Sex Offender Civil Commitment to Prison Post-Kingsley

By Tolman, Arielle W. | Northwestern University Law Review, January 1, 2018 | Go to article overview

Sex Offender Civil Commitment to Prison Post-Kingsley


Tolman, Arielle W., Northwestern University Law Review


Introduction

In October 1982, Illinois brought criminal charges against Terry B. Allen for "unlawful restraint" and "deviate sexual assault" of a woman.1 After a preliminary hearing, the charges were dismissed for lack of probable cause.2 Nevertheless, Illinois subsequently filed a petition to declare Allen a "sexually dangerous person" and civilly commit him under its Sexually Dangerous Persons Act (SDPA).3 The trial court found Allen sexually dangerous and committed him for an indeterminate period to the Menard Psychiatric Center, a mental health unit located inside a maximum-security prison.4

Allen challenged the constitutionality of his indefinite "civil" detention in a maximum-security prison, arguing that such conditions amounted to criminal punishment and that the court violated his Fifth Amendment right against self-incrimination when it relied upon the testimony of his examining psychiatrist, who had elicited incriminating information from him.5 Ultimately, the Supreme Court held in a 5-4 decision that because the legislature intended to "treat" Allen rather than "punish[]" him, the proceedings against Allen were civil and not criminal, his Fifth Amendment rights were not violated, and his commitment was therefore constitutional.6

Since Allen, federal courts have repeatedly upheld the constitutionality of sex offender civil commitment schemes on the basis that they are nonpunitive7-even when the civil committees in question find themselves, like Allen does, in prison indefinitely. Today, over thirty years after his case testing the constitutionality of sex offender civil commitment reached the Supreme Court, Terry Allen, a man who has never been criminally convicted of a sex crime, is still imprisoned in Illinois as a "Sexually Dangerous Person," with no projected discharge date.8 He is nearly sixty.9

An estimated 5400 people are civilly committed under state and federal sex offender programs.10 Twenty states, plus the District of Columbia and the federal government, have enacted legislation to confine "sexually dangerous" or "sexually violent" "persons," "predators," or "offenders."11 Although many provisions vary across jurisdictions, all of the legislative schemes authorize the indefinite civil detention of people charged with, or previously convicted of, sex offenses-often for their entire lives.12 Because sex offenders are a highly stigmatized group of people, the restrictive conditions under which many are civilly detained trigger little sympathy among most members of the public.13 And although sex offender civil committees are not the only type of civil committees that have been sent to prison-tuberculosis patients and drug addicts have also occasionally been committed to jails and prisons-they are the group of civil committees most likely to be detained there.14

Drawing on the fundamental "police power" of states to protect public health and safety,15 sex offender civil commitment programs ostensibly repudiate any punitive purpose in restraining a detainee's liberty and instead predicate commitment on the dual goals of public safety from people found to be dangerous sexual predators and treatment of the offender.16 Although sex offender commitment programs are universally designated as being "civil" (as opposed to "criminal") in nature-thereby avoiding the constitutional requirements attendant to criminal trials and sentences17- people confined under these statutes are frequently committed to the long14 term custody of prisons,18 or to secure standalone treatment facilities.19 Thus, many civilly committed sex offenders are detained in conditions that appear to be identical to those serving criminal sentences, but as a result of civil commitment proceedings that lack all the protections that accompany a criminal trial, and for conduct that would not always result in a criminal conviction.

Most states aim to commit convicted sex offenders who are nearing the end of their criminal prison sentences;20 however, some states do not require a criminal conviction for commitment and instead seek to involuntarily commit people in lieu of criminal prosecution. …

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