Crime Library: Criminal Minds and Methods

Child Sex Offenders

Involuntary Institutionalization

Adam J. Falk
Adam J. Falk

In "Sex Offenders, Mental Illness and Criminal Responsibility," Adam J. Falk outlines the post-Hendricks constitutional boundaries of civil commitment. He indicates that the Supreme Court's decision in Kansas v. Hendricks "raises serious implications for the moral foundation of American law." He states that a third of the one million people who are committed to treatment annually are confined involuntarily. Included in this group are repeat sex offenders, committed after their criminal sentence is served on grounds of public safety. The time period is indefinite, pending the findings of a professional board.

In the case of Hendricks, Falk thought it was inconsistent to hold someone sufficiently responsible to be sentenced to a prison term but also say that they suffer from such a moral impairment that they cannot be trusted to control their conduct. Doesn't that mean, he asks, that they aren't responsible? Falk also points out that the Supreme Court decision broadens the range of individuals that are eligible for civil commitment. States in which these laws exist may commit someone simply by linking their past behavior to an intact personality disorder or mental abnormality as a way to justify keeping them locked up, albeit in a different type of institution. Thus, argues Falk, a state could use the same rationale to commit repeat substance abusers, because the Hendricks decision does not limit the scope of power to sexual offenders. He recommends a revised constitutional standard for evaluating the laws surrounding civil commitments.

Psychiatric News, sample
Psychiatric News, sample

In a 2002 issue of Psychiatric News, which indicates that sixteen states have enacted these laws and about 1,200 sex offenders were being held under the statues (although Fox News in 2005 indicated the number of states is fourteen), Ken Hausman reports on the Supreme Court's effort to clarify the decision. On January 22, 2002, in Kansas v. Crane, the Court issued an additional requirement. Michael Crane was about to end his four-year stint in prison for sexual assault. Since he had a long history of arrests, some of which involved sexual assault, and since he was not exposed to therapy specific to his problems while in prison, he was eligible for consideration for commitment. He was diagnosed with exhibitionism and antisocial personality disorder, so during a commitment procedure, a jury agreed that he should be further confined.

Crane appealed to the Kansas Supreme Court, which reversed the decision, because the state did not introduce evidence that Crane was unable to control his behavior. Then the U.S. Supreme Court reversed the Kansas high court and used the case to clarify its guidelines for Hendricks. In essence, the state did not have to show a complete lack of control over sexual behavior, but the state did have to show evidence of an abnormality that made it difficult for the offender to maintain self-control. That could include volitional, emotional, or cognitive impairment, but in no case did the inability to exercise self-control have to be considered absolute.

The American Psychiatric Association dislikes the decision, stating that psychiatric hospitals are for mentally ill people not sexually violent criminals. Psychiatric professionals continue to push for limits on who is considered commitable. They're also not keen to have people outside the psychiatric community making these decisions, such as the judges and juries who evaluate the type of disorder an offender has before a civil commitment. Attorneys and mental health experts have long pointed out that even people who work daily with sex offenders cannot tell who may repeat their crimes, so how could lay people know?

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