Chapter 8.C.5 (6.C.5)  Civil Commitment and Mandatory Treatment

Problem: Sexually Violent Predators—Treatment or Punishment?

   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.

   In United States v. Comstock, 130 S.Ct. 1949 (2010), the US Supreme Court found that Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences. The Court stressed that this was a decision over authority, and did not consider whether such confinement violated the Constitution’s due process clause. State civil confinement laws were not at issue in the case. See also Adam Liptak, Extended Civil Commitment of Sex Offenders Is Upheld, N.Y. Times, May 17, 2010, available at http://www.nytimes.com/21010/05/18/us/politics/18offenders.html.

   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).