Since 1990, many states have instituted sexually violent predator (SVP) or sexually dangerous person (SDP) civil commitment statutes that seek to identify the small group of extremely dangerous incarcerated sexual offenders who would present a threat to public safety if released from custody. Although procedures vary, states often require that 2 blind evaluators agree that the offender has a diagnosed mental disorder and that he or she likely remains a risk for committing sexually violent offenses.
SVP/SDP evaluations are probably the most challenging of forensic assessments, made in a minefield of conflicting legal, ethical, and professional values. The process is inherently adversarial and lacking in confidentiality. The fact base depends on the accuracy and comprehensiveness of police and probation reports. The inmate has no reason to be open and truthful, given that the information offered may result in a long (perhaps lifetime) psychiatric hospitalization and would be discussed in open court if the process moves to trial.
History of statutes
The need for civil commitment statutes arose indirectly from the substitution of fixed sentencing for indeterminate sentencing, which occurred in the 1980s. This virtuous effort to bring uniformity and fairness to sentencing had an unfortunate unintended consequence. The fixed sentence for each crime was arrived at by averaging what had been widely variable indeterminate sentences. This meant that dangerous offenders with long histories of recidivism had to be released from prison much sooner than they would have been under discretionary indeterminate sentencing. The result was predictable—a number of egregiously horrid and widely publicized crimes were committed by recently released beneficiaries of the short, fixed sentences.
State legislatures have attempted to provide protection through longer sentences for newly convicted offenders and through civil psychiatric commitment for those about to be released from prison under SVP statutes. This has created a firestorm of concern and opposition. The American Psychiatric Association (APA) Task Force report on this issue presents a blistering critique of SVP statutes; the Task Force has been concerned that psychiatric commitment is being misused to cover a sentencing loophole created by the legal system.1 That process has been viewed as a perversion of legitimate psychiatric commitment, a violation of civil rights, and a dangerous precedent for the possible misuse of psychiatry to squelch other behaviors that have been regarded falsely as psychiatric problems (e.g., homosexuality or political dissent).
Civil rights lawyers and several state courts have argued strongly that SVP statutes are an unconstitutional form of preventive detention, double jeopardy, or punishment without due process. Two cases made it to the US Supreme Court and, despite amicus briefs from the APA in opposition, the Court has twice accepted the constitutionality of the SVP statutes.
Although obvious risks are posed by the statutes, there are also compelling reasons why they were passed. There are a small number of SVPs who are capable of causing tremendous damage if not incarcerated in one way or another. This has driven the statutes, the Supreme Court’s acceptance of them, and the work of forensic clinicians trying to determine which offenders qualify based on the presence of a mental disorder and on the results of a risk evaluation.
The entire basis of the narrow majority’s acceptance of the constitutionality of SVP commitment is the presence of mental disorder in addition to the likelihood of repeating. If a prisoner has no mental disorder, he must be released when his time has been served, regardless of how dangerous he remains. The Court’s decision in the most important case was a close 5 to 4 split and is so ambiguously worded that it provides little guidance to forensic clinicians.2
1. American Psychiatric Association. Dangerous Sex Offenders: A Task Force Report. Washington, DC: American Psychiatric Publishing; 1999.
2. Kansas v Hendricks, 521 US 346 (1997).
3. Kansas v Crane, 534 US 407 (2002).