A large-scale challenge to civil commitment laws has re-emerged in the past few weeks, to the surprise of many, involving the Minnesota Sex Offender Program (although the suit could have involved virtually any of the 20 states’ and federal government’s programs). Minnesota’s program had been declared unconstitutional in a federal court in 2015. A federal appeals court reversed that decision, ruling that the judge had applied the wrong standard in his determination. The US Supreme Court refused to hear the case. Now, an appeals court in Missouri has cleared the way for a reconsideration of this case. Readers are referred to the recent media coverage for a more comprehensive discussion.
For those who may not be aware, civil commitment, as applied to people who have committed sex crimes, involves legal proceedings that examine whether a person meets the criteria for a pre-disposing diagnosis (such as Pedophilic Disorder, with the application of many such diagnoses hotly contested across jurisdictions) and an appraisal of the person’s risk to commit further acts of sexual violence. Many readers will be aware that virtually every aspect of civil commitment law in the US has been challenged in the courts and that the research behind the methods used in diagnosis and risk assessment has also been challenged at every turn.
Civil Commitment has a complicated history internationally. Other countries have either no equivalent or very different versions of it. For instance, England and Wales had IPP (Imprisonment for Public Protection) sentences which were introduced in 2005 and abolished in 2012. They were determined to be unlawful by the Queen's Bench Division of the High Court in 2007 and a joint report by the chief inspectors of prisons and probation in 2020 concluded that IPP sentences were unsustainable with UK prison overcrowding. Although they are no longer handed down as of 30 June 2020, there were 8,954 (8,618 male: 336 female) determinate sentenced prisoners (those serving Imprisonment for Public Protection (IPP) sentences and life sentences).
The Sexual Abuse blog has focused on this and related cases in the past, most recently in 2015 (in which the first author asked a number of questions related to ethics and human rights). What’s changed since then? Obviously, the laws do not appear to have changed. Readers of this blog will correctly infer our opinion that the societal context in which these programs operate has changed very little. By all appearances, though, the Minnesota program itself has worked to develop an infrastructure for releasing clients into conditional-release situations in the community, even if the decisions can be controversial within the hierarchies of state government.
Obviously, any lawsuit can be problematic for those directly involved. Why would this lawsuit be good news? Here are some ideas:
- The clarity of a ruling is an opportunity to improve programming. As one prominent observer noted, it is the state’s job to ensure that the legal processes for release are in place and functioning. It’s each program’s responsibility to line clients up at the door and be ready for release as efficiently as possible. The importance of clarity in programming cannot be understated. Earlier this year, clients at the Minnesota program initiated a hunger strike with the intention of calling attention to what they felt was the absence of a clear pathway to release.
- Lawsuits present an opportunity for state legislatures to get their acts together. To be blunt, by the time states are losing federal lawsuits, they’ve probably been in the wrong for quite some time. While no politician wants to risk being on the wrong side of public perceptions involving sex crimes, a review of the decade that this case has been active illustrates the dramatic need for change at the state legislature level.
- Along these lines, the current lawsuit is an opportunity to reconsider the implementation and administration of these laws and perhaps devote more energy to preventing sexual violence in the first place. With a budget in excess of $90 million in 2020, and the fact that MSOP treats only a small fraction of those convicted for sex crimes in Minnesota, one wonders what kinds of prevention efforts might be possible were civil commitment laws to be used more responsibly.
- The lawsuit is a reminder that we can also invest more in our prison-based treatment programs. Does it make society really safer if we lock them up for years and subsequently mandate them to follow a treatment program? Can we still expect sufficient positive outcomes from such delayed treatment programs? Although some prison-based treatment programs have led to controversy, we also know that both short and long prison sentences have little to no effect on recidivism rates. Investing in preventive interventions sooner in the process might lead to more positive treatment outcomes and is also expected to be more cost-effective.
- The lawsuit further reminds us of the importance of research! Related to the other points, we should also invest more money and time into proper research programs into the mental disorders that these individuals are usually diagnosed with, which includes paraphilias and sometimes personality disorders. Taking the bulk of research on sexual violence into regard, it is striking to note that still relatively little is known about the development and manageability of abuse-related paraphilias, and how they relate to sexual violent behavior in some individuals, but not in others. These insights are however highly needed if we want to offer well-founded reasons for hope to both these individuals as well as society.
- The lawsuit reminds the community of the reality of punishment and rehabilitation. Quite often communities dismiss and collectively forget about the lives of people incarcerated in prisons unless it directly involves them or the families. The current lawsuit puts conversations about the role, structure, and function or incarceration, treatment, and risk reduction back into the community frame. It reminds people about the reality of punishment and why it should matter to them. This and other lawsuits can remind us all of the realities of indeterminate incarceration and begs questions about the most effective and efficient ways to rehabilitate people. It’s never as simple as locking them away.