The United States Supreme Court and the Civil Commitment of Sex Offenders

• Author: Rudolph Alexander
• DOI: 10.1177/0032885504268184
• Published date: 01 September 2004
• Date: 01 September 2004
• Subject Matter: Articles

10.1177/0032885504268184THE PRISON JOURNAL / September 2004Alexander / THE U.S. SUPREME COURT

THE UNITED STATES SUPREME COURT

AND THE CIVIL COMMITMENT

OF SEX OFFENDERS

RUDOLPH ALEXANDER, JR.

Ohio State University

In Minnesota ex rel. Pearson v. Probate County of Ramsey County, Kansas v.

Hendricks, Seling v. Young, and Kansas v. Crane, the U.S. Supreme Court decided

cases pertaining to civil commitment of sex offenders to mental institutions. At first,

the earliest case involved whether an offender,classified as a psychopathic personal-

ity, could be committed from the streets to a mental institution. More contemporary

cases posed the question of whether a prisoner,diagnosed as a violent sexual predator

or having an antisocial personality disorder, could be civilly committed to a mental

health facility after this prisoner had served his entire sentence and was about to be

released. For both questions, the Court answered in the affirmative.The Court’s rul-

ings that incarcerated sex offenders nearing release may be civilly committed to a

mental health facility have potentially ominous implications for both mental health

and criminal justice policy.

Keywords: violent sex offenders; civil commitment; mental disorder

Since the 1940s, the U.S. Supreme Court has considered the legality of

civil commitment of sex offenders four times, and in all four cases, the Court

has upheld the states’ use of their police powers to confine some sexoffend-

ers in mental institutions. The earliest case involved the confinement of a

man who was said to have a psychopathic personality in a mental institution

with no initial involvement by the criminal court system (Minnesota ex rel.

Pearson v. Probate Court of Ramsey County, 1940).

In the 1990s, several states passed new laws targetingsex offenders. Pas-

sionately and angrily passed by state legislatures, these laws were said tobe

needed to protect women and vulnerable children from predatory repeat sex

offenders. The focus of these new statutes was sex offenders who had served

their sentences and were about to be released from prisons. They were diag-

nosed as being violent predatory sex offenders—a new type of mental disor-

THE PRISON JOURNAL, Vol. 84 No. 3, September 2004 361-378

DOI: 10.1177/0032885504268184

© 2004 Sage Publications

361

der created by state legislatures. Hence, the legality of these new statutes

resulted in court challenges reaching the U.S. Supreme Court in 1997 and

2001. In both cases, the Court upheld the constitutionality of these statutes

(Kansas v. Hendricks, 1997; Seling v. Young, 2001). The Court also

remanded a case to the Supreme Court of Minnesota in light of its ruling in

Kansas v. Hendricks (Linehan v. Minnesota, (1997) and provided clarifica-

tion in another case (Kansas v. Crane, 2002).

In upholding these statutes, the U.S. Supreme Court slighted and mini-

mized the psychiatric community’s position that these legislatively created

diagnoses for sex offenders have no basis or support in the medical commu-

nity, and the Court partially ignored one of its precedents pertaining to a

criminal offender with an antisocial personality disorder (Foucha v. Louisi-

ana, 1992). The Court’s ruling that incarcerated sex offenders nearing

release may be civilly committed to a mental health facility has potentially

ominous implications for both mental health and criminal justice policy. This

article discusses four problems with the Court’s rulings.

Following a background discussion of mentally disordered offenders, the

number of sex offenders under correctional control, and sex offender treat-

ment, this article discusses the four principal cases in which the U.S.

Supreme Court was asked to decide the constitutionality of civil commitment

for sex offenders. The discussion then moves to criticisms of both civil com-

mitment for sex offenders and the U.S. Supreme Court rulings. Specifically,

this latter part highlights the Court’s flawed position on mental abnormality

and uncritical acceptance of states’ arguments for civil commitment.

BACKGROUND ON MENTALLY DISORDERED PRISONERS,

THE SEX OFFENDER POPULATION,

AND SEX OFFENDER TREATMENT

The description of mentally disordered has been used to refer to many

types of offenders including individuals declared incompetent to stand trial,

individuals declared not guilty but mentally ill, and mentally disorderedsex

offenders (Hartstone, Steadman, Robbins, & Monahan, 1984; Müller-

Isberner & Hodgins, 2000). In early Greek society, Aristotle unsuccessfully

implored his countrymen to excuse persons who committed acts while delu-

sional (Appelbaum, 1998). England and America went through a series of

legal tests of criminal responsibility ranging from the wild beast test and the

McNaughtan right-and-wrong test to the irresistible impulse test. Various

insanity tests tend to be altered and restricted when an unacceptable percent-

age of offenders are viewed as escaping punishment. Notwithstanding,

362 THE PRISON JOURNAL / September 2004