Civil Commitment of Sexually Dangerous Persons
Released: 2007-07-02T00:00:00

Introduction1

In 1990, the state of Washington passed a law that allows for the civil commitment of sex offenders. Civil commitment, as it relates to sex offenders, is when a state retains custody of an individual, found by a judge or jury to be a "sexually dangerous person," by involuntarily committing the person to a secure mental health facility after the offender's prison sentence is done. The state of Washington law requires the state to prove that such offenders suffer from a mental abnormality or personality disorder that would make them likely to engage in predatory acts of sexual violence unless they are confined. The law allows for civil commitment after an offender completes a prison sentence for his or her crime(s). Since 1990, 19 states have passed similar legislation, and in 2006, Congress passed legislation ( P.L. 109-248 ) that allows the Attorney General to civilly commit federal inmates who are found to be sexually dangerous persons.

Every state has "civil commitment" laws that allow for the involuntarily hospitalization of people with serious mental illness. Generally speaking, people can be civilly committed when they are a danger to others. When a person's symptoms begin to remit, the individual is discharged and typically referred to aftercare services. Hospital stays for individuals under a civil commitment order for mental illness rarely exceed 30 days. However, in this report, "civil commitment" refers to civil commitment laws targeted at the hospitalization or commitment to a secure institution of "sexually violent persons" after they are released from prison.

With respect to sex offenders, civil commitment laws allow states, and now the federal government, to civilly commit sexually dangerous persons. For the most part, discussions about sexually dangerous persons treat sex offenders as a homogenous group, sometimes making a distinction between "rapists" and "child molesters." However, sex offenders are a heterogeneous group of offenders; under many state statutes, sex offenses range from rape to child molestation to exhibitionism.

An issue for Congress is whether civil commitment is a sustainable policy for dealing with sexually dangerous persons, or whether there is a different way to manage this population effectively. The issue of civil commitment raises a series of concomitant questions: How much do civil commitment programs cost? How dangerous are sex offenders? Is sex offender treatment effective? Can sexually dangerous persons be defined and identified? Are there less restrictive alternatives for managing sex offenders?

This report begins with an outline of the history of civil commitment laws, followed by a review of two cases, Kansas v. Hendricks and Kansas v. Crane , in which the Supreme Court addressed constitutional issues involving civil commitment. This review is followed by a summary of the recently enacted legislation governing the federal civil commitment program. The report then discusses research on sex offender recidivism and treatment. It concludes with an evaluation of some of the issues surrounding civil commitment.

Background on Civil Commitment

This section describes the history of civil commitment laws in the United States, two Supreme Court rulings on the constitutionality of civil commitment programs, and a description of the federal civil commitment program.

History of Civil Commitment Laws

With respect to sexually dangerous persons, current civil commitment laws are a reincarnation of what are generally referred to as "sexual psychopath" laws. Beginning in the 1930s, states started to enact sexual psychopath laws, which grew out of the rehabilitative ideal that characterized the American criminal justice system at the time. By the mid-1960s, more than half of the states in the country had enacted some form of sexual psychopath laws. Sexual psychopath laws reflected the growing belief that sexual psychopaths could be identified and treated. The influence of psychiatry on sexual psychopath laws can be seen in the four presumptions on which the laws were based: (1) sexual psychopaths are distinguishable from generic sex offenders, (2) individuals commit sex offenses because of mental disease, (3) mental diseases are treatable and curable, and (4) mental health professional can successfully predict who will commit sex crimes in the future. Sexual psychopath laws were designed to offer alternatives to prison for sex offenders and to prevent further harm to other members of society by incapacitating the offender. After a court found an offender to be a sexual psychopath, the offender was sent to a mental health facility for control and treatment in lieu of imprisonment and punishment. Sexual psychopath laws targeted offenders who were not seriously mentally ill (thus, not making them candidates for traditional civil commitment) but who were believed to have a "psychopathic personality" that caused their criminal behavior.

Starting in the 1970s, many of the sexual psychopath laws were repealed, modified, or abandoned. Many states eventually abolished sexual psychopath laws because of criticism from the Group for the Advancement of Psychiatry (GAP) and the American Bar Association's (ABA's) Criminal Justice Mental Health Standards. Such criticism contended that labeling offenders as sexual psychopaths lacked scientific merit, the treatment of sex offenders was ineffective, and the prediction of future offending was suspect. In 1977, GAP stated that

First and foremost, sexual psychopath and sexual offender statutes can best be described as approaches that have failed. The discrepancy between the promises in sex statutes and performances have rarely been resolved.... The notion is naive and confusing that a hybrid amalgam of law and psychiatry can validly label a person a "sex psychopath" or "sex offender" and then treat him in a manner consistent with a guarantee of community safety. The mere assumption that such a heterogeneous legal classification could define treatability and make people amenable to treatment is not fallacious; it is startling.

There was growing intolerance for the idea of treating sex offenders after a series of treated and released sex offenders committed additional sex crimes. Beginning in the 1970s, states started to adopt a more traditional criminal justice model for managing dangerous sex offenders, such as incarcerating sex offenders instead of placing them under the supervision of mental health institutions.

Starting in the 1990s, some states passed legislation reminiscent of the old sexual psychopath laws. In 1990, Washington became the first state to pass a new sexual predator civil commitment law. Other states passed similar legislation since that time. As of June 2007, 19 states have sexual predator civil commitment laws. Each state had its own impetus for passing its civil commitment law, but generally speaking, the reasons for enacting such laws are similar. In many states, the laws were passed in response to a particularly heinous sex crime. The change in the 1970s and 1980s in most states from an indeterminate to a determinate sentencing structure allowed some sex offenders to be released from prison after a relatively short period of incarceration. There was also a growing change in societal attitudes and behavior towards violence against women. In addition, general civil commitment laws were considered inadequate to confine sex offenders who were considered dangerous. General civil commitment laws required proof of serious mental disorder (such as schizophrenia) and recent behavior indicating that the individual was dangerous. Many states could not commit sex offenders under general civil commitment laws because the state could not demonstrate that such offenders (1) had a medically recognized mental disorder and (2) had engaged in recent behavior that proved that they were dangerous (the population in question was usually incarcerated, which limited offenders from engaging in sexually dangerous behavior).

Generally, civil commitment laws that target sexually dangerous persons have a similar structure. They require (1) proof of a past course of sexually harmful conduct, (2) a current mental disorder or "abnormality," (3) a finding of risk of future sexually harmful conduct and, (4) some connection between the mental abnormality and the danger. Although similarities exist between the old sexual psychopath laws and civil commitment laws, they vary in some key aspects. Rather than providing an alternative to imprisonment, civil commitment laws require sex offenders to be committed after they complete their terms of incarceration. Also, civil commitment laws do not require an allegation or proof of recent criminal, dangerous, or inappropriate behavior or deteriorating mental state before the state can seek commitment.

Civil commitment laws have been both politically and legally contentious because they allow sex offenders to be confined after their criminal sentence is completed. Moreover, some members of the psychiatric community have challenged the validity of the legislatively created definition of "mental abnormality." For example, the Washington State Psychiatric Association (WSPA) testified before the Washington State Legislature when it was considering civil commitment legislation. One psychiatrist who testified on behalf of the WSPA noted that a psychiatrist's definition of "mental disorder" includes the loss of contact with reality, confusion, loss of reason, and hallucinations. Some sex offenders, however, do not demonstrate any of these behaviors. According to the WSPA, the issue is not "mental disorders," but rather "abnormal behavior." Persons who have committed more than one sex offense are assumed to be depraved or sick, or to have some type of mental abnormality or personality disorder that makes them likely to re-offend.

Several offenders have attempted to challenge their civil commitment in court. Civilly committed offenders argue that civil commitment laws are unconstitutional because they allow offenders to be committed after they have completed their sentences, even if they do not suffer from a medically recognized mental disorder. Two legal challenges to civil commitment laws have made it to the United States Supreme Court, Kansas v. Hendricks and Kansas v. Crane .

Supreme Court Rulings on Civil Commitment

Kansas v. Hendricks31

In Kansas v. Hendricks , the Supreme Court considered constitutional challenges to the Kansas Sexually Violent Predator Act, which was enacted to address the issue of repeat sexual offenders. Although Kansas law already contained a provision for the confinement of the "mentally ill," the Kansas legislature found that this statute was inadequate in its application to sex offenders. According to the Act's preamble:

[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute].... In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure ... is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the [general involuntary civil commitment statute].

As traditional methods of civil confinement were found to be inappropriate, Kansas created a civil commitment procedure specifically for sexual predators. Under this Act, "sexually violent predators" were defined as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." This definition was intended to be applied regardless of whether a person had been previously convicted of a sexual offense.

In Hendricks , the state sought to commit a defendant who had been convicted of taking "indecent liberties" with two 13-year-old boys, and who had served nearly 10 years in prison for that crime. Shortly before his scheduled release, Kansas filed a petition seeking to confine the defendant as a sexually violent predator. After a trial that considered the defendant's long history of pedophilia, the defendant was civilly committed.

The Court first considered whether the Act violated the defendant's substantive due process rights to freedom from physical restraint. In general, states may civilly commit people who are unable to control their behavior and who thereby pose a danger to the public's health and safety. Thus, the question in the Hendricks case was whether the Act met that standard.

The Court noted that the statute required more than proof of predisposition to violence, in that it also required evidence of past sexually violent behavior and a present mental condition that created a likelihood of such conduct in the future. Because the Act specifically required a finding of dangerousness either to oneself or to others before a person is civilly committed, it was found to be consistent with the requirements of due process.

The Court also considered two other arguments. First, it considered whether the application of the Act was intended to punish Hendricks for behavior that he had engaged in before passage of the law, as this would run afoul of the prohibition on the passage of ex post facto laws. Second, the Court considered whether the Act was being used to punish Hendricks for behavior that he had previously been convicted and punished for, in violation of the prohibitions on double jeopardy. The Court noted that the resolution of both ex post facto and double jeopardy challenges turns on whether the challenged statute is found to be punitive or regulatory in nature.

The Supreme Court has long held that the Ex Post Facto Clause limits Congress from passing criminal or penal laws that have a retrospective effect. However, when the statute in question is not clearly criminal in nature, a question may arise as to whether the challenged law is actually imposing a penalty for past conduct. For instance, when convicted sex offenders were subject to the retroactive application of an Alaskan statute requiring convicted sex offenders to register (with much of the resulting information being made public), the statute was upheld as a nonpunitive regulatory scheme.

Determining what is punitive is a multistep process, sometimes referred to as the "intent/effects" test. First, a court must ascertain whether the legislature meant the statute to establish "civil" or "criminal" proceedings. To do so, a court will examine a statute's text and structure to determine the legislative objective. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, a court must then determine whether the statutory scheme is "so punitive either in purpose or effect as to negate [the government's] intention to deem it civil." Only the "clearest proof" will allow a court to override legislative intent and find that a civil remedy is in fact punitive.

In Hendricks , the Court found that Kansas intended for the Act to be civil in nature, describing it as "civil commitment procedure" and placing it within the Kansas probate code, instead of the criminal code. Second, the Court held the Act did not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. The Court found that prior criminal conduct was considered under the Act, not as a means to punish for prior conduct but as evidence for the regulatory purpose of determining dangerousness. Further, the Court noted that offenders could be committed even if they had been acquitted for prior criminal conduct. Finally, the Court noted that, unlike traditional punishment, the confinement is indefinite in scope and is reviewed on an annual basis.

Similarly, the Court found that for purposes of double jeopardy, the application of the Act had none of the attributes of punishment. Because the Act is civil in nature, instituting commitment proceedings after a criminal case for the same crime has been concluded does not constitute a second prosecution. Consequently, the Court concluded that neither the ex post facto clause or double jeopardy was implicated by the application of the Act.

Kansas v. Crane47

The Kansas Act was again in question in Kansas v. Crane , in which the Court refined its holding in Hendricks . In Crane , the defendant in question was a previously convicted sexual offender who apparently suffered from both exhibitionism and antisocial personality disorder. In Crane , the Court considered the issue of whether a civil commitment statute, beyond showing the likelihood of dangerousness, must also show that a defendant cannot control his or her dangerous behavior. While rejecting the argument that the individual be completely unable to control their behavior, the Court did reaffirm language from the Hendricks case, noting that the Kansas Act required that it be "difficult, if not impossible" for the dangerous person to control his dangerous behavior. While recognizing the difficulty of setting a precise standard for the degree of volition required, the Court did indicate that a state would have to show that a defendant had "serious difficulty" in controlling his or her impulses.

Civil Commitment Legislation in the 109th Congress

Title III of The Adam Walsh Child Protection and Safety Act of 2006 ( P.L. 109-248 ) established a federal civil commitment program. The program allows the Attorney General (AG), or any individual authorized by the AG, or the Director of the Bureau of Prisons (BOP) to certify as sexually dangerous a person who is in BOP's custody, under the custody of the AG under current law, or whose criminal charges have been dismissed solely for reasons relating to the mental condition of the person. If an individual is deemed sexually dangerous, a court in the district where the individual is being held conducts a hearing to determine whether the individual is indeed a sexually dangerous person. Under the law, the court may order a psychological or psychiatric examination before the proceedings begin, and those findings are filed with the court. The individual cannot be released until the proceedings conclude. If the court finds by clear and convincing evidence that the person is a sexually dangerous person, the individual is committed to the custody of the AG.

After the individual is committed to the custody of the AG, the AG releases the individual to the appropriate official of the state in which the person was confined or tried, if the state will assume responsibility for the offender's custody, care, and treatment. If the state will not assume responsibility for the offender, the AG places the offender in a suitable treatment facility until either the state assumes responsibility for the offender or the offender is no longer considered a sexually dangerous person and would not be a threat to others if released under a prescribed regimen of medical, psychiatric, or psychological care, whichever is earlier.

After the individual is committed to custody, the director of the facility in which the offender is placed may petition the court to release the individual if the director determines that the offender is no longer a sexually dangerous person and would not be a threat to others. The court may order the discharge of the individual or, on the motion of the government's attorney, hold a hearing to determine whether the individual should be released. If the court finds by a preponderance of evidence that the individual's condition is such that he or she would not be sexually dangerous to others if released unconditionally, the court orders the person discharged. If he or she is found not to be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care, the court orders the individual conditionally discharged under a prescribed regimen that has been certified to the court as appropriate. The director of the facility is responsible for notifying the AG and the court of any failure to comply with the regimen. If the court receives notice that the individual is not complying with the treatment regime, or upon other probable cause to believe that the discharged individual is not complying with the regimen, the individual is arrested and brought before the court. The court then determines whether the individual should be remanded to a suitable facility on the grounds that he or she is a sexually dangerous person and is not complying with the imposed regimen.

The law also states that if the director of a facility in which an individual is hospitalized or placed certifies to the AG that the individual, against whom all charges have been dismissed for reasons not related to the mental condition of the person, is a sexually dangerous person, the AG will release the person to the appropriate official of the state in which the person is confined or was tried for the purpose of instituting state proceedings for civil commitment. If the state will not assume responsibility for the individual, the AG releases the person, but not later than 10 days after certification by the director of the facility.

Title III of the Adam Walsh Child Protection and Safety Act of 2006 also created a grant program that allows the AG to award grants to jurisdictions for the purpose of establishing, enhancing, or operating civil commitment programs for sexually dangerous persons. The civil commitment programs must be consistent with guidelines issued by the AG. The law also requires states to notify the state official responsible for conducting civil commitment proceedings upon the impending release of an inmate that (1) has been convicted of a sexually violent offense or (2) has been deemed by the state to be a high risk for recommitting a sexual offense against a minor.

Sex Offender Recidivism

The common perception of sex offenders is that they are more dangerous than other criminals. For some, it is not a matter of if sex offenders will re-offend, but when they will re-offend. The civil commitment of sex offenders hinges on the belief that sex offenders are more likely to recidivate. This section evaluates the threat that sex offenders pose to the public by reviewing four studies of sex offender recidivism.

Limitations of Studies on Sex Offender Recidivism

Although an increasing number of studies have attempted to capture the recidivism rate of sex offenders, each study suffers from inherent limitations. First, sexual offenses are usually underreported, which means that many of the traditional measures of recidivism, such as rearrest or reconviction, underestimate the true amount of recidivism amongst sex offenders. Moreover, debate exists about what type of outcome measure should be used to measure recidivism. The broader the outcome measure (e.g., rearrest compared with reconviction), the greater the reported recidivism rate. Second, many studies tend to report recidivism rates for sex offenders as a whole, rather than for more homogenous groups of sex offenders (e.g., rapists, intrafamiliar child molesters, extrafamiliar child molesters, and exhibitionists), which can affect the rate because evidence shows that different groups of sex offenders have different recidivism rates. For example, if a study measured the recidivism rate for a group of released sex offenders composed primarily of convicted rapists, it might have a higher recidivism rate than a group of released sex offenders composed primarily of intrafamiliar child molesters. Third, many studies include only incarcerated sex offenders, not sex offenders who are placed on probation, which means the sample might not reflect the true population of sex offenders. Finally, the length of the follow-up period can affect the reported recidivism rate. The longer the follow-up period, the greater the recidivism rate. Although a five year follow-up period is common for many studies of sex offender recidivism, research has shown that some sex offenders may commit new crimes 10, 15, or 20 years after being released from incarceration or community supervision.

Sex Offender Recidivism Data

This section reviews two studies from the Bureau of Justice Statistics (BJS). One study reported the recidivism rate of sex offenders released from prison in 1994; the other study reported the recidivism rate of all types of offenders released from prison in 1994. The recidivism rates for sex offenders and violent offenders are compared to evaluate whether sex offenders are at a higher risk to recidivate than other violent offenders. To evaluate whether the sex offender recidivism rates reported by BJS are consistent with other research, this section also reviews two additional studies that reported the recidivism rates for other groups of sex offenders. Later in the report, recidivism data from the BJS studies are analyzed to evaluate whether sex offenders specialize in sex crimes, or whether they commit sex crimes as a part of a general pattern of violent behavior.

BJS collected data on 272,111 prisoners released in 15 states in 1994. In 2003, BJS released a report that presented recidivism data for 9,691 male sex offenders who were a part of the 272,111 released prisoners. The 9,691 released men represent two-thirds of all male sex offenders released from prison in 1994. BJS collected data on the released sex offenders for three years and reported the following:

5.3% of all released sex offenders were rearrested for a new sex crime within three years of being released, and 3.5% of all released sex offenders were reconvicted for a new sex crime within three years of being released; 5.0% of released rapists were rearrested within three years for a new sex crime, and 3.2% of released rapists were reconvicted within three years for a new sex crime; 5.5% of sexual assaulters were rearrested for a new sex crime within three years, and 3.7% of sexual assaulters were reconvicted for a new sex crime within three years; 5.1% of child molesters were rearrested for a new sex crime within three years, and 3.5% of child molesters were reconvicted for a new sex crime within three years; 5.0% of statutory rapists were rearrested for a new sex crime within three years, and 3.6% of statutory rapists were reconvicted for a new sex crime within three years.

BJS also reported that released sex offenders were four times more likely than non-sex offenders to be rearrested for a sex crime. BJS found that 5.3% of released sex offenders were rearrested for a sex crime within three years of being released (517 of the 9,961 released sex offenders were rearrested for a sex crime). In comparison, BJS found that 1.3% of the released non-sex offenders were rearrested for a sex crime within three years of being released (3,328 of the 262,420 released non-sex offenders were rearrested for a sex crime).

A 2002 BJS report discussed data from all the 272,111 offenders released in 1994. Like the 2003 report on released sex offenders, data were collected for three years after the prisoners were released. Table 1 presents data from the 2002 BJS report showing the number of released violent offenders that were rearrested, reconvicted, and returned to prison. Data show that released rapists and other sexual assaulters were less likely than other released violent offenders, other than released murders, to be rearrested and reconvicted within three years of being released. This data suggest that rapists and other sexual assaulters, in terms of recidivism for any type of crime, may not be a greater threat to recidivate than other released violent offenders.

Two studies found recidivism rates for sex offenders that were higher than the rates reported in the BJS report. A 1998 study combined the data from 61 sex offender recidivism studies. The 61 studies include data from 28,972 sex offenders. Recidivism was defined as either rearrest or reconviction. The average follow-up period was four to five years. The study found that, on average, sex offenders had a 13.4% recidivism rate for sex crimes, rapists had a 18.9% recidivism rate, and child molesters had a 12.7 recidivism rate. When recidivism was defined as any re-offense, the recidivism rate increased to 36.3% for all sex offenders, 36.9% for child molesters, and 46.2% for rapists. The study also found that non-sexual violent offense recidivism rate for sex offenders was 12.2%, 9.9% for child molesters, and 22.1% for rapists. The averages should be considered cautiously because the studies included in the meta-analysis used diverse methods and follow-up periods.

A 2003 study calculated recidivism rates for sex offenders up to 20 years after they were released from prison. The analysis included data from 10 individual samples of sex offenders. The 10 studies included data from 4,724 sex offenders. In five of the samples, recidivism was defined as a new charge for a sex crime; in the other five samples, recidivism was defined as a new conviction for a sex crime. The average follow-up period was seven years, with approximately 16% of sex offenders being followed for more than 15 years. The study estimated that the five-year recidivism rate for sex offenders was 14% (95% Confidence Interval [CI] of 13%-15%); the 10-year recidivism rate was 20% (95% CI of 19%-21%); the 15-year recidivism rate was 24% (95% CI of 22%-26%); and the 20-year recidivism rate was 27% (95% CI of 24%-30%).

As previously mentioned, there are several factors that may account for why the three studies discussed above found different recidivism rates for sex offenders. First, the studies had different follow-up periods. Second, the samples in the studies were composed of different types of sex offenders (i.e., rapists, child molesters, sexual assaulters, and statutory rapists), which could have affected the recidivism rate. Third, the sex offender samples in the two non-BJS studies were from multiple countries, and the studies were conducted in different years.

The data on sex offender recidivism are varied and, as discussed above, studies have inherent limitations. However, the data indicate that sex offenders, when compared with other violent offenders, may not be the high-risk offenders that they are perceived to be. Some argue that any risk of recidivism, given the impact sex crimes have on their victims, is too great for the community. Others argue, however, that given the fact that sex offenders pose a similar risk to the community as other violent offenders, the need for special measures to monitor and control sex offenders, such as civil commitment, are unwarranted.

Any discussion about recidivism almost inevitably includes a discussion about ways to decrease recidivism. Sex offender treatment is viewed as one way to decrease sex offender recidivism. As discussed above, civil commitment is meant to provide treatment to sexually dangerous persons. Civilly committed offenders are confined until treatment renders them no longer dangerous to others. The literature on sex offender treatment is reviewed in the next section.

Sex Offender Treatment

One of the key tenets of civil commitment is the belief that sex offenders can be treated; for if they cannot, it is likely that there will be a burgeoning population of civilly committed sex offenders that will never be released. However, questions linger about the efficacy of sex offender treatment. Recent research provides evidence that sex offender treatments might reduce recidivism, but the degree to which the treatments are effective is uncertain.

Can Sex Offenders Be Treated?

A 1989 study that analyzed the breadth of treatment literature and recidivism among sex offenders found that recidivism rates for treated offenders ranged from 0% to 40%. The researchers noted that the results of the studies varied, including some that found that treated offenders had higher recidivism rates than untreated offenders. The researchers concluded that there was no compelling evidence that sex offender treatment reduced recidivism. However, they also could not conclude that sex offender treatment was a failure. They noted that a variety of methodological shortcomings were present in most every study they reviewed, which made the results from any single study hard to interpret. The methodological shortcomings in most studies prevented the researchers from using meta-analytic techniques, which would have allowed them to draw more definitive conclusions about the effectiveness of sex offender treatment. The researchers also noted that sex offender treatment has continued to evolve, and many of the treatment programs evaluated in the studies would now be considered obsolete.

A 1996 Government Accountability Office (GAO) report on the effectiveness of sex offender treatment found that the research was inconclusive. The research included in the GAO's analysis was generally more recent than the research included in the analysis discussed above. The GAO included 22 studies in its analysis, which were published between 1977 and 1996. Ten studies were published after 1990, and one was unpublished at the time of the analysis. The GAO reported that some of the research indicated that cognitive-behavioral treatment was promising, but methodological limitations in the studies prevented it from drawing any firm conclusions about effectiveness. The GAO reported that conclusions about the effectiveness of sex offender treatment were limited by three general weaknesses in the research: (1) limitations in the methodological designs of the study, which included a lack of a comparison group and inconsistent and inadequate follow-up periods; (2) limitations in the recidivism measures used; and (3) limitations in how the studies were reported.

A relatively recent study conducted in 2002 found that the sex offense recidivism rate for treated offenders (12.3%) was lower than that of untreated offenders (16.8%). The study reviewed the effectiveness of any type of psychological treatment for sex offenders. Other research has evaluated the effectiveness of two specific forms of sex offender treatment: antiandrogen (hormonal) treatment and cognitive-behavioral treatment.

Antiandrogens reduce the level of a sex offender's circulating testosterone. Studies have shown that decreased testosterone levels have resulted in reductions in self-reported deviant sexual fantasies and paraphilic symptoms in sex offenders. Research suggests that antiandrogen treatment may reduce sex offender recidivism in many cases. Antiandrogens do have side effects, which might explain the high drop-out rate for offenders who use them. Antiandrogen treatment requires a high level of medical supervision, which can be costly. Also, doctors do not know what the long-term effects of the treatment are.

Another meta-analysis study found that, overall, cognitive-behavioral treatment appears to be a promising way to reduce recidivism in sex offenders. Research also shows that cognitive-behavioral treatment combined with other treatments, such as relapse prevention, group therapy, or social skills training, can help prevent recidivism. Cognitive-behavioral treatments are some of the most common forms of therapy for sex offenders. Cognitive-behavioral treatments seek to change a sex offender's belief system, eliminate inappropriate behavior, and increase appropriate behavior by ensuring the inappropriate behavior is not reinforced. Some cognitive-behavioral treatments are aimed at reducing deviant arousal. These treatments include aversion treatment, covert sensitization, imaginal desensitization, and masturbatory reconditioning. Other cognitive-behavioral treatments focus on cognitive restructuring, which attempts to correct distorted cognitions used to justify sexual offending. These treatments include social skills training, victim empathy training, lifestyle management, sex education, and relapse prevention.

Because violent sex offenders (i.e., rapists and child molesters) are the most likely candidates for civil commitment, there are concerns about whether treatment can decrease recidivism. Research indicates that treatment for incarcerated sex offenders (who are more likely to be violent sex offenders) is promising, but the findings are somewhat mixed. One study found that offenders who were treated in prison had a 9.4% recidivism rate, compared with a 17.6% recidivism rate for untreated offenders. Another study indicated that cognitive-behavioral treatment for incarcerated sex offenders can decrease recidivism, but the effect of treatment is smaller than the effect of treatment for non-incarcerated sex offenders. Other research found that although cognitive-behavioral treatment for incarcerated sex offenders looks promising, the evidence is not sufficient to draw a conclusion about the effectiveness of treatment for incarcerated offenders.

Studies that evaluate the effectiveness of sex offender treatment can only determine whether the treatment was effective as long as the researchers are following the treated offenders to see if they recidivate. It is possible that treated offenders might recidivate after the follow-up period ends, which raises questions about how long a treatment should be shown to decrease recidivism in order to be considered "effective." If a form of treatment is shown to decrease recidivism for five years, is it "effective?" One researcher found that the longer a sex offender can remain offense-free, the greater the likelihood that the offender will not recidivate. Therefore, any treatment that decreases the risk that a sex offender will commit new offenses in the short-term may increase the likelihood that an offender will not recidivate in the long-term.

Certain characteristics of offenders who may be likely candidates for civil commitment may make them less likely to benefit from treatment. Potential candidates for civil commitment, especially rapists, might be diagnosed with psychopathy or anti-social personality disorder (ASPD). Offenders diagnosed with ASPD or psychopathy may not be as amenable to treatment as offenders diagnosed with paraphilias. Candidates for civil commitment are also, by definition, repeat offenders. According to one researcher, repeat offenders are more likely not to complete treatment than first-time offenders. Moreover, candidates for civil commitment are likely to have served long prison sentences before being committed. If an offender did not receive treatment in prison before being committed, it may make treatment more difficult. Delays in treatment could allow offenders to deny their sexual offending, externalize responsibility, or claim amnesia for their offenses. Such distortions make it harder for offenders to accept responsibility for their offenses, thus making it harder to treat them.

Questions also exist regarding whether involuntary treatment can reduce sex offender recidivism. Most of the recent literature on treatment involves sex offenders who wanted to receive treatment. This is noteworthy because civil commitment laws require treatment for offenders who, at least initially, chose not to participate in treatment.

Many experts believe that there is sound evidence that sex offender treatment can reduce recidivism. However, other researchers warn that more research needs to be done because, currently, it cannot be proven that treatment is effective. Results are less than definitive because there is not a large body of highly rigorous treatment research. In conclusion, the research indicates that there is not enough evidence to definitively prove that treatment for sex offender works.

Sex Offender Treatment Research Issues

More recent research has addressed many of the methodological problems of past research, but issues still remain. As mentioned before, faults in the methodology used in some research can limit the generalizability of the findings. The issues include the following:

In some cases, treatment groups are limited to sex offenders who meet stringent criteria, thereby treating only sex offenders who are the most likely to respond to treatment. Some studies provided treatment for sex offenders that was questionably implemented. Some studies did not use a comparison group, and in other studies that did, offenders were not randomly assigned to either the treatment or comparison group. Some studies did not count offenders who refused treatment or those who dropped out of treatment when calculating the recidivism rate of treated and untreated offenders. Therefore, the lower recidivism rates for treated offenders in these studies could be the result of the fact that treatment groups consisted of offenders who were more open to treatment. In some studies, recidivism is narrowly defined (studies only count new sex offenses when calculating recidivism) or studies rely only on one data source to determine whether or not a treated offender recidivated. The length of the follow-up period in some studies might be too short to effectively determine recidivism. Research has shown that the longer the follow-up period, the greater the rate of recidivism.

Select Issues

Notwithstanding the Supreme Court's rulings that addressed constitutional issues, there are issues that could influence the long-term viability of civil commitment laws. These issues include (1) the ability of the government to determine which offenders should be civilly committed, (2) the use of less restrictive alternatives to civil commitment, (3) the use of indeterminate sentences to punish sex offenders, and (4) the cost of civil commitment programs.

Who Should Be Civilly Committed?

Do Sex Offenders Specialize in Sex Crimes?

Special laws governing the control and management of sex offenders have been passed in many states out of concern that sex offenders are not only dangerous, but they are more likely to commit new sex crimes. Some research indicates that sex offenders do not specialize in sex crimes; hence, it might be difficult to label an offender simply as a "rapist" or a "child molester." One researcher reported that convicted rapists self-report sexual contact with children and convicted child molesters have admitted to raping adult females. Most sex crimes are committed by offenders with extensive criminal histories that involve other violent and property crimes. In many cases, sex crimes are committed by individuals as part of a pattern of violent and non-violent offending.

This section presents data from both the 2002 BJS report on the recidivism rates of 272,111 prisoners released in 1994 and the 2003 BJS report on the recidivism rates of 9,961 sex offenders released in 1994 to analyze whether sex offenders specialize in sex crimes. This section reviews data on the relative likelihood that violent offenders were rearrested for the same crime for which they were incarcerated. Next, this section reviews data on how many rapists, sexual assaulters, child molesters, and statutory rapists were rearrested and reconvicted for any type of crime within three years of being released. Finally, this section also reviews data on the criminal histories of released rapist, sexual assaulters, child molesters, and statutory rapists. Data indicate that sex offenders do specialize in sex crimes to some degree, but they also commit other crimes.

Table 2 shows the likelihood that released violent offenders were rearrested for the same crime. The odds of a rapist being rearrested for rape was 4.2 times the odds of a non-rapist being rearrested for rape. The odds of a sexual assaulter being rearrested for another sexual assault was 5.9 times the odds of a non-sexual assaulter being rearrested for a sexual assault. The odds ratios for rapist and sexual assaulter relative to the odds ratios for murderers, robbers, and assaulters suggest that rapists and sexual assaulters are more likely than other violent offenders to be rearrested for the same crime. In all cases, the odds ratios for rapists and sexual assaulters is at least double that of the odds ratios of other violent offenders.

Data in Table 3 show that at least 40% of rapists, sexual assaulters, and statutory rapists were rearrested for any type of crime (i.e., violent crimes, property crimes, drug offenses, or public-order offenses) within three years of release, and more than 20% of rapists, sexual assaulters, child molesters, and statutory rapists were reconvicted for any type of crime. Moreover, all types of sex offenders were more likely to be rearrested or reconvicted for any type of crime than for a sex crime.

Data in Table 4 show that a large percentage of sex offenders had at least one prior arrest for any type of crime (i.e., violent crimes, property crimes, drug offenses, or public-order offenses). More than half of sex offenders had a past conviction for any type of crime. However, BJS reported that sex offenders were more likely than non-sex offenders to have a past arrest (6.5% of non-sex offenders) or conviction (0.2% of non-sex offenders) for a sex offense.

Data indicate that sex offenders are more likely than non-sex offenders to be rearrested for a sex crime. Sex offenders are also more likely than non-sex offenders to have a past arrest or conviction for a sex crime. However, the data indicate that sex offenders do not specialize solely in sex crimes. Sex offenders are also rearrested and reconvicted for committing offenses other than sex offenses. At the same time, it appears that sex offenders may be at a greater risk than non-sex offenders to commit another sex crime after they are released from prison.

Are Some Sex Offenders More Dangerous Than Others?

Some researchers believe that there is a small group of sex offenders—ones diagnosed with both paraphilia and psychopathy—who are at a high risk for re-offending. One researcher concluded that "the rate at which this highest risk subgroup actually reoffends with another sexual offense could be conservatively estimated at 50% and could reasonably be estimated at 70% to 80%." Other research indicates that sex offenders diagnosed with psychopathy, especially sex offenders diagnosed with both psychopathy and paraphilia, are more likely to recidivate than other sex offenders. One study found that more than 80% of sex offenders released from a maximum security psychiatric facility who were diagnosed with psychopathy were rearrested or returned to custody for a violent offense within six years. In comparison, about 20% of non-psychopathic offenders were rearrested or returned to custody for a violent offense within six years. However, it should be noted that recidivism in this case was measured as arrest or return to custody for a violent offense, not just sex offenses. Other research found that a high Psychopathy Checklist-Revised (PCL-R) score was a good predictor of violent recidivism in general. However, it also found that sexual recidivism was predicted by a combination of a high PCL-R score and deviant sexual arousal.

Future Dangerousness

Before a sex offender is civilly committed, the offender is evaluated to determine the likelihood of recidivism. There are two general methods for predicting dangerousness: clinical and actuarial. The clinical method involves a clinician examining the offender and the offender's history, including the offender's criminal record, psychosexual history, and other biographical information. The clinician weighs all he knows about the individual and then, based on knowledge of risk factors, makes a judgement about the likelihood the offender will re-offend if the offender was released to live in the community without supervision . The clinician has the ability to decide how much weight, if any, to give each risk factor. Supporters of the clinical method argue that trained clinicians can shape their assessment based on cues that actuarial methods cannot pick up, especially if the clinician interviews the offender.

The actuarial method involves the use of actuarial instruments by trained individuals to predict the risk of re-offense. Actuarial instruments are developed by studying large numbers of repeat sex offenders and collecting data on their common characteristics. Researchers also collect data on the rate of re-offending by a group of sex offenders with a set of common characteristics. Actuarial tools predict the likelihood that offenders will re-offend based on how their characteristics match the characteristics of a group of offenders with a known re-offense rate. Supporters of actuarial instruments argue that the instruments are developed using proven statistical methods for calculating risk and that a large number of repeat sex offenders have been studied to provide them with reliable predictive accuracy. Supporters also maintain that the instrument prevents evaluators from introducing errors or bias, thereby making them more objective.

Both methods have their flaws; some are particular to the method, others are inherent to the nature of predicting risk. Studies indicate that clinical judgements about sex offender dangerousness are quite poor. One researcher reported that a number of studies that have evaluated the predictive accuracy of clinical judgements of sex offender dangerousness found that the average correlation between a prediction of re-offending and actual offending was 0.10. There is also the possibility that clinicians could introduce bias into the risk assessment, such as giving more weight to some risk factors and less to others.

Actuarial instruments can only identify a range of risk for a group of sex offenders; they cannot identify the specific risk for any individual within the group. A given individual in the group might have a risk of re-offending that is either higher or lower than the group's risk. Actuarial instruments rely heavily on static factors (i.e., factors that do not change with time, such as age at first offense, number of victims, and gender of victim) when determining risk. This means that when offenders are placed in a risk group based on their history, they will most likely stay in that risk group because their history cannot change.

There is also the possibility of type I errors. One inherent problem in risk assessments for sex offenders is that sex offenders do not commit new sex crimes at high rates, which means that there is a low recidivism base-rate upon which to predict risk. However, as discussed above, certain groups of offenders may recidivate at higher rates, which can make risk assessment more accurate. Yet, even the highest risk groups do not recidivate 100% of the time, which means that there is still the possibility of error.

Safe to Release

After the offender is committed, it must be determined when it is safe to release the offender into society. Although researchers have made advancements in determining whether an offender is at-risk to re-offend, not as much progress has been made in developing methods to determine when it is safe to release sex offenders from custody. Predictions of dangerousness are based on static risk factors, but predictions of safety are based on dynamic risk factors. Researchers have yet to accurately determine which dynamic risk factors are associated with decreased risk of sex offenders recidivating. This is problematic because sex offender treatment attempts to decrease the risk of re-offending by changing dynamic risk factors. Some have argued that it is difficult to assess risk in an institutional setting because the offender does not have the opportunity to re-offend. Offenders do not face the same stimulations and opportunities in a institutional setting that they will face in the community, hence it is difficult to tell whether they can apply what they have learned in treatment.

Less-Restrictive Alternatives

The difficulty in accurately predicting whether committed offenders are safe to release from confinement raises questions about whether less restrictive alternatives should be used to manage sexually dangerous persons. Some have argued that judges or juries should be allowed to, in certain situations, civilly commit an offender to outpatient treatment, or if the offender is placed in an institution, the offender should be released to community supervision after he shows improvement. Maricopa County in Arizona was the first jurisdiction in the country to implement lifetime supervision for sex offenders.

The lifetime supervision program in Maricopa County involves specialized units that focus solely on the supervision of sex offenders. Some offenders under the supervision of these units are placed in an intensive probation supervision program. Offenders in this program are assigned to a probation officer (PO) with a limited caseload that gives the PO more time to monitor the offenders. Each PO has a maximum caseload of 25 probationers. POs are supported by surveillance officers who make random field visits to offenders on their caseload. POs also have a "maintenance" caseload that is composed of offenders who have been on probation for several years and are considered low-risk. All offenders begin probation on a specialized caseload and are designated as high-risk until they have undergone an evaluation. Periodic reassessment is conducted to determine the risk the offender poses, thereby determining the degree of supervision he will receive. Offenders also receive a set of conditions for their supervision, which can include requirements to attend sex offender treatment, register as a sex offender, and restrictions on where the offender can live and with whom he can have contact. Violations of the terms of supervision result in increased supervision and surveillance. The offender's probation can be revoked if the graduated sanctions fail to ensure compliance. Offenders are also subject to polygraph examinations to ensure that they are following the terms of their supervision.

The program appears to help prevent recidivism. Agency data showed that 39.5% of offenders supervised by the specialized units over a seven-year period (May 1993 to August 2000) returned to court at least once for a violation of the terms of supervision. Less than 7% of the supervised offenders committed a new criminal offense, and less than 2% committed a new sex offense. Data also showed that 31.9% had a violation for not complying with treatment, 29.6% had a violation for using or abusing alcohol or drugs, and 26.9% had a violation for having contact with children. However, it is not clear what proportion of the offenders on lifetime supervision were sentenced for violent or non-violent sex crimes, hence it is difficult to tell whether the program was successful at reducing recidivism for violent sex offenders.

A successful outpatient civil commitment program could have many of the same elements as Maricopa County's lifetime probation program: the use of polygraph examinations, reduced caseloads for POs, a set of conditions for supervision that includes a requirement for treatment, and intensive supervision. However, additional elements could be incorporated into an outpatient civil commitment program. The program could use electronic monitoring to ensure that sex offenders avoid prohibited areas. Colorado has a sex offender management program similar to the Maricopa County's lifetime probation program, but it also includes some elements not found in Maricopa County's program. Colorado's program uses containment plans tailored to offenders based on their offense patterns. The plan places boundaries on what offenders can do, where they can go, their access to erotic material, and other activities that are a part of their offense patterns.

Allowing offenders to be placed in the community under intense supervision could assist in the treatment of offenders while they are committed. The program could motivate offenders to participate in treatment because they would know that there is a possibility of being released. The outpatient treatment program would allow psychologists to evaluate offenders outside of a institutional setting to see whether they are applying what they are learning in treatment. However, there is always a risk associated with placing an offender on parole. Even with intensive supervision, a PO cannot monitor a sex offender all the time, hence there is a possibility that an offender can commit a new crime while on parole. There is also the possibility that an offender could abscond while on parole.

Indeterminate Sentences for Sex Offenders

Starting in the 1980s, many states adopted determinate sentencing laws. In general, these laws allowed judges to impose a fixed sentence. To help structure determinate sentences, many states adopted sentencing guidelines that suggested how long an offender's sentence should be based on the crime the offender was convicted for and the individual's criminal history, among other factors. In most instances, determinate sentence laws eliminated parole, so even though offenders had to serve most or all of their sentence, they were released unsupervised after serving their sentence. Although many states implemented determinate sentencing laws, some maintained indeterminate sentencing. Under an indeterminate sentencing approach, statutes provide a range of possible sentences, offenders are released on parole as determined by a parole board, and rehabilitation of prisoners is the main objective.

One researcher has proposed that states implement what he refers to as "a sexually dangerous offender sentence." The proposal would allow for a sentence that is both determinate and indeterminate. Offenders would be sentenced to an indeterminate term in addition to whatever punishment they would receive under the existing determinate sentencing structure. Offenders would be eligible to receive a sexually dangerous offender sentence after they commit a second serious sex crime. A special hearing would be held where the prosecutor would present evidence that the defendant is a "sexually dangerous offender" with an enduring propensity for committing sex crimes. The hearing would focus solely on the offender's current sexual dangerousness. Sexually dangerous offender laws would ensure that the offender serves at least the minimum sentence required by law, but if there is reason to believe that the offender is still dangerous and would commit a new crime if released, the state would not be required to release him from prison, much like if the offender had received an indeterminate sentence. Also, when released, the offender would be released on parole instead of being released unsupervised. Sexually dangerous offender laws would have the benefit of avoiding the costs associated with civil commitment. They would also send a message to sex offenders that if they continue to commit sex crimes and are found to be dangerous, they can be punished indefinitely.

This system could be implemented at the federal level, but it would require Congress to reestablish parole for convicted offenders. Such a proposal would also have to provide the appropriate procedural due process to the offender, such as the right to contest evidence and the right to present evidence with the assistance of counsel and the offender's expert, and a jury would have to make a finding of sexual dangerousness.

Cost of Civil Commitment

The annual cost of a civil commitment program can run into the millions of dollars. Different sources have attempted to estimate states' costs for implementing and running a civil commitment program. One researcher stated that it costs about $100,000 per person per year to civilly commit an offender. Projected annual costs could continue to increase as more offenders are civilly committed. As of fall 2006, 2,694 offenders in 18 states have been civilly committed. Of the 2,694 offenders, 252 have been discharged (9.4%). Of the 252 discharged offenders, 81 (32.1%) were released by the state of Arizona, and 59 (23.4%) were released by the state of California. Five states (Minnesota, Nebraska, North Dakota, Pennsylvania, and Texas) have not released any civilly committed offenders. The population of offenders will likely continue to grow because very few offenders are being released after being committed. As more offenders are committed, states will likely have to build new facilities or renovate old facilities to house the increasing population. It is likely that there will be an increased demand for new facilities because the facilities used to house committed offenders will have to be therapeutic and secure. Also, states might face costs associated with increased medical care as the civilly committed population ages. As of fall 2006, 229 (8.5%) of all civilly committed offenders were over the age of 60. An elderly civil commitment population could be a growing problem if the trend of releasing relatively few civilly committed offenders continues.

Civil commitment includes other costs in addition to housing and treating committed offenders. States have to pay the cost of the legal proceedings required under civil commitment laws. The state of Washington estimates that court and litigation costs are, on average, $35,000 per patient per year. The state of Minnesota estimates that a single civil commitment trial costs about $100,000, which includes attorneys and expert fees and not other court costs. Moreover, states will likely have to establish and maintain community placement programs for released offenders. Other costs could include construction and operation of transitional facilities, as well as any medications offenders are required to take.

Conclusion

The public outrage towards sex crimes, especially sex crimes against children, has resulted in demands for harsher penalties for sex offenders and better methods for managing them in the community. Recent media coverage of high-profile sex crimes may have increased the public's fear that all sex offenders are dangerous. Elected officials in 19 states and the federal government have turned to civil commitment as a means of trying to ensure the public's safety from sex offenders. Yet, there is a growing controversy about whether civil commitment is the best policy for protecting the public from sex offenders.

Notwithstanding the Supreme Court's rulings on civil commitment, issues remain that continue to fuel the debate over civil commitment. Some of these issues include the following:

Are sex offenders the threat most people believe them to be? There is some evidence that they may not be, but evidence also shows that a select group of sex offenders are at a high risk to re-offend. Data on sex offender recidivism is not conclusive. The rate of recidivism among sex offenders varies depending on the study, which, along with the limitations of recidivism data, makes it difficult to conclude that sex offenders are not the threat many think they are. Can sex offenders be treated? Studies show that there are promising methods for treating sex offenders, but certain traits found in some sex offenders, especially those who are candidates for civil commitment, may make them more resistant to treatment. A review of the literature on the efficacy of sex offender treatment indicates that no consensus exists regarding whether treatment can reduce recidivism among sex offenders. Questions persist regarding whether "dangerousness" can be accurately predicted. This can make civil commitment a problematic endeavor because for it to be effective, only the most dangerous offenders should be committed, and they should be released when it is safe to do so. The potentially high cost of establishing and maintaining a civil commitment program continues to be a concern. If, however, few civilly committed offenders are released, costs will likely continue to grow as the population of committed offenders increases.

These issues raise questions central to the debate on civil commitment. If sex offenders are not at a greater threat to recidivate than other violent offenders, should they be subject to civil commitment? If sex offenders cannot be treated, is civil commitment a viable method for managing sex offenders? Would it be better for sex offenders to be managed by the criminal justice system rather than requiring mental health professionals to work with offenders that are not responsive to treatment? Are there more cost-effective measures for managing sex offenders that also protect communities from repeat sex crimes?

Appendix. Civil Commitment Statutes, by State

This appendix provides an overview of the state laws governing the civil commitment of sexually dangerous persons. It does not review state laws governing civil commitment of individuals with serious mental illness.