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.     

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.     

The function of punishment in the "civil" commitment of sexually violent predators

Two experiments find that support for civil commitment procedures for sexually violent predators is based primarily upon the retributive rather than incapacitative goals of respondents. Two discrete samples composed of students (N = 175) and jury-eligible citizens (N = 200) completed experimental surveys assessing their support or opposition to scenarios in which a sexual predator was to be released after completing his criminal sentence. Respondents were sensitive to likelihood of recidivism only when the initial sentence was sufficiently punitive. When initial sentence was lenient, respondents strongly supported civil commitment without regard to future risk. Results are discussed in light of the U.S. Supreme Court's ruling in Kansas v. Hendricks (1997) on the constitutionality of civil commitment laws for sexually violent predators.     

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.     

Psychopathy, criminal responsibility, and civil commitment as a sexual predator

Recent judicial decisions regarding commitment under sexual predator statutes and commentary addressing the legal significance of psychopathy provide an interesting opportunity to reflect upon the exculpatory significance of psychopathy and the appropriate relationship between criminal conviction and police power civil commitment. This paper examines the legal significance of psychopathy for the purposes of criminal responsibility and of civil commitment under sexual predator statutes. By examining the significance of psychopathy for each of these legal institutions, it clarifies our understanding of the legal significance of psychopathy and of the relationship between these institutions. This process illuminates the defensible functions and boundaries of each institution and clarifies the nature of the impairment that should qualify an individual for confinement by each. This analysis interprets criminal conviction and police power commitment, including sexual predator commitment, as integrated institutions of social control intended to provide a coherent approach to psychopaths as well as to others who require state intervention under the police power.     

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.     

Recidivism base rates,predictions of sex offender recidivism,and the “sexual predator” commitment laws

Predictions of future sexual offending have been mandated by various “Sexual Predator” commitment laws, despite historical arguments that clinicians are frequently inaccurate and over-predict violence. The basis for those arguments has been the perspective that sexual recidivism is a relatively rare event. Research is reviewed, however, with the finding that sexual recidivism for certain offenders is a rather common occurrence when the definition of recidivism is in keeping with the sex offender commitment laws. This finding is used to demonstrate that under-, rather than over-prediction of the designated violence is necessarily today's practice. Practical and ethical implications are discussed. © 1998 John Wiley & Sons, Ltd.     

Jurors' Views on the Value and Objectivity of Mental Health Experts Testifying in Sexually Violent Predator Trials

Although psychologists and psychiatrists often testify in court, we know relatively little about the extent to which jurors value the testimony they hear from these experts. We surveyed 161 jurors who rendered opinions in 14 sex offender civil commitment trials after hearing testimony from psychologists and psychiatrists serving as expert witnesses. Most jurors reported that the experts they heard testify were honest, and they tended to attribute disagreements among experts to case complexity, as opposed to adversarial allegiance or bias. Most reported that hearing from the experts helped them make better decisions and that experts using risk assessment instruments could make more accurate predictions than those who did not. Jurors were, however, more skeptical about the ability of experts to accurately predict recidivism when they heard testimony from both prosecution and defense experts. Findings suggest that jurors value risk assessment testimony from experts, but that experts must think carefully about how to best make risk assessment instrument results accessible to jurors. Copyright © 2014 John Wiley & Sons, Ltd.     

Sex offender community notification: managing high risk criminals or exacting further vengeance?

The current trend in dealing with convicted sex offenders is to impose long prison sentences followed by stringent release conditions. Added to this practice has been the policy of making such offenders who have been returned to society more visible to the public. In state after state, sex offender community notification laws have been passed, enabling communities to be put on notice that a convicted sex offender has become a resident. To date there has been little empirical evidence regarding the impact of these laws on managing sex offenders in the community. This study focuses on the social and psychological effects of community notification on sex offender reintegration within those communities where notification has occurred. Data are derived from face-to-face interviews with 30 convicted sex offenders, residing in various locations throughout Wisconsin, who were the subjects of community notification. The findings indicate that community notification can have a critical impact on the minimum essentials needed for the reintegration of offenders within the community. What is proposed is a reintegrative approach which suggests that stable housing and employment would mitigate the disruptive and antitherapeutic effects of community notification.     

Jurors Report that Risk Measure Scores Matter in Sexually Violent Predator Trials,but that Other Factors Matter More

After deliberating to a verdict, jurors (N = 462) from 40 sexually violent predator (SVP) trials completed a questionnaire asking them to rate the extent to which risk measure scores, diagnoses, expert witness testimony, and offender characteristics described during the trials influenced their commitment decisions. Jurors reported that offenders' sexual offending history, failure to change, and lack of remorse had the strongest influence on their commitment decisions. They reported that testimony about risk instrument scores (e.g., Static-99) and psychopathy had less influence on their decisions, but those who did report being influenced by instrument results were especially likely to view the offender as being at a high risk for reoffending. Overall, findings suggest that SVP jurors view risk measure results as important, but not as important as other offender, offense, and testimony characteristics, including some that have limited relevance to recidivism risk. Thus, findings also suggest that experts may need to better educate jurors regarding factors that do and do not relate to recidivism risk. Copyright © 2015 John Wiley & Sons, Ltd.     

Sex offenders, sentencing laws and pharmaceutical treatment: a prescription for failure

The phenomenon of adults who have sexual interests involving children as partners, or pedophiles, is considered among the most sociopathological of human conditions. Considerable literature is devoted to issues and problems associated with or related to pedophilia, including prevalence, etiology, treatment, and outcome studies. The sexual victimization of children, based upon data gathered from a number of sources, suggests an intractable problem that is national in scope. Recent manifestations of society's efforts to deal with the sexual victimization of children include the enactment of criminal sentencing laws that mandate the treatment of offenders with certain pharmaceutical agents, such as medroxy-progesterone acetate ("MPA"). Because sentencing laws as a rule vary widely from state to state, there is considerable variation as to who is subject to MPA treatment laws, and how such laws-including specific provisions, such as clinical criteria, if any, required for treatment; type and period of treatment plans; informed consent; etc-are implemented. Most important, these sentencing laws may have remarkably little relation to what is widely considered effective treatment for pedophilia disorders. We examine in detail the most recent sentencing laws pertaining to treatment of persons who have been convicted of sex offenses involving children as victims. Our critique may offer insight and suggestions as to how such sentencing laws can be more suitably tailored to the treatment needs of persons with pedophilia disorders.     

Hebephilia: quintessence of diagnostic pretextuality

Hebephilia is an archaic term used to describe adult sexual attraction to adolescents. Prior to the advent of contemporary sexually violent predator laws, the term was not found in any dictionary or formal diagnostic system. Overnight, it is on the fast track toward recognition as a psychiatric condition meriting inclusion in the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. This article traces the sudden emergence and popularity of hebephilia to pressure from the legal arena and, specifically, to the legal mandate of a serious mental abnormality for civil commitment of sex offenders. Hebephilia is proposed as a quintessential example of pretextuality, in which special interests promote a pseudoscientific construct that furthers an implicit, instrumental goal. Inherent problems with the construct's reliability and validity are discussed. A warning is issued about unintended consequences if hebephilia or its relative, pedohebephilia, make their way into the DSM-5, due out in 2013.     

Civil commitment laws in nineteenth-century New York

The roots of nineteenth-century American civil commitment law lay in English common law, in particular poor law, with its mixed motives of helping lunatics and of protecting the community from them. As state institutions assumed an increasingly large share of the burden of restraint in the 1840s and 1850s, such confinement decisions became subject to greater public scrutiny. This can be seen particularly clearly in New York State, which in 1842 passed a law requiring that two physicians examine each alleged lunatic and report their findings to a judge who then made the final commitment decision. After the Civil War, a number of legal decisions limited the state's power to initiate civil commitments to cases of clear social danger, though families were not so confined. An 1874 statute further tightened procedural guidelines for civil commitments. A State Commissioner in Lunacy was appointed to oversee the internal workings of lunatic asylums. Yet such legal “reforms” failed to slow the increasing tendency of both families and communities to use such institutions as long-term holding places for the socially marginal or threatening.     

Examining Predictors Which May Influence Sentencing Outcomes for Individuals Convicted of Offenses against Children: A Brief Report

Numerous studies examine sentencing decisions, yet little attention has been given to sentencing of child maltreatment and, more specifically, on variables that could impact sentencing outcomes for this form of criminality. Using Pennsylvania Sentencing Data for 2006, this research adds to the existing sentencing research by exploring predictors that might influence sentencing decisions for individuals convicted of crimes against children. The findings indicate that offender sex significantly affects the sentencing decision and offender age significantly affects sentencing length. In addition, all offense characteristics significantly influence the sentencing length decision. Implication of these results and directions for future research are discussed.     

Competence to proceed in SVP commitment hearings: Irrelevant or fundamental due process right?

Sexually Violent Predator (SVP) civil commitment, intended to incapacitate offenders and protect the public, has been implemented in 21 jurisdictions. While respondents in traditional civil commitment proceedings need not be competent to proceed, SVP commitment may present a greater deprivation of liberty and therefore greater procedural protections may be merited. Statutes and case law regarding competence in this context address two issues: competence to challenge unproven sexual offense allegations and competence to participate in the SVP commitment process. Of the 14 states that have addressed the issue, one concluded that respondents must be competent to challenge unproven allegations and one concluded that all SVP respondents must be competent to participate in the commitment process. Differences between SVP and traditional civil commitment, the rationale underlying the competence requirement, and decisions regarding competence in SVP commitment are reviewed to inform debate regarding whether SVP respondents must be competent to proceed with the commitment process. Copyright © 2010 John Wiley & Sons, Ltd.     

Emotional Separation,Autonomy in Decision-Making,and Psychosocial Adjustment in Adolescence: A Proposed Typology

Adolescence is critical for learning autonomous behavior; however, little research is available on the most appropriate balance of the emotional and behavioral dimensions of autonomy for psychosocial adjustment during this period. In this study we present a novel autonomy typology that combines both these aspects, which can be implemented as autonomy in decision-making and emotional separation. Specifically, examined age differences in emotional separation and autonomy in decision-making during adolescence. We also assessed differences in psychosocial adjustment associated with profiles of autonomy typology, sex, and age. The participants were 567 adolescents (296 males and 271 females), aged between 12 and 18 years (M?=?14.48; SD?=?1.69), recruited in Spanish high schools. Each participant filled out questionnaires on identity commitment, self-esteem, emotional separation and autonomy in decision-making. The results showed that the most advantageous autonomy profile is ‘autonomous in decisions’ (those showing low emotional separation combined with autonomous behavior in decisions) which was associated with higher levels of self-esteem and occupational and ideological identity commitment. In addition, we also concluded that the balance of autonomy affects adjustment throughout adolescence, although early adolescence may be an especially critical period.     

Simulated judicial decision-making for African and European American adolescents with illegal sexual behavior: The impact of medical data and victim race/ethnicity

The perceived importance of victim and defendant race/ethnicity and medical evidence in child sexual abuse cases has been recognized separately in the literature. However, few studies have considered these factors simultaneously. Within a sample of 880 college students, an interaction effect was tested between the presence of medical evidence and the race/ethnicity of a juvenile defendant and victim using child sexual abuse case vignettes. The main effects of medical evidence and the race of the defendant were observed. Medical evidence and race of victim influenced victim believability such that medical evidence was more impactful for cases with African American victims. Further, there were interactions between the race of the defendant and the race of the victim in adult versus juvenile court decisions, sex offender registration and notification requirements, and length of sex offender registration and notification. Interracial sexual offending was associated with substantially higher punishment than intraracial sexual offending. Accordingly, several important implications for court-level decision-making processes are explored.     

An experimental analysis of the civil commitment recommendations of psychologists and psychiatrists

Legal and nonlegal factors influencing the civil commitment recommendations of psychologists and psychiatrists separately and as a whole were investigated using an experimental design. One hundred and seventy-six psychologists and psychiatrists made recommendations for or against commitment for a series of clinical vignettes wherein the five facets of commitment criterion, legal committability, clinical treatability, alternative resources and presence of psychosis were systematically varied. Results revealed that all facets contributed independently and in combination to the commitment decisions of participants as a whole. It was concluded that mental health professionals may utilize a variety of types of information, beyond the relevant legal criteria, in making actual decisions to initiate civil commitments.