Civil commitment is a legal process that involuntarily confines individuals for purposes of medical treatment. It is not intended to punish a crime. Civil commitment has been most common for the severely mentally ill, and particularly for those who pose a danger to themselves or others. But in recent years, civil commitment has been extended to sex offenders, typically after they have already served a prison term. 

Is civil commitment ever justified? If so, is it being applied fairly in our current legal system? Is it appropriate to treat sex offenders as though they were mentally ill? If it is appropriate in some cases and not in others, then how do we tell them apart?

Our lead essayist this month is Galen Baughman, a man who served nine years in prison, after which he successfully fought a civil commitment action in court. Perhaps unsurprisingly, he takes a skeptical view of what he terms “the medicalization of crime.” Responding to him will be Licensed Independent Clinical Social Worker and Director of Professional Development and Quality Improvement for the Becket Family of Services David Prescott, Professor Eric Janus of the William Mitchell College of Law, and Professor Amanda Pustilnik of the University of Maryland School of law.

Lead Essay

  • Civil commitment is the legal practice of holding individuals who suffer from severe mental illness so that they may receive treatment. Even within its traditional bounds, civil commitment was problematic enough. But in recent years, civil commitment has expanded significantly. Now, young people who commit a sexual offense early in their lives stand to be stigmatized, and detained, indefinitely. Crucially this is not because they have violated a law with a particularly harsh penalty attached. It’s because the state believes that they might break the law again. In this essay, Galen Baughman challenges the practice of civil commitment, and particularly its extension to sex offenders, as an unwarranted de facto extension of our criminal justice system - one with far too few protections for the accused.

Response Essays

  • David Prescott acknowledges that sexual offender civil commitment has many inherent problems. If we’re going to lock someone up, we must be sure that it’s for a good reason. Yet even by these programs’ stated rationales, governments might do better with a less restrictive means of treatment. Surprisingly, this appears true even for high-risk offenders. Many who are so committed could and should live better lives in the community, and not in a confining institution, and yet this option rarely exists. Release rates are also shockingly low. A genuine prospect of release would do much to help the morale of the committed, and if the system is to be saved, it will need to focus on empirically sound treatment that offers real hope to these individuals. That’s a far cry from what we have right now, says Prescott.

  • Pre-crime isn’t science fiction, says Eric Janus. It’s our system of civil commitment. The problems are simply stated: Civil commitment moves from punishing a specific act toward punishing a type of person. This approach to justice rarely works out in practice, as members of marginalized groups typically find that they can’t possibly clear their own names. One result is bad public policy about sexual violence, because evidence-based treatment for the sexually violent is disfavored in comparison to simply punishing them for the next crime it’s thought they might commit. The rule of law suffers as well, because of the highly discretionary nature of civil commitments, which are invoked in widely disparate ways according to variables like geography, which would seem to have little to do with justice, or with therapy.

  • Amanda Pustilnik draws a sharp contrast between civil commitment as it is practiced for the severely mentally ill — and the utterly different system that has been imposed on sex offenders. The latter system she terms “a perversion,” one that both destroys civil liberties and stigmatizes the treatment of genuinely mentally ill individuals. Genuine civil commitment for the mentally ill does exist, but it is used only in emergencies, it is of very limited duration, and its judicial process puts the patient’s best interests first. Meanwhile, sexual violence remains a genuine and pressing social problem, but it does not take the form that most people imagine: Serial sexually violent criminals like Ted Bundy are vanishingly rare, while acquaintances, authority figures, and others who are not mentally ill are the most common perpetrators of such crimes. As a result, merely putting the bad people away isn’t a viable solution.

Related at Cato

Cato Unbound: Mental Health and the Law,” August 2012

Legal Brief: In United States v. Comstock, by Randy E. Barnett, Ilya Shapiro, and David Rittgers, November 4, 2009

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