It is important that sex crime laws and policies be crafted to be constitutionally sound and to advance public safety.  I looked at Civil Commitment and how its design can be improved. First off, civil commitment as discusses by Mancini (2014, p. 178) is the institutionalization of a person – in this case, a sex offender – on mental health grounds when they are deemed to be a possible danger to themselves of the society. Mancini (2014, p. 178-179) explains civil commitment as divided into the (1) rehabilitative model and (2) incapacitation model both which aim at reducing recidivism levels among “sexually violent” and “sexually dangerous” offenders.  In theory, therefore, civil commitment is effective in keeping society safe from dangerous sex offenders while allowing these offenders a chance to undergo treatment that may lead to their release. In fact, the courts view civil commitment as non-punitive and a course that does not generate further legal proceedings (Mancini & Mears, 2013:1126). However, within these presumed benefits including keeping offenders confined indefinitely and offering treatment lies elements of invasion of the constitutional rights.

In the case Karsjens v. Piper (8th Cir. 2017) for example, it was upheld that civil commitment – in the state of Minnesota (MSOP) – violated the constitutional rights as;

a) Lack of periodic assessment subjected individuals to longer periods of confinement than necessary

b) Had no provision for contesting judicial review outside the statutory discharge

c) Made the process of discharge from confinement more difficult than admission into the program

d) Petition of reduction in custody is made a burden of the individual rather than the state

e) Makes reference to less restrictive alternatives to confinement when in fact these alternatives are not available.

f) Does not require the state to take affirmative action when an individual does not fit the criteria for civil commitment

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Indefinite confinement thus violates the “fundamental right to live free of physical re-straint,” which is guaranteed by Fourteenth Amendment’s Due Process Clause. The courts however argue that sex offenders have no liberty interest in regard to freedom from physical restraint (Shapiro and McDonald, 2017). As such, the justice system – going by the case of Minnesota – does not seek to balance between rights of sex offenders and public safety but rather trade those rights for public safety. Civil commitment also remains problematic in other forms such as its evaluation and treatment process which Mancini & Mears (2013, p.1124) note had to be adjusted in the case of McKune vs Lile. The McKune vs Lile case involved Kansas’ Sexual Abuse Treatment Program which had been seen as infringing on the Fifth Amendment rights based on its lack of immunity on things said by those getting treated and its struture that made it seem like a compulsion towards self-incrimination.

In order to therefore balance constitutionality and public safety under civil commitment, several things need to be adjusted in its design. First, civil commitment should be required to demonstrate its capacity as a penological tool. This proof should primarily lie in the evaluation and treatment programs such that only individuals in need of the treatment would be admitted and once recovered they would be discharged. The evaluation process should be regular and thorough to avoid indefinite confinement. Second, the justice system should offer immunity to things said by participants during their treatment because after all their mental health is viewed as deficient and also given they cannot refuse participation in such a program. Third, the burden of petitioning for discharge should be shifted from the individual to the state or at least shared between the state and the individual. This will ensure that it is as easy to get out as it is to get in. Lastly, there should be a process of appealing against civil commitment through a judicial system.

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Improving the design of civil commitment, in my opinion, will culminate into a good balance between its role as a policy keeping the public safe and a rehabilitative tool for sex offenders. In its current form, it is more skewed towards public safety.

References

https://mitchellhamline.edu/sex-offense-litigation-policy/2017/07/20/karsjens-v-piper/

Ilya Shapiro and David McDonald, (2017) Even Sex Offenders Have Constitutional Rights https://www.cato.org/sites/cato.org/files/wp-content/uploads/karsjens_cert-stage.pdf

Mancini, C. (2014). Sex crime, offenders, and society: A critical look at sexual offending and policy. Durham: Carolina Academic Press.

Mancini, C., & Mears, D. P. (2013). U.S. Supreme Court Decisions and Sex Offender Legislation: Evidence of Evidence-Based Policy. Journal of Criminal Law and Criminology, 103(4), 1115–1154.

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