The Only Way to Get Out Is to Die: Mental Health, Public Safety, and Legal Implications of Sex Offender Civil Commitment in Texas

Journal of Public and International Affairs: by Erika Parks; 2018

____________________________________________________________________

Introduction
In the United States, there are few crimes more abhorred than sexually
violent offenses, and by extension, few people more reviled than those who
commit them. In popular media, people accused of sexually violent crimes
are variously called “monsters,” “scum,” or “the worst of the worst.” The
Texas criminal justice system, along with a number of other state systems,
have officially labeled these individuals “sexually violent predators” or SVPs
(Texas Department of Health and Human Services 2009).


It is certainly difficult to feel sympathy for people who have committed
terrible crimes against others, but the way we address sex crimes in this
country has long been based on fear instead of evidence. The vast majority of people who commit sex crimes, regardless of severity, are placed on the sex offender registry upon their release from confinement. They are required to follow a host of rules and requirements that make it next to impossible to secure resources proven to reduce recidivism, such as stable housing or a job (La Vigne et al. 2009). People labeled as SVPs, however, are often never given the chance to reintegrate into society, even after
completing their prison sentences. Many of these individuals are deemed
too dangerous to be released, even with all of the restrictions in place for
people convicted of sex offenses. Instead, upon completion of a prison
sentence, some people convicted of sexually violent crimes are transferred
to a civil commitment center, where they are held indefinitely—until they
can prove that they are rehabilitated.

Like the criminal justice system more broadly, the stated goals of civil
commitment are to provide treatment and rehabilitation for those who
have committed serious crimes and to protect the public from possible
future crimes they might commit. The criminal justice system has evolved
to serve a multi-purpose role of rehabilitation, incapacitation, and punishment. The distinctions between these roles and their relative importance
to each other, however, is not always clear. Many individuals are released
from prison without having received any rehabilitative programming.
Many more are held in prison long after they cease to be dangerous. The
civil commitment system suffers from these challenges as well. Even after
recent improvements, the practice of civil commitment in Texas raises
concerns about its mental health, public safety, and legal implications.
Specifically, the level of treatment Texas provides in civil commitment is
insufficient, particularly for general mental health and trauma-informed
care. The evidence for how much civil commitment improves public safety
is not compelling, and Texas could open itself up to legal challenges on the
constitutionality of the practice. This article examines the implications of
civil commitment in more detail and makes recommendations to improve
the practice of civil commitment in Texas and across the country.

A Note on Language
Following the lead of top scholars and advocates, I use person-first language whenever possible to refer to those involved in the criminal justice
system (La Vigne 2016). Referring to people by the terms “sex offender”
or “sexually violent predator” reduces them to their worst mistakes rather
than acknowledging their humanity, even when flawed. In some cases,
however, I am unable to easily adjust the language used by the system, so
I do not attempt to do so.

I also use the term “civil commitment” to refer specifically to civil
commitment for those convicted of sex offenses, and not to its broader
context describing the involuntary commitment of other groups of people
through the civil court system.

Civil Commitment in Texas and Nationally
Civil commitment, as it applies to those finishing prison sentences for sex
crimes, refers to the indefinite confinement of people under the assumption that they are at enough risk of reoffending that it is irresponsible to release them into society. It is not a punishment for something they have already done and for which they have completed a sentence, but rather a preventative detention for something they might do in the future. Texas requires that someone have committed at least two sexually violent offenses to be considered for civil commitment and then relies on an actuarial risk
assessment and/or the clinical judgment of a practitioner to determine
whether the person should be civilly committed. A judge in a civil court
makes the final decision.

Twenty states have laws that allow for the use of civil commitment
for people convicted of sex crimes. Between these states and the federal
government, there are approximately 5,400 people being held in civil
commitment across the country (Steptoe and Goldet 2016). In Texas, the
number is around 215, which is less than one tenth of one percent of the
total number of people on the sex offender registry in the state (Rafique
2016). Civil commitment is most prevalent in California, Minnesota,
New Jersey, and Florida, but is also practiced in Wisconsin, Illinois, New
York, Kansas, Virginia, Washington, Massachusetts, Iowa, Nevada, Missouri, South Carolina, North Dakota, New Hampshire, Pennsylvania, and
Arizona (Steptoe and Goldet 2016).

Texas residents who are civilly committed are held at the 382-bed
Texas Civil Commitment Center in Littlefield, about 40 miles northwest
of Lubbock. The facility is a former prison, so it looks and feels like one,
with residents living in small rooms with metal bunks and toilets side by
side. The Texas Civil Commitment Center is under the supervision of
the Texas Civil Commitment Office but is run by Correct Care Recovery
Solutions, a private company that operates 12 state hospitals and civil
commitment centers in the United States and Australia (Correct Care
Recovery Solutions 2016).

In Texas, as in many other states, there is a tiered system of privileges
that people in civil commitment can access as they move through the levels
of treatment successfully. Texas has a five-tiered system: the first four tiers
involve inpatient treatment at the Littlefield facility, and the fifth tier is
outpatient, in which program participants return to their communities
under strict regulation and surveillance. Texas’s civil commitment program
was established in 1999 as an entirely outpatient program, the only one of
its kind in the country, with residents scattered at halfway houses across
the state (Rafique 2016; Blaney 2016). However, the program included
hundreds of rules, and by 2015 nearly half of the approximately 350
people civilly committed since 1999 had been reincarcerated due to rule
violations. Not a single person had graduated from the program (Mitchell
2016). As other states began to face lawsuits about the lack of releases from
their civil commitment programs, and Texas faced lawsuits about insufficient treatment and punitive conditions in its own program, the state decided to revamp the civil commitment program. In 2015, the Texas State Legislature passed Senate Bill 746, which made a number of management changes and implemented the tiered system (Whitmire 2015). Then the state hired Correct Care Recovery Solutions and transferred all its civilly committed individuals to the Littlefield facility (Rafique 2016).

Mental Health Implications
In addition to violent sex offending behavior, most states with civil commitment laws require someone to have a “mental disorder or abnormality” to be eligible for civil commitment. A mental abnormality is commonly defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent acts” (Jackson and Hess 2007). In practice, this often refers to a paraphilic disorder, but an individual need not have an official diagnosis
to be civilly committed.

According to the current edition of the Diagnostic Statistical Manual
(DSM-5), the nationally recognized resource for diagnosing mental illness,
people are diagnosable with a paraphilic disorder if they “have a sexual
desire or behavior that involves another person’s psychological distress,
injury, or death, or a desire for sexual behaviors involving unwilling persons
or persons unable to give legal consent” (American Psychiatric Association 2013). Among civilly committed individuals, paraphilic disorders
are the most commonly diagnosed mental illness, followed by borderline
personality disorder and substance use disorders (Jackson and Hess 2007).
Research has also shown that large proportions of people who commit sex
offenses have experienced sexual trauma or abuse themselves (Jesperson et
al. 2009). Neither childhood trauma nor a diagnosed paraphilic disorder
excuses criminal behavior, but understanding the root cause of the behavior
is an important step toward developing effective treatment for those who
commit sex offenses, which is the first stated goal of civil commitment.

The Texas Department of Criminal Justice (TDCJ) reports that it
provides people in civil commitment with the Sex Offender Civil Com-
mitment Treatment Program (SOTP-CC) within 18 months of transfer
from prison to the Texas Civil Commitment Center (Texas Department
of Criminal Justice n.d.). The SOTP-CC is a more intensive version of
what TDCJ provides in prison, which includes 4 to 18 months of treatment, depending on risk level. Given that many sentences for sex crimes are measured in decades, this represents a very small proportion of time in prison spent in treatment. Texas’s treatment program uses evidence-based cognitive behavioral methods, but there is no data available on what percentage of eligible individuals participate in or complete treatment while in prison (National Parole Resource Center 2014). Evidence is also not fully conclusive on what elements of treatment are most effective and for what
kinds of people (Przybylski n.d.). Traditional sex offender treatments have
focused on disclosure of crimes and deviant arousal, but more emphasis
must be placed on healing trauma as well. In addition, the stresses of civil
commitment can contribute to ongoing mental health problems, such as
depression and anxiety, which should be addressed as part of treatment. A
federal judge in Minnesota declared that there was “an emotional climate
of despair” in the state’s civil commitment program after one resident
commented, “The only way to get out is to die” (Chammah 2017).

The basic question that underlies the practice of civil commitment is
whether a propensity to commit violent sex offenses is something one
can recover from. The existence of civil commitment centers in the first
place seems to indicate that the answer is no—otherwise people should
be sufficiently rehabilitated after receiving treatment in prison. If the issue
is that there is not adequate treatment for those with sex offense histories
available in prison, or that they are not completing it during their sentences,
then the solution should be to increase the availability of and requirements for treatment in prison, not to implement civil commitment as a
secondary sentence in order to provide treatment. However, the premise
that anyone will ever be released from civil commitment depends on a
belief that people can be rehabilitated. The courts have indicated that the
ability of civil commitment centers to safely release residents is essential
to the legality of those centers, as well as to the day-to-day mental health
of residents held in civil commitment.

Public Safety Implications
The second stated goal of civil commitment is to protect the public from
future offending, but it is very difficult to tell how much civil commitment
actually improves public safety. Since very few people nationally have ever
been released from civil commitment programs, there is no way to calculate
an accurate recidivism rate. However, the recidivism rate for sex offenses
in general is often misreported and overblown. In a 2002 decision, Justice
Anthony Kennedy, citing an unfounded magazine article, wrote that “the
rate of recidivism of untreated offenders has been estimated to be as high as
80 percent” (Chammah 2017), when in fact research has shown recidivism
rates for sex offenses between 3 and 14 percent, a number much lower
than the recidivism rate for other crimes (Langan et al. 2003).

Of course, supporters of civil commitment would argue that its goal is
to identify those 3 to 14 percent who will recidivate and keep them confined to prevent any further harm to the public. According to an American Psychiatric Association Task Force report, “The tolerance for recidivism is zero” when it comes to public perceptions of sexual offending (Steptoe and Goldet 2016). As if to reinforce the danger of the “sexually violent” individuals in its program, Minnesota reported nearly 50 “assaults, threats, and instances of criminal sexual conduct” toward staff in its civil commitment program between 2010 and 2014. However, in a program of over 700
of the state’s “most dangerous” individuals, this is fewer than 10 incidents
per year—many fewer than occur per capita in prisons (Chammah 2017).
Texas does not release statistics about incidents in its program.

One way to assess the public safety benefits of civil commitment would
be to compare sexual recidivism rates of states that have civil commitment
programs and states in which people who commit sex offenses are released
to the community with supervision and registration requirements. Using
appropriate statistical controls, researchers could potentially isolate the effect of civil commitment on these rates, but this research has not yet been conducted. Most research on civil commitment is focused on avoided crime using predicted rates of recidivism from risk assessments. One study of 105 people civilly committed in Minnesota between 2004 and 2006 found that the Minnesota Sex Offender Screening Tool (MnSOST) predicted that nine percent of people who were civilly committed would reoffend within four years if released to the community. Put another way, the civil
commitment of those 105 people reduced the overall sexual recidivism
rate by 12 percent. The study’s author argued that this small reduction is
not worth the cost to the state of civil commitment and the money used
for civil commitment could be better invested in intermediate community
programs that might protect the public equally well (Duwe 2014).

Several other studies have compared people selected for civil commitment with those who were eligible but not selected. The civil commitment process relies heavily on actuarial risk assessments, such as the MnSOST and the STATIC-99, another common risk assessment for sex offenses.

While one study found that people selected for civil commitment are at
higher risk of reoffending based on MnSOST and STATIC-99 scores
(Calkins Mercado et al. 2011; Levenson 2004), another found that neither
of these assessments has been shown to strongly predict sexually violent
recidivism at all (Boccaccini et al. 2009). Texas uses both of these assessments as well as the Personality Assessment Inventory (PAI), which was also found to be a weak predictor of sexually violent recidivism (Boccaccini et al. 2010). It is difficult to argue that civil commitment prevents sexually violent recidivism when the evidence is not even clear how to predict it.


Legal Implications
Some of the strongest arguments against civil commitment have to do
with its constitutionality. Legal scholars across the political spectrum have
raised concerns related to double jeopardy, lack of due process, and the
possibility of lifetime commitment based on a projection of future danger
(Yung 2013). However, the U.S. Supreme Court upheld the constitutionality of civil commitment three times between 1997 and 2010 (Calkins Mercado 2011). The legality of civil commitment hinges on its use as a rehabilitative function rather than a punitive one. In its 1997 Kansas v. Hendricks decision, the U.S. Supreme Court warned that using the guise of treatment to continue to punish people after they have completed their sentences is a violation of their due process rights (Sullem 2017). Just before
its 2015 reorganization, Texas’s civil commitment program was on shaky
constitutional ground itself, having not released anyone since its inception.
This made it difficult to argue that the program was rehabilitative rather
than punitive and directly led to the efforts to reform it.

In September 2017, the Supreme Court declined to hear a Minnesota
case that alleged the state was violating due process by holding people in
its civil commitment program indefinitely. The program had fully released
1 person in 23 years, leading to de facto life sentences for everyone else.
This point is especially relevant for people who committed their crimes
as juveniles, for whom the Supreme Court has struck down life imprisonment as unconstitutional (Rovner 2017). Thirteen states allow civil commitment for people who committed their crimes as juveniles, including Texas (Steptoe and Goldet 2016).

Civil commitment of people who have committed serious sex offenses
has caught international attention as well. In October 2015, two high
court judges in Britain refused to extradite someone to California because
the possibility that he would be civilly committed was a “flagrant denial
of his rights under the European Convention of Human Rights” (Steptoe
and Goldet 2016). By continuing to hold people in civil commitment
without clear timelines for progression through treatment and eventual
release, Texas is opening itself up to potential lawsuits. SB 746 requires a
tiered program that “provide[s] for the seamless transition of a committed
person from a total confinement facility to less restrictive housing and
supervision and eventually to release from civil commitment,” but it does
not specify any timelines to do so.


Policy Recommendations
Without a Supreme Court ruling striking down civil commitment as
unconstitutional, the 20 states with civil commitment laws will likely continue the practice. However, these states should take guidance from other
states about ways to reduce their reliance on civil commitment. The fact
that many countries outside the United States view civil commitment as
a human rights violation indicates that alternatives are possible while still
maintaining public safety. The following policy recommendations assume
the continued existence of civil commitment but provide a roadmap for
improving and reducing its use. By implementing these recommendations,
policymakers in Texas and across the country could improve the mental
health of people who are civilly committed, maintain public safety for
people in the community, and reduce the possibility of legal challenges.


Mental Health
1) States should reallocate funding from civil commitment to provide comprehensive
and ongoing sex offender treatment while people are in prison, reducing the need
for later civil commitment. Comprehensive and appropriate sex offender
treatment is necessary in prison systems whether or not civil commitment
is also used. For states such as Texas that face frequent budget shortfalls,
shifting funding from civil commitment to treatment provision in prison
is a reasonable tradeoff that places emphasis on the rehabilitative goals of
the criminal justice system.


2) States should provide comprehensive mental health services in civil commitment to treat underlying trauma as well as depression and anxiety associated
with ongoing confinement. Because courts have determined that civil commitment programs must have an eventual goal of releasing people back to
the community, providing appropriate mental health services within civil
commitment centers is a public safety issue as well as a mental health issue.
In order to be safely released, people under civil commitment must have the
opportunity to process underlying trauma and develop coping mechanisms
for living back in the community after years of confinement. This recommendation should not require large amounts of funding, especially if the number of people under civil commitment is reduced.

Public Safety
3) The federal government should fund rigorous research comparing sex offense
recidivism rates for states with civil commitment laws and those without in
order to determine the efficacy of civil commitment in preventing reoffending.
Although criminal justice decisions usually occur at the state level, the most
rigorous research is often conducted nationally, especially when examining
differences between states. The federal government is in a unique position
to fund rigorous research comparing sexual recidivism rates in states with
and without civil commitment laws, and should make this a priority.


4) The federal government should fund continued research on the predictive validity
of sex offense risk assessments and strategies to improve risk prediction. The fact
that civil commitment decisions often hinge on the results of risk assessments
that have not been validated to predict sexually violent reoffending does
not support the stated goal of civil commitment as a mechanism to increase
public safety. The federal government should fund research partnerships
between practitioners and academics to continue developing, testing, and
refining risk assessment instruments, as well as evaluating the instruments
for bias.

Legal
5) States should implement defined timelines for civil commitment residents to
progress through treatment and be released, preventing hopelessness and reducing
the possibility of lawsuits. The Texas State Legislature took important steps in
2015 to recommend that people in civil commitment move steadily toward
release. However, because SB 746 did not include associated timelines, it
lacked an enforcement mechanism. Texas should pass a bill that amends
this process and provides recommended timelines for each tier of the civil
commitment program. Other states that have struggled with releasing anyone from civil commitment, such as Minnesota, may need to create similar
timelines. Otherwise, challenges to civil commitment laws will likely continue
to appear in court.

6) States should prohibit the use of civil commitment for people who committed
their crimes as juveniles in order to avoid the unconstitutionality of de facto life
sentence for these individuals. The 13 states that allow civil commitment for
people convicted of crimes as juveniles are especially susceptible to lawsuits
challenging the constitutionality of this practice. Coupled with scientific
knowledge about the brain development of adolescents, confining young
people indefinitely for crimes they committed before the age of 18 is neither
appropriate nor legal. This policy change would affect only a small number
of people, but policymakers would likely be more receptive to the case for
outlawing civil commitment for juveniles than the cases for other reductions
in civil commitment.


Conclusion
Civil commitment is used in 20 states to provide additional treatment to
those who have committed the most serious sex crimes while preventing
them from committing further crimes in the community. However, the
use of civil commitment raises significant concerns about the availability
of in-prison treatment and the mental health of those held indefinitely
without hope of release. Civil commitment has not been shown to significantly improve public safety, and it raises legal concerns as well. Although Texas took important strides in 2015 to restructure its civil commitment program, there is still significant work to be done. Other states face similar challenges. Based on further research and recommendations from other countries, the ultimate goal may be to eliminate use of civil commitment entirely. In the meantime, the policy recommendations above outline next steps for improving its use. If Texas and other states plan to maintain their
use of the practice, states should implement the recommended reforms
in order to address the mental health, public safety, and legal concerns
related to civil commitment.

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SOURCE: https://jpia.princeton.edu/sites/jpia/files/resource-links/jpia_2018.pdf

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