge about sex offenders keeps growing whilst being able to inform policing practices in investigative psychology. Copyright © 2009 John Wiley & Sons, Ltd.