Chapter 8.C.5 (6.C.5) Civil Commitment and Mandatory Treatment
Problem: Sexually Violent Predators—Treatment or Punishment? (page 958/667)
See Douglas G. Smith, The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment, 49 Bost. College L. Rev. 1383 (2008). Smith examines the constitutional issues that arise in civil commitment programs for sexually violent predators. Smith notes that while the U.S. Supreme Court has made it clear that “for civil commitment schemes to pass constitutional muster, states must provide treatment when individuals are treatable,” the Court has not elaborated on how much treatment is required or what that treatment should look like. Smith suggests that the extensive litigation conducted in relation to the State of Washington’s civil commitment program has helped to define “the scope of a civilly committed individual’s right to constitutionally adequate treatment.” Smith notes three basic principles that shape the scope of a state’s obligation to treat committed offenders: the right to an individualized treatment plan that “provides an avenue to eventual release”, governmental oversight, and judicial oversight.
The 4th U.S. Circuit Court of Appeals recently struck down a federal civil commitment law that allowed the indefinite commitment of “sexually dangerous persons” beyond the length of their prison sentence. The court held that the “Constitution does no empower the federal government to confine a person solely because of asserted ‘sexual dangerousness’ when the Government need not allege (let alone prove) that this ‘dangerousness’ violates any federal law”: see U.S. v. Comstock, 551 F.3d 274 (2009).
See also Kevin M. Carlsmith, John Monahan, and Alison Evans, The Function of Punishment in the ‘Civil’ Commitment of Sexually Violent Predators, 25 Behav. Sci. & L. 437 (2007) (presenting data suggesting that the support for the civil commitment of sexually violent predators is based more on a desire for retribution than a desire to incapacitate dangerous offenders).