Tuesday, December 19, 2006

Patient Or Prisoner?

I guess you could say that this post is a teaser for our next podcast. During our taping we (meaning "I") got on a roll about civil commitment for sex offenders. I mentioned something in passing about the history of these laws but since I had already dominated the topic for a bit on the podcast I didn't go into detail about that. I think it's important to have a background on this issue because there are still states trying to pass these laws.

Here's the background:

One of the earliest commitment laws for criminals was adopted in Minnesota in 1939. It was known as the "psychopathic personality" statute and it allowed for commitment of people who suffered from:

'...conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons'.
The statute was promptly and unsuccessfully challenged as unconstitutionally vague and a violation of equal protection in the 1940 case Pearson v Probate. The United States Supreme Court responded: "But we have no occasion to consider such abuses here, for none have occurred." In other words: Nice try but you lose.

In 1997 the United States Supreme Court decided Kansas v Hendricks. Hendricks was an admitted pedophile who was scheduled to be released from prison. He was civilly committed under the state's Sexually Violent Predator Act which allowed for commitment of people with mental abnormalities or personality disorders who were "likely to engage in predatory acts of sexual violence". Hendricks appealed his commitment alleging that the commitment should have been based on "mental illness" rather than "mental abnormality". He also made a claim of double jeopardy---two punishments for one crime. He lost on both counts. The Supreme Court said that it would leave the states to determine their own definition of mental illness, and also said that a civil commitment was not a punishment since the purpose of confinement was beneficent (for treatment).

Within three months of the Hendricks decision the National Association of State Mental Health Program Directors adopted a position statement objecting to the decision. They did not acknowledge sexual paraphilias as a legitimate diagnosable mental illness and objected to the idea that confinement was for the purpose of treatment. Clearly, sex offenders were not welcome in hospitals.

The followup to Hendricks came in the 2002 case Kansas v Crane. Crane was a committed exhibitionist who challenged his confinement because the judge at his commitment hearing did not make any finding about him being unable to control his dangerous behavior. Traditional commitment laws require that the patient be both mentally ill and dangerous. The Sexually Violent Predator Act required that the dangerousness be based on a "difficulty or inability to control" the dangerous behavior. The Kansas Supreme Court overturned his commitment because the trial judge never said Crane was unable to control his behavior. The US Supreme Court found that this interpretation of the statute was overly strict---that it was enough just to show the patient had difficulty or impairment in his behavioral control. Bottom line: courts now had to prove a volitional element during the civil commitment hearings in addition to proving that a mental abnormality existed.

Rapidly coming up to date (and to keep this post shorter), we now have 17 states with commitment statutes. There is considerable variation in the construction of the laws with regard to who makes the release decision and the standard of proof for commitment. The consistent experience with these laws is that hundreds of people have been confined over the past ten years but only a handful have been released. Committed sex offenders are requiring more of each state's budget. Costs for treating sex offenders range from $30,000 to $125,000 per inmate per year, and more is being requested.

The problems with sex offender commitment laws were summarized nicely in this law review article.

Sex offender commitment laws are a failure. They are expensive and ineffective. They consume resources intended for those with serious psychotic illnesses. As states trend away from commitment policies they will likely continue to pursue other options such as enhanced criminal sentences, sex offender registries, mandatory reporting laws and extended home monitoring programs. If sex offender legislation is coming to your region, be aware of these issues.

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By the way, I'm rather disappointed in Time magazine for picking a short grey-haired nun-type nobody as Person of the Year. What were they thinking?

9 comments:

Anonymous said...

no pic/?

ClinkShrink said...

I was hesitant to do a Google image search on "sex offender". Perhaps a picture of a Wii?

Anonymous said...

I wonder how many people with mental illness would voluntarily be hospitalized if they knew they would be housed with convicted sex offenders. I would hope that they at least put the sex offenders in a separate facility. I think that pedophiles do need treatment, and I would support that happening in prison. However, putting them in a psychiatric hospital with patients who have done nothing wrong and who may have themselves been sexually assaulted makes no sense whatsoever.

Alone said...

you have neatly summarized the core legal issues, but perhaps you can elaborate more on the societal impact.

One aspect I fnd most troubling is the idea that if the law is not equipped to handle a group of people, it defaults the problem to psychiatry. The main problem with Kansas is that it asked psychiatrists to determine future risk.

In other words, if society chooses to give psychiatry the power to assess violence and the responsibility to protect society from the violence, then it has to give psychiatry the power to act-- greater ease of commitment, easier to force medicate-- basically, easier to overrule the preson's right to refuse.

I am very much against this-- this parens patriae-- because it is a very slippery slope. E.G. if psychiatrists can protect society from dangerous people with mental abnormality and an impairment in behavioral control through the courts, why not just send them to Guantanamo?

In other words, either we accept that the state can take away our rights even before a crime is committed-- or we don't. But we have to choose.

BTW, with respect to your Time Magazine comment: I made a funny (I thought it was funny, anyway) picture of the Time cover, with a double entendre that I think was too abstruse. But oh well:

http://thelastpsychiatrist.com/2006/12/times_person_of_the_year_is_so.html

ClinkShrink said...

Anonymous, I certainly would think twice about that (voluntary hospitalization). Fortunately the sex offenders are usually in a secure setting, either a unit in a prison or in a secure forensic hospital. Most voluntary psych inpatients don't go to places like that, unless they can't be managed elsewhere (violent, destructive, etc).

Well said Alone; you've added substantial meat to the discussion. The aspect about violence prediction is particularly troublesome. I'm sure there are folks who can comment better on prediction instruments, but my impression is that for the most part they are based on historical variables and as such the level of risk will never change regardless of how many years of inpatient "treatment" you've had.

Regarding the impact on society, I can think of one potentially interesting idea should someone be interested in pursuing it. We have unintentionally created a natural experiment about mandatory universal health coverage. We have a captive (literally) group of people who will be given regular preventive health care for life. Imagine the cost-savings benefit comparison that could be made with a free society age/sex matched sample without health care coverage. We might find out that it saves money to insure everyone. Here in Maryland there was already a study published back in 1987 that showed our prison inmates have lower mortality rates than age-matched men in free society.

On a different note, interesting take on the Times cover and the idea of the Web 2.0 (user-driven content) as the ultimate narcissism. I suppose I should post this as a comment on your blog, but people should check out your link. Just out of curiosity, what about the idea of user-driven content as a means to harness the power of the individual? You didn't really mention that, but I'm thinking about things like disaster response efforts (eg. Katrina donations), public health information sources, etc.

I better stop now, getting too long.

Anonymous said...

That's a relief. I pictured my loved one who has struggled with schizophrenia for many years having to share a room with a pedophile, and that did not make me happy.

Roy said...

Clink, I did put up a comment on Alone's blog (which I am again reminded of the quality, and engaging, posts... check out How to Get Rich in Psychiatry (Steps 6-10)). Making the point that we are indeed each the star of OUR movie... and Web2.0 provides a larger potential screen and even larger potential audience... it's what we do with that potential that could make us Person of the Year, or Worst Person in the World.

ClinkShrink said...

Exactly, Roy. I guess then the only question is how do you know which is which? If you (I) use my big screen to put up cat poetry (or recipes or bad fiction or just neutral links to other stuff) does that qualify us as Good or Bad People of the Year? Or just narcissists? Is it really narcissistic to want to connect to other people, which is what information-sharing does? If so, then I'm a narcissist with every Christmas card I mail and every phone call I make just to chat. Web 2.0 is not necessarily about advertising ourselves, it is about connecting with others. That's how humans are built and it is not pathological.

By the way, maybe I'm missing something but I can't find a "view comments" link on Last Psychiatrist's blog. The black background is a bit tough for me to read so maybe I'm missing it.

The Memory Artist said...

As someone who has been a patient in the mental health system for many years , this controversy over civil committment only recently came to my full attention .
I've been helping a friend of mine with posting articles to her blog which covers all aspects of sexual abuse on a personal , social , and legal level.
We often receive comments from friends and family members of accused as well as convicted sex offenders. They almost always prefer to see the crime as mental health issue rather than a criminal legal issue . Many of them support civil committment - or believe it is even more appropriate than a prison term in the first place.
I've been in hospitals along with patients who have committed sex offenses while on the unit,including rape . It is terrifying to be locked in with patients like that. I shudder to think of the legal system intentionally placing known sex offenders in with any general population . I am glad that so many in the mental health field have stepped up to oppose this plan .

My blog post on this topic can be found here :

http://thememoryartist.blogspot.com/2006/12/my-thoughts-on-civil-commitment-of-sex.html