Is Involuntary Civil Commitment after Incarceration for Sex Offenders Constitutional?

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The constitutional issues raised by sex offender commitment laws are illustrated very clearly in the key case of Kansas v. Hendricks. In 1994 the state of Kansas enacted the Sexually Violent Predator Act, which spelled out standards and procedures for the involuntary civil commitment of persons who due to a “mental abnormality or personality disorder are likely to engage in predatory acts of sexual violence”. The very first time this act was put into effect was to commit Leroy Hendricks, a recidivist pedophile who had openly admitted that he could not control his urge to molest children when not confined. When Hendricks was about to be released from prison after serving his most recent sentence, the state of Kansas evaluated him under the state’s new Sexually Violent Predator Act.

The state determined that Hendricks did indeed suffer from a mental abnormality and posed a danger to society. Hendricks challenged the Kansas law on several constitutional grounds. He claimed that this involuntary civil commitment was simply an extension of criminal punishment and was not actually civil in nature. He also argued that the mental conditions that met the standard for commitment within this Sexually Violent Predator Act did not rise to the standard of mental illness required by the constitution. The Supreme Court ruled against these claims.

This case was decided in the U.S. Supreme Court on June 23, 1997 and the majority opinion of the court was delivered by Justice Thomas. The ruling stated that there is a small but critically dangerous group of sexually violent predators, and because of the imminent threat they pose to society, they are eligible for civil commitment after incarceration. Justice Thomas stated definitively that “the state may take measure to restrict the freedom of the dangerously mentally ill. This is a legitimate non punitive governmental objective and has been historically so regarded…it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness”. This ruling however is still widely disputed. Nineteen states and the federal government currently have statutes for the civil commitment of sexually violent predators.

Some people see it as totally unconstitutional, referring to the abuse of individual rights and the misuse of psychiatry in forwarding preventive detention. Others find it a necessary measure to protect our fellow citizens, emphasizing that the statutes target highly dangerous sex offenders. Another group of people see the necessity for intervention but have other ideas on how the process should be carried out. I have chosen three scholarly articles that demonstrate three different points of view on this historically controversial ruling.

The first article is titled Mental Illness: A Sexually Violent Predator is Punished Twice for One Crime, by Eli M. Rollman. As suggested by the title of this article Mr. Rollman’s stance is that the Kansas Sexually Violent Predator Act is unconstitutional, along with most Sexually Violent Predators laws throughout the country. He uses the Kansas Sexually Violent Predator Act, and in particular the infamous Kansas v. Hendricks case to develop and defend his stance. Rollman explains that the first place to begin in attacking this act is with the purpose of the Act being punitive in nature, not civil.

The Supreme Court held that the Sexually Violent Predator Act is civil, non-punitive law, therefore rendering the constitution’s double jeopardy and ex post facto clauses irrelevant, as they are only implicated by criminal statutes. Rollman belabors throughout his article that such civil commitment after an incarceration sentence is served, is punitive in nature. He believes that punishing perpetrators beyond the sanctions of the criminal justice system violates the Constitution’s prohibition on double jeopardy.

A person has been tried, convicted, sentenced, served their sentence, and cannot be subject to even more punishment for the same crime. Rollman also went back and viewed documentation on Hendricks civil commitment stay. He found no documentation or evidence that psychiatric treatment was provided to Hendricks, supporting the claim that the commitment was based on a punitive goal. Rollman states that the statute making Hendricks involuntary commitment legal was passed after the acts for which he was being ordered confinement. Its application to Hendricks was a clear and indisputable violation of the constitutional ban on ex post facto laws. Rollman refers to a Justice Breyer, who wrote the dissenting opinion of the court.

Breyer felt that the Sexually Violent Predator Act was punitive, that people were confined against their will in attempt to prevent harm to others while using people, procedures, and standards associated with criminal law. The Act had a provision that treatment was an important guide in determining whether the Act’s objective was punitive or nonpunitive, and Breyer’s stance was that after reviewing the Act thoroughly “ A statutory scheme that provides confinement that does not reasonably fit a practically available, medically oriented treatment objective, more likely reflects a primarily punitive purpose”. Justice Breyer’s ultimate conclusion was that Hendrick’s confinement under the Act constituted punishment, and therefore making all constitutional violations valid.

Rollman also explains in the article that the Kansas Sexually Violent Predator Act does not require a finding of mental illness as defined in the strict terms of the constitution to confine someone in a civil proceeding. The failure to do so means that the Act violates due process requirements. Rollman states that despite the civil label attached to the Kansas statute, Hendricks confinement is punishment for a criminal act, and therefore also violates Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution. Rollman argues that the people whom the Act applies do not suffer from mental illness, and therefore cannot be held under the general civil commitment statute. Rollman states that the Constitution does not allow for imprisonment based on prediction of future criminal conduct, and that a prediction of dangerousness is not enough to allow the State to impose civil confinement.

Eli Rollman firmly believes that the Supreme Court made a serious mistake by allowing the civil commitment of Leroy Hendricks under the Kansas Sexually Violent Predator Act. He believes that the Court should have held that the Act does not satisfy the standard of finding a diagnosable mental illness necessary for civil commitment and should have struck down the Act as violation of due process. He claims that it is abundantly clear that the intent of Kansas in implementing the Act is to punish the perpetrators of sex crimes beyond what the sanctions in the state criminal justice system are. Rollman feels strongly that this type of involuntary commitment is downright unconstitutional and needs to be legally revoked.

The second article is titled Normative versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry, by Shoba Sreenivasan PHD, Allen Frances MD, and Linda Weinberger PHD. The overall opinion of this article is favorable to the Supreme Court ruling to involuntarily civilly commit sex offenders after incarceration, if they meet certain criteria for a public safety threat. In this article the authors state that they are in favor of sexually violent predator laws if these laws are utilized carefully and the screening process for approving the civil commitment of these criminals is done so on a very strict case by case basis. These authors did not take stripping away someone’s freedom and contradicting certain constitutional rights lightly. They understood the primary purpose of these laws to be a mechanism to identify and commit a small group of extremely dangerous incarcerated sexual offenders to involuntary indefinite psychiatric hospitalization, expressing that this group represent a critical threat to public safety if released from custody.

As doctors of psychiatry they make clear that there are certain psychological disorders that make people a very dangerous threat to others, and in these few and far between cases the best thing to do is to confine the person. In this article two approaches to ethics-based dilemmas are mapped out. There is the normative approach, which assumes that there is a universal and intuitively correct answer to a given question. Then, there is the consequential approach, this approach is less universal. However, it becomes necessary when normative values conflict and lead to opposing conclusions. For example, in this particlular issue of Sexually Violent Predators Laws, there is no universally right way to balance the important normative ethic of protecting individual rights with the equally important normative ethic of protecting public safety.

After proving their case for why consequential ethics is the right approach for the issue posed by Sexually Violent Predator laws, they explain that consequential decision-making uses the reasoning necessary for this question, what offers the greatest good for the greatest number? The authors’ break down starts with the simple fact that the Supreme Court has affirmed the constitutionality of these statutes in three separate rulings. Also, these Sexually Violent Predator laws only target a small group of highly dangerous offenders found to have mental disorders that render them an unacceptable risk to public safety. Legislature has a task of protecting society and finding ways to address legal deficiencies that put the public at risk.

The authors then explain what has caused the need for civil commitment after incarceration, that a gap has been formed as a result of the civil rights movement’s success in promoting a switch from indeterminate sentencing to fixed sentencing. This switch caused the unintended consequence of early release of some truly dangerous individuals with long histories of recidivism. This led to several horrific and widely publicized sex crimes committed by recently released beneficiaries of the short, fixed sentences. The authors explain the other side of the debate, that those opposed to sexually violent predator laws have three powerful objections, most often being that the statutes violate individual civil rights to due process and represent a form of preventative detention and double jeopardy.

Some psychologists and psychiatrists on that side of the argument say that this could create a slippery slope leading to incarceration without proper legal grounds of people with undesirable and difficult mental disorders. There is a fear that an abuse of psychiatry will take place with the aim of correcting a social problem caused by the short sentences handed down by the legal system. The authors present where this opposing view stands, however eventually conclude that Sexually Violent Predator laws can be effective and are necessary, but in order to do more good than harm, there needs be a flexible and carefully considered evaluation for each individual case where consequential ethics is used correctly to determine what does the greatest good for the greatest number.

The third article is titled Uncontrollable Urges and Irrational People, by Stephen J. Morse. Morse’s over all opinion throughout the article is that he does not totally agree with involuntary civil commitment after incarceration or the current criteria used to determine whether a person is civilly committed. He believes it is only justified in a small number of cases and that we have to be extremely careful when deciding whether it is necessary and justified since someone’s individual rights are at stake. He argues that the Fourteenth Amendment’s Due Process clause requires that a state prove that a sexually violent predator cannot control his criminal sex behavior definitively before the State should be able to civilly commit an individual for residential care and treatment.

Morse believes in order for civil commitment after incarceration to be justified and constitutional we must follow stringent protocol and distinguish accordingly using a strict rationality standard as criteria, eliminating some of the other criteria used today. Morse describes a model for determining the need for commitment that he believes is better for the process of protecting rights and determining with the least amount of question that someone is dangerous enough to be indefinitely civilly confined. His conclusion is that indefinite involuntary civil commitment should only be imposed if a person is genuinely non-responsible.

Morse states that this means a severe defect in the capacity for rationality should be required, and a conclusion of substantial non-responsibility, if a person is not responsible for the dangerous behaviors that creates the need for confinement. He believes that then and only then is involuntary civil commitment just. This non-responsibility, a deficient capacity for rationality, and an inability to control dangerous conduct, in his opinion provides a proper limitation on the scope of involuntary civil commitment and the most understandable, practical guide to mental health professionals and legal decision makers. Morse makes clear this rationality standard provides the best safeguard of both civil liberty and the distinction between civil and criminal justice. He argues that civil commitment should not be used to impose punishment or to avoid the effects of deficiencies in the criminal justice system.

Morse believes that using this irrationality standard provides a “morally, politically, and legally justifiable limiting condition for the massive deprivation of liberty”. He makes a claim that some of the problem lies with decision makers and experts not fully understanding terms in some of these Sexually Violent Predator Law Acts act like “mental disorder”, and not understanding what the primary goal of this type commitment is. He believes better defining the parameters for evaluation, commitment, and treatment during commitment, would allow these legal decision makers and experts to better understand the issues and their tasks, and that this could be done by strictly using the lack of the capacity for rationality as the standard in sexual predator commitment cases. Morse says that at least some potentially sexually violent people may in fact lack substantial capacity for rationality when confronted with persistent, intense sexual desires. If so, they are not responsible for their sexual conduct and they may justifiably be involuntarily civilly committed if future violence can be predicted with sufficient accuracy. His main point throughout the article is that the distinction between crime and disorder, and the consequent distinction between civil and criminal confinement need to clear cut.

All three of these articles agreed on one point, that the current system for determining whether a perpetrator meets criteria for involuntary civil commitment is flawed and problematic. The three authors, no matter what their ultimate stance was, all mentioned the standard and wording of these statutes as not being specific enough and not well mapped out, defined, or monitored. Author one does a good job pointing out specific constitutional violations for the perpetrators’ rights. Rollman also understands that his arguments hold no water if he cannot first establish that the purpose of the Act is punitive in nature. He does a good job defending this key point however, he does not adequately address the issue of public safety that comes into play with releasing these sexually violent criminals with high rates of recidivism back into society after their incarceration sentence is served.

Afterall, Hendricks himself had a record of child molestation and sexual abuse charges decades long. This needs to be at least weighed and considered in his arguments, otherwise it is hard to give much consideration to any of his claims. This issue of a threat to citizens and in particular children cannot be ignored. The second article does a great job presenting both the argument in favor and against the current Sexually Violent Predators Laws. By doing this, it made their argument for the use of these laws in certain cases seem strong and reasonable.

The authors address the gap in the criminal justice system that brought on the existence of the Sexually Violent Predator Laws, and the threat that is posed to society by their release, giving reason for why they are necessary, while also making clear that it is no small decision to take away someone’s individual rights to such a degree as involuntary civil commitment. All of this gives support to their argument that the process of approving this option needs to be very thorough and that they themselves have painstakingly thought through their stance on the matter. The third article I believe was the weakest. The author Stephen Morse did a good amount of flipflopping, but overall he constructed the opinion that involuntary civil commitment is justified if and only if certain criteria is unquestionably met, providing his own stance on what that criteria should be changed to, as he was not in favor of what is currently in place.

Morse fell short with a lot of circular reasoning being used, repetition, and at times almost like an aimless stream of conscious on the page. His style of writing and overall argument was not as well constructed or as convincing as the other two. In my opinion the second article presents the strongest argument and had me convinced that their stance on the matter was correct, and that the way they got to their position was logical and strong. In conclusion, the article titled Normative versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry, is the strongest and most informed of the three articles I selected for the topic.


  1. Rollman, Eli M. (1998). Mental Illness: A Sexually Violent Predator is Punished Twice for One Crime. Journal of Criminal Law and Criminology, pages 985-1014.
  2. Sreenivasan, Shoba PHD. Frances, Allen MD. Weinberger, Linda E PHD. (2010) Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry. The Journal of the American Academy of Psychiatry and the Law, pages 386-391.
  3. Morse, Stephen J. Public Law and Legal Theory Research Paper Series, pages 1-51.
  4. FindLaw’s United States Supreme Court case and opinions. (n.d.). Retrieved October 19, 2019, from https://caselaw.findlaw.com/us-supreme-court/521/346.html .

Cite this paper

Is Involuntary Civil Commitment after Incarceration for Sex Offenders Constitutional?. (2021, Oct 08). Retrieved from https://samploon.com/is-involuntary-civil-commitment-after-incarceration-for-sex-offenders-constitutional/

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