Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 3, 2010

Sex offenders, public safety, and human dignity

The horrifying rape and murder of high schooler Chelsea King brings to mind one of the most vexing questions facing our criminal justice system: what should we do with sex offenders?  I don't have an easy answer, other than that we need to be careful not to expand the category of sex offenses to include folks who do not pose a significant risk of danger in the future.  But for those who fall squarely within that classification, how do we safeguard the community while respecting the dignity of the offender?  As science helps us identify tendencies, there will be a temptation to intervene earlier and more aggressively.  Chemical castration is a popular option, especially since life imprisonment for most sex offenses is not an option.  But as John Stinneford has argued in this excellent paper, chemical castration itself poses (or should pose) significant problems for those committed to human dignity. 


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I'm not sure what to do but I do strongly believe one thing we should NOT do is use "civil commitment" as a euphemism for further punishment/"treatment" beyond the sentence served for the crime(s) committed: http://prisonlaw.wordpress.com/2010/02/21/are-sex-offenders-patients-or-prisoners/

Posted by: Patrick S. O'Donnell | Mar 3, 2010 1:27:03 PM

Two thoughts.

First, though I cannot remember which issue, I think the National Catholic Bioethics Center Quarterly once had an article on the ethics of chemical castration.

Second, although civil commitment should not be a euphemism for, or the equivalent to, further punishment, civil commitment does not need to be punishment and can, in fact, consist of treatment.

Posted by: Chris D | Mar 4, 2010 1:59:10 PM


In point of fact, civil commitment does amount to further incarceration and is a violation of the principle of legality in addition to the denial of civil liberties. Treatment should be part of one's sentence under the larger rubric of "rehabilitation." Critics are right: "it’s just a backdoor way of extending offenders’ sentences indefinitely." This is simply outrageous and a mockery of the rule of law and we should not pretend otherwise.

Posted by: Patrick S. O'Donnell | Mar 4, 2010 2:51:58 PM

If you consider any form of detainment to incarceration, then civil commitment is incarceration. If you take that position, however, civil commitment for mental health and substance addiction is also incarceration.

I am very familiar with one state's civil commitment system and know that it is a treatment model, with much more in common with mental health commitment than imprisonment.

The motives of politicians may be punitive, but I think that ultimately the test of the law is what actually occurs in commitment, not the motive of lawmakers. I think it is also important to keep in mind that civil commitment for sexual predators does not require a prior criminal conviction and time in prison.

Personally, I am very concerned about civil commitment slipping into the realm of punishment and have been vigilant in my own state about any action that appears to treat civil commitment as such. I do not see, however, how a mental health treatment model for sexual predators can be equated with punishment without equating all types of commitment with punishment.

Posted by: Chris D | Mar 4, 2010 6:16:14 PM


The fact is that for those who've served their sentences, this amounts to further incarceration full stop. As in the link (and the post itself, which has to do with sexual offenders and the criminal justice system), I'm concerned about the use of civil commitment for prisoners after they've served their sentence, which is the primary function of such systems.

You might have a look at this from the National Association of State Mental Health Program Directors: http://www.nasmhpd.org/general_files/position_statement/sexpred.htm

And this, on the nation's oldest such program in Washington: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1119390 Notice his analysis of how the law has been working.

In Minnesota, "Theoretically, they are supposed to undergo treatment during their civil commitment, and then be released. In practice, not one of the 550 sex offenders who has been committed under this program has ever been deemed rehabilitated and released." There's a test of the the law for you, how's that working?

If this were a true "mental health model," where are the criteria and standards for success? Why is it implemented only AFTER sex offenders have served their sentence? Etc., etc.

There's no logical connection or slipperly slope that licenses the inference that constitutional and other problems and concerns with this particular use of civil commitment programs are "equivalent to equating all types of commitment to punishment."

The expression of your personal concern and vigilance is touching but irrelevant and otiose in this case.

Posted by: Patrick S. O'Donnell | Mar 4, 2010 8:20:24 PM

I thought Buck v Bell was rendered bad precedent for criminal sterilization by Skinner v. Oklahoma? To quote Wikipedia (I know it's a horrible research sin) "Skinner v. Oklahoma is often erroneously credited with ending all compulsory sterilization in the United States. In reality however the only types of sterilization which the ruling immediately ended were punitive sterilizations..."

Isn't this a punitive sterilization? Or is only because it's temporary that it meets the Skinner rule?

But I'm quite sure the state messing around with people's hormones is not good for society, period. We already do enough of that on our own thanks to YAZ and RBGH, and the other hormones that now show up in our public water supply.

We also have come to legitimate far too much deviant sexual behavior to be singling out a class of people and in effect forcing them to change their sexuality by hormone treatments. This is societal double standard when we say oral sex, anal sex, transgender surgery, and other such institutions (including same-sex marriage soon enough) are ok but a small class of sexual acts should be punished by sterilization.

But is the problem then actually caused by testosterone levels, or is it rahter an unwillingness to consent? Is it appropriate to prescribe anti-testosterone medication here? We may as well have a statute that prescribes mandatory medical marijuana to prevent carjackers from having the impulse to go out and jack a car.

Actually, that would probably make a lot more sense, except medical marijuana is safer and yet illegal, whereas this drug is apparently neither safe nor illegal. Another double standard, go figure.

Sorry for the superfluous cynicism, but I see a lot more wrong than the law in this issue.

Posted by: Colin L | Mar 4, 2010 10:40:24 PM

In my state (Alaska) civil commitment was either eliminated or never created b/c of objections from people following Mr. O'Donnell's line of thinking. (I have not researched this, but this is my understanding of the situation.) The result has been that society has to either wait for a person to commit a crime and then incarcerate mentally ill people in jail, or live with monsters in the neighborhoods.

Mentally ill people sometimes end up committing minor crimes and spending time in jail, then eventually committing a major crime and receiving a very high sentence. One of the things that is noted is poor prospects for rehabilitation.

To me, it seems preferable to have a mentally ill person in a civil commitment facility of some type than to put them in jail. I am sure the civil commitment facility would be a restriction on a person, but nowhere near as much as jail.

Finally, doesn't society have a right to have dangerous people identified and either treated - or if the person cannot be treated, removed from society? Earlier I mentioned "monsters in the neighborhoods," and although that is strong language, some people fit the bill. Is the only option to wait for a crime to occur, then to put the person in jail? Since crime only looks backward at past ills, why can't we do something to look forward in time in order to anticipate who is dangerous. (Obviously, looking at a person's criminal record would be part of that evaluation.)

Just a few partially developed thoughts.

Posted by: Michael Alexander | Mar 5, 2010 4:29:53 PM

I am very familiar with one state's civil commitment system and know that it is a treatment model, with much more in common with mental health commitment than imprisonment.

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