Why Nebraska Needs Civil Commitment Proceedings for Sex Offenders

• Publication year: 2022

33 Creighton L. Rev. 721. WHY NEBRASKA NEEDS CIVIL COMMITMENT PROCEEDINGS FOR SEX OFFENDERS

Creighton Law Review

Vol. 33

DON STENBERG(fn*)

INTRODUCTION

David Burdette had a well-established career as a serial rapist in 1982 when he decided to begin raping the women who had been featured in a magazine article describing Omaha's ten most "eligible women." He was sentenced to twenty-two to thirty years in prison for those rapes on December 1, 1982, and was released on April 30, 1998. Burdette resumed his career by searching the obituary columns for young women recently widowed. Among his 1998 victims was a young Omaha widow with two daughters, ages seven and eight. Burdette tied one child to each of the woman's arms, and forced them to watch the rape.(fn1)

In many states, a sexual predator with Burdette's criminal history and psychological profile would have been subject to civil commitment in a psychiatric institution upon his release from prison in 1998.(fn2) While many states have enacted stricter laws to provide for civil commitment of dangerous sexual predators, Nebraska's Legislature has made it increasingly more difficult to keep repeat sex offenders confined beyond the end of their criminal sentences.

This article provides a brief history of Nebraska's statutes governing the civil commitment of sex offenders; describes the deficiencies in Nebraska's current statutory scheme; and proposes changes in Nebraska law to protect the public from repeat sexual predators such as Burdette.

A BRIEF STATUTORY HISTORY

From 1949 to 1979, Nebraska had a sexual sociopath law, which provided for the indefinite civil commitment of sex offenders who were "determined to be disposed to the repeated commission of sexual offenses likely to cause substantial injury to the health of others."(fn3) The law provided for the indefinite confinement of the defendant at a regional center (if found to be treatable) or in a prison - if found not to be treatable.(fn4) The defendant was not eligible for release from custody until a psychiatric evaluation was completed by regional center staff and one licensed psychiatrist in general practice, with the county attorney or deputy present at the evaluation and at the presentation of the evaluation to the district court.(fn5) If the psychiatrists concluded that the defendant was no longer a sexual sociopath, the court could sentence the defendant on the original sex offense, release the defendant on probation, or schedule a new hearing before a jury to allow the jury to decide whether the defendant was still a sexual sociopath.(fn6)

In 1979, Nebraska repealed its sexual sociopath law and enacted the Mentally Disordered Sex Offender Act(fn7) ("MDSO"). Under MDSO, the sentencing court was required to appoint a panel of two physicians - or a physician and clinical psychologist with training in treatment of mental disorders - to evaluate defendants convicted of felony sex offenses.(fn8) If the panel found that: (1) the defendant to be an individual covered under MDSO, i.e., a person with a mental disorder causing a disposition to commit repeated sexual offenses, which are likely to result in substantial injury to the health of others; (2) the disorder was treatable; and (3) the treatment was available in the state, then the defendant would be placed in a regional center.(fn9) The defendant was to remain in a regional center until "no longer mentally disordered," or until "the maximum benefit of treatment," or until "the maximum length of such offender's [criminal] sentence."(fn10) If a Sentencing Review Committee, appointed by the Governor, determined that the defendant no longer suffered from a mental...