If the societal goal of sexual predator laws is incapacitation and incarceration of potentially dangerous offenders, the criminal justice system is the appropriate place to pursue that goal. If current criminal justice statutes do not allow for sufficient periods of incarceration because of the widespread repeal of indeterminate sentencing laws, then those statutes should be changed.
This will allow parole boards to assess the rehabilitation and dangerousness of people convicted of sex offenses in the context of other offenders seeking release and prison census concerns, rather than as a mental health issue. Many sexual predator statutes refer generically to people convicted of sex offenses as having a mental illness. However, these special commitment laws were created in part because the persons who are confined under them do not meet the definition of mental illness used in the ordinary civil commitment laws of any of the fifty states.
This means that courts, which must rely on professional expertise, will regularly make mistakes in deciding who should be committed or released, with serious consequences for both the public and the offender. Additionally, many sex offenders are reluctant to participate in treatment because the information which they reveal in treatment is used to prevent their release.
Because of the serious nature of their past crimes, the general ineffectiveness of treatment and fears about the consequences of mistaken releases, people convicted of serious sex offenses are destined to spend a long time away from society. Once confined as a sexual predator, it is difficult if not impossible to be released.
In Karsjens v. Jesson, U.
The court found that some people had been confined for more than twenty years, and not one person had been unconditionally discharged. While Minnesota appears to have the most serious procedural deficiencies, all states make the release of sexual predators much more onerous than ordinary civil commitment in ways that demonstrate and exacerbate the punitive nature of these commitments.
Sexual Predator Legislation Increases Stigma. Linking mental illness with sexually predatory behavior in the public consciousness and in sexual predator statutes fuels the stigma attached to mental illness and to treatment in the mental health system. People with mental health conditions, their families, and advocates have worked for decades to dispel the notion that people with mental illness are violent or dangerous.
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By associating sexually violent behavior with mental illness, these statutes threaten gains that have been made in the perception, understanding, acceptance, and non-discriminatory treatment of people with mental health conditions. Sexual predator statutes distort the meaning and practice of civil commitment. Involuntary civil commitment is very controversial among people with mental health conditions and their families, with some people seeing it as inherently illegitimate because of its coercive nature, and others seeing it as an undesirable but sometimes necessary last resort.
MHA shares the latter view. But the basic rationale of involuntary confinement is that people are found to be dangerous to self or others due to mental illness at the time of the commitment, that they receive treatment until they show that they have regained their competency and are recovering, and that they are then released to continue their recovery voluntarily in the community because they no longer present the imminent danger that they did at the time of the commitment. The essence of the rationale for the curtailment of liberty and privacy inherent in civil commitment is that the confinement is time-limited and paired with a course of treatment.
None of these essential elements is present in the case of a person convicted of a sex offense committed after serving a prison sentence.
Should a juvenile sex offender be locked up indefinitely?
Thus, sexual predator commitments are an abuse of civil commitment. To detain potentially violent people convicted of sex offenses in mental health facilities puts other people with mental health conditions in those facilities at risk. Even secure forensic units have a treatment purpose. To use such units for the detention of offenders who do not have a treatable mental health condition is a threat to the safety and viability of the mental health system and a waste of precious treatment resources.
Sexual predator laws blur the line between the mental health and criminal justice systems in ways that confuse policy makers, including judges, mislead the public and are unfair even to those who, due to their behavior, may be deserving of long-term incarceration. The criminal justice system is intended to punish only those persons who commit crimes of their own free will.
Thus, all but five states provide some form of an insanity defense for those whose crimes are closely related to serious mental illness. And plea bargains can essentially be circumvented by commitment after completion of the stipulated sentence. If a person who has committed a sex offense is in fact not guilty by reason of insanity, it is may be a great disservice to agree to a plea to a lesser criminal offense, since sexual predator laws are likely to result in a longer period of incarceration. Other provisions in the criminal law requiring proof of a specific mental state also contribute to this important protection.
Thus, only those persons who choose to commit a sex offense should be convicted and punished for these offenses. Seling v. Conversely, sexual predator laws are only applied to persons who have already been convicted and served a term of imprisonment, having been found criminally responsible for their sexually violent behavior. Given this contradiction, it is not surprising that these laws were upheld by the Supreme Court by only a one-vote margin in Kansas v. Moreover, the Court remains badly divided over these laws.
In Kansas v. Crane , U. The confusion over whether sex offenders are deserving of punishment as criminals or entitled to treatment due to an illness often carries over to the terms of their incarceration. In some states, sexual predators must be cared for in facilities operated by the state mental health authority in a building which is located inside a prison operated by the state correctional authority.
The United States Supreme Court has demonstrated its own ambivalence about whether these laws are civil or criminal. In upholding the power of the federal government to enact a sex offender commitment law in United States v.
Should a juvenile sex offender be locked up indefinitely? | PBS NewsHour
Comstock , U. But since many of us crave chocolate, how much can we trust our gut instincts? By Joanna Menagh. Photo: Garry Narkle's jail term has expired and prosecutors want to keep him locked up indefinitely. ABC News.
Related Story: Serial sex offender Narkle jailed again. Related Story: Serial sex offender Narkle found guilty. Related Story: Sex offender Narkle refused parole. Key points: WA's dangerous sex offender laws were drafted with Garry Narkle in mind Prosecutors are applying to keep him behind bars under the laws The court has heard Narkle's wife may give evidence in support of him.
Photo: Narkle had shown "a very limited response" to sex offender treatment programs in jail, the court heard. Photo: Garry Narkle's victims include men, women and children.
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